Dato' Dr Low Bin Tick v Datuk Chong Tho Chin (02-72-10/2015(W))

1 RAYUAN SIVIL NO. 02-73-10/2015(W) … … RAYUAN SIVIL NO. W-02-1700-07/2012 … DATUK CHONG THO CHIN … GUAMAN SIVIL NO. S3-23-78-2007 … … 2 RAYUAN SIVIL NO. 02-74-10/2015(W) … … RAYUAN SIVIL NO. W-02-1662-07/2012 … … GUAMAN SIVIL NO. S-23-709-2007 … … 3 RAYUAN SIVIL NO. 02-75-10/2015(W) … … RAYUAN SIVIL NO.W-02-18-01/2013 … … GUAMAN SIVIL NO. S4-23-79-2007 … … 4 RAYUAN SIVIL NO. 02-76-10/2015(W) … RESPONDEN- … RAYUAN SIVIL NO.W-02-1701-07/2012 … RESPONDEN- … GUAMAN SIVIL NO. S4-23-83-2007 PLAINTIF- … … 5 CORAM: AHMAD MAAROP, CJM RICHARD MALANJUM, CJSS HASAN LAH, FCJ RAMLY ALI, FCJ AZIAH ALI, FCJ JUDGMENT OF THE COURT Introduction [1] There are four appeals heard before us. These appeals are against the decision of the Court of Appeal dated 3.12.2014 in Civil Appeal No.W-02-1701-07/2012 which was heard together with Civil Appeal Nos.W-02-18-01/2013, W-02-1662- 07/2012 and W-02-1700-07/2012. [2] The Court of Appeal dismissed the appellant’s appeals (save for interest and costs) and affirmed the decision of the High Court dated 8.8.2012 allowing the respondent’s claims against the appellant for defamation. The High Court awarded general damages, exemplary damages and aggravated damages against the appellant. [3] The respondent’s claims against the appellant were in respect of a police report and letters of complaint lodged by the appellant with the Commercial Crime Division, Kuala Lumpur (‘CCD’), the Disciplinary Board (‘DB’), the Bar Council Malaysia (‘BC’), the Anti Corruption Agency (‘ACA’) and the Registrar of Societies (‘ROS’). 6 Questions of law [4] On 6.10.2015 this court granted leave to appeal on five questions of law which were consolidated by the learned counsel for the appellant as follows:

(ii) whether the issue of authority was a relevant or necessary consideration for absolute privilege to apply?;

(iii) whether the lodging or writing of letter/s of complaint/s to the ROS/ACA/CCD/BC were, prima facie, occasions of qualified privilege?;

(iv) whether malice as contemplated in the authority of Horrocks v Lowe [1974] 1 All ER 662 (“Horrocks”) may be inferred from the failure on the part of the defendant to take steps that he is not obliged to in law for the purpose of defeating the defence of qualified privilege, and

2001. He succeeded the respondent who was the immediate past president of Chinwoo. [6] The respondent is an advocate and solicitor and the founder of the legal firm Messrs T.C. Chong & Rakan-Rakan. The respondent was the President of Chinwoo from 30.6.1991 till 24.6.2001. Prior to that, the respondent was the Vice-President of Chinwoo from 1983 to 1988. He was a member of the Chinwoo Property Committee (CPC) from 1984 and became Chairman of the CPC from 1989 till 1990. He was the Deputy President of Chinwoo from 1989 till 1991. [7] Chinwoo was the registered owner of a parcel of land known as GRT 2643 Lot 27, Section 69, Bandar Kuala Lumpur (‘the Land’). By a resolution made at Chinwoo’s extraordinary general meeting (‘EGM’) on 22.4.1984, the members resolved to enter into a joint venture with one Jiwa Realty Sdn Bhd (‘the Developer’) to develop the Land (the Project). [8] In 1985 and 1986 Chinwoo entered into two sale and purchase agreements with the Developer. Pursuant to the 1985 sale and purchase agreement (the 1985 SPA) Chinwoo agreed to sell the Land to the Developer and in return, according to the 1986 sale and purchase agreement (the 1986 SPA), the 8 Developer agreed to sell 23% of the units developed in the Project to Chinwoo. This reflected the agreed sharing ratio of 23:77. However no development took place. [9] On 30.6.1991 by an Extraordinary General Meeting (EGM), it was decided that the 1985 and 1986 SPAs be revoked and a new agreement be entered with the Developer. The respondent was then the President of Chinwoo. At this EGM it was decided that the total number of units was 669. Chinwoo would purchase 154 units and 159 car park bays. The 154 units represented 23% of the 669 pre-determined total and reflected the sharing ratio 23:77 that had been agreed previously. [10] On 26.3.1992, the 1985 and 1986 SPAs were revoked. On the same date Chinwoo and the Developer entered into two new sale and purchase agreements (the 1992 SPAs). One agreement was for the sale of the Land by Chinwoo to the Developer and the other was for the purchase of one block of 154 units and 159 car park bays by Chinwoo from the Developer. The parties also entered into an additional supplemental agreement on the same date (the Additional Agreement) which contained a new clause allowing the Developer to develop the Land “in whatever manner it may deem fit” (the Free Hand Clause). The Additional Agreement reveals that the Trustees of Chinwoo had agreed to the Free Hand Clause. The respondent was a trustee of Chinwoo then. He was also a member of the Chinwoo Property Committee 9 (CPC). The 1992 SPAs and the Additional Agreement were drawn up by the respondent’s legal firm. [11] On 14.6.1998 the apartment block containing 154 units and 159 car park bays were handed over to Chinwoo. Some members then realized that the 154 units was less than 23% of the agreed sharing ratio because, during the development of the Project, and by virtue of the Free Hand Clause, the Developer had obtained approval from the authorities to build an additional 201 units. Thus the total number of units built was 870 and not 669 units. The members were unhappy that the Developer was given a free hand to develop its portion of the Project as they saw fit which ultimately deprived Chinwoo of 46 units. [12] At the Annual General Meeting (AGM) on 29.6.2003 (the 2003 AGM), a unanimous resolution was passed (the 2003 resolution) directing Chinwoo’s General Committee (GC) to investigate the Project to determine whether there were any irregularities. The GC is the highest decision-making body in between General Meetings of Members. The GC comprises the President, Deputy President, two Vice Presidents and 22 Committee Members. During the debate leading to the resolution, the respondent had suggested that an independent committee be set up to investigate the Project. 10 [13] The 2003 resolution as contained in the minutes of the AGM reads, amongst others, as follows: “….. unanimously directed the new general committee to investigate the real facts of the development of Chinwoo Court, whether what our Association got is fair and conform to the principle win-win, if it is found that something is questionable, get advice from our Association’s legal adviser, contact the relevant department and authorities and take appropriate action.” [14] Subsequent to the 2003 AGM, the GC established an Independent General Committee (ICE) comprising of individuals who were not members of Chinwoo. ICE conducted its investigations based on documents provided by the secretariat of Chinwoo. No member was called for an interview or inquiry. In its qualified report (the ICE report), ICE found, amongst others, that:

30. Dakshnamoorthy and others and another suit [2016] SGHC Goh Lay Khim is the decision of the Singapore Court of Appeal on an appeal from the decision of the High Court in Isabel Redrup Agency Pte Ltd. [27] We have given careful and anxious consideration to the submissions made by learned counsel for the parties. However before we proceed further, we feel that it is necessary to address some issues raised by learned counsel for the respondent before us including his submissions that the case of Lee Yoke Yam shows that police reports per se are merely accorded with the status of qualified privilege. 17 Police report [28] In the case of Goh Lay Khim, one of the issues before the Singapore Court of Appeal was whether absolute privilege covers gratuitous complaints to the authorities. The Singapore Court of Appeal was of the considered view that the balance between freedom of expression and protection of reputation depends on local political and social conditions and held that, in the context of Singapore, gratuitous complaints to prosecuting authorities should be protected by qualified privilege only. In the judgment delivered by Judith Prakash JA, Her Ladyship said: A balance must be struck between the freedom of speech and the protection of reputation. In this regard, the foreign authorities that have been cited in respect of absolute privilege must be viewed with some circumspection since the balance between freedom of expression and protection of reputation depends on local political and social conditions…. It must not be readily assumed that the foreign judicial pronouncements on defamation should apply in our local context without modification. The determination of “necessity” is an exercise that must be carried out in the context of a particular society and its mores, values and expectations of the proper behavior of its members. Her Ladyship said further: In our judgment, in Singapore, the suggested extension to the scope of absolute privilege would be wholly disproportionate to and unnecessary for the aim of encouraging members of the public to report suspected wrongdoings. [29] In Lee Yoke Yam, appellant’s counsel in that case had made submissions similar to the submissions made by respondent’s counsel in the present appeals that police reports 18 are only protected by qualified privilege. In paragraph 21 of the judgment it is stated as follows: [21] Counsel for the appellant submitted that Abdul Manaf bin Ahmad’s case was wrongly decided and urged this court to restore the long standing position that such statement is only protected by qualified privilege. The submissions did not find favour with the Federal Court. The Federal Court agreed with the decision of the Court of Appeal in Abdul Manaf Ahmad v Mohd Kamil Datuk Hj Mohd Kassim [2011] 4 MLJ 346. In that case, Gopal Sri Ram, JCA (as he then was) had said as follows: [4] …..There is no doubt that defamatory statements in police reports must attract the defence of absolute privilege for reasons of public policy. If actions can be brought against complainants who lodge police reports, then it would discourage the reporting of crimes to the police thereby placing the detection and punishment of crime at serious risk….. [30] A police report lodged under s.107 of the Criminal Procedure Code (CPC) and commonly known as a ‘first information report’ (FIR) is a report that is drawn up by a police officer upon receiving information about the commission of an offence. Section 107 of the CPC states as follows:

(1) Every information relating to the commission of an offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction and be read over to the informant. 19 [31] The FIR is made to provide the police early information of criminal activity. In Emperor v Khwaja Nazir Ahmad A.I.R. 1945 P.C. 18, Lord Porter in delivering the judgment of the Privy Council said:

10. In truth the provisions as to an information report (commonly called a first information report) are enacted for other reasons. Its object is to obtain early information of alleged criminal activity, to record the circumstances before there is time for them to be forgotten or embellished, and it has to be remembered that the report can be put in evidence when the informant is examined if it is desired to do so. [32] In the case of In Re: Muthusami Naidu vs Unknown ILR 37 Mad 110; A.I.R. 1914 Madras 472, the question for decision was whether a defamatory statement made by one person regarding another in a complaint presented by the former against the latter is absolutely privileged. The court said as follows: We do not think that a statement in a complaint which initiates a proceeding should be held to be entitled to less privilege than other statements made by parties in the subsequent stages of the proceedings. If the complaint is false, then the defendant would be entitled to prosecute the complainant for preferring a false charge. We think the proper rule to lay down is that a statement contained in a complaint should be held to be absolutely privileged. [33] The Federal Court in Lee Yoke Yam had cited with approval the case of Taylor and Others v Director of the Serious Fraud Office And Others [1999] 2 AC 177; [1998] 4 All ER 801; [1998] 3 WLR 1040 wherein the House of Lords held that persons who take part in the administration of justice require 20 nothing less than absolute immunity from suit. In that case, the defendant had requested the Isle of Man authorities to investigate the part, if any, taken by the plaintiff in a major fraud. No charges were brought against the plaintiff. The plaintiff sought damages in defamation. Lord Hoffmann said: I find it impossible to identify any rational principle which would confine the immunity for out of court statements to persons who are subsequently called as witnesses. The policy of the immunity is to enable people to speak freely without fear of being sued, whether successfully or not. If this object is to be achieved, the person in question must know at the time he speaks whether or not the immunity will attach. If it depends upon the contingencies of whether he will be called as a witness, the value of the immunity is destroyed. At the time of the investigation it is often unclear whether any crime has been committed at all. Persons assisting the police with their inquiries may not be able to give any admissible evidence; for example, their information may be hearsay, but none the less valuable for the purposes of the investigation. But the proper administration of justice requires that such people should have the same inducement to speak freely as those whose information subsequently forms the basis of evidence at a trial. We respectfully agree with the views expressed by Lord Sands in Dunnet vs. Nelson (1926) S.C 769 as follows: It may be unfortunate that a person against whom a charge that is not true is made should have no redress, but it would be contrary to public policy and the general interest of business and society that persons should be hampered in the discharge of their duty or the exercise of their rights by constant fear of actions for slander. 21 [34] For the reasons stated above, we find no ground to depart from the decision in Lee Yoke Yam. It behoves this court to reiterate that, in Malaysia, on public policy consideration, a police report is protected by absolute privilege. Malicious complainant [35] Another issue raised by learned counsel for the respondent is the issue of a malicious complainant. We find that this issue was addressed by Ward LJ in Wescott v Wescott [2008] EWCA Civ 818 (which was cited with approval in Lee Yoke Yam) when His Lordship referred to the judgment of Lord Simon of Glaisdale in the case of D v National Society for the Prevention of Cruelty to Children [1977] 1 All ER 589; [1978] AC 222. We take the liberty of reproducing the relevant passage of the judgment of Ward LJ in Wescott v Wescott as follows: …. The answer to the argument that immunity should not give protection to a malicious informer was tellingly given by Lord Simon of Glaisdale in D v National Society for the Prevention of Cruelty to Children [1977] 1 All ER 589 at 607; [1978] AC 222 at 233: I cannot leave this particular class of relevant evidence withheld from the court (the identity of the informer who gave information of ill treatment of children to the NSPCC) without noting, in view of an argument for the respondent, that the rule can operate to the advantage of the untruthful or malicious or revengeful or self-interested or even demented police informant as much as one who brings information from a high-minded sense of civic duty. Experience seems to have shown that though the resulting immunity from disclosure can be abused, the balance of public advantage lies in generally respecting it. 22 We respectfully adopt the view expressed by Devlin LJ in the case of Lincoln v Daniels [1962] 1 QB 237 where His Lordship said, amongst others, as follows: Absolute privilege is granted only as a matter of public policy and must therefore on principle be confined to matters in which the public is interested and where therefore it is of importance that the whole truth should be elicited even at the risk that an injury inflicted maliciously may go unredressed. Republication [36] Learned counsel for the respondent had also raised concern over the issue of republication of a police report or a statement in a police report. However republication does not arise for our consideration since it is not an issue in these appeals. We will however venture to state that it is trite that a person who repeats another's defamatory statement without privilege may be held liable for republishing the same libel or slander. [37] Reverting to the question posed before us, we have perused the impugned letters in the present appeals. In the case of the appellant’s letter to the ACA, the appellant had alleged probable misuse of power by the respondent as President of Chinwoo and breach of trust. In the letter to the CCD, it is an allegation of probable criminal breach of trust or fraud. In the letter to the ROS, the appellant had alleged negligence on the part of the respondent and the GC based on the ICE report and probable breach of trust and professional ethics. Thus the common vein in these letters is the request for 23 these authorities to carry out investigations and to take action, if appropriate. [38] The ACA, the CCD and the ROS share a common feature in that they are statutorily empowered with investigative powers and to take appropriate action under the law against those who have breached the respective legislations applicable to them. We agree with the submissions by appellant’s counsel that there is no meaningful difference between a complaint or report lodged with the police and a complaint or report lodged with the ACA, the CCD or the ROS. As submitted by learned counsel for the appellant, similar considerations govern the lodging of reports or complaints with the ACA, the CCD and the ROS as the lodging of general police reports. The purpose is to notify these authorities of alleged unlawful conduct and to set an investigation in motion and, if appropriate, to take the necessary action against the alleged wrongdoer. [39] In respect of complaints lodged with the ACA, we agree with the High Court judge in the case of Dato’ Annas Khatib Jaafar v The New Straits Times Press (M) Bhd & Ors [2013] 4 CLJ 96 that ACA reports are akin to police reports (see also Sharifuddin Mohamed & Anor v Dato’ Annas Khatib Jaafar & Another Appeal [2016] 3 CLJ 574; [2016] 1 LNS 1). In respect of a complaint lodged with the CCD, such a complaint is in essence a police report since the CCD is part of the police. With regard to the ROS, the Societies Act 1966 (Act 335) allows the ROS to prosecute for certain offences under the Act (see s.61 of Act 335). 24 [40] In the appellant’s counsel written submissions, the Delhi High Court case of The Punjabi Bagh Cooperative v K.L. Kishwar and Anr. (2002) (61) DRJ 594 was cited in support of the submissions that absolute privilege also extends to the appellant’s letter of complaint to the ROS. In that case, the society and its office bearers had filed a suit for defamation against the defendants, who were members of the society. The defamatory statements were contained in various petitions filed by the defendants with the Joint Registrar of the Cooperative Societies. The second defendant then filed an application seeking rejection of the suit on the ground that the suit was not maintainable because the alleged defamatory statements were made in connection with the affairs of the society and such communications/petitions were privileged communications, so no civil action of defamation will lie. In his judgment Dwivedi J said, amongst others, as follows: ….. If a member of the society has reason to believe that some irregularity, illegality is being committed in the running of the affairs of the society, such member of the society is under a duty to bring it to the notice of the office bearer of the society or other authorities having control over the society. Such member will have an obligation cast on him to bring such things to the notice of the society and vice versa office bearers or other such authorities will be under obligation to receive such complaints and look into them…. …. I think the alleged defamatory statements made by the defendants in their various communications/petitions to the plaintiffs or to the Joint registrar or other authorities having control over the aforesaid Society fall in the category of privileged communications and no action for defamation will be maintainable…. 25 [41] For the reasons that we have set out, we agree with learned counsel for the appellant that the ratio in Lee Yoke Yam ought to be applied to complaints made with the ACA, the CCD and the ROS; consistent with the principle set out therein that the lodging of such complaints are occasions of absolute privilege. Whether the issue of authority was a relevant or necessary consideration for absolute privilege to apply? (Question 2) [42] The courts below found that the appellant had sent the impugned letters without authority or mandate and therefore the defence of absolute privilege and qualified privilege were not available to the appellant. We agree with learned counsel for the appellant that the courts below had misdirected themselves on this issue. [43] The defence of absolute privilege applies where the primary interest is the due administration of justice and the overriding public policy that those who have complaints should be free to make them. The case of Wescott v Wescott shows that even informants are entitled to the benefit of absolute privilege. Ward LJ said as follows: Because society expects that criminal activity will be reported and when reported investigated and, when appropriate, prosecuted, all those who participate in a criminal investigation are entitled to the benefit of absolute privilege in respect of the statements which they make. That applies whether they are informants, investigators, or prosecutors…... 26 In Buckley v Dalziel [2007] EWHC 1025 (Q.B.); [2007] 1 WLR 2933, Eady J said that “… public policy consideration applies with equal validity to those who are mere witnesses and to those who are initial complainants…”. Clearly, these statements negate the requirement of authority/mandate before the defence of absolute privilege can apply. To decide otherwise would be contrary to the principle that underlies the defence of privilege that those who have complaints should be free to make them. [44] Consequently we are unable to agree with the courts below that authority or mandate is a necessary consideration for the defence of absolute privilege to apply. Appeal No.02(f)-75-10/2015(W) Whether the lodging or writing of letter/s of complaint/s to the ROS/ACA/CCD/BC were, prima facie, occasions of qualified privilege (Question 3) [45] In question 1 we have resolved that complaints lodged with the ACA, the CCD and the ROS were occasions of absolute privilege. The only issue remaining for consideration in this question is the appellant’s contention that the letter sent by the appellant to the BC is prima facie an occasion of qualified privilege. [46] Qualified privilege depends on the occasion upon which the communication is made, and not the communication itself. A qualified privilege occasion is an occasion where the person who makes a communication has an interest or a duty, legal, 27 social or moral to make it to the person to whom it is made, and the person to whom it is so made has a corresponding interest or duty to receive it. If the communication were made in pursuance of a duty or on a matter in which there was a common interest in the party making and the party receiving it, the occasion is said to be one of qualified privilege. Whether an occasion is a privileged occasion depends on the circumstances of each case, the nature of the information and the relation of speaker and recipient. It is for the judge alone to determine as a matter of law whether the occasion is privileged (Adam v Ward [1917] AC 309; [1916-17] All E.R. Rep. 157). [47] The appellant herein had sent the letter to the BC because the respondent is an advocate and solicitor. The appellant had requested the BC to look into the complaint that he had sent to the DB regarding irregularities in the development of the Project and to take appropriate action. [48] It was submitted for the appellant that, being the President of Chinwoo at the material time, the appellant had a social and moral duty to make the complaint to the BC which is tasked with the duty to properly manage the affairs of the Malaysian Bar and to take cognizance of anything affecting the Malaysian Bar or the professional conduct of its members (s.47(1) and s.57 of the LPA). The purpose of vesting statutory functions in the BC is the protection of the public and to act in the best interest of the public (seen Swain v Law Society [1982] 2 All ER 827). 28 [49] The English cases of Lincoln v Daniels [1962] 1 QB 237 and Beech and another v Freeson [1971] 2 All ER 854 were referred to in the written submissions of the appellant’s counsel to support the contention that the publication of a complaint to the BC was an occasion of qualified privilege. [50] In the case of Lincoln v Daniels the defendant had claimed absolute immunity in respect of communications sent by him to the English Bar Council alleging professional misconduct by the plaintiff, a Queen’s Counsel. Disciplinary proceedings against barristers were at that time conducted by Benchers of their respective Inns. It was held that initial communications sent to the secretary of the Bar Council alleging professional misconduct by a barrister did not attract absolute privilege, since they were not yet a step in an inquiry before an Inn of Court. Devlin LJ concluded that it was sufficient for complaints to the Bar to be covered by qualified privilege since it was not a practical necessity for complaints about barristers to be channeled through the Bar Council even though it was convenient to do so. In the same case it was held that absolute privilege will apply in respect of disciplinary proceedings conducted by the Benchers of the Inns. Danckwerts LJ said: "I do not think that the absence of a statutory foundation or of some of these features such as the taking of evidence on oath need be fatal to the recognition of a tribunal as a judicial body to which it is necessary in the interests of a proper and complete hearing to attach the protection of absolute privilege. It seems to me that in the case of proceedings which may result in the deprivation of a barrister of the right to practise his profession, it is desirable that a judicial 29 determination of the matters by the Benchers of his Inn should be as free from harassing consequences as that of a military court of inquiry or the proceedings before the Disciplinary Committee of the Law Society." [51] In Beech and another v Freeson, the defendant was a member of Parliament who was informed by one of his constituents that his constituent’s solicitors, the plaintiffs, had grossly mismanaged his constituent’s affairs and the affairs of his relations. The constituent set out his complaints in a long letter to the defendant. The defendant was requested to refer the matter to the Law Society. The defendant wrote a letter to the Law Society and reproduced the complaints. He sent a copy of the letter to the Lord Chancellor. The defendant was sued for libel. The defendant claimed that his publication to the Law Society and the Lord Chancellor were protected by qualified privilege on the ground that as a member of Parliament, he had a duty or interest in passing on his constituent’s complaint and the Law Society and the Lord Chancellor had a reciprocal interest in receiving it. Geoffrey Lane J held that the reciprocal interest or duty of the Law Society in receiving the complaint cannot be in doubt and the publication to the Law Society was the subject of qualified privilege. With respect to the publication to the Lord Chancellor, the judge considered that the Lord Chancellor has no powers of disciplining or punishing a solicitor who misbehaves but the lack of any direct power to discipline or punish does not mean that the Lord Chancellor has no interest in the complaint, because solicitors are officers of the court and the Lord Chancellor is charged with responsibility to ensure that 30 the machinery of justice runs smoothly. He is sufficiently concerned in the proper behavior of solicitors, in solicitors who as potential holders of judicial office, in the expeditious prosecution of litigation and in ensuring that litigants are honestly and conscientiously advised, to give him the necessary interest to protect the communication with qualified privilege. [52] In the present appeals, the appellant, being the president of Chinwoo, is responsible for the proper conduct and management of the affairs of Chinwoo. The members of Chinwoo were unhappy that Chinwoo had been deprived of 46 units which was the agreed sharing ratio of 23:77 in the Project due to the Free Hand Clause included in the Additional Agreement which was drawn up by the respondent’s legal firm. Although the Trustees of Chinwoo had agreed to the Free Hand Clause, the respondent was a trustee of Chinwoo then. [53] The appellant clearly has an interest to forward to the BC for its attention the complaint that he had sent to the DB. The BC has a corresponding interest or duty to receive the communication as the respondent is an advocate and solicitor. We agree with the appellant’s counsel that the letter sent by the appellant to the BC is prima facie an occasion of qualified privilege. Whether malice as contemplated in the authority of Horrocks v Lowe [1974] 1 All ER 662 (“Horrocks”) may be inferred from the failure on the part of the defendant to take steps that he is not 31 obliged to in law for the purpose of defeating the defence of qualified privilege (Question 4) [54] Malice is a necessary element in an action for libel. The law prevents the inference of malice in the publication of statements which are false in fact and injurious to the character of another if such statements are fairly made by a person in the discharge of some public or private duty, whether legal or moral, or in the conduct of his own affairs, in matters where his interest is concerned. It affords a qualified defence depending upon the absence of actual malice (see Toogood v Spyring (1834) 1 CM & R 181, [1834] EngR 363, (1834) 1 CrM & R 181, (1834) 149 ER 1044). [55] The prima facie defence of qualified privilege is not available if it is shown that a defendant has been actuated by actual or express malice or if he has used the occasion for some indirect or wrong motive. In Royal Aquarium & Summer and Winter Garden Society v Parkinson (1892) 1 QB 43 Lopes LJ said: Not only must the occasion create the privilege, but the occasion must be made use of bona fide and without malice. The defendant is only entitled to the protection of the privilege if he uses the occasion in accordance with the purpose for which the occasion arose. He is not entitled to the protection of the privilege if he uses the occasion for some indirect or wrong motive. [56] In the case of Horrocks v Lowe [1974] 1 All ER 662; [1975] AC 135 the House of Lords held that a defendant was malicious if he “misused” the privileged occasion by not 32 speaking out of duty or to protect a moral interest. Lord Diplock said, amongst others, as follows: For in all cases of qualified privilege there is some special reason of public policy why the law accords immunity from suit – the existence of some public or private duty, whether legal or moral, on the part of the maker of the defamatory statement which justifies his communicating it or of some interest of his own which he is entitled to protect by doing so. If he uses the occasion for some other reason he loses the protection of the privilege. ....So, the motive with which the defendant on a privileged occasion made a statement defamatory of the plaintiff becomes crucial. The protection might, however, be illusory if the onus lay on him to prove that he was actuated solely by a sense of the relevant duty or a desire to protect relevant interest. So he is entitled to be protected by the privilege unless some other dominant and improper motive on his part is proved. ‘Express malice’ is the term of art descriptive of such a motive. Broadly speaking, it means malice in the popular sense of a desire to injure the person who is defamed and this is generally the motive with which the plaintiff sets out to prove. But to destroy the privilege the desire to injure must be the dominant motive for the defamatory publication; knowledge that it will have that effect is not enough if the defendant is nevertheless acting in accordance with a sense of duty or in bona fide protection of his own legitimate interest. [57] The courts below had found that the absence of mandate to lodge the complaints is per se sufficient to prove malice. For the appellant it is submitted that a lack of mandate per se does not constitute an indirect motive or the absence of honest belief as the appellant stood to gain nothing from making the complaints. The appellant had testified that he had wanted to carry out his duty as president and wanted the matter to be properly investigated by the proper authorities. The respondent 33 had alleged that the appellant was actuated by malice and that he had an ulterior motive because he had filed six complaints over the same issue within 28 days. [58] The minutes of the 2003 AGM and the GC meeting on 2.11.2004 show that there is sufficient mandate for the appellant to lodge the complaints. In our considered view, the appellant’s mere act of filing the complaints with the various relevant authorities, without more, is insufficient to prove malice. We find that the respondent failed to prove that the appellant was actuated by malice. Conclusion [59] Pursuant to our reasons aforementioned our answers to the questions posed are as follows: