Dato Suki Mee v 1. ) Toi Sin Fatt (AA-22NCvC-68-08/2019)

1.

2.

KAMAL A/L TAMAT …DEFENDANT JUDGMENT 07/07/2022 12:08:07 AA-22NCvC-68-08/2019 Kand. 57 INTRODUCTION [1] The Plaintiff filed this action against the Defendants for an alleged defamatory statement issued by the latter which was then disseminated to 70 individuals who were the indigenous participants in the ‘Rancangan Penyusunan Semula Tapak Pertanian Berkelompok Orang Asli’ at Kg Chinggung, Behrang Ulu, Mukim Hulu Bernam Timur, Daerah Batang Padang, Perak BACKGROUND FACTS [2] The Plaintiff is a businessman and a professional and is practicing as Town Planner. The Plaintiff holds the following positions:- a) Timbalan Presiden Persatuan Siswazah Orang Asli Malaysia; b) Naib-Preseiden Persatuan Pembangunan Orang Asli Malaysia; c) Pengerusi Persatuan Orang Asli Perak; d) Pengeruse Koperasi Orang Asli Perak; e) Pengerusi Yayasan Orang Asli Perak; and f) Ahli Majlis Penasihat Orang Asli Malaysia. [3] The Plaintiff also owns the following companies:- a) Digi Planners; b) Digi Planners Consultancy; c) Tradisi Anggun Sdn Bhd; d) Restu Ternama Sdn Bhd; and e) Gema Consult Sdn Bhd. [4] The Plaintiff was also a shareholder and a director in the following companies together with the 1st Defendant before his dismissal by the 1st Defendant:- a) Fiscal Arena Sdn Bhd (the 2nd Defendant); b) Far Origin Sdn Bhd; c) Goodluck Marketing Sdn Bhd; d) Arena Ria Sdn Bhd; and e) Z.K.S Serangkai Sdn Bhd. [5] The 2nd Defendant was a company incorporated under Companies Act 1965 with registered address at No. 18, Tingkat 1, Jalan Dass, 30300 Ipoh, Perak. The 2nd Defendant had been wound up through the Court of Appeal Judgment dated 22.5.2020 under Civil Appeal No. A-02(NCC)(A)- 961-05/2019. [6] The Plaintiff and the 1st Defendant both own 40% of the shares in the 2nd Defendant, whilst another one known as Arif bin Mat Ariffin holds another 20% of the shares. However, on 15.6.2016, the Plaintiff was dismissed as a director of the 2nd Defendant. The Plaintiff had proceeded to file for the 1st Winding Up Petition against the 2nd Defendant in 2018 which was dismissed in 2019. [7] After the 1st Winding Up Petition was dismissed in 2019, the 1st and/or the 2nd Defendant alleged that they were informed by the 3rd Defendant that he had witnessed the Plaintiff’s employee(s) harvesting the palm fruit belonging to the 2nd Defendant without the 2nd Defendant’s authorisation. The 3rd Defendant had on 10.5.2019 filed a police report regarding the said incident in Behrang Report No. 891/2019 stating, inter alia, as follows:- “…SAYA TERNAMPAK PEKERJA DATUK SUKIMI MEMOTONG BUAH DI KAWASAN LADANG SAWIT YANG SAYA JAGA. APABILA SAYA BERTANYA KEPADA MEREKA MENYATAKAN DATUK SUKIMI YANG MENYURUH KAMI POTONG BUAH KELAPA SAWIT TERSEBUT…” (“The 1st Impugned Statement”) [8] 5 days later, the 1st Defendant had filed a police report Behrang Report No: 923/19 stating as follows:- “PADA 10/5/2019, SAYA TELAH DIMAKLUMKAN OLEH PEKERJA FISCAL ARENA SDN BHD KAMAL A/L TAMAT (NO. K/P: 750415-08-6241) BAHAWA BELIAU TERNAMPAK PEKERJA DATO SUKI MEE (NO. K/P: 641129-08-5325), BEKAS PENGARAH FISCAL ARENA SDN. BHD. TELAH MENUAI BUAH KELAPA SAWIT DI KAWASAN LADANG KELAPA SAWIT KEPUNYAAN FISCAL ARENA SDN. BHD. TANPA KEBENARAN FISCAL ARENA SDN. BHD. DATO' SUKI MEE MEMAKLUMKAN KAMI BAHAWA MEREKA TELAH DIARAHKAN DATO' SUKI MEE BERBUAT DEMIKIAN. TINDAKAN-TINDAKAN TERSEBUT SEUMPAMANYA MENCURI HARTA KEPUNYAAN FICSAL ARENA SDN. BHD. TAMBAHAN LAGI PEKERJA DATO' SUKI MEE JUGA MELARANG PEKERJA FISCAL ARENA SDN. BHD. UNTUK MENUAI BUAH KELAPA SAWIT ATAS LADANG KEPUNYAAN FISCAL ARENA SDN. BHD. SETELAH SAYA MENGETAHUI PERKARA TERSEBUT, SAYA DENGAN SERTA MERTA MENGARAHKAN KAMAL A/L TAMAT (NO. KP: 750415-08-6241) UNTUK MEMBUAT LAPORAN POLIS. NO REPOT BELIAU ADALAH BEHRANG/00691/19. TUJUAN SAYA MEMBUAT LAPORAN POLIS INI ADALAH UNTUK PIHAK POLIS DIRAJA MALAYSIA UNTUK MENYIASAT PERKARA TERSEBUT DAN MENGAMBIL TINDAKAN YANG SEWAJARNYA TERHADAP DATO' SUKI MEE BESERTA DENGAN PEKERJA BELIAU MEMANDANGKAN TINDAKAN MEREKA TELAH MENGANCAM HARTA BENDA KEPUNYAAN FISCAL ARENA SDN.BHD. LAPORAN INI MELINDUNGI KEPENTINGAN SYARIKAT DAN MENJAGA KESELAMATAN PEKERJA SYARIKAT MAKLUMAN SAYA ADALAH SEORANG PENGARAH FISCAL ARENA SDN. BHD. (NO. SYARIKAT: 559074-D) YANG PEMEGANG PAJAKAN DAN PENGUSAHA LADANG KELAPA SAW/T TERMASUK TETAPI TIDAK TERHAD KEPADA HARTANAH-HARTANAH YANG

HS(M) 522, PT 17654, MUKIM HULU BERNAM

HS(M) 512, PT 17644, MUKIM HULU BERNAM

HS(M) 510, PT 17642, MUKIM HULU BERNAM

HS(M) 547, PT 17679, MUKIM HULU BERNAM

HS(M) 537, PT 17669, MUKIM HULU BERNAM

HS(M) 522, PT 17654, MUKIM HULU BERNAM

HS(M) 532, PT 17664, MUKIM HULU BERNAM

HS(M) 528, PT 17660 MUKIM HULU BERNAM KESEMUANYA Dl LADANG KELAPA SAWIT KAWASAN PERTANIAN KG ORANG ASLI CHINGGUNG BEHRANG ULU. SEKIAN LAPORAN SAYA.” (“the 3rd Impugned Statement”) [9] The Behrang Report No: 923/19 also contained the following allegation: “Pekerja Dato’ Suki Mee diarahkan oleh Dato’ Suki Mee untuk melarang pekerja Fiscal Arena menuai buah kelapa sawit atas ladang kepunyaan Fiscal Arena.” (“the 2nd Impugned Statement”) [10] The 1st Defendant had subsequently issued a letter dated 28.5.2019 (“the Letter”) containing the said Impugned Statements attaching therewith the Behrang Report No: 923/19. The 1st Defendant proceeded to disseminate the said letter to 70 individuals who were the indigenous participants in the ‘Rancangan Penyusunan Semula Tapak Pertanian Berkelompok Orang Asli’ at Kg Chinggung, Behrang Ulu, Mukim Hulu Bernam Timur, Daerah Batang Padang, Perak. [11] Having knowledge of the said matter, the Plaintiff had then instructed his solicitor to issue a Notice of Demand to the Defendant demanding an apology from the Defendants for the defamatory statements as well as damages for the total sum of RM5,000,000.00 to be paid by the Defendants to the Plaintiff. The Defendants had however refused, failed and/or neglected to comply with the said Notice of Demand. The Plaintiff had thus filed this action herein. THE LAW [12] Ramli Ali FCJ had summarized the applicable law succinctly in Raub Australian Gold Mining Sdn Bhd (in creditors' voluntary liquidation) v. Hue Shieh Lee [2019] 3 CLJ 729; [2019] 3 MLJ 720 as follows:- “The Law on Defamation [29] Defamation is committed when the defendant publishes to a third person words or matters containing untrue imputation against the reputation of the plaintiff. Liability for defamation is divided into two categories, that of libel and slander. If the publication is made in a permanent form or is broadcast or is part of a theatrical performance, it is libel. If it is in some transient form or is conveyed by spoken words or gestures, it is slander (see: Gatley on Libel and Slander, 9th edn at p. 6). [30] In Ayob Saud v. TS Sambanthamurthi [1989] 1 CLJ 152; [1989] 1 CLJ (Rep) 321, His Lordship Mohamed Dzaiddin J (as he then was) has clearly laid down the necessary procedure in establishing claim for libel (with which we agree), when he said at p. 155: In our law on libel, which is governed by the Defamation Act 1957, the burden of proof lies on the plaintiff to show (1) the words are defamatory; (2) the words refer to the plaintiff; and (3) the words were published. … [31] In other words, the plaintiff must prove three elements of the tort of defamation, which are:

the plaintiff must show that the statement bears defamatory imputations;

(ii) the statement must refer to or reflect upon the plaintiff's reputation; and

(iii) the statement must have been published to a third person by the defendant [33] Whether the words are defamatory lies in the nature of the statement in that it must have the tendency to affect the reputation of a person. Therefore, the question arises in whose eyes the words complained of must have the tendency to affect the plaintiff's reputation. In the Law of Defamation in Singapore and Malaysia, 2nd edn by Keith R. Evans (at p. 10), it is stated that, in applying these various tests, the court must look to a particular control group that is, in whose eyes must the estimation of the plaintiff be lowered before the words are said to be defamatory. In determining the issue, the court does not look to the actual effect of the allegations on the person's reputation, or the meaning of the words actually understood or taken by the listeners (see: JB Jeyaretnam v. Goh Chok Tong [1984] 1 LNS 139; [1985] 1 MLJ 334). It is not enough that the listeners actually take the words in a defamatory sense, for they must be reasonably justified in so understanding the words before they are found to be defamatory (see: The Straits Times Press (1975) Ltd. v. The Workers' Party & Anor [1986] 1 LNS 65; [1987] 1 MLJ 186). … [38] 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 (see: Wong Yoke Kong & Ors v. Azmi M Anshar & Ors [2003] 6 CLJ 559). … [43] The Court of Appeal applied the principle and approach in Jones v. Skelton [1963] 3 All ER 952 and formed the view that it cannot ascribe to the first article the meanings which the appellant wanted the court to do. The Court of Appeal ruled that the first article was not defamatory and not capable of defamatory meaning ie, the article could not expose the appellant to hatred, contempt or ridicule. [44] In coming to that determination, the Court of Appeal relied on the three tests set out in Gatley on Libel and Slander, 12th edn, at p. 7 as follows:

Would the imputation tend to lower the plaintiff in the estimation of right-thinking members of society generally?

(ii) Would the imputation tend to cause others to shun or avoid the claimant?

(iii) Would the words tend to expose the claimant to hatred, contempt or ridicule? [45] The above test is an objective test. In essence, it is a question of law that turns upon the construction of the words published. It is whether, under the circumstances in which the words were published, reasonable men to whom the publication was made, would be likely to understand it in a defamatory or libellous sense. The same test was applied and adopted by the Court of Appeal in Allied Physics Sdn Bhd v. Ketua Audit Negara (Malaysia) & Anor and Other Appeals [2016] 7 CLJ 347. [46] It is an established principle of law that in determining whether the impugned words connate a defamatory meaning, the court must consider the particular circumstance and the context in which the impugned words were used and published (see:

Allied Physics (supra); (ii) Tony Pua Kim Wee v. Syarikat Bekalan Air Selangor Sdn Bhd [2013] 1 LNS 1433 - a decision of the Court of Appeal which was upheld by the Federal Court; and Gatley on Libel and Slander, 9th edn, para. 218 p. 40).” [13] It is trite principle that in a libel action, parts of a publication must not be viewed in isolation but the publication must be read and/or taken as a whole to determine its true meaning and intention. In Keluarga Communication v. Normala Samsudin [2006] 2 CLJ 46; [2006] 2 MLJ 700, Zulkefli Ahmad Makinudin, JCA (as His Lordship then was) at page 708, remarked that: “At the outset, we would state that the test to be applied when considering whether a statement is defamatory of a plaintiff is well settled in that it is an objective one in which it must be given a meaning a reasonable man would understand it and for that purpose, that is, in considering whether the words complained of contained any defamatory imputation, it is necessary to consider the whole article. Gatley on Libel & Slander (10th Ed) on this point at pp 108 and 110, inter alia, states as follows: It is necessary to take into consideration, not only the actual words used, but the context of the words. It follows from the fact that the context and circumstances of the publication must be taken into account, that the Plaintiff cannot pick and choose parts of the publication which, standing alone, would be defamatory. This or that sentence may be considered defamatory, but there may be other passages which take away the sting". "Still on the same point in the case of Charleston v. News Group Newspapers Ltd [1995] 2 AC 65, Lord Bridge of Harwich in delivering the speech of the House of Lords at p 70 had quoted this passage as follows: ... the question here is, whether the matter be slanderous or not, which is a question for the jury; who are to take the whole together, and say whether the result of the whole is calculated to injure the plaintiff's character. In one part of this Publication, something disreputable to the plaintiff is stated, but that is removed by the conclusion; the bane and the antidote must be taken together.” [14] In determining as to whether the words complained of are capable of bearing a defamatory meaning, this court is guided by the principles enunciated by the Court of Appeal through the judgment of Gopal Sri Ram JCA (as he then was) in the case of Chok Foo Choo @ Chok Kee Lian v. The China Press Bhd [1999] 1 CLJ 461; [1999] 1 MLJ 371 where it was held that:- “In my judgment, the test which is to be applied lies in the question: do the words published in their natural and ordinary meaning impute to the Plaintiff any dishonourable or discreditable conduct or motives or a lack of integrity on his part? If the question invites an affirmative response, then the words complained of are defamatory. (See JB Jeyaretnam v. Goh Chok Tong [1984] 1 LNS 139; [1985] 1 MLJ 334.) Richard Malanjum J, in an admirable judgment in Tun Datuk Patinggi Haji Abdul-Rahman Ya'kub v. Bre Sdn Bhd & Ors [1995] 1 LNS 304; [1996] 1 MLJ 393, collected and reviewed the relevant authorities upon this branch of the subject and I would, with respect, expressly approve the approach adopted by him.” [15] Reference was further made to the case of Syed Husin Ali v. Sharikat Penchetakan Utusan Melayu Bhd & Anor [1973] 1 LNS 146; [1973] 2 MLJ 56 where his Lordship Mohamed Azmi J (as he then was), quoting Gatley on Libel and Slander, 6th edn, p. 4 had stated as follows:- “There is no wholly satisfactory definition of a defamatory imputation. Any imputation which may tend 'to lower the plaintiff in the estimation of rightthinking 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." Further, at p. 14, para 31, Gatley says: A defamatory imputation is one to a man's discredit, or which tends to lower him in the estimation of others, or to expose him to hatred, contempt or ridicule, or to injure his reputation in his office, trade or profession, or to injure his financial credit. The standard of opinion is that of right-thinking persons generally. To be defamatory an imputation need have no actual effect on a person's reputation; the law looks only to its tendency. Thus, the test of defamatory nature of a statement is its tendency to excite against the plaintiff the adverse opinion of others, although no one believes the statement to be true. Another test is: would the words tend to lower the plaintiff in the estimation of right-thinking members of society generally?” [16] Guided by the above authorities and having considered the exact words and the Impugned Statements as a whole as they appear in the letter dated 28.5.2019, I am of the considered view that the words, in their natural and ordinary meaning, are defamatory of the Plaintiff. [17] Having considered the words in the Impugned Statements objectively in context, it is however in my considered finding that a reasonable person when reading the said Impugned Statements, would have understood the words to mean:-

That the Plaintiff is a thief;

That the Plaintiff lacks credibility and integrity;

That the Plaintiff is a dishonest person;

That the Plaintiff tends to direct his employees to act in contravention of the law;

That the Plaintiff is not trustworthy;

That the Plaintiff was prone to unlawful conduct; and

That the Plaintiff is not fit to be the leader of the indigenous community. [18] The fact that the 1st Defendant had through the 2nd Defendant issued the Letter containing the Impugned Statements and had the same disseminated to the 70 indigenous participants of the ‘Rancangan Penyusunan Semula Tapak Pertanian Berkelompok Orang Asli’ was not disputed. Publication of the words was thus established. [19] The fact that the impugned statements refer to the Plaintiffs is crystal clear and incontrovertible. The Plaintiff’s name was expressly stated in the Impugned Statements. [20] Therefore, the Court holds that the Plaintiff have established the elements of the tort of defamation, on the balance of probabilities, against the Defendants. THE DEFENDANT’S DEFENCE [21] It was the Defendant’s pleaded defence that the Impugned Statements made against the Plaintiff were true in substance and/or in fact and that investigation had been carried out by the police. The Defendant’s defence was clearly one of justification. [22] Reference was made to the decision of Mary Lim JCA (as her Ladyship then was) in Raja Syahrir Abu Bakar & Anor v. Manjeet Singh Dhillon & Ors [2019] 4 CLJ 301, where her Ladyship stated:- “[54] First, the defence of justification, a complete defence if the defendants can establish that the defamatory words are true in substance and in fact. Such defence however, has to be specifically pleaded with full and clear particulars of the facts and matters relied on. In considering this defence, s. 8 of the Defamation Act 1957, where it is relied on, as is the case here, must be taken into account. Section 8 provides that a defendant who is unable to prove the truth of all the material statements in the alleged libel may nevertheless succeed in the defence of justification where the defendant can show that the words not proved to be true or truthful do not materially injure the plaintiff's reputation. It is the truth of the imputations of the overall statement and not the truth of every word that is material - see Chong Swee Huat & Anor v. Lim Shian Ghee t/a L & G Consultants & Education Services [2009] 4 CLJ 113.” [23] In essence, the defence of justification requires the Defendants to prove the same to be true in substance or materially different from truth as was held in the case of Dato' Seri Mohammad Nizar Jamaluddin v. Sistem Televisyen Malaysia Bhd & Anor [2014] 3 CLJ 560 where Abang Iskandar JCA (as His Lordship then was) in delivering the judgment of the court had stated as follows:- “Again, perhaps we should go back to what in essence is required to be established by a defendant who is desirous of putting up a defence of justification in facing up a defamation suit. In relying on the defence of justification the burden of proof is on the defendant to prove that the allegations made are true or are substantially true. The defendant must prove it on the balance of probabilities, that is, the allegation is more likely than not to be true. For example, an allegation published by repeating a rumour cannot be justified by proving that there was such a rumour. A defendant is required to prove the substance of the allegation. Since the burden of proving the truth of an allegation is on the defendant, claimants enjoy a distinct advantage in defamation claims. Justification has to be used with great care. It can often be difficult to obtain sufficient admissible evidence to persuade the judge that the statement is true. This will sometimes result in the media being unable to publish allegations which are generally believed to be true, but which they may not be able to prove to the standard required in court. Further, an unsuccessful defence of justification is likely to increase the level of any damages awarded.” [24] The duty thus behoves on the Defendants to justify the Impugned Statements by proving their precise truth and every defamatory fact as alleged. The Defendants cannot merely rely on their honest belief that the Impugned Statements were true. In the Supreme Court case of S. Pakianathan v. Jenni Ibrahim & Another Case [1988] 1 CLJ 771; [1988] 1 CLJ (Rep) 233 Wan Hamzah SCJ (as he then was) had stated as follows:- “The burden lies upon the defendant to establish justification. The burden does not lie on the plaintiff to prove that the defamatory words are false, because the law presumes this in his favour: Bett v. Lawes [1882] 51 LJQB at p. 361. To establish justification the defendant must prove that the defamatory imputation is true. It is not enough for him to prove that he believed that the imputation was true: Peters v. Brodlaugh [1884] 4 TLR 467. At the trial of this action the appellant did not make a serious attempt to prove justification. On the contrary, at the end of his examination-in-chief he stated: "I still do not know where all the money is ". So his plea of justification fails.” (Emphasis added) [25] On the issue of pleading as raised by the Plaintiffs, O. 78 r. 3(2) of the Rules of Court 2012 requires that the plea of justification must be specific as to which parts of the statements were said to be the truth. It is in my observation that, from the point of pleadings right to actual proof, the Defendants’ defence was defective as the Defendants had not identified and/or particularised which part of the Impugned Statements enjoyed protection of justification (see the case of ABU HASSAN HASBULLAH v. ZUKERI IBRAHIM [2018] 3 CLJ 726; [2017] 1 LNS 1754). [26] Furthermore, having carefully scrutinised all evidence before me, particularly the testimonial evidence of the 3rd Defendant who claimed to have witnessed the wrongful conduct carried out by the Plaintiff’s employees, this court finds it to be wholly insufficient to prove the truth of the Impugned Statements made. The Impugned Statements were statement of facts which were not true and/or not verified to be true prior to the Defendants having published the same. It is thus in my considered finding that the defence of justification had not been made out by the Defendants. DEFENCE OF ABSOLUTE PRIVILEGE [27] The Defendants claimed that the Impugned Statements in police report attracts the defence of absolute privilege as stated in the Federal Court case of Lee Yoke Kam v. Chin Keat Seng [2012] 9 CLJ 833 where it was held as follows:- “[20] In 2008, the issue came for consideration of the Court of Appeal in the case of Abdul Manaf Ahmad v. Mohd Kamil Datuk Hj Mohd Kassim [2009] 2 CLJ 121. In that case it was held that the defence of absolute privilege should also be extended to statement made in a police report under s. 107 of the CPC for reasons of public policy. In delivering the judgment of the court, Gopal Sri Ram JCA (later FCJ) said: [3] When this appeal was called on, the attention of counsel on both sides was drawn to the decision of the Court of Appeal of the Federated Malay States in Martin Rheinus v. Sher Singh [1949] 1 LNS 49, where it was held that a statement made by a person to a police officer in the course of police investigation is absolutely privileged. In the course of his judgment, Willan CJ referred, without any criticism, to the observation of the trial judge in that case as follows: He [the trial judge] held, however, that the statement was absolutely privileged, and, after citing several Indian cases, decided 'that no distinction can be drawn between the privilege which must be accorded to an information given to a police officer under section 107 of the Criminal Procedure Code and to a statement recorded by a police officer under section 112 '. [4] It is implicit from Martin Rheinus v. Sher Singh that both statements made in first information reports under s. 107 of the Criminal Procedure Code and in police statements made under s. 112 thereof are absolutely privileged for the purpose of the law of defamation. I consider this to be good law. And I find support for the view I take of the matter from the decision of several Indian cases including Bapalal & Co v. V Krishnaswami Iyer AIR [1941] Mad 26. That was a case in which a letter of complaint to the police by the defendant alleging that the plaintiff had committed a crime was held to be absolutely privileged and therefore not actionable. By reason of what I have said thus far, I am unable to agree with the view expressed in Hoe Thean Sun & Anor v. Lim Tee Keng [1999] 1 CLJ 187, that a defamatory statement in a police report is only protected by the defence of qualified privilege. It is apparent from the report of that case that the decision in Martin Rheinus v. Sher Singh was not brought to the attention of the High Court. 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. The criminal law readily provides for a remedy against persons who make false police reports. (emphasis added) [32] Premised on the above, we agree with the decision of the Court of Appeal in Abdul Manaf Ahmad (supra) that on public policy consideration, absolute privilege should be extended to a statement contained in a police report lodged under s. 107 of the CPC as in the case of statement made under s. 112 of the CPC. The underlying reason behind this, is the overriding public interest that a member of the public should be encouraged to make police report with regard to any crime that comes to his or her notice. Such a report is important to set the criminal investigation in motion. With such report, the alleged crime may be investigated and the perpetrator be brought to justice. It is without doubt that public interest should override the countervailing consideration that this may sometime lead to an abuse by a malicious informant. In any event, if a false report is lodged by a complainant, he is liable to be prosecuted for making false report under s. 177, s. 182 or s. 203 of the Penal Code. That we believe provides a sufficient safeguard against any person from making a false report.” (Emphasis added) [28] It must be noted that the ambit of absolute privilege in respect of police reports is not without its limits as illustrated in the case of Noor Azman Azemi v. Zahida Mohamed Rafik [2019] 3 CLJ 295 where Azahar Mohamed FCJ in delivering the judgment of the court had held as follows:- “[47] In our opinion, there is no valid reason of public policy why the maker of a police report should be free from accountability by way of defamation action to publish the defamatory words contained in the police report to the world at large. As a matter of public policy, there is no sufficient basis or necessity to expand the ambit of the absolute privilege protection to cover the subsequent publication of the report to the world at large. In that situation, the right of the maker of the police report to speak and write freely to the public at large cannot override an individual’s interest in protecting his reputation. To be more specific, the absolute privilege must at some point give way to protection against reputational damage that it cannot override the individual’s right to have access to the courts to seek a remedy for the defamation on him (see Doris Chia’s Defamation, Principles and Procedure in Singapore and Malaysia, 2016 edn at para. 9.6 for a useful discussion on the factors which the court may take into account in deciding if a communication would be protected by absolute privilege). [51] It follows therefore that on the question of law posed, we conclude that subsequent publication of a police report by its maker to the public at large is not protected by absolute privilege, save where the contents of the police report were made in or in connection with judicial proceedings. In consequence, our answer to the question is in the negative.” [29] The same principle was also adopted in a more recent Federal Court case of Nor Aziz Mat Isa v. Sun Teoh Tia (SAC) & Ors [2021] 1 ILR 481; [2021] 3 CLJ 186 where it was held as follows:- “[24] We respectfully adopt Lord Cooke’s speech. Absolute privilege should not be given any wider meaning than is absolutely necessary in the administration of justice. Any extension of absolute privilege must be “viewed with the most jealous suspicion and resisted unless its necessity is demonstrated”. In the Australian case of Mann v. O’Neill (1997) 145 ALR 682, Brennan CJ, Dawson, Toohey and Gaudron JJ had considered the policy considerations for the extension of absolute privilege to such complaints and concluded in their joint judgment that: It may be that the various categories of absolute privilege are all properly to be seen as grounded in necessity, and not on broader grounds of public policy. Whether or not that is so, the general rule is that the extension of absolute privilege is “viewed with the most jealous suspicion, and resisted, unless its necessity is demonstrated”. Certainly, absolute privilege should not be extended to statements which are said to be analogous to statements in judicial proceedings unless there is demonstrated some necessity of the kind that dictates that judicial proceedings are absolutely privileged. [25] In our considered opinion, there is no public policy consideration to recognise that the defence of absolute privilege is automatically invoked when a police report is lodged and there could be no action whatsoever be taken against the maker, like a disciplinary proceedings in the instant case. Furthermore, it has not been demonstrated in the present case of the necessity for the appellant to make the impugned statements in the said police report. The impugned statement was made from ill will and improper motives, or causelessly and wantonly for the purpose of injuring the IGP. In fact, the police lodged by the appellant is not for the purpose of actually reporting crime, or to enforce obedience to the law, or to see that guilty people are punished but for the purpose of tarnishing the image another individual.” (Emphasis added) [30] Bearing the above principles in mind and returning to the facts of the present case, the 1st Defendant had through the 2nd Defendant issued a letter attaching the 2 police reports containing the Impugned Statements and had the same disseminated to at least 70 individuals. There was clearly an act of subsequent publication to third parties in respect of the police reports containing the Impugned Statements. It follows therefore that subsequent publication of the Police Reports by the Defendants to the third parties is not protected by absolute privilege. DAMAGES [31] The Federal Court in Datuk Harris Mohd Salleh v. Datuk Yong Teck Lee & Anor [2018] 1 CLJ 145 at 209 held as follows: “[76] The tort of defamation exists to protect, not the person or the pocket, but reputation of the person defamed (see Jameel per Baroness Hale [2006] 4 All ER 1279 at 1322]. In Chin Choon v. Chua Jui Meng [2005] 2 CLJ 569, the Court of Appeal said at p 573: In Defamation Law, procedure & Practice by Price & Duodu (3rd Edition) para 20-04 at p 208) the learned authors set out the several factors that a court must take into account in assessing compensatory damages. This is what they say: The amount of damages awarded in respect of vindication and injury to reputation and feelings depends on a number of factors:

The gravity of the allegation;

The size and influence of the circulation;

The effect of the publication;

The extent and nature of the claimant's reputation;

The behaviour of the defendant;

The behaviour of the claimant; This list is most helpful. But it must be borne in mind that this is not by any means exhaustive of the matters which the court may take into account when making an assessment.” [32] Based on the authorities cited above, and the extend of the publication of the Impugned Statements, the seriousness of the defamation, the Plaintiffs’ reputation and standing and the effect of the statement to their dignity. Consequently, this court entered judgment for the Plaintiff against the Defendants in terms of prayers (a), (b), (c), (d), (e),

(f), (g), (h),(i) and (j). [33] In terms of prayer (k) this court order that damages for the total sum of RM50,000.00 be paid by the Defendants to the Plaintiff in equal share. This court further order Interest on the judgment sum at 5% per annum from the date of judgment to the date of full realization of the same. [34] On the counterclaim by the 2nd Defendant, with the findings of this court as above, I hereby dismissed the 2nd Defendant’s counterclaim. Costs of this action of RM25,000.00 to be paid by the Defendants to the Plaintiff. Dated: 07.07.2022 -signed- (ABDUL WAHAB BIN MOHAMED) JUDGE HIGH COURT OF MALAYA IPOH, PERAK Peguamcara: Tetuan Gavin Jayapal bagi pihak Perayu Peguamcara & Peguambela No. 25-5 Blok H, Jalan PJU 1/37

03.78872173 Emel: gavin@gavinjayapal.com Ref: GAV.312 Peguamcara: Dato Dominic Selvam dan Cik Darshini) Tetuan V C Chung & Wong bagi pihak Responden Peguamcara dan Peguambela No. 12, Medan Istana 3 Bandar Ipoh Raya 30000 Ipoh Perak Ref: