DATIN PADUKA CHE ASMAH IBRAHIM v Kamarul Zaman Bin Haji Yusoff (BA-12BCY-7-10/2024)

whether the Impugned Words meant and were capable of being understood to mean the pleaded Defamatory Imputations;

if so, whether the Defendant was able to prove her defence of justification and fair comment upon a matter of public interest. Meaning of Impugned Words [9] The test involved in determining whether or not the words complained of are defamatory is a two-stage process. Firstly, it must be considered what meaning the words would convey to an ordinary person; and secondly, it must be considered whether under the circumstances in which the words were published, a reasonable man would be likely to understand that in a defamatory way (Raub Australian Gold Mining Sdn Bhd v Hue Shieh Lee [2019] 3 CLJ 729 [ ]; Chok Foo Choo v The China Press Bhd [1999] 1 CLJ 461). This is a question of law that turns upon the construction of the words published. [10] According to the authoritative judgment in Tun Datuk Patinggi [1996] 1 MLJ 393 ( ) on this area of the law: The approach in the construction of the words complained of is to consider the meaning such words would convey to ordinary reasonable persons using their general knowledge and common sense; it is not confined to strict literal meaning of the words but extends to any reference or implication from which persons can reasonably draw (see Jones v Skelton [1963] 3 All ER 952; Kemsley v Foot [1952] 1 All ER 501; Rajagopal v Rajan [1972] 1 MLJ 45 ). It is irrelevant what the publisher intended the words complained of to mean (see Capital & Counties Bank v Henty (1882) 7 App Cas 741; Grubb v Bristol United Press Ltd [1963] 1 QB 309; AJA Peter v OG Nio & Ors [1980] 1 MLJ 226). It is also irrelevant what the readers understood the words complained of to mean for the purpose of deciding their ordinary and natural meaning. (See JB Jeyaretnam v Goh Chok Tong [1985] 1 MLJ 334 ). There is also no necessity for a plaintiff to prove falsity of the words complained of once they are found to be defamatory of him (see Abdul Rahman Talib v Seenivasagam & Anor [1965] MLJ 142. [11] As to who the ordinary reasonable person is, this has been explained by the Federal Court in Lim Guan Eng v Ruslan Kassim & Another Appeal [2021] 4 CLJ 155: [29] The ordinary person has been held to be one of fair average intelligence (see Slayter v. Daily Telegraph Newspaper Co Ltd [1908] 6 CLR 1, who is not avid for scandal (see Lewis v. Daily Telegraph Ltd [1964] AC 234) but who may engage in some degree of loose thinking (see Morgan v. Odhams Press Ltd [1971] 2 All ER 1156) and reading between the lines (see Farquhar v. Bottom [1980] 2 NSWLR 374), but who, at the same time, should not be unduly suspicious (see Keogh v. Incorporated Dental Hospital of Ireland [1910] 2 Ir R 577) . [12] There is no definition of what is considered defamatory, only various formulations of the test. The textbook formulation is any imputation which may tend "to lower the plaintiff in the estimation of right-thinking members of society generally', 'to cut him off from society' or 'to expose him to hatred, contempt or ridicule', is defamatory of him. An imputation may be defamatory whether or not it is believed by those to whom it is published (Syed Husin Ali v Sharikat Penchetakan Utusan Melayu Bhd & Anor [1973] 2 MLJ 56; Raub Australian Gold Mining, both citing Gatley on Libel and Slander). [13] Last but not least, the above principles may only be applied to the published words complained about as pleaded (Raub Australian Gold Mining; Credit Guarantee Corporation Malaysia Bhd v SSN Medical Products Sdn Bhd [2017] 6 CLJ 129 [ ]). As explained in Credit Guarantee Corp: [45] it is settled law that in libel and slander, the very words complained of, whether stated orally or published, are the facts on which the action is grounded. In other words, these are material facts which must be pleaded so that the defendant knows the precise charge against him and is then able to defend himself against it. It is insufficient to merely describe their substance, purpose or effect. It is essential to set out the actual words used so that the court can then decide, as a matter of law, whether the said words whether oral or published give rise to the defamatory imputations alleged (see Harris v. Warre [1879] 4 CPD 125; Abu Samah bin Omar v. Zainal bin Montel [2003] CLJU 501; [2003] 1 LNS 501; [2004] 5 MLJ 377; Lim Kit Siang v. Datuk Dr Lim Liong Sik & Ors [1996] CLJU 106; [1996] 1 LNS 106; [1997] 5 MLJ 523 and Dato' V Kanagalingam v. David Samuels & Ors [2006] 3 CLJ 909; [2006] 6 MLJ 521). [46] The other aspect of pleading in an action in defamation is that where the plaintiff complains of an article, he must specify the offending sections rather than merely pleading the whole article. As Lord Denning MR pointed out in DDSA Pharmaceuticals Ltd v. Times Newpapers Ltd [1972] 3 All ER 417, a pleading is defective if it throws on to the defendant a long article without picking out the parts said to be defamatory. [14] In this case, the Impugned Words are Tak insaf-insaf lagi hamba Allah ini. Yang hairannya setiap bulan ramadhan ada sahaja makar yang the headline of the linked NST Article and the Notice of Apology. The Plaintiff claims to have been defamed, not by the NST Article or interpretations of the controversial topics about which the Plaintiff wrote, but by the Defamatory Imputations he assigned to the s said Impugned Words. Pleading Point [15] The Plaintiff did not plead any part of the NST Article as defamatory and at the risk of repetition, the Plaintiff did not sue the Defendant for its republication. For this reason alone, this Court found that an ordinary reasonable person would not have understood the Impugned Words to mean what the Plaintiff ascribed to them. [16] The ordinary reasonable person would not have imputed that the Plaintiff repeatedly defamed berulang-ulang kali membuat kenyataan-kenyataan yang memfitnah individu lain ). There is nothing in the headline of the NST Article that alludes to any defamation by the Plaintiff. [17] If one clicks on the link and reads the content of the NST Article, it appears that the calls to remove the Plaintiff as a lecturer were made in connection with the Plaintiff having been repeatedly accused of making slanderous remarks. However, the NST Article contained a lot of content and no specific part of the article was reproduced in the Statement of Claim. Objective meaning [18] Apart from the pleading point, the Defendant argued that the Impugned Words are not capable of bearing the pleaded Defamatory Imputations but offered another imputation which acknowledged that the Impugned Words were related to the content of the NST Article, in effect that:

the Plaintiff remained undaunted in making defamatory remarks; and/or

the Plaintiff frequently creates problems with his defamatory statements during Ramadhan. [19] This Court found that both the pleaded Defamatory Imputation and the alternative interpretation of the Impugned Words (when read with the NST Article) stung in the same way i.e. the Plaintiff was being accused of repeatedly defaming others. Defamation is of course a technical legal construct but in Malay, the word is commonly used colloquially and therefore, it generally connotes a wrongdoing. [20] Therefore, being accused as a serial defamer may tend to lower the Plaintiff in the estimation of the ordinary reasonable person. However, the necessary second stage inquiry is whether the ordinary reasonable person would be likely to understand the Impugned Words (read with the NST Article) in that defamatory way, under the circumstances in which the words were published. [21] This Court was of the view that the ordinary reasonable person was more likely to understand the Impugned Words (read with the NST Article) to mean that the Plaintiff has a habit of courting controversy and nothing more. In this day and age, such an imputation is not understood in a defamatory way, that is to say, in a way that would result in the lowering of the Plaintiff in their estimation, cutting him off from society or exposing him to hatred, contempt or ridicule. [22] The Plaintiff has of course, referred to comments by netizens to the evidence of the libellous nature of the Impugned Words, but this Court reviewed the materials and takes the view that the negative reactions about the Plaintiff were not prompted by what the Defendant wrote at all, but by the same cause for the reactions highlighted in the NST Article itself i.e. the subject matter of controversy about which the Plaintiff had written and the accusation that he was stoking religious sensitivities. [23] For completeness, this Court considered the term m used by the Defendant as part of the Impugned Words. It is not part of common daily vocabulary. The word has several dictionary meanings which according to counsel for the It was not obvious which dictionary meaning was intended. The Plaintiff equates is generally understood as deceit, trickery or fraud. [24] The law states that neither what the Defendant meant to say nor what the Plaintiff subjectively understood by the word is relevant. The question this Court must ask is what the ordinary reasonable person would understand by it. Reading the Impugned Words in the context of the NST Article and the Notice of Apology, not be construed in isolation to mean that the Plaintiff carries on deceit, trickery or fraud every Ramadhan. [25] In this regard, the Plaintiff cannot have his cake and eat it too, in cannot be severed from the content of the NST Article and Notice of Apology, and must therefore likely be understood as a negative aspersion in repeated defamation of others. [26] The Defamatory Imputations and those derived from the use of are all derived from the primary sting of the Impugned Plaintif telah berulang-ulang kali membuat kenyataan-kenyataan yang memfitnah individu lain. [27] In Tun Datuk Patinggi, it is well-established that the words complained of must be construed in context and not literally: counsel did, he failed to apply the correct test as discussed earlier on in this judgment on construing the words complained of, but extends to any reference or implication from which persons can reasonably draw. Further, the words complained of must be considered as a whole, bearing in mind, inter alia, the context in which they were used (see Gatley on Libel and Slander (8th edn) para 102 at p 102 and Institute of Commercial Management United Kingdon v New Straits Times Press (Malaysia) Bhd [1992] 3 MLRH [28] As this Court has determined however, the Impugned Words cannot be construed to mean what the Plaintiff pleaded as the alleged Defamatory Imputations but as a general reference to the Plaintiff as someone in the habit of courting controversy which, in the context in which the Impugned Words have tantamount to actionable defamation. [29] In short, this Court found that the Sessions Court was plainly wrong on a question of law in that the Impugned Words under the circumstances in which it was published, were not likely to be understood in a defamatory sense. [30] If this Court is wrong on this, it has also considered the pleaded defences. Defence of Justification [31] At common law, it is well established from cases like Chase v News Group Newspapers [2002] EWCA Civ 1772, that in a defamation claim, the party who pleads justification is only required to establish the that is, the sting of the libel claimed. This is reflected in section 8 of the Defamation Act 1957 which provides as follows: or more distinct charges against the plaintiff, a defence of justification shall not fail by reason only that the truth of every charge is not proved if the words not proved to be true do not materially injure the s reputation having regard to the truth [32] The question is whether it is in substance true that the Plaintiff repeatedly defames others in the colloquial sense ( Plaintif telah berulang-ulang kali membuat kenyataan- ). That is the sting of the defamation complained of. The sting remains whether or not it is said to happen during Ramadhan. There is no need to prove the truth of every word used ( Ismail & Anor v Nurul Izzah Binti Anwar & Anor [2021] 2 MLRA 626, Raja Syahrir Abu Bakar & Anor v Manjeet Singh Dhillon & Other Appeals [2019] 4 MLRA 218). [33] Based on the evidence comprising the Notice of Apology and the Steven Sim, highlighted in the NST Article and not denied by the Plaintiff, this Court finds that the sting of the alleged defamation is in substance and in fact, true. [34] The Plaintiff admitted that he wrote about Steven Sim in an article published during Ramadhan and that Steven Sim had indeed sued him for defamation. This was after the Notice of Apology in an earlier case of defamation from another article published during Ramadhan. It did not matter that claim had not been proven in a court of law. The fact which is not denied, is that the Plaintiff had in his writings, again made statements that were considered offensive this time to Steven Sim - and is therefore colloquial sense. Defence of fair comment [35] The primary reasoning for the creation of the defence of fair comment is the desirability that a person should be entitled to express himself freely about a matter of public interest. To succeed in a defence of fair comment, the Defendant must establish the Impugned Words are comments on a matter of public interest, based on facts and that the comment is one that a fair-minded person can honestly make based on the facts proved Sri Dr Mohamad Salleh bin Ismail & Anor v Mohd Rafizi bin Ramli [2022] 4 MLRA 718). [36] In this case, the Impugned Words were an expression of the Defendant s opinion as it was not within her power to read the state of mind. Whether or not the Plaintiff is unrepentant is not a fact. The Impugned Words were quite obviously a value judgment based on sufficiently indicated facts namely, the case of defamation that resulted in the Notice of Apology and the Member of Parliament, Steven Sim, highlighted in the NST Article and not denied by the Plaintiff. [37] The fact that the comment was based on the NST Article proved and the comment is one that a fair-minded person can honestly make for the reasons set out in paragraph [34] above. [38] It was a fair comment in that there was no proven malice. The burden was on the Plaintiff to prove malice, in the sense of something more than the alleged falsity of Defamatory Imputations, to defeat the defence of fair comment (Tan Sri Dr. Muhammad Shafee Abdullah v Tommy Thomas & Ors [2018] MLJU 1365). On the facts, this Court found that no evidence of malice, and indeed no reason for the Defendant to be malicious since she had been vindicated in her own case of defamation against the Plaintiff. Conclusions [39] The Plaintiff had courted negative reactions on social media as reported in the NST Article because of the subject matter of controversy about which he had written, and in particular, the accusation that he was stoking religious sensitivities. Those reactions had no nexus to the Impugned Words. [40] The court must tread a fine line between free speech and libel. The balance is easily tilted based on wildly subjective sensitivities as to what is offensive and what is not. For the reasons set out in this Judgment, the Impugned Words were not likely to have been understood in a defamatory way by the ordinary reasonable reader when viewed objectively in the circumstances of the publication. [41] Even if this Court is wrong on that, the pleaded sting of the defamation that the Plaintiff repeatedly defames others, is in substance and fact true and/or fair comment on the indicated facts accompanying the Impugned Words. [42] For the above reasons, this Court allowed the appeal, set aside the Judgment of the Sessions Court and ordered costs of RM30,000.00 to be paid by the Plaintiff here and below. Bertarikh : 20 Mei 2025 SGD ELAINE YAP CHIN GAIK PESURUHJAYA KEHAKIMAN MAHKAMAH TINGGI MALAYA SHAH ALAM Peguam Untuk Perayu: Mohamad Reza bin Abu Hassan (bersama Mohamad Nufail Altaf bin Mohd Zaim Munir), Tetuan Raja Riza & Associates Untuk Responden: Mohd Harris Mohan bin Abdullah, The Law Office of