DATUK HARRIS MOHD SALLEH … APPELLANT v DATUK YONG TECK LEE (Sued in his personal capacity and as an officer of the 2nd Respondent) (02(f)-100-12/2014(S))

… RESPONDENTS 15 [IN THE MATTER OF THE COURT OF APPEAL OF MALAYSIA 20 CIVIL APPEAL NO. S-02-691-03/2012 Between

… 1ST APPELLANT 25 (Sued in his personal capacity and as an officer of the 2nd Respondent)

… 2ND APPELLANT 30 … RESPONDENT] 35 2 IN THE HIGH COURT IN SABAH AND SARAWAK AT KOTA KINABALU SUIT NO. K22-128 OF 2010-1 5 BETWEEN … PLAINTIFF 10

…

… 2ND DEFENDANT 15 CORAM: 20 RAUS SHARIF, CJ AHMAD BIN HAJI MAAROP, CJM HASAN BIN LAH, FCJ ABU SAMAH BIN NORDIN, FCJ 25 AZIAH BINTI ALI, FCJ 30 3 GROUNDS OF JUDGMENT [1] In this judgment the parties will be referred to as they were in the proceeding in the High Court. 5 [2] This case concerns the Plaintiff’s appeal against the decision of the Court of Appeal on 18.11.2013 reversing the decision of the High Court which had, on 29.2.2012 allowed the Plaintiff’s claim for libel against the Defendants, and awarded the Plaintiff a global sum of RM1 million for compensatory, aggrieved and exemplary damages. 10 [3] The leave to appeal to this Court was granted on the following question: “Whether the defence of qualified privilege can be invoked by 15 the 1st Respondent against any person who relied on information which truthfulness or accuracy is doubted and/or which is already known to the public.” [4] The background facts leading to the present appeal are these. Both 20 the Plaintiff and the First Defendant are the former Chief Ministers of Sabah. The Second Defendant is a political party. The suit which is the subject matter of this appeal was triggered by a speech delivered by 4 Tengku Razaleigh Hamzah (“Tengku Razaleigh”) at the Hongkod Koisan KDCA Penampang, Sabah on 2.4.2010. The speech was published in the Daily Express on 4.4.2010 with the caption “Invite saved my life: Razaleigh”. The topic of the speech was “Minyak Sabah Untuk Siapa?”. The relevant parts of the speech are as follows: 5 “Apabila cakap hal minyak dan Sabah, tak dapat tiada saya mesti mengingat kembali peristiwa yang amat sedih yang berlaku di sini yang menimpa rakyat Sabah dan negeri Sabah terutama sekali. Saya ingat dalam bulan Jun tahun 76, satu kemalangan besar 10 berlaku di Sabah. Umur saya panjang, orang kenalan saya yang saya sanjung tinggi umurnya pendek. Allahyarham Yang Amat Berhormat Tun Fuad Stephens dan anaknya sekali dengan pemimpin-pemimpin yang lain dari negeri Sabah dan juga pegawai-pegawai dari negeri Sabah dan dari kerajaan pusat 15 bersekali dengan setiausaha sulit saya telah menjadi mangsa nahas apabila jatuhnya kapal terbang yang dinaiki mereka. Saya sendiri sudahpun menaiki pesawat berkenaan bersekali dengan Tun Rahman Yaakob dan bersama-sama dengan saya melawat Labuan dan juga Sabah ketika itu dan dengan Almarhum Tengku 20 Arif Bendahara Pahang. Kita semua sudah "strapped" dah pakai tali pinggang kapalterbang. Saya duduk di belakang Allahyarham Tun Fuad Stephens, sebelah kanan saya Tun Rahman Yaakob, sebelah belakang saya Tengku Arif Bendahara Pahang. Tiba-tiba Datuk Harris yang pada masa itu menjadi Timbalan Ketua Menteri 25 Sabah mengajak saya keluar dari kapalterbang, kerana dia kata elok kita ke Pulau Banggi melihat rancangan belaan sapi dari Australia di Pulau Banggi. Saya pun ajak Tun Rahman Yaakob dan Tengku Arif Bendahara bersama dengan saya turun kerana saya 5 kata elok juga kita ikut Datuk Harris ke Pulau Banggi kerana saya nak tengok rancangan bela sapi, kita panggil lembu, di Pulau Banggi. Jadi kita pun ikut Datuk Harris ikut kapal terbang jenis yang sama Nomad, kita pergi ke Pulau Banggi.” 5 [5] In this regard, it is common ground that the First Defendant made two statements on 4.4.2010 and 9.4.2010 respectively [“the impugned statements”] in the context of the revelation by Tengku Razaleigh that minutes before the Nomad aircraft was due to take off from the Labuan airport, and when he was already strapped to his seat, the Plaintiff came 10 over and invited him to visit Pulau Banggi, Kudat to see a cattle farm project. The aircraft later crashed near Sembulan, Kota Kinabalu, killing all on board including the newly appointed Chief Minister, the late Tun Fuad Stephens and more than half of the Berjaya Cabinet Ministers. As the tragedy occurred on 6.6.1976, some call it double six tragedy and 15 some others call it triple six tragedy. In the trial in the High Court and in the judgment of High Court, the learned trial judge referred to it as the double six tragedy. After the passing of Tun Fuad Stephens, the Plaintiff, who was then the Deputy Chief Minister of Sabah, took over as the Chief Minister, the post of which he held on until his Berjaya Party was defeated 20 in the Sabah State Election in 1985. 6 [6] Latching on to the speech by Tengku Razaleigh, the First Defendant issued a statement on 4.4.2010 which was published in the Daily Express on 5.4.2010 under the caption “SAPP WANTS FILE ON TRIPLE SIX TRAGEDY PROBE REOPENED” [“the first statement”]. The statement reads: 5 “The opposition Sabah Progressive Party (SAPP) has called for the investigation file on the June 6, 1976 Nomad air crash that claimed the lives of leading Sabah politicians including newly-elected Chief Minister Tun Fuad Stephens to be re-opened to remove all doubts 10 about the true causes. Its President Datuk Yong Teck Lee said Tengku Razaleigh Hamzah's first hand account of how he left the ill-fated aircraft at the very last moment that saved his life also opens up old 15 speculation of how the plane crashed in Sembulan. How we remember the past shapes how we look at today's Sabah. It is for this reason that SAPP repeats our call for the lifting of the ban on the book 'Golden Son of the Kadazan' about a prominent 20 victim in the crash, Datuk Peter Mojuntin. It is also time to reopen the investigation in the June 6, 1976 air crash so that all doubt about the true causes of the crash are removed. 25 Prior to Razaleigh's revelation he said the people in Sabah had relied on word of mouth and other indirect sources. He said the 1976 book "The Politics of Federalism, Syed Kechik in East 7 Malaysia" had described Razaleigh as the "point man" in engineering and funding the defeat of Usno Alliance by Party Berjaya in 1976. Syed Kechik (now deceased) had, in the book, said that the late 5 Tun Mustapha felt that future generations of Sabahans might later criticize his surrender of the State's wealth to the Federal Government, and he wanted the clause "in perpetuity" be removed from the petroleum agreement. 10 Now that this fact has been reliably corroborated by a surviving, credible leader (Razaleigh) of the time, Sabahans will gain a better understanding of the political and economic relationship between Sabah and the Federal Government, he said.” 15 [7] On 7.4.2010, the Plaintiff issued a press statement of his own disputing the accuracy of the accounts given by Tengku Razaleigh, and challenged the Defendants to repeat their remarks and accusation more specifically and openly. The First Defendant accepted the challenge by causing to be published in the same newspaper a second statement 20 captioned “BASIS TO REOPEN DUE TO NEW INFO: YONG” dated 9.4.2010 [“the second statement”]. The statement reads: “Sabah Progressive Party (SAPP) President Datuk Yong Teck Lee said it is to be expected that the people will want to re-examine 25 the June 6, 1976 air crash in light of Tengku Razaleigh Hamzah's memory of the tragedy. 8 Responding to former Chief Minister Datuk Harris Salleh’s response to his call to re-open the investigation, Yong said Razaleigh was trying to tell the people something from the past in view of his revelation on the moment before the Nomad aircraft 5 took off from Labuan. Normally, it is proper to re-open an investigation into an old incident if new information surface. In this case, the new information is Razaleigh's version of event that has been put on public record for 10 the first time. Maybe nothing new will come out of the re-investigation. Or maybe something big and explosive will surface from the depths of history. 15 Yong said historians and forensic scientists regularly re-examine past accidents, crime and unexplained incidents. Issues like the Kennedy, Martin Luther King and Benazir Bhutto assassinations and the Lady Diana death and many other cases 20 are the subject of continuous study, he said.” [8] The Plaintiff testified that he was embarrassed and distressed when the First Defendant issued the second statement which to the Plaintiff meant that the First Defendant disbelieved his version of events. The 25 Plaintiff contended that the first statement and the second statement could be understood to mean that he must be investigated because he had conspired with others: 9

(i) The learned judges of the Court of Appeal erred in law and in fact when their Lordships ruled that the learned trial judge had 15 incorrectly applied the law on the defence of qualified privilege to the facts of the case and/or that the Defendants were not actuated by malice in making the defamatory statements despite the clear evidence and/or history of bad blood between the parties; and 20 15

4.4.2010, the ‘information’ that was published by the First Defendant on 5.4.2010 and 9.4.2010 was not mere repetition – it was information that Tengku Razaleigh’s revelation was new and justified an inquiry, and that an inquiry had been called for by the First Defendant, who was the leader of a political party. These elements had obviously not been known to the 5 public until the First Defendant’s two press statements. [33] On the Reynolds ten point tests suggested by Lord Nicholls, it was submitted that the tests were met. The submission made is as follows: 10 1. Seriousness. If it was defamatory at all, this was a level 4 case, of defamation by implication. The Plaintiff had identified himself and had assumed the risk when he defamed the First Defendant and challenged him to repeat a non-defamatory call for an inquiry. There was no allegation of mass murder or 15 that the Plaintiff had “blood on his hands”.

The extent to which the subject matter was of public concern. To a very great extent, still, in Sabah, the deaths of its Chief Minister and many of his cabinet are still of public 20 concern. 33

Source. There could be no suggestion that the original source, Tengku Razaleigh, had an axe to grind. Nor did the “Daily Express”, in publishing on 4.4.2010 the report of Tengku Razaleigh’s revelation. 5 4. Steps Taken to Verify. The Court of Appeal was satisfied that the First Defendant had made enquiries to verify that Tengku Razaleigh had made the revelation.

Status of the Information. It was fresh evidence, and had 10 never been investigated. It came from a credible person – Tengku Razaleigh.

Urgency. News is perishable, and the First Defendant as a political leader was right to comment as soon as possible. He 15 was, moreover, incited and provoked by the Plaintiff’s attack on him on 7.4.2010 to make his second press statement.

Whether comment was sought from the Plaintiff. This was unnecessary because the Plaintiff had given his version of 20 events on 7.4.2010. No approach was necessary. 34

Did it contain the gist of the Plaintiff’s story? The answer is in the affirmative because the four articles – on 4.4.2010,

5.4.2010, 7.4.2010 and 9.4.2010 must be considered together. The Plaintiff gave his story in detail on 7.4.2010. 5 9. Tone. Here, Lord Nicholls plainly indicated that Reynolds protected calls for an investigation – and that was exactly what the First Defendant called for.

Circumstances. This would include the continuing public 10 doubts and rumours about causes of the crash; the dramatic and sudden nature of Tengku Razaleigh’s revelation; the First Defendant’s political role as President of a party with elected representatives in calling for a measure of good government, and of course the fact that the First Defendant’s first statement 15 was non-defamatory and he issued his second only after being defamed by the Plaintiff and incited to repeat his call.” OUR DECISION 20 [34] First, the question is whether the Reynolds privilege defence was pleaded by the Defendants. As a starting point, we refer to Syarikat Bekalan Air Selangor Sdn Bhd v. Tony Pua Kiam Wee [2015] 8 CLJ 35 477, where in its judgment this Court referred to the House of Lords’ judgment in Reynolds concerning the development of qualified privilege for publication of defamatory statements in the public interest. This is what Azahar Mohamed FCJ, speaking for the Court said: 5 “[23] This then brings us into sharp focus the very important English House of Lords case of Reynolds v. Times Newspapers Ltd (supra) concerning qualified privilege for publication of defamatory statements in the public interest. This much quoted case provides a good starting point. It is worth to set out the essential background 10 facts. In that case, Mr Reynolds had been the Prime Minister of Ireland, until a political crisis in 1994. He began proceedings for defamation against the Times, the publisher of an article contained in the British mainland edition of a national newspaper. The publication related to an article to the effect that Mr Reynolds had 15 misled the Irish Parliament. Mr Reynolds claimed that the words complained of bore the meaning that he had deliberately and dishonestly misled the Parliament and his cabinet colleagues. The Times pleaded, inter alia, the defence of qualified privilege at common law. At the trial the jury returned a verdict in Mr Reynolds's 20 favour and he was awarded damages. The Court of Appeal set aside the jury's verdict and ordered a retrial on the ground of misdirection to the jury. The court also ruled that the publication was not covered by qualified privilege. The Times appealed, contending that the courts should recognise a generic qualified 25 privilege encompassing the publication by a newspaper of political matters affecting the people of the United Kingdom. 36 [24] The House of Lords rejected this contention and held that the common law should not develop a new subject matter category of qualified privilege whereby the publication of all political information would attract qualified privilege whatever the circumstances, since that would fail to provide adequate protection 5 for reputation. It was held that it would be unsound in principle to distinguish political information from other matters of public concern. The House of Lords agreed that the traditional ambit of qualified privilege should be extended somewhat and that it was available in respect of political information upon application of the 10 established common law test of whether there had been a duty to publish the material to the intended recipients and whether they had had an interest in receiving it. The decision marked a decisive departure from the traditional pro-reputation orientation of defamation law in England and was quickly recognised as a 15 "media-friendly development" (see Grant v. Torstar Corp 2009 SCC 61). As a result of Reynolds v. Times Newspapers Ltd (supra) there is now a much more extensive protection for publications to the world at large where the matter is of sufficient public concern. This is known as Reynolds privilege. Lord Hoffman in Jameel And 20 Another v. Wall Street Journal Europe [2007] 1 AC 359, on the other hand said it might be more appropriately be called Reynolds public interest defence.” [35] Lord Hoffmann in his judgment in Jameel And Another v. Wall 25 Street Journal Europe [2007] 1 AC 359, described this defence as the Reynolds public interest defence. Under this defence there is no question of the privilege being defeated by proof of malice because the propriety of 37 the conduct of the Defendant is built into the conditions under which the material is privileged and the burden is on the Defendant to prove the requirements of the defence are satisfied: “[46] Although Lord Nicholls uses the word “privilege”, it is clearly 5 not being used in the old sense. It is the material which is privileged, not the occasion on which it is published. There is no question of the privilege being defeated by proof of malice because the propriety of the conduct of the Defendant is built into the conditions under which the material is privileged. The burden is 10 upon the Defendant to prove that those conditions are satisfied. I therefore agree with the opinion of the Court of Appeal in Loutchansky v Times Newspapers Ltd (No 2) [2001] EWCA Civ 1805 at [35], [2002] 1 All ER 652 at [35], sub nom Loutchansky v Times Newspapers Ltd (Nos 2, 3 and 5) [2002] QB 783 that 15 ‘Reynolds privilege’ is ‘a different jurisprudential creature from the traditional form of privilege from which it sprang’. It might more appropriately be called the Reynolds public interest defence rather than privilege.” 20 [36] In Syarikat Bekalan Air Selangor, following Jameel and Seaga v Harper [2008] 1 All ER 965, this Court held that, the public interest defence should by no means synonymous with journalists or media publications. On the ground of public interests, the defence should in the same way be extended to anyone who publishes or discloses material of 25 public interest in any medium to assist the public better comprehend and make an informed decision on matters of public interests which affect their 38 lives. To safeguard the extension of this privilege, so that it is not abused, as a necessary balance, it is the duty of the Court to robustly ensure that anyone accorded with the privilege meet the test of responsible journalism. This, underpins the significance of protecting the right of freedom of expression on the matter of public interests, whilst at the same 5 time providing adequate protection for reputation. Freedom of expression is not absolute. [37] Reverting to the appeal before us, we are unable to accept the Plaintiff’s contention that the Defendants could not invoke the Reynolds 10 public interest defence. In their pleading, the Defendants contended that the impugned statements were made on a matter of public interests, namely the investigation into the real cause of the plane crash on 6.6.1976 which took the lives of the late Tun Fuad Stephens and other State Ministers and officials who were then travelling with him. The Defendants 15 averred that the public would like to know, inter alia, why the Plaintiff did not board the plane; whether it was the Plaintiff who at the very last moment requested Tengku Razaleigh and two others to leave the plane and if so, why? Further, the Defendants contended that the First Defendant being a responsible politician, was under a legal, moral and/or 20 social obligation to publish the words in the impugned statements. 39 [38] As we have said, in his submission in reply, the learned counsel for the Defendants submitted at length in support of his contention that the words in the impugned statements were not defamatory, and even if they were defamatory, they were of the lower level – namely that the Plaintiff might conceivably be involved in a crime related to the crash of the plane. 5 However, the Court of Appeal accepted the correctness of the learned trial judge’s ruling that the impugned statements were defamatory and the defence of justification did not avail the Defendants. It allowed the Defendants’ appeal because it found that the defence of qualified privilege was not properly considered by the learned trial judge, and that the law 10 on the subject of qualified privilege was not properly applied by His Lordship’s to the facts of the case. This is what the Court of Appeal said: “9. Whilst we have no reason to question the correctness of His Lordship's ruling that the statements were defamatory and 15 that the defence of justification did not avail the appellant, we allowed this appeal because we are satisfied that the defence of qualified privilege was not properly considered by the learned trial Judge and the law on the subject not properly applied to the facts of this case.” 20 [39] In this regard, it is important to note that the Defendants did not prefer any cross appeal against that aforesaid decision of the Court of Appeal. It is too late in the day for the Defendants to regurgitate the issue 40 as to whether the impugned statements were defamatory. More importantly, we have, on our part, considered all the evidence in this case and the findings of the Courts below. We find no reason to disturb the findings of both the Courts that the impugned statements were defamatory of the Plaintiff. 5 [40] As it is clear from paragraph 38 of this judgment, the sole ground upon which the Court of Appeal allowed the Defendants’ appeal was because it found that the defence of qualified privilege was not properly considered by the learned trial judge, and that the law on the subject of 10 qualified privilege was not properly applied by His Lordship to the facts of this case. [41] In paragraph 12 of its judgment the Court of Appeal said the law on the defence of qualified privilege has been refined to protect disclosures 15 by the maker of a statement so long as the maker is able to satisfy the Court that it is in the interest of the public to receive frank and uninhibited communication of particular information. The Court of Appeal said that Lord Nicholls expounded this defence in terms of his judgment in the House of Lords in Reynolds which the Court of Appeal then quoted. If 20 the statement of the Court of Appeal was intended to refer to the defence of qualified privilege as it evolved as a Reynolds public interest defence 41 [or simply as Reynolds defence], then what was said by the Court of Appeal at the beginning of paragraph 12 of its judgment was not sufficient to establish the public interest defence. To establish public interest defence two elements need to be established, namely, (i) It is in the public interest that the impugned statements be made; (ii) The First Defendant 5 had acted responsibly in publishing the statements [the responsible journalism element]. More of this later when we deal with the said defence in a greater detail. The passage in the judgment of Lord Nicholls quoted by the Court of Appeal in paragraph 12 of its judgment is as follows: 10 “The requirement that both the maker of the statement and the recipient must have an interest or duty draws attention to the need to have regard to the position of both parties when deciding whether an occasion is privileged. But this should not be allowed 15 to obscure the rationale of the underlying public interest on which privilege is founded. The essence of this defence lies in the law's recognition of the need, in the public interest, for a particular recipient to receive frank and uninhibited communication of particular information from a particular source. That is the end the 20 law is concerned to attain. The protection afforded to the maker of the statement is the means by which the law seeks to achieve that end. Thus the Court has to assess whether, in the public interest, the publication should be protected in the absence of malice. In determining whether an occasion is regarded as privileged the 25 Court has regard to all the circumstances: see, for example the 42 explicit statement of Lord Buckmaster LC in London Association for Protection of Trade v. Greenlands Ltd [1916] 2 AC 15 at 23, [1916-17] All ER Rep 452 at 456 ('every circumstance associated with the origin and publication of the defamatory matter'). And circumstances must be viewed with today's eyes. The 5 circumstances in which the public interest requires a communication to be protected in the absence of malice depend upon current social conditions. The requirements at the close of the twentieth century may not be the same as those of earlier centuries or earlier decades of this century. 10 Privilege and publication to the world at large Frequently a privileged occasion encompasses publication to one person only or to a limited group of people. Publication more widely, to persons who lack the requisite interest in receiving the information, is not privileged. But the common law has recognised 15 there are occasions when the public interest requires that publication to the world at large should be privileged. In Cox v. Feeney [1863] 4F & F 13 at 19, 176 ER 445 at 448 Cockburn CJ approved an earlier statement by Lord Tenterden CJ that 'a man has a right to publish, for the purpose of giving the public 20 information, that which it is proper for the public to know. Whether the public interest so requires depends upon an evaluation of the particular information in the circumstances of its publication. Through the cases runs the strain that, when determining whether the public at large had a right to know the particular information, 25 the Court has regard to all the circumstances. The Court is concerned to assess whether the information was of sufficient value to the public that, in the public interest, it should be protected by privilege in the absence of malice”. 30 43 [42] That passage in Lord Nicholls’s judgment referred to by the Court of Appeal occurs when His Lordship traced the development of the traditional defence of qualified privilege. Indeed, immediately prior to that passage His Lordship referred to the element of reciprocity in the principle 5 underlying the defence – to the effect that there must exist between the maker of the statement and the recipient some duty or interest in making the communication, for which the often-quoted dictum of Lord Atkinson in Adam v. Ward [1917] AC 309 at 334, [1916-17] All ER Rep 157 at 170 was referred to. It appears to us therefore that in paragraph 12 of its 10 judgment, the Court of Appeal was directing its mind to the traditional defence of qualified privilege. This is reinforced by what it said in paragraphs 13-14 of its judgment when it held: “[13] In our judgment, in the face the facts set out in paragraph 11 15 above and applying the law expounded by Lord Nicholls, the appellant's statements were issued on a privileged occasion since the respondent had a duty or, at the least, an interest as a politician and the leader of a political party to communicate to the public at large through his first and second statements, the contents of the 20 Tengku Razaleigh's revelations and to call for the fresh inquiry into the causes of the crash. In our judgment, a careful examination of the reason advanced by His Lordship in refuting proof of the first ingredient of this defence was merely to conclude that: 44 “similarly in the present case the defendants had no duty to communicate the information to the press and neither the press nor the world at large had common interest to receive the information in the way it was presented by the 1st defendant was in truth and substance an insinuation of 5 criminal conduct on the part of the Plaintiff.” With respect, the law is settled that the fact that the statement is defamatory does not prevent the occasion from being a privileged occasion. Whether the appellant abused the occasion by being actuated by malice so as to deprive the occasion from being a 10 privileged one, is an entirely different issue. MALICE [14] We now propose to examine the facts to ascertain whether the appellant was actuated by malice.” 15 [43] Malice, if established by the Defendants, will defeat the privilege. This is the traditional form of qualified privilege (See Jameel, per Lord Hoffmann at paragraphs 46 and 50 [2006] 4 All ER 1279). We hasten to add that sub-topic “Malice” in the judgment of the Court of Appeal contains paragraphs 14 to 22 in which it dealt with the issue of malice before 20 holding at paragraph 23 that the Defendants succeeded in establishing the defence of qualified privilege. 45 [44] Reverting to Lord Nicholls’s judgment in Reynolds, His Lordship then spoke of striking an appropriate balance between the freedom of expression and the protection of reputation: “Likewise, there is no need to elaborate on the importance 5 of the role discharged by the media in the expression and communication of information and comment on political matters. It is through the mass media that most people today obtain their information on political matters. Without freedom of expression by the media, freedom of expression would be a hollow concept. The 10 interest of a democratic society in ensuring a free press weighs heavily in the balance in deciding whether any curtailment of this freedom bears a reasonable relationship to the purpose of the curtailment. In this regard it should be kept in mind that one of the contemporary functions of the media is investigative journalism. 15 This activity, as much as the traditional activities of reporting and commenting, is part of the vital role of the press and the media generally. Reputation is an integral and important part of the dignity of 20 the individual. It also forms the basis of many decisions in a democratic society which are fundamental to its well-being: whom to employ or work for, whom to promote, whom to do business with or to vote for. Once besmirched by an unfounded allegation in a national newspaper, a reputation can be damaged for ever, 25 especially if there is no opportunity to vindicate one's reputation. When this happens, society as well as the individual is the loser. For it should not be supposed that protection of reputation is a matter of importance only to the affected individual and his family. Protection of reputation is conducive to the public good. It is in the 30 46 public interest that the reputation of public figures should not be debased falsely. In the political field, in order to make an informed choice, the electorate needs to be able to identify the good as well as the bad. Consistently with these considerations, human rights conventions recognise that freedom of expression is not an 5 absolute right. Its exercise may be subject to such restrictions as are prescribed by law and are necessary in a democratic society for the protection of the reputations of others. The crux of this appeal, therefore, lies in identifying the 10 restrictions which are fairly and reasonably necessary for the protection of reputation. Leaving aside the exceptional cases which attract absolute privilege, the common law denies protection to defamatory statements, whether of comment or fact, proved to be actuated by malice, in the Horrocks v. Lowe sense.. This common 15 law limitation on freedom of speech passes the 'necessary' test with flying colours. This is an acceptable limitation. Freedom of speech does not embrace freedom to make defamatory statements out of personal spite or without having a positive belief in their truth. 20 In the case of statements of opinion on matters of public interest, that is the limit of what is necessary for protection of reputation. Readers and viewers and listeners can make up their own minds on whether they agree or disagree with defamatory 25 statements which are recognisable as comment and which, expressly or implicitly, indicate in general terms the facts on which they are based. With defamatory imputations of fact the position is different 30 and more difficult. Those who read or hear such allegations are 47 unlikely to have any means of knowing whether they are true or not. In respect of such imputations, a plaintiff's ability to obtain a remedy if he can prove malice is not normally a sufficient safeguard. Malice is notoriously difficult to prove. If a newspaper is understandably unwilling to disclose its sources, a plaintiff can be 5 deprived of the material necessary to prove, or even allege, that the newspaper acted recklessly in publishing as it did without further verification. Thus, in the absence of any additional safeguard for reputation, a newspaper, anxious to be first with a 'scoop', would in practice be free to publish seriously defamatory 10 misstatements of fact based on the slenderest of materials. Unless the paper chose later to withdraw the allegations, the politician thus defamed would have no means of clearing his name, and the public would have no means of knowing where the truth lay. Some further protection for reputation is needed if this can be achieved without 15 a disproportionate incursion into freedom of expression. This is a difficult problem. No answer is perfect. Every solution has its own advantages and disadvantages. Depending on local conditions, such as legal procedures and the traditions and 20 power of the press, the solution preferred in one country may not be best suited to another country. … As highlighted by the Court of Appeal judgment in the present case, the common law solution is for the court to have 25 regard to all the circumstances when deciding whether the publication of particular material was privileged because of its value to the public. Its value to the public depends upon its quality as well as its subject-matter. This solution has the merit of elasticity. As observed by the Court of Appeal, this principle can be 30 applied appropriately to the particular circumstances of individual 48 cases in their infinite variety. It can be applied appropriately to all information published by a newspaper, whatever its source or origin. Hand in hand with this advantage goes the disadvantage of 5 an element of unpredictability and uncertainty. The outcome of a court decision, it was suggested, cannot always be predicted with certainty when the newspaper is deciding whether to publish a story. To an extent this is a valid criticism. A degree of uncertainty in borderline cases is inevitable. This uncertainty, coupled with the 10 expense of court proceedings, may 'chill' the publication of true statements of fact as well as those which are untrue. The chill factor is perhaps felt more keenly by the regional press, book publishers and broadcasters than the national press. However, the extent of this uncertainty should not be exaggerated. With the enunciation of 15 some guidelines by the court, any practical problems should be manageable. The common law does not seek to set a higher standard than that of responsible journalism, a standard the media themselves espouse. An incursion into press freedom which goes no further than this would not seem to be excessive or 20 disproportionate. The investigative journalist has adequate protection. … … 25 The common law approach does mean that it is an outside body, that is, some one other than the newspaper itself, which decides whether an occasion is privileged. This is bound to be so, if the decision of the press itself is not to be determinative of the propriety of publishing the particular material. The court has the 30 advantage of being impartial, independent of government, and 49 accustomed to deciding disputed issues of fact and whether an occasion is privileged. No one has suggested that some other institution would be better suited for this task.” [45] At pages 625-627, Lord Nicholls set out his conclusion. The 5 following passage in His Lordship’s judgment which contains the 10 point tests is the foundation of the Reynolds public interest defence: “My conclusion is that the established common law approach to misstatements of fact remains essentially sound. The common law 10 should not develop 'political information' as a new 'subject-matter' category of qualified privilege, whereby the publication of all such information would attract qualified privilege, whatever the circumstances. That would not provide adequate protection for reputation. Moreover, it would be unsound in principle to 15 distinguish political discussion from discussion of other matters of serious public concern. The elasticity of the common law principle enables interference with freedom of speech to be confined to what is necessary in the circumstances of the case. This elasticity enables the court to give appropriate weight, in today's conditions, 20 to the importance of freedom of expression by the media on all matters of public concern. Depending on the circumstances, the matters to be taken into account include the following. The comments are illustrative only.

4.4.2010 with caption “Invite saved my life: Razaleigh”. However, even after giving maximum latitude to editorial judgment, we find that it was not necessary to embellish and spice up what Tengku Razaleigh had revealed in his speech with insinuation of the Plaintiff’s possible complicity in the commission of a criminal act. Tengku Razaleigh merely said that, 5 “Apabila cakap hal minyak dan Sabah, tak dapat tiada saya mesti mengingat kembali peristiwa yang amat sedih yang berlaku di sini yang menimpa rakyat Sabah dan negeri Sabah terutama sekali. Saya ingat dalam bulan Jun tahun 76, satu kemalangan besar berlaku di Sabah. Umur saya panjang, orang kenalan saya yang saya sanjung tinggi 10 umurnya pendek. Allahyarham Yang Amat Berhormat Tun Fuad Stephens dan anaknya sekali dengan pemimpin-pemimpin yang lain dari negeri Sabah dan juga pegawai-pegawai dari negeri Sabah dan dari kerajaan pusat bersekali dengan setiausaha sulit saya telah menjadi mangsa nahas apabila jatuhnya kapal terbang yang dinaiki mereka. Saya 15 sendiri sudahpun menaiki pesawat berkenaan bersekali dengan Tun Rahman Yaakob dan bersama-sama dengan saya melawat Labuan dan juga Sabah ketika itu dan dengan Almarhum Tengku Arif Bendahara Pahang. Kita semua sudah ‘strapped’ dah pakai tali pinggang kapal terbang. Saya duduk di belakang Allahyarham Tun Fuad Stephens, 20 sebelah kanan saya Tun Rahman Yaakob, sebelah belakang saya Tengku Arif Bendahara Pahang. Tiba-tiba Datuk Harris yang pada masa 61 itu menjadi Timbalan Ketua Menteri Sabah mengajak saya keluar kapal terbang, kerana dia kata elok kita ke Pulau Banggi melihat rancangan belaan sapi dari Australia di Pulau Banggi. Saya pun ajak Tun Rahman Yaakob dan Tengku Arif Bendahara bersama dengan saya turun kerana saya kata elok juga kita ikut Datuk Harris ke Pulau Banggi kerana saya 5 nak tengok rancangan bela sapi, kita panggil lembu, di Pulau Banggi. Jadi kita pun ikut Datuk Harris, ikut kapal terbang jenis yang sama Nomad, kita pergi ke Pulau Banggi.” Tengku Razaleigh was merely expressing his sadness upon recalling the double six tragedy which had taken the lives of some of his most revered friends and recounting how he and two others 10 alighted from the fatal flight minutes before its take-off on the invitation of the Plaintiff which saved his life. Tengku Razaleigh did not say anything or even hint about the cause of the crash. Tengku Razaleigh did not even hint let alone call for a reinvestigation into the crash. But the First Defendant went beyond what Tengku Razaleigh had mentioned in his 15 speech, and speculated, and embellished Tengku Razaleigh’s speech with insinuation of the Plaintiff’s possible complicity in criminal act of multiple murders. [50] For the Defendants it was contended that the impugned statements 20 were neutral in nature, in that in calling for the opening up of reinvestigation, the First Defendant merely said, “maybe nothing new will 62 come out of the investigation.” However, the First Defendant did not stop there. Not only did he add “or may be something big and explosive will surface from the depth of history”, he had spiced it up with references to the assassinations of John F. Kennedy, Martin Luther King and Benazir Bhutto. We are at pains to fathom how the inclusion of the defamatory 5 statements had made any contribution [let alone real contribution] to the public interest element in the publication [i.e. the air crash]. In our judgment, contrary to the finding of the Court of Appeal, the inclusion of the defamatory statements was not justified. At paragraph 21 of its judgment, the Court of Appeal, while still deliberating on the question 10 whether the inclusion of the defamatory statements in the publication by the First Defendant was justified, ruled that applying Lord Hoffmann’s pronouncement in paragraph 51 of his judgment in Jameel as aforesaid to the facts before it, the First Defendant’s call for reinvestigation made “a real contribution to public interest element in the article”. The Court of 15 Appeal criticized the learned trial judge in answering this question [the public interest question] in the negative, in doing which, according to the Court of Appeal, the learned trial judge was unduly influenced by his earlier finding that Tengku Razaleigh’s revelation was untrue because it was in conflict with the versions to be found in the two books, namely, 20 “Harris Salleh of Sabah” and “The Sabahans – The Life and Death of Tun Fuad Stephens” [which the First Defendant admitted as his reference 63 books]. According to the Court of Appeal, the answer to the question [whether the inclusion of the defamatory statements was justified] ought to have been determined by the application of the three of the ten points tests propounded by Lord Nicholls in Reynolds. This is what the Court of Appeal said: 5 “[21] Applying Justice Hoffman's pronouncements to the facts of this case, in our judgment, the appellant's call made "a real contribution to the public interest element in the article". The learned trial judge in answering this question in the negative was, 10 in our judgment, unduly influenced by His Lordship's earlier finding that Tengku Razaleigh's revelations were untrue because they were in conflict with the version to be found in the two books. In our judgment, the answer to this question ought to have been determined by the application of three of the ten points test 15 propounded by Justice Nicholls in the Reynolds v. Times Newspapers Ltd (supra). The first test related to the seriousness of the allegation. The principle being the more serious the charge, the more the public is misinformed and the individual harmed, if the allegation is not true. Secondly, the fifth test which related to the 20 status of the information. The principle being that the call for the re-opening of the investigations is unjustified if the previous investigations had reached a conclusion which commands respect. The third test being the tone of the article. The issue being whether the article merely raised queries or a call for investigations as 25 opposed to asserting false allegations in the form of a statement of fact. 64 [22] In our judgment, the appellant's call for the re-opening of the investigations does not run foul of any of the aforesaid three tests. First, because the earlier investigations did not result in the publication of a report as regards the causes for the crash. Secondly, the versions in the two books vary from Tengku 5 Razaleigh's revelations and there is no evidence that Tengku Razaleigh is the source for the versions of the crash contained in the two books. For this reason, his revelations clearly amounted to new information which warranted a fresh look at the crash. Hence, the justification for the appellant's call for fresh investigations to 10 clear all doubts for the cause of the crash. Finally, the tone of the article cannot be said to be provocative since the appellant merely called for a re-opening of the investigations and acknowledged the fact that the fresh investigations based on Tengku Razaleigh's revelations may result in nothing at all. The fact of the matter is that 15 the appellant's call for the re-opening of the investigations ties in with Tengku Razaleigh's revelations and the inconclusive nature of the earlier investigations.” [51] With respect, we find it difficult to agree with the aforesaid finding. 20 The ten point tests is for the determination of the element of responsible journalism (the second essential element in Reynolds public interest defence), of which no reference at all was specifically made by the Court of Appeal in its judgment. This is clear from several leading authorities including Syarikat Bekalan Air Selangor and Jameel. In Syarikat 25 Bekalan Air Selangor, explaining the Reynolds privilege defence, this Court said: 65 “[34] The Reynolds privilege defence is predicated on public interest and "responsible journalism". In the context of the present case, the Reynolds privilege defence required the defendant first, to establish that the impugned words were uttered on a matter of 5 public interest and the public had a corresponding interest in receiving the same. Once that was established, the court must consider whether the defendant acted reasonably in publishing the impugned words. This second test has been described as the test of "responsible journalism" (see Reynolds v. Times Newspapers 10 Ltd (supra) and Jameel And Another v. Wall Street Journal Europe SPRL (supra). Although the test refers to "journalism", it is merely a convenient description because as we have decided earlier the Reynolds privilege defence is in no way limited to journalistic publications. If the defendant passed the test of responsible 15 journalism, the issue would be determined in his favour. Lord Nicholls in Reynolds v. Times Newspapers Ltd (supra) sets out a number of factors to be taken into account in determining the issue of responsible journalism. These factors, which are not exhaustive, are, inter alia, as follows:

If the publication, including the defamatory statement, passes the public interest test, the inquiry then shifts to whether 10 the steps taken to gather and publish the information were responsible and fair. As Lord Nicholls said in Bonnick v Morris [2003] 1 AC 300, 309: “Stated shortly, the Reynolds privilege is concerned to 15 provide a proper degree of protection for responsible journalism when reporting matters of public concern. Responsible journalism is the point at which a fair balance is held between freedom of expression on matters of public concern and the reputations of individuals. Maintenance of 20 this standard is in the public interest and in the interests of those whose reputations are involved. It can be regarded as the price journalists pay in return for the privilege.”

Lord Nicholls was speaking in the context of a publication in 25 a newspaper but the defence is of course available to anyone who publishes material of public interest in any medium. The question in each case is whether the defendant behaved fairly and responsibly in gathering and publishing the information. But I shall 68 for convenience continue to describe this as “responsible journalism”. … 5 58. I therefore pass to the question of whether the newspaper satisfied the conditions of responsible journalism. This may be divided into three topics: the steps taken to verify the story, the opportunity given to the Jameel group to comment and the propriety of publication in the light of US diplomatic policy at the 10 time.” [53] So, one of the relevant elements in the determination of responsible journalism is the steps taken to verify the information/story. The question is what verification, if any, was required on the part of the First Defendant? 15 This brings into focus the nature of the duty of verification. In this regard, the thrust of the Defendants’ contention is that the First Defendant’s duty is to check the basic facts. As held by the Court of Appeal, the basic facts that he was under a duty to check was that Tengku Razaleigh had actually made the revelation. The First Defendant did check, and 20 established that Tengku Razaleigh had made the revelation on 2.4.2010. From his own reading of books about the incident, the First Defendant knew that it had never been made before. Therefore, it was submitted that the First Defendant had made all the checks that were necessary to justify his call for an inquiry. He had verified that the revelation had been 25 69 made, and that it was new. It was contended that the First Defendant did not have to verify whether the revelation was true, because that would be the job of the very inquiry for which he was calling. In short, the Defendants’ case is that all they had to do was to establish that Tengku Razaleigh made the revelation. In other words, they claimed that their 5 case was akin to that of a reportage case, where the publisher is simply reporting what others have said [See per Baroness Hale in Jameel, paragraph 149, [2006] 4 AER 1322]. For reasons which we will set out shortly, we are unable to accept the contention. 10 [54] In Roberts v Gable [2007] EWCA Civ 721, upon reviewing a number of authorities on reportage, Ward L.J made the following remarks: “53. What can be learnt so far from this review of the authorities is that the journalist has a good defence to a claim for libel if 15 what he publishes, even without an attempt to verify its truth, amounts to reportage, the best description of which gleaned from these cases is that it is the neutral reporting without adoption or embellishment or subscribing to any belief in its truth of attributed allegations of both sides of a political and 20 possibly some other kind of dispute.” … 70 “61. (2) … In a true case of reportage there is no need to take steps to ensure the accuracy of the published information…

If upon a proper construction of the thrust of the article, the defamatory material is attributed to another and is not being put forward as true, then a responsible journalist would not need to take steps to verify its accuracy. He is absolved from that responsibility because he is simply reporting in a 15 neutral fashion the fact that it has been said without adopting the truth.

10.1 of the Convention, and the statements would be protected by privilege. … 5

It appears to us that the newspaper was not merely reporting what the Baghdad documents said but that … it both adopted and embellished them. It was alleging that Mr Galloway took money from the Iraqi oil-for-food programme 10 for personal gain. That was not a mere repeat of the documents, which in our view did not, or did not clearly, make such an allegation. … the thrust of the coverage was that The Daily Telegraph was saying that Mr Galloway took money to line his own pockets. In all the circumstances we 15 answer the question whether the newspaper adopted and embellished the statements in the Baghdad documents in the affirmative.”… [56] In her judgment in Jameel, Baroness Hale made the following 20 observation on reportage in the context of the issue of verification: “Secondly, the publisher must have taken the care that a responsible publisher would take to verify the information published. The actual steps taken will vary with the nature and 25 sources of the information. … The requirements in "reportage" cases, where the publisher is simply reporting what others have said, may be rather different, but if the publisher does not himself believe the information to be true, he would be well-advised to make this clear. In any case, the tone in which the information is 30 73 conveyed will be relevant to whether or not the publisher has behaved responsibly in passing it on." [57] Reportage was also explained in Flood in the leading judgment of Lord Phillips of Worth Matravers PSC when His Lordship discussed the 5 duty to verify in the context of Reynolds public interest defence: “[75] Not all the items in Lord Nicholls's list in Reynolds case [2001] 2 AC 127, 205 were intended to be requirements of responsible journalism in every case. The first question is whether, on the facts 10 of this case, the requirements of responsible journalism included a duty of verification and, if so, the nature of that duty. I should insert a word of warning at the outset. Each case turns on its own facts. I use the phrase “duty of verification” as shorthand for a requirement to verify in the circumstances of this case. My 15 comments should not be treated as laying down principles to be applied in cases of different facts. [76] Mr Price alleged that TNL should have verified the accusation against Sergeant Flood reported in the article. Tugendhat J 20 concluded that Jameel’s case [2007] 1 AC 359 was incompatible with such an obligation. He considered that Jameel’s case showed that if it was in the public interest to publish the fact of an accusation, there was no obligation to verify the grounds of the allegation. Moore-Bick LJ commented [2011] 1 WLR 153, para 95, 25 that, if the judge were right, there was very little distinction to be drawn between the defence of reportage and the defence of responsible journalism in relation to the reporting of statements made by third parties. 74 [77] The judge was not right. Reportage is a special, and relatively rare, form of Reynolds privilege. It arises where it is not the content of a reported allegation that is of public interest, but the fact that the allegation has been made. It protects the publisher if he has 5 taken proper steps to verify the making of the allegation and provided that he does not adopt it. Jameel’s case was analogous to reportage because it was the fact that there were names of substantial Saudi Arabian companies on the black list that was of public interest, rather than the possibility that there might be good 10 reason for the particular names to be listed. Just as in the case of reportage, the publishers did not need to verify the aspect of the publication that was defamatory. [78] The position is quite different where the public interest in the 15 allegation that is reported lies in its content. In such a case the public interest in learning of the allegation lies in the fact that it is, or may be, true. It is in this situation that the responsible journalist must give consideration to the likelihood that the allegation is true. Reynolds privilege absolves the publisher from the need to justify 20 his defamatory publication, but the privilege will normally only be earned where the publisher has taken reasonable steps to satisfy himself that the allegation is true before he publishes it. Lord Hoffmann put his finger on this distinction in Jameel’s case [2007] 1 AC 359, para 62 when he said: 25 “In most cases the Reynolds defence will not get off the ground unless the journalist honestly and reasonably believed that the statement was true, but there are cases ('reportage') in which the public interest lies simply in the fact 30 75 that the statement was made, when it may be clear that the publisher does not subscribe to any belief in its truth.” [79] Thus verification involves both a subjective and an objective element. The responsible journalist must satisfy himself that the 5 allegation that he publishes is true. And his belief in its truth must be the result of a reasonable investigation and must be a reasonable belief to hold. What then does the responsible journalist have to verify in a case such as this, and what does he have to do to discharge that obligation? If this were a Chase level 1 case he 10 would have to satisfy himself, on reasonable grounds, that the claimant had in fact been guilty of corruption. His defence would not “get off the ground” unless he reasonably believed in the claimant's guilt. This is not, however, a Chase level 1 case, see my discussion of the meaning of the article at paras 48 to 50 above. 15 [80] What did the duty of verification involve? There is authority at the level of the Court of Appeal that to justify a Chase level 2 allegation a defendant has to adduce evidence of primary facts that constituted reasonable grounds for the suspicion alleged. These 20 will normally relate to the conduct of the claimant. Allegations made by others cannot be relied upon. The same may be true of a Chase level 3 allegation. The discussion in Gatley on Libel and Slander, 11th ed, at para 11.6 and the three cases there cited support these principles. No such hard and fast principles can be applied when 25 considering verification for the purpose of Reynolds privilege. They would impose too strict a fetter on freedom of expression. Where a journalist alleges that there are grounds for suspecting that a person has been guilty of misconduct, the responsible journalist should satisfy himself that such grounds exist, but this does not 30 necessarily require that he should know what those grounds are. 76 Their existence can be based on information from reliable sources, or inferred from the fact of a police investigation in circumstances where such inference is reasonable. I derive support for this conclusion from the fact that in Jameel’s case the House of Lords accepted that appropriate steps had been taken to verify the fact 5 that the Claimants were named on the black list where there had been reliance upon reliable sources, even though the defendants were not prepared to name them. [58] In our judgment, Tengku Razaleigh’s account of how he and two 10 others left the aircraft at the very last moment [to use the First Defendant’s own words in the first statement] before its take off, is the essence of the new revelation which is of paramount importance to the impugned statements and their publication by the Defendants. It was Tengku Razaleigh’s account of his leaving the aircraft at the last moment before 15 its take-off on the invitation of the Plaintiff (which had saved the latter’s life) which must have led to the First Defendant’s assertions about reopening of investigation “to remove all doubts about the true causes”, and opening up “old speculation of how the plane crashed in Sembulan” [in the first statement]. It was the same element in the account of Tengku 20 Razaleigh which had also, without doubt led the Defendants’ assertions that “the people will want to re-examine the June 6, 1976 air crash in light of Tengku Razaleigh Hamzah’s memory of the tragedy”, “Razaleigh was trying to tell the people something from the past in view of the revelation 77 on the moment before the Nomad aircraft took off from Labuan”. Indeed, the First Defendant himself admitted under cross-examination that “from the new information by Tengku Razaleigh” he “wanted the double six tragedy to be investigated”. He further agreed under cross-examination that “the testimony and statement [in paragraph 19(b) of the Statement of 5 Defence] are made which arise as a result of Tengku Razaleigh’s speech on 2.4.2010”. As such, in our view, the basic fact was the truth of Tengku Razaleigh’s account as aforesaid, and not merely the making of the account by him. If in the impugned statements the Defendants merely reported what Tengku Razaleigh had said in the speech, (which we 10 reproduced at paragraph 49 of this judgment) the Plaintiff would not have cause to complain. However, as it transpired that is not the case. It is clear that not only did the First Defendant adopt and embrace what Tengku Razaleigh had said in his speech, the First Defendant had embellished it with speculation and insinuation of the Plaintiff’s possible 15 involvement in the assassination of Tun Fuad Stephens and those on board the ill-fated Nomad, and further spicing it up by referring to assassinations of John F. Kennedy, Martin Luther King and Benazir Bhutto. As such, it cannot lie in the mouth of the First Defendant to say that he did not subscribe to any belief in the truth of what Tengku 20 Razaleigh said in his speech. In such a case, it is not sufficient for the First Defendant to just establish that he had verified that the statement 78 was made. The First Defendant must satisfy himself that Tengku Razaleigh’s speech as well as the insinuation made in the impugned statements he published was true, and his belief in its truth must be the result of a reasonable investigation and that the belief must be a reasonable belief to hold; all of which the First Defendant had failed to do. 5 [59] This bring us to the ten points in the test of responsible journalism enumerated in Reynolds. These factors are not exhaustive. The weight to be given to these points and any other relevant factors will vary from case to case. The first point is the seriousness of the allegation. The 10 more serious the charge, the more the public is misinformed and the Plaintiff harmed, if the allegation is not true. The focus is on the allegations which are not true. The insinuation of the Plaintiff’s possible complicity in a criminal act [of assassination of those on board the ill-fated Nomad] is very serious and capable of besmirching the Plaintiff’s 15 reputation forever if what is insinuated is not true. On the second and the third points, the information was about the account by Tengku Razaleigh of his leaving the ill-fated aircraft on the invitation of the Plaintiff moments before the aircraft took off, that he invited two others to leave the aircraft with him and that invitation by the Plaintiff saved his and the other two 20 persons’ lives. Tengku Razaleigh did not say anything or hint about the cause of the crash. Tengku Razaleigh did not even hint let alone call for 79 a reinvestigation into the crash. Indeed, the First Defendant admitted in cross-examination that the new information did not establish the true cause of the plane crash. We have demonstrated how the First Defendant had, in the impugned statements, adopted what Tengku Razaleigh had said and embellished it with speculation and defamatory insinuation. We 5 have also explained how the truth of what Tengku Razaleigh’s speech (as opposed to the mere making of the speech) was the basic fact which led to the making of the impugned statements. This leads us to the fourth point of the steps taken to verify the information. The First Defendant admitted that before he made the statement on 4.4.2010 and published it 10 on 5.4.2010, he did not check personally with Tengku Razaleigh whether his account of the event prior to the air crash was true and accurate. In this context, it must be added that the Plaintiff had, on 7.4.2010 disputed the account by Tengku Razaleigh, and challenged the First Defendant to repeat his remarks. The Plaintiff also gave his own version of the event. 15 This appeared in the “Daily Express” headed “Harris Dares Yong, Jeffrey” which was referred to and explained by the Plaintiff in his evidence [page 607-608 of the Appeal Record]. In that statement, the Plaintiff said Tengku Razaleigh was never scheduled to fly with Tun Fuad to Kota Kinabalu on that day. According to the Plaintiff, there were two planes 20 (Nomad Aircraft) that were scheduled to take off from Labuan around the same time that ill-fated day. One of the planes was due to fly to Kudat 80 and the passengers in the flight included Tengku Razaleigh, the Plaintiff and few others. The other plane carrying Tun Fuad and other Sabah leaders was going to the State Capital. Tengku Razaleigh was never scheduled to fly with Tun Fuad Stephens to Kota Kinabalu. Tengku Razaleigh together with Tun Rahman Yaakob were scheduled to fly to 5 Kudat by plane and thereafter by helicopter to Banggi Island. The purpose of the scheduled trip to Banggi, was for Tengku Razaleigh, the then Finance Minister, to view the very first cattle farm in Sabah located on Banggi Island. Therefore, the claim that Tengku Razaleigh was pulled out of the plane by him (the Plaintiff) at the last moment to board a second 10 plane to fly to Kudat was grossly inaccurate and “carried away with pleasantries”. In his evidence in Court, the Plaintiff reiterated that he was not in the same plane with the late Tun Fuad Stephens because he was supposed to accompany Tengku Razaleigh and a few others to visit a cattle farm at Pulau Banggi, Kudat by the other Nomad plane, and that it 15 was a prearranged programme. In other words, Tengku Razaleigh was not supposed to join Tun Fuad Stephens in the first place but to join the Plaintiff for a trip to Pulau Banggi, Kudat. In this regard, in cross-examination, the Plaintiff said [at page 204 of the Appeal Record]: 20 “Any visit by VIP a programme is prepared by State Government and the VIP himself or the Ministry because at that time Tengku Razaleigh had no ministry therefore by himself prepared 2 aircrafts 81 in Labuan Airport. There were 2 Nomad Aircrafts in Labuan Airport. One to fly the late Tun Fuad and other people straight to Kota Kinabalu, the other aircraft to fly to Kudat. It’s usual for any aircraft flying from airport to airport must have passengers’ list known as manifesto. Tengku Razaleigh and myself and Tun 5 Rahman Yaakob were scheduled a program to visit Banggi. I wish to add this statement, the statement made by Tengku Razaleigh in 1996 compared to his statement in 2010 surely Y.A. his statement 1996 is more fresh in his mind. I do not know whether Tengku Razaleigh will be called as a witness to be asked which statement 10 is true, the statement in the book or the statement he made on the 4.4.2010 here in Sabah. I wanted to add, surely anybody with common sense won’t believe me to go into the aircraft where Tun Fuad, Tengku Razaleigh were already sitting in the aircraft, surely its very rude and improper for me to pull Tengku Razaleigh out of 15 the aircraft.” [60] Tengku Razaleigh’s account in his speech on 2.4.2010 also differed from his previous statements on the incident as recorded in the two books which the First Defendant admitted to be his reference books. 20 In the books – “Harris Salleh of Sabah” [pages 534-550 of the Appeal Record] and “The Sabahans – The Life and Death of Tun Fuad Stephens”, [pages 572-585 of the Appeal Record] it was recorded that Tengku Razaleigh was not invited to leave the ill-fated Nomad at the last moment, which, as will be seen in a moment, was not denied by the First Defendant. 25 At page 269 of the second book it is recorded as follows: 82 “Improving relations with KL was another top priority. So in early June, Petronas Chairman Tengku Razaleigh Hamzah flew into Sabah. The first part of his itinerary involved a dinner in Labuan. Rahimah recollects, “I was ill that weekend. Otherwise I would have gone to Labuan with my husband.” 5 Tengku Razaleigh remembers that weekend vividly. In his own words: Donald, as I always called him in private, had hosted a 10 personal dinner on my behalf in Labuan that Saturday night [June 5th]. Donald was determined to see Sabah develop. We stayed up till 6am the next morning talking [June 6th]. Then he told me he had to leave to flag off a walkathon in Kota Kinabalu, so he and his brother Ben flew back. 15 I went to sleep. Some time after nine in the morning there was this loud banging on my door. When I opened it, there he was! Donald said, “I’ve just flagged off the walkathon. I couldn’t 20 just leave you here, so here I am.” Later we had lunch at Layang-Layang village and also addressed a large rally on the beach. After that I was schedule to fly back to KK with Donald on the same Nomad. But at the last 25 moment, on the beach, Harris said to me, “Why do you want to go back so early? You only need to be at the Istana in the evening. Come with me to Pulau Banggi and I’ll show you a cattle ranch.” It was still quite early, so I agreed. Because I was also 30 Finance Minister at the time, I had a high ranking civil servant attached to me, my executive assistant, Ishak Atan, who 83 accompanied me from KL. Ishak said that he would prefer to go back to KK first with the vesting documents to prepare for the signing ceremony after the State dinner in my honour at the Istana. We left Layang-Layang and headed for the airport. There 5 were two Nomads on the runaway. One was for Donald’s contingent heading back to KK and the other was for Harris and me. But first I climbed aboard Donald’s plane and looked around. I saw Rahman Ya’kub, Sarawak’s Chief Minister, there already seated. I asked him, “Why are you here? You’re part of my 10 contingent. Come with me to Pulau Banggi.” So he got out. I was the last person to see Donald and the others alive. Our Nomad took off after Fuad’s. Then, because the flight to Kudat where we stopped to go to Pulau Banggi was longer than Donald’s 15 flight to KK, it was only when we landed at Kudat that we were told there had been an air crash just outside KK.” [61] The relevant exchange in the cross-examination of the First Defendant runs as follows: 20 “Put: The two books Harris Salleh of Sabah and The Sabahan – The Life and Death of Tun Fuad Stephens have put on public record the facts that Tengku Razaleigh was invited by the plaintiff at Kg. Layang-Layang in the afternoon and not at the 25 last minute at the airport while Tengku Razaleigh was also not scheduled to fly back to Kota Kinabalu with the late Tun Fuad Stephens as he had a programme to visit a cattle farm in Banggi Island, agree? 30 84 A: That’s what the books say.” [62] In view of all these, it behoved the First Defendant to verify personally with Tengku Razaleigh the truth and accuracy of his account. However, instead of verifying the truth and accuracy of his account with 5 Tengku Razaleigh, the First Defendant published the second statement on 9.4.2010, reinforcing what he had said in the first statement. [63] The very material difference between the Plaintiff’s and the First Defendant’s version was acknowledged by the Defendants. Thus, in re- 10 examination, the First Defendant was asked: “By the time of your second statement you already knew that there was one version of event by Tengku Razaleigh and another version by the Plaintiff. Can you clarify and explain why you didn’t see fit to seek clarification from either of them?” The First Defendant answered; “The version of events by Tengku 15 Razaleigh vary from the version by the Plaintiff and therefore I felt that this was for the tribunal to reinvestigate the plane crash to establish which of the two was the correct version and if the two versions can be reconciled or not. It is because of the two varying versions, that I have repeated the call for a reinvestigation in order to get the truth.” The two sentences in 20 that answer by the First Defendant contradict each other. In the first sentence, the First Defendant says, because the version of events by 85 Tengku Razaleigh differs from the version by the Plaintiff, he felt that this was for the tribunal to reinvestigate the plane crash to establish which of the two was the correct version and whether the two versions can be reconciled. This cannot be true because even in the first statement on 4.4.2010 [before the Plaintiff disputed Tengku Razaleigh’s account and 5 published his own version which was on 7.4.2010], the First Defendant had already called for “the investigation file” “to be opened to remove all doubts about the true causes”. In the second sentence the First Defendant says, it is because of the two differing versions that he has repeated the call for a reinvestigation in order to get the truth. This is also 10 not helpful. If the two differing versions caused him to repeat the call for a re-investigation [in the second statement], what was the cause of his call for the investigation file to be reopened [in the first statement]? It could not have been due to the two differing versions because as we have just shown, when he published the first statement, the Plaintiff had yet to 15 publish his own version. It seems to us that the First Defendant could not explain satisfactorily why he did not verify with Tengku Razaleigh or the Plaintiff about the truth or accuracy of their respective versions. In any case, neither version hint, let alone mention about the cause of the crash to justify the publication of the impugned statements by the Defendants. 20 86 [64] The stand of the First Defendant which also reflects his attitude that it is not for him to verify the accuracy of the statement made by Tengku Razaleigh, can be seen from the following exchange in cross-examination: 5 “Question: Do you agree that it is one thing to verify that Tengku Razaleigh had made the statement on 2.4.2010, but it is another thing to verify with him personally the accuracy of what he had stated? 10 Answer: I took steps to verify that Tengku Razaleigh had made that statement of 2.4.2010. What he said was very clear and reported in print. Based on that I made my comment as a matter of public interest. With due respect it is not for me to verify the accuracies of all 15 statements made by anybody before I comment. The maker of the original statement is always free to make clarification.” [65] So, the First Defendant did not verify with Tengku Razaleigh 20 personally the truth and accuracy of his account, and Tengku Razaleigh also did not testify at the trial to establish the truth and accuracy of his account. Why this material witness for the Defendants was not called to testify can be gathered from the notes of proceedings before the High Court. On 22.12.2011, before calling the First Defendant to testify, from 25 the Bar table the learned counsel for the Defendants informed the learned 87 trial judge that the subpoena has been served on Tengku Razaleigh by leaving a copy of the subpoena in the latter’s office. Learned counsel said at the time of service of the subpoena, Tengku Razaleigh indicated that he was not keen to come to testify. This, we pause to add, is hearsay. Learned counsel for the Defendants also said that there had been many 5 attempts to contact Tengku Razaleigh but failed. The learned counsel also informed the Court that the Defendants will decide at the end of the First Defendant’s testimony whether to enforce the subpoena by applying for a warrant of arrest against Tengku Razaleigh and that in the meantime, the Defendants would like to reserve all their rights in the matter. Learned 10 counsel for the Plaintiff responded by saying to the effect that without any affidavit of service being filed in Court, what was said from the Bar table by the learned counsel could not be taken on its face value. Learned counsel for the Plaintiff also argued that since the subpoena was left at Tengku Razaleigh’s office and not served on him personally, there was 15 no basis for saying that Tengku Razaleigh refused to testify. Learned counsel for the Defendants replied to the effect that when the Defendants “have decided to enforce the subpoena, they will produce an affidavit of service. The continued hearing then went on [pages 439-440 of the Appeal Record]. 20 88 [66] On 23.12.2011, at the end of the testimony of the First Defendant, the learned counsel for the Defendants following what he told the Court on 22.12.2011 informed the Court that “the Defendants have made their points and established their case in this defamation trial. The Defendants therefore leave it to the Court whether to enforce the subpoena or not.” 5 The thrust of the learned counsel for the Plaintiff’s reply is that unless and until there is evidence of service filed in Court, there is no basis for the Court to enforce the subpoena. As to whether or not the Defendants had established their case and hence not calling Tengku Razaleigh to testify, the argument submitted on behalf of the Plaintiff was that the real issue 10 which the Court had to decide on the line of the defence by the Defendants was the truthfulness of the statement by Tengku Razaleigh and not the existence of his statement regarding the event prior to the crash, of which submission will be made later on. For the Defendants, their learned counsel responded as follows: 15 “We have made our points. We are the Defendants in this libel suit. We think it will not be necessary to call one more witness to prove a point which has already been proven by the various witnesses for the Defendants …” 20 In other words, the non-existence of Tengku Razaleigh’s testimony in this case is not really due to the alleged refusal of Tengku Razaleigh to testify. 89 Rather it was because the Defendants themselves had decided that it was not necessary to call one more witness [which must be none other than Tengku Razaleigh] to prove their case, which according to the Defendants, had been proven by the various witnesses for the Defendants. This was supported by the fact that the learned counsel for 5 the Defendants then informed the Court that the Defendants rest their case [pages 497-500 of the Appeal Record]. [67] In our judgment, without Tengku Razaleigh being called to testify, the Defendants have failed to establish the truth and accuracy of Tengku 10 Razaleigh’s account. [68] Continuing with the Reynolds’ test for responsible journalism, on the fifth point, there was already an official investigation into the crash and it was officially revealed in Parliament in 2009 by the Federal Government 15 that the incident was caused by overloading, pilot error and absence of radar instrument. On the sixth, the seventh and the tenth points, there was no urgency for the First Defendant to publish the first statement calling for the investigation file to be reopened to remove doubt about the true cause of the plane crash when Tengku Razaleigh’s account did not 20 even hint about the cause of the crash. Moreover, there was no urgency for the First Defenant to rush into publishing the second statement on 90

9.4.2010 reinforcing the first statement without verifying from Tengku Razaleigh the truth and accuracy of his account which, to the knowledge of the First Defendant, was disputed by the Plaintiff on 7.4.2010. Indeed, as we have shown there was no intention to verify. On the eighth point, after the publication of the first statement, on 4.4.2010, the Plaintiff had, 5 on 7.4.2010 disputed Tengku Razaleigh’s account, and also gave his own version of the event. Not only did the First Defendant fail to verify with the Plaintiff, he published the second statement, which like the first statement, did not contain the gist of the Plaintiff’s version. Learned counsel for the Defendants contended that as the Plaintiff had put his account on the 10 public record, there was no need for the Defendants to repeat the Plaintiff’s version since it would be fresh in the minds of the readers of the “Daily Express”. We are unable to accept the contention. In this regard, we refer again to Syarikat Bekalan Air Selangor. The Court of Appeal in that case held that “once all relevant information is in the public domain, 15 then, the defendant is not obliged to satisfy the further Reynolds requirements.” In dealing with that ruling, this Court said at pages 495- 497: “[41] As submitted by learned counsel for the plaintiff, a closer 20 reading of the above passage did not support the Court of Appeal proposition of law. Clearly, the opinion in Gatley went further to say that parts of the Reynolds privilege test dealing with issues of 91 reasonable of conduct (for example, whether steps have been taken to verify the information) were relevant. He further argued that a far reaching implication of the Court of Appeal's proposition was that it would allow defendants to publish untrue defamatory statements, simply because the state of affairs had already been 5 published before in the public domain. We see much force in this argument. We agree with the submissions of learned counsel for the plaintiff that this cannot be right as such a proposition runs counter to the very concept of fair and responsible journalism. 10 [42] There is one aspect of the decision of the High Court that deserves our attention. It is this: the High Court found that the defendant had known that the non-replacement of water pipes and mains and the cash flow problems faced by the plaintiff were the result of the freeze of capital expenditure works and the refusal of 15 the Selangor State Government to agree to a proposed tariff hike and not the plaintiff's own fault. The defendant deliberately withheld this information, which would have explained the plaintiff's position and indeed did nothing to elicit a response from the plaintiff. On the contrary, the Court of Appeal held that the occasion might be 20 privileged even if the defendant failed to disclose all the relevant facts. With respect, in so deciding, the Court of Appeal failed to judiciously appreciate that omitting to disclose the gist of the plaintiff's side of the story would result in an unfair and misleading report and would go against the concept of responsible journalism. 25 [43] In his submissions, learned counsel for the plaintiff took us through the evidence of the defendant at the trial during cross-examination. The evidence disclosed that the defendant had omitted to publish information, which he was in possession of, 30 which would have shown the plaintiffs side of the story, in that the 92 non-replacement of water pipes and mains and the cash flow constraints were not due to the plaintiff's own fault. We should remind ourselves that in Reynolds v. Times Newspapers Ltd (supra), Lord Nicholls held that omitting the plaintiff's explanation of the version of events would result in an unfair and inaccurate 5 report, which would be misleading: A most telling criticism of the article is the failure to mention Mr. Reynolds' own explanation to the Dáil. Mr. Ruddock omitted this from the article because he rejected Mr. 10 Reynolds' version of the events and concluded that Mr. Reynolds had been deliberately misleading. It goes without saying that a journalist is entitled and bound to reach his own conclusions and to express them honestly and fearlessly. He is entitled to disbelieve and refute explanations given. But 15 this cannot be a good reason for omitting, from a hard hitting article making serious allegations against a named individual, all mention of that person's own explanation. Particularly so, when the press offices had told Mr. Ruddock that Mr. Reynolds was not giving interviews but would be 20 saying all he had to say in the Dáil. His statement in the Dáil was his answer to the allegations. An article omitting all reference to this statement could not be a fair and accurate report of proceedings in the Dáil. Such an article would be misleading as a report. This article is not defended as a 25 report, but it was misleading nonetheless. By omitting Mr. Reynolds' explanation English readers were left to suppose that, so far, Mr. Reynolds had offered no explanation. Further, it is elementary fairness that, in the normal course, a serious charge should be accompanied by the gist of any 30 explanation already given. An article, which fails to do so 93 faces an uphill task in claiming privilege if the allegation proves to be false and the unreported explanation proves to be true. [44] In our judgment, the Court of Appeal had failed to consider that 5 the defendant's knowledge of the plaintiff's true position and failure to disclose these facts would suggest that his conduct was unreasonable and would go against the concept of responsible journalism. In our judgment, the defendant had failed the responsible journalism test in failing to take responsible and fair 10 steps to gather, verify and publish the impugned words.” On the ninth point, we have shown how the First Defendant adopted and embraced what Tengku Razaleigh said in his speech [the truth and accuracy of which was not proven], and embellished it with speculation 15 and insinuation of the Plaintiff’s possible involvement in the assassination of Tun Fuad Stephens and others who perished in the double six tragedy. [69] In our judgment, the Defendants had failed the responsible journalism test. Thus, the Defendants failed to establish the Reynolds 20 privilege defence. The Court of Appeal erred in finding the issue of liability in favour of the Defendants and setting aside the decision of the High Court. We therefore set aside the decision of the Court of Appeal on liability. 25 94 [70] The sole ground upon which the Court of Appeal allowed the Defendants’ appeal was because it found that the defence of qualified privilege was not properly considered by the High Court. In fact before us the submissions by the Plaintiff and the Defendants centred on this issue. Our decision reversing the Court of Appeal in its finding of liability in favour 5 of the Defendants, would have brought the appeal on liability to an end. However, the High Court also considered the defence of fair comment which was also pleaded by the Defendants, and found that the latter failed to establish it. For the sake of completeness we have also considered the finding of the High Court on that defence ourselves in the light of all the 10 evidence before it. This is how the learned trial judge dealt with it in his judgment: “To sustain the defence of fair comment the defendants must prove the following:

(a) the words complained of are comments;

(b) the comments are based on facts;

(c) the comments or opinion expressed are fair; and

(d) the comments must be on matters of public interest. 20 The learned authors of Gatley on Libel and Slander defines comment as follows at p 697: “Comment is a statement of opinion on facts. It is comment to say that a certain act which a man has done is disgraceful 25 or dishonourable; it is an allegation of fact to say he did the 95 act so criticized … while a comment is usually a statement of opinion as to merits or demerits of conduct, an inference of fact may also be a comment. There are, in the cases, no clear definitions of what is comment. If the statement appears to be one of opinion or conclusion, it is capable of 5 being comment. Comment to be fair must be based on facts. In Hasnul bin Abdul Hadi v Bulat bin Mohamed & Anor [1978] 1 MLJ 75 the defence of fair comment failed because the defendants failed to prove that the 10 facts on which the comment was founded were true. In London Artist Ltd v Littler [1969] 2 QBD 375 Lord Denning spoke of 'basic facts' when he said at p 391: “In order to be fair, the commentator must get his basic facts 15 right. The basic facts are those which go to the pith and substance of the matter: see Cunningham-Howie v Dimbleby [1951] 1 KB 360, 364. They are the facts on which the comments are based or from which the inferences are drawn — as distinct from the comments or inferences 20 themselves. The commentator need not set out in his original article all the basic facts: see Kemsley v Foot [1952] AC 345; but he must get them right and be ready to prove them to be true.” 25 In the context of the present case the basic fact is Tengku Razaleigh's revelation that the plaintiff asked him to leave the Nomad aircraft minutes before take off. This is the basic fact from which the insinuation of criminal conduct was drawn by the first defendant. The first defendant must get this fact right as a first step 30 in establishing the defence of fair comment. This is necessary 96 because Tengku Razaleigh's version of the events was disputed by the plaintiff but which the first defendant did not believe. Was it really a last minute decision by the plaintiff and if so was there any plausible explanation for it? 5 The first defendant should have verified with Tengku Razaleigh the accuracy of the new information before issuing the second statement. By not making any attempt to verify the accuracy of Tengku Razaleigh's revelation it is obvious that the first defendant had purposely abstained from enquiring into the facts or from 10 availing himself of means of information which lay at hand when the slightest inquiry would have shown the true situation. There is no doubt in my mind that the first defendant's intention in issuing the second statement was to tell the general public that the plaintiff's version of the events should not be believed. 15 In Joshua Benjamin Jeyaretnam v Goh Chok Thong [1989] 3 MLJ 1 the Privy Council said at p 3: “It is of course well established that a writer may not suggest 20 or invent facts and then comment upon them, on the assumption that they are true. If the facts upon which the comment purports to be made do not exist, the defence of fair comment must fail. The commentator must get his basic facts right.” 25 It behoves therefore on the defendants to call Tengku Razaleigh to clarify his statement in order to establish the defence of fair comment. In Juahir bin Sadikon v Perbadanan Kemajuan Ekonomi Negeri Johor [1996] 3 MLJ 627 Siti Norma Yaakob JCA (as she 30 then was) said: 97 “He who alleges must prove such allegations and the onus is on the appellant to do so. See s 103 of the EA. Thus, it is incumbent upon the appellant to produce … his witnesses to prove the allegation. The fact that the appellant was unable 5 to secure the attendance of … a witness does not shift the burden to…produce the witness … There is no obligation in law for the respondent to produce the witness as the obligation rests with … the party who alleges, and the fact that the appellant was unable to do so is fatal to his case. 10 For this very reason too, the adverse inference under s 114(g) is invoked against the appellant.” By failing to call Tengku Razaleigh to give evidence the consequence is that the defendants had merely proved that the 15 revelation was made by Tengku Razaleigh but without proving the truth and accuracy of what he revealed. Since the burden is on the defendants to prove the truth and accuracy of the new information, the failure means that the burden has not been discharged.” 20 [71] We find no reason to disturb the aforesaid findings of the High Court and we affirm it. CONCLUSION ON LIABILITY 25 [72] The decision we have made thus far is sufficient to dispose of the appeal on liability. We therefore find no necessity to answer the question in respect of which the leave to appeal was granted. 98 [73] In the result we allow the Plaintiff’s appeal on liability. The decision of the High Court on liability is reinstated albeit for different reasons in respect of the finding on the defence of privilege. 5 DAMAGES [74] The Plaintiff claimed RM50 million in damages against the Defendants. The High Court awarded a global sum of RM1 million for compensatory, aggravated and general damages. The Court of Appeal 10 held that the award was excessive and reduced it to RM100,000.00. [75] For the Plaintiff it was contended that the High Court’s award was not excessive and ought not to be disturbed. The Court of Appeal cases of Chin Choon v Chua Jui Meng [2005] 2 CLJ 569, Harry Isaacs & Ors 15 v. Berita Harian Sdn Bhd & Ors [2012] 4 MLJ 191 and Datuk Seri Anwar Ibrahim v. Wan Muhammad Azri Wan Deris [2015] 2 CLJ 557, were referred in support of that submission. In Datuk Seri Anwar Ibrahim v. Wan Muhammad Azri bin Wan Deris, the High Court awarded RM800,000.00 to the Plaintiff as general and exemplary damages. The 20 Defendant’s appeal to the Court of Appeal was dismissed on 4.12.2015 [Civil Appeal No. W-02(NCVC)(W)-532-03/2014]. The Defendant’s 99 application for leave to appeal was dismissed by the Federal Court on 26.7.2016 [Civil Application No. 08-2-01/2016 (W)]. For the Defendants it was submitted that the Court of Appeal correctly held that the High Court’s award was excessive and not supported by authorities. In support of their submission their learned counsel referred to several authorities 5 and argued as follows: “(1) Dato’ Ahmad Rejal Arbee & Anor v. Mahfuz Omar [2015] 6 CLJ 149. This case involving defamation against politician but the Court of Appeal only granted RM110,000.00.

Chong Siew Chiang v. Ng Kim Ho & Anor [2011] 6 CLJ The Court held: 100 “… The award of damages in libel and slander cases is normally dependent on the facts and circumstances of each case. The nature of the libel or slander, the extent of the circulation of the defamatory words and 5 the social standing of the victim are relevant factors. Damages were awarded in the sum of RM100,000 against the 1st defendant and RM50,000 against the 2nd defendant …” 10

Lim Guan Eng v. Utusan Melayu (M) Bhd [2012] 2 CLJ The above mentioned involved a politician and also the 5 Chief Minister of Penang. The Court observed that global damages should be awarded to ensure that awards of monetary damages are not excessive and to avoid any double counting on the damages awarded. Despite this case involving a Chief Minister a person of high ranking, the 10 Court decided to award RM200,000.00 as general and aggravated damages and costs of RM25,000.00 only.

(M) Sdn Bhd & Anor [2010] 5 CLJ 301. The Plaintiff 15 claimed for RM100 million. It was held by the Court that “the claim of RM100 million was a gross exaggeration.” A sum of RM100,000 as compensatory damages was awarded.” [76] The tort of defamation exists to protect, not the person or the pocket, 20 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 page 573: “In Defamation Law, Procedure & Practice by Price & Duodu (3rd 25 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: 102 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. 10 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.” 15 [77] In the present appeal, the Court of Appeal gave four reasons why it held that the High Court’s award was excessive. This is clear from its finding on the issue of damages which is as follows: “[24] In our judgment, even if we are wrong on the issue of liability, 20 His Lordship's award of RM1 million by way of damages is excessive on the particular facts of this case. In our view, His Lordship in awarding the sum of RM1 million was influenced by His Lordship's earlier ruling that the appellant had failed to verify the truth of Tengku Razaleigh's revelations when there is no such 25 burden since the defence relied upon was qualified privilege/fair comment and not justification. That this was an important consideration on the mind of His Lordship when determining the 103 quantum of damages is evident by His Lordship's pronouncements in paragraph 1190 to 1195 of the judgment: “the seriousness of the libel and the recklessness in the way it is published are relevant factors in determining the 5 quantum of damages. In the present case the insinuation of criminal conduct was a very serious libel perpetrated on the Plaintiff. Nothing can be more humiliating than to be accused of plotting to murder a serving Chief Minster (sic) in order to usurp his position, compounded as it was by the reckless 10 manner in which the defamatory statements were published.” [25] Secondly, His Lordship in arriving at the quantum of RM1 million also placed great emphasis on the award RM3 million made 15 by Gopal Sri Ram JCA in the case of MGG Pillai v. Tan Sri Dato' Vincent Tan Chee Yioun & Other Appeals [1995] 2 CLJ 912; [1995] 2 MLJ 493. We have had occasion in the case of Harry Isaacs & Ors v. Berita Harian Sdn Bhd & Ors [2012] 1 LNS 1359 to caution judges of the High Court against placing too much emphasis on 20 this award since it was an award made during a period of unrestrained excesses on the part of the judiciary. [26] Thirdly, it was wrong of the learned trial judge to totally disregard the award of only RM50,000 to the respondent by way of 25 damages by the High Court in the case of Datuk Harris Mohd Salleh v. Datuk Mohd Shafie Hj Apdal & Ors [2009] 2 CLJ 682. We opine to this effect because the respondent was similarly the plaintiff in that case and the respondent's claim was for defamation, as in the case here. Finally, with respect, since the award of 30 damages for defamation is very much dependent on the character 104 of the claimant, the pronouncements of the High Court Judge in the case of Tan Chiaw Thong J in Tun Mustapha v. YDP Negeri Sabah & Ors [1988] 2 CLJ Rep 480; [1988] 2 CLJ 330; [1986] 2 MLJ 420 concerning the character of the respondent is clearly a relevant factor in determining the damages to be awarded to the 5 respondent. For this reason, in our opinion, the learned trial judge erred in commenting as follows: “I can only think of one reason why the defendants drew the Court's attention to all these cases, and that is to provide 10 additional oomph to their allegation that the Plaintiff is a person of questionable character. The reference to the Judge's remarks in the Tun Mustapha case is wholly unnecessary and unfair to the Plaintiff as he was not even a witness in that case and therefore not in a position to defend 15 himself against those remarks, whatever the context they were made.” (paragraph 1300 at page 43 of the High Court judgment) when rejecting the submission that His Lordship should have 20 regard to the observation of the judge in the case of Tan Chiaw Thong J in Tun Mustapha v. YDP Negeri Sabah & Ors (supra) concerning the character of the respondent. Accordingly, in all the circumstances of this case, in our judgment, even if the learned trial judge was right on the issue of liability, the damages awarded to 25 the respondent ought to have been RM100,000 and not RM1 million.” [78] On the first reason given by the Court of Appeal, we do not think that the learned trial judge was influenced by his earlier ruling that the 30 105 Defendants had failed to verify the truth of Tengku Razaleigh’s revelation. It appears to us from the passage in the High Court’s judgment quoted by the Court of Appeal that the learned trial judge actually considered the seriousness of the libel and the recklessness in its publication, which he was entitled to in determining the quantum of damages. On the third 5 reason we do not think that the learned trial judge totally disregarded the RM50,000.00 award in the case of the Plaintiff against Datuk Mohd Shafie Hj Apdal. Upon due consideration the High Court found it not to be an appropriate authority because of the difference in the facts. From the answer given by the Plaintiff in cross-examination in the present case, the 10 High Court found that in the case of Datuk Mohd Shafie Hj Apdal, Datuk Shafie had apologized publicly to the Plaintiff and in addition the former had contributed RM50,000.00 to Yayasan Islam. Thus, the High Court found that unlike the First Defendant in the present case, Datuk Shafie Apdal regretted his action and was remorseful. On the fourth reason given 15 by the Court of Appeal regarding certain remarks made by another High Court judge in the case of Tun Mustapha v YDP Negeri Sabah and Ors [1986] 2 MLJ 420, concerning the character of the Plaintiff, the learned trial judge in the present case opined that the reference to that remarks was unnecessary and unfair to the Plaintiff as he was not even a witness 20 in that case, and was therefore not in a position to defend himself against 106 those remarks, whatever the context they were made. We do not think that the learned trial judge in the present case could be faulted for that. [79] This leads us to the second reason given by the Court of Appeal – that the learned trial judge placed great emphasis on the award of RM3 5 million made by the Court of Appeal in M.G.G. Pillai v. Tan Sri Dato’ Vincent Tan Chee Yioun & 2 Other Appeals [1995] 2 CLJ 912. [80] In Liew Yew Tiam & Ors v. Cheah Cheng Hoc & Ors [2001] 2 CLJ 385, the Court of Appeal observed that the decision in MGG Pillai was 10 one which had been misunderstood, and that the trend set by that decision should be checked to ensure that an action for defamation would not be used as an engine of oppression. In Liew Yew Tiam, the Court of Appeal held, inter alia, that the learned trial judge erred when he made separate awards of damages against each of the appellants, and it reduced the 15 awards totalling RM1 million to RM100,000.00. This is what Gopal Sri Ram, JCA (later FCJ), [the learned judge of the Court of Appeal who wrote the main judgment in MGG Pillai] said: “In the process of making our assessment we have not overlooked 20 the recent trend in this country of claims and awards in defamation cases running into several million Ringgit. No doubt that trend was set by the decision of this Court in MGG Pillai v Tan Sri Dato 107 Vincent Tan Chee Yioun. It is a decision that has been much misunderstood. The underlying philosophy of that decision is that injury to reputation is as, if not more, important to a member of our society than the loss of a limb. But we think the time has come when we should check the trend set by that case. This is to ensure 5 that an action for defamation is not used as an engine of oppression. Otherwise, the constitutional guarantee of freedom of expression will be rendered illusory. … 10 We would add that we do not regard the affirmation by the Federal Court of the decision in MGG Pillai v Tan Sri Dato’ Vincent Tan Chee Yioun as an insurmountable hurdle of binding precedent to our decision in the present case. For, at the end of the day, the 15 Federal Court affirmed the award made in the circumstances of that particular case as a proper exercise of judicial discretion by the High Court upon the question of damages. We do not think that it automatically follows as a matter of policy that the plaintiff in every case should be entitled to receive an award in millions of ringgit.” 20 [81] In Karpal Singh v DP Vijandran [2001] 4 MLJ 161, the Court of Appeal remarked that the principal governing the assessment of damages in libel cases have remained unchanged over the years. It was the amount awarded which had drastically changed over the last five or six 25 years. Therefore, in considering the award made by the trial Court, it was important to look at the trend of awards of damages made by the Courts in the country. Of course, it must be borne in mind that each case was to 108 be decided on its own facts and circumstances. The Court then referred to awards made in several cases decided within the preceding period of twenty years from 1980. Abdul Hamid Mohamad JCA [later CJ], speaking for the Court of Appeal said: 5 “… I think that the cases that I have referred are sufficient to show the trend. Until the arrival of Vincent Tan in 1995, the highest award ever given by the court in this country was RM100,000. Vincent Tan sky rocketed the awards. When the award was confirmed by the Court of Appeal, what was an isolated pinnacle in an otherwise 10 undulating plain, the trend is set. When the Federal Court confirmed it, it became a binding precedent in all the courts in this country. But, now the Court of Appeal in Liew Yew Tiam has had second thoughts about it. The learned judge of the Court of Appeal who wrote the main judgment in MGG Pillai has sought to 15 distinguish MGG Pillai's case. 'It is a decision that has been much misunderstood and the trend should be checked,' he said. This court is bound by the decisions of the Federal Court. But what is binding is the principle laid down by the Federal Court in assessing damages in libel cases, not the amount. The amount to 20 be awarded in each case depends on the facts and the circumstances of the case. Indeed, how much is too much, how much is too little and how much is reasonable is quite subjective. No scale can be fixed. But it does not mean that, given a set of facts, the appellate court cannot say confidently that an award is 25 too little or too much or reasonable. It is the same as in an appeal against sentence in a criminal case or an appeal against an award of damages in other civil cases. 109 The principle that this court should apply is clear: whether this court is of the view that that the trial judge had 'acted on a wrong principle of law, or has misapprehended the facts, or has for these or other reasons made a wholly erroneous estimate of the damage suffered'. (See Ling Wah Press (M) Sdn Bhd & Ors v Tan Sri Dato' 5 Vincent Tan Chee Yioun & other appeals and the cases referred to therein). I would not say that the learned trial judge had acted on wrong principle in this case. However, I am of the view that the learned judge has misapprehended the facts and was also influenced by 10 the prevailing trend then.” [82] In the present appeal, the learned trial judge had considered the seriousness of the libel, the extent of the publication, the Plaintiff’s reputation and the adverse effect of the defamatory statements on his 15 dignity and reputation, and the conduct of the Defendants including absence of remorse for defaming the Plaintiff and in urging the Court not to award any damages or costs to the Plaintiff, all of which the learned trial judge was entitled to take into account in assessing damages. Then, there is the award in MGG Pillai’s case which we have to put into the 20 scale to consider the award made by the learned trial judge. Whilst we are not prepared to share the Court of Appeal’s view that the learned trial judge had placed great emphasis on the award of RM3 million against the First Defendant in MGG Pillai, it is difficult to say that if the learned trial judge had not been influenced by the award in MGG Pillai, he would have 25 110 awarded the global sum of RM1 million to the Plaintiff for compensatory, aggravated and exemplary damages. This, in our view warrants appellate interference. [83] In the circumstances of this case, we are of the view that a total 5 award of RM600,00.00 would be reasonable. Therefore, the Plaintiff’s appeal on damages is allowed. The total damages awarded to the Plaintiff is increased to RM600,000.00. CONCLUSION 10 [84] In the result, the Plaintiff’s appeal is allowed with costs. [85] Accordingly, it is ordered that: 15

(a) The First and the Second Defendants pay to the Plaintiff damages in the sum of RM600,000.00 with interest thereon at 8% per annum from the date of the judgment of the High Court (29.2.2012) until full payment; and 20 111

(b) The First and the Second Defendants pay to the Plaintiff costs in the sum of RM200,000.00 subject to the payment of allocatur. 5 sgd (TAN SRI DATUK WIRA AHMAD BIN HAJI MAAROP) Chief Judge of Malaya Federal Court of Malaysia Putrajaya 10 Dated: 26 September 2017 15 Counsel for the Appellant : Mr Yunof E. Maringking, Mr. Trevor Kenneth Maringking and Ms. Latania John Masabal (with him) Messrs. Maringking & Co Advocates & Solicitors 20 Lot 119, 2nd Floor, Jalan Gaya Wisma Bumi, P O Box 14174 88848 KOTA KINABALU Sabah 25 Counsel for the Respondent : Mr Geoffrey Robertson QC and Datuk Simon Shim ESQ (with him) Messrs. Shim Pang & Co Advocates & Solicitors Suite 308-311, 3rd Floor 30 Wisma Sabah, Jalan Tun Razak 88000 KOTA KINABALU Sabah