LFL SDN BHD v Kerajaan Malaysia (W-01(IM)-393-07/2021)

(i) the 16th Article contained false statements of fact;

(i) a declaration that the appellant has the rights to express their opinion in Malaysia with regard to any matters, pursuant to Article10(1)(a) of the Federal Constitution;

(a) a declaration that the direction issued by the defendant could not be enforced against the appellant in Malaysia;

(b) a declaration that the defendant, or anyone acting under his authority, could not take any action to enforce any provision of the POFMA against the appellant within Malaysia; and

(c) an injunction to restrain the defendant, his servant or agents or anyone acting under his direction from enforcing Singapore’s laws, in particular the POFMA, or taking any action related thereto, within Malaysia against the appellant. [9] Vide order dated 23.12.2020, the Attorney General of Malaysia was granted leave to intervene in OS 51. The Government of Malaysia, as the defendant in OS 46, and the Attorney General of Malaysia, as the intervener in OS 51, applied to strike out the plaintiff’s OS on the grounds that they were scandalous, vexatious and frivolous and otherwise an abuse of the process of court. [10] In brief, the GOM and AG’s applications to strike out the appellant’s OS 46 and OS 51 are premised on the following grounds-

(a) the High Court in Malaysia has no jurisdiction to determine the validity of foreign legislation;

(b) Malaysia recognises Singapore as a foreign sovereign and therefore Singapore enjoys immunity;

(c) the appellant is seeking to use the process of the court in Malaysia to evade and escape from the enforcement of Singapore laws in Singapore. High Court’s decision and reasons [11] Both the applications were heard together. The learned High Court Judge has allowed the Government of Malaysia’s application (encl. 7) and the Attorney General of Malaysia’s application (encl. 29) to strike out both the appellant’s OS 46 and OS 51 with no order as to costs. [12] According to the Grounds of Judgment (GOJ) of the learned High Court Judge, inter alia -

(a) Section 60 of the POFMA provides that, when an offence is committed by a person outside Singapore, that person may be dealt with in respect of that offence as if it had been committed within Singapore. Section 233 of the Communication and Multimedia Act 1988 (‘CMA’) makes it an offence, inter alia, for a person to use a network facility or network services to initiate the transmission of any false communication with the intent to annoy, abuse, threaten or harass another person. Section 4(1) of the CMA stipulates that the CMA applies to both within and outside Malaysia.

(b) Both OS 46 and OS 51 called for the court to determine the validity of the defendant’s action against the plaintiff under the provision of the POFMA. However, the court was not seized with the jurisdiction to adjudicate on the validity of the POFMA. The law as to jurisdiction had to be strictly observed by the court, as set out in s. 23 of the Court of Judicature Act 1964 which explicitly set out the general civil jurisdiction of the High Court. Both OS 46 and OS 51 were frivolous and vexatious and abuse of the process of the court, with no prospect to succeed.

(c) The Yang di-Pertuan Agong recognized Singapore as a foreign sovereign. A certificate to this effect was issued by the Secretary General of the Malaysian Ministry of Foreign Affairs. With the issuance of the certificate, (i) Singapore is clothed with sovereign immunity from the jurisdiction of this court; and (ii) this court was barred from exercising its jurisdiction to further inquire into the plaintiff’s complaints in the OS.

(d) Furthermore, the defendant, in issuing the correction direction pursuant to the provisions of the POFMA, was an act undertaken by the authority of sovereign State of Singapore. This was clearly a government act and therefore protected by sovereign immunity.

(e) The present case comes within the category of plain and obvious case as envisaged in the case of Bandar Builder Sdn Bhd for the reason that both the OS are frivolous and vexatious and abuse of the process of the court. [13] Aggrieved by the learned High Court’s decision, the Appellant filed appeal 390 against the AG and Appeal 393 against GOM. Appellant’s submission [14] Learned counsel for the appellant contended that there are serious questions that need to be tried as the OS involved a consideration and resolution of applicability of two principles grounded in the international law of comity of nations, in the context of this case. The first principle grants immunity to a foreign state from being sued in another state in respect of its sovereign or governmental acts. The second principle limits the applicability of a country’s laws to its own territory and its citizen within that territory. [15] The issue that arises in the OS filed in respect of Appeal 390 is: whether and to what extent the court in one sovereign state has the jurisdiction to consider whether or not relief can be given to a person who complains that he could be affected adversely by a law of another sovereign state acting possibly in violation of the second principle. In other words, is the immunity granted under the first principle absolute such as to oust entirely the applicability of the second principle. And as such that the citizen will be denied access to justice in this country. Thus, this requires a full and mature consideration of the applicability and scope of an extra-territorial law in the context of the principle of comity between nations. It was further contended that based on this principle, a foreign state cannot rely on the principle of absolute immunity to oust the jurisdiction of the local court. It was also submitted that there is no reason why local courts are deprived of the jurisdiction to also consider this issue as to whether or not a law has extra-territorial effect; and the concomitant issue of its possible consideration as in this case to balance against or oust the immunity of sovereign nations. To allow extra-territorial effect of laws outright would result in an impairment of the appellant’s guarantee of fundamental rights to freedom of speech under Article 10 of the Federal Constitution. It was also contended that any person who genuinely perceives a threat to his freedom or adverse consequence is entitled to seek a declaration from our court to protect himself from the threatened action. The case of Datuk Syed Kecik v Government of Malaysia & Anor [1979] 2 MLJ 101 was cited in support of the proposition. It was submitted that the High Court Judge in allowing the striking out applications had failed altogether to address on point of law – of applicability of this principle of comity of nations as regards extra-territorial effect of a national law. [16] Learned counsel further contended that the immunity to a foreign state may be denied if it violates two important principles, namely, fundamental rights, and access to justice. The case of Benkharbouceh v Embassy of the Republic of Sudan [2019] AC 777 was cited in support of the argument. The principle in Benkharbouceh was applied by the Federal Court in Subramaniam a/l Letchumanan v The United State of America and another appeal and The United States of America v Menteri Sumber Manusia Malaysia and Ors [2022] 1 LNS 1253. It was further submitted that the appellant is not questioning the validity of the Singapore law. Just that any such law should not be extended to citizens in Malaysia exercising their right to free speech. That is the thrust of the remedy that the appellant seeks from the court. [17] It was also contended by the appellant that the Attorney General of Malaysia as intervener has no locus standi to object the OS at this stage of the proceedings when OS 51 in Appeal 390 has yet to be served on the defendant (Minister of Home Affairs Singapore). Thus, the AG has no right to strike out this action when the defendant has not been served and not taken any such course of action. Several cases were cited to support the argument : Commonwealth of Australia v Midford (M) Sdn Bhd [1990] 1 MLJCJ (Rep) 77 [SC]; Hii Yii Ann v Deputy Commissioner of Taxation of the Commonwealth of Australia & Ors [2018] 7 MLJ 393; Subramaniam a/l Letchumanan v The United States of America and another appeal [2021] 5 MLJ 612. Respondents’ submission [18] Learned Senior Federal Counsel (SFC) for the respondents submitted that in both cases jurisdiction is a fundamental and threshold issue. Making reference to section 23 of the Court of Judicature Act 1964, the SFC contended that the general civil jurisdiction of the High Court provides that its limited within the local jurisdiction of the court. Jurisdiction therefore is a limiting factor to the power of the High Court to deal with a subject matter. SFC further contended that there is a significant difference between “jurisdiction” and “power”. Jurisdiction relates to the type of such matter which the court may deal with, whereas its powers may be exercised only in relation to that jurisdiction. The case of Tan Keat Seng Kitson v Kerajaan Malaysia [1996] 1 MLJ 454; Hap Seng Plantations (River Estates) Sdn Bhd v Excess Interpoint Sdn Bhd & Anor [2016] 3 MLJ 553; Abdul Ghafar bin Md. Amin v Ibrahim b. Yusoff and Anor [2008] 3 MLJ 771 were cited to support the argument. [19] On point of sovereign immunity, SFC submitted that in Malaysia the courts have adopted the theory of ‘restricted’ sovereign immunity rather than absolute immunity. Absolute immunity would mean that any proceedings against a foreign state are inadmissible unless that state expressly agrees to waive such immunity, whereas restrictive immunity would mean that the immunity is only available in respect of sovereign activities or governmental acts (acta jure imperil) and not acts of a commercial nature (acta jure gestionis). The case of Commonwealth of Australia Commissioner of Taxation v Mildford (M) Sdn Bhd [1990] 1 CLJ (Rep) 77 and Hii Yii Ann v Deputy Commissioner of Taxation of the Commonwealth of Australia & Ors [2018] 7 MLJ 393 were cited to support the argument. It was further submitted that the certificate issued by the Yang di-Pertuan Agong vide the Secretary General of Malaysia Ministry of Foreign Affairs (Wisma Putra) had recognized Singapore as a foreign sovereign. As such, Singapore is clothed with sovereign immunity from the jurisdiction of courts in Malaysia exercising jurisdiction to inquire into the appellant’s complaints in the two OS. SFC further submitted that the act of Singapore Home Affairs Minister in issuing the correction direction pursuant to the provisions of POFMA was an act undertaken by the authority of sovereign state of Singapore that is governmental act (acta jure imperil) and therefore protected by foreign immunity. Our decision [20] These appeals are against the decision of the High Court allowing the striking out application made by the respondents pursuant to O. 18 r. 19 of the Rules of Court 2012. [21] Since we are concerned here with the question of striking out pleadings under O. 18 r.19, we do not propose to go into the facts and documents in any more detail than is necessary. [22] With regard to the principles for striking out pleadings, there are well explained and expounded by the Federal Court in Seruan Gemilang Makmur Sdn Bhd v Kerajaan Negeri Pahang Darul Makmur & Anor [2016] 3 MLJ 1 where Ramly Ali FCJ stated that: “[25] The principles for striking out pleadings pursuant to O. 18 r 19 of the ROC are well settled. It is only in a plain and obvious case that recourse should be had to the summary process under this rule; and this summary process can only be adopted when it can clearly be seen that a claim on the face of it is obviously unsustainable (see Bandar Builder, Hubbuck & Sons v Wilkinson, Heywood and Clark [1999] 1 QB 86; AG of Duchy of Lancaster v London and North Western Rly Co [1892] 3 Ch 274). [26] The tests for striking out application under O. 18 r 19 of the ROC, as adopted by the Supreme Court in Bandar Builder are, inter alia, as follows:

(a) it is only in plain and obvious case that recourse should be had to the summary process under the rule;

(b) this summary procedure can only be adopted when it can be clearly seen that a claim or answer is on the face of it ‘obviously unsustainable’ (Emphasis added);

(c) it cannot b exercised by a minute examination of the document and facts in order to see whether the party has a cause of action or defence; and

(d) if there is a point of law which requires serious discussion, an objection should be taken on the pleadings and the point set down for argument under O 33 r 33 of the ROC; and

(e) the court must be satisfied that there is no reasonable cause of action or that the claims are frivolous or vexatious or that the defence raised are not arguable. [27] The Court of Appeal, in Sivarasa Rasiah & Ors v Che Hamzah Che Ismail & Ors [2012] 1 MLJ 473, had adopted the well settled principle of striking out in the following passage: A striking out should not be made summarily by the court if there is issue of law that requires lengthy argument and mature consideration. It should also not be made if there is issue of facts that is capable of resolution only after taking viva voce evidence during trial, (see Lai Yoke Ngan & Anor v Chin Teck Kwee & Anor [1997] 2 MLJ 565 (Federal Court)… [28] The basic test for striking out as laid down by the Supreme Court in Bandar Builder is that the claim on the face of it must be ‘obviously unsustainable’. The stress is not only on the word ‘unsustainable’ but also on the word ‘obviously’ ie the degree of unsustainability must appear on the face of the claim without having to go into lengthy and mature consideration in detail. If one has to go into lengthy and mature consideration in detail of the issue of law and/or fact, then the matter is not appropriate to be struck out summarily. It must be determined at trial. [29] The established rule on this point is that the court should not examine the evidence in this summary proceedings in such a such a way as to amount to conducting a trial on the conflicting affidavit evidence. As rightly said by Lord Diplock in the House of Lords in American Cynamid Co v Ethicon Ltd [1975] AC 396 at p 407: … The court no doubt must be satisfied that the claim is not frivolous or vexatious; in other words, that there is a serious question to be tried. It is no part of the court’s function at this stage of the litigation to try to resolve conflicts of evidence on affidavit as to facts on which the claims of either party may ultimately depend not to decide difficult question of law which call for detailed argument and mature consideration. These are matters to be dealt with at the trial… This passage was cited with approval by Privy Council in a Malaysian case of Eng Mee Yong & Ors v Letchumanan [1979] 2 MLJ 212.” [23] Coming back to the instant appeals. From the OS 46 and OS 51, it is clear to us that the appellant’s application for various reliefs and declarations concern the issue of extra-territorial enforcement of certain Singapore laws in Malaysia i.e. POFMA. On that account, it means that the issue of extra-territorial enforcement of a foreign law in Malaysia and the jurisdiction of Malaysian courts vis a vis that foreign law would have to be dealt with following mature discussion and consideration by the court. Learned counsel for the appellant argued that the Federal Constitution protects the appellant’s rights to freedom of expression and it is unfair to penalise the appellant in favour of a foreign law, the application of which is unsettled in Malaysia. It is our view that the issue raised by the appellant merits full and mature consideration. We agree that there are serious questions to be tried in both Originating Summons. In particular the two principles of comity of nations raised by the appellant was not considered at all by the learned High Court Judge. The first principle grants immunity of a sovereign state from being sued in another state in respect of its sovereign or government acts; and the second principle limits applicability of a country’s law to its own territory. In this regard, it is useful to refer to Bennion on Statutory Interpretation, 7th edn, p. 118: “In general, the principle of comity between nations requires that each sovereign state should be exclusively allowed to govern its own territory. So an Act does not usually apply to acts or omissions taking place outside its territory, whether they involve foreigners or Britons.” [24] We agree with the submission of learned counsel for the appellant that there are serious issues raised in both the OS that requires further serious argument. The primary issue raised by the appellant in both appeals is whether and to what extent the courts in Malaysia have jurisdiction to consider whether or not relief can be given to a person who complains that he could be affected adversely by a law of another sovereign state acting possibly in violation of the second principle, i.e. the extra-territorial application of Singapore’s law in Malaysia in the context of the principle of comity between nations. [25] The learned High Court Judge decided that the appellant was seeking the court’s pronouncement on the validity of a Singapore law, i.e. POFMA, and in this regard the learned judge stated as follows: “[16] Based on the above, I am of the considered opinion that this court does not have the jurisdiction to adjudicate on the validity of the POFMA.” [26] However, with respect, this is not the crux of the appellant’s case. The appellant is not seeking the assistance of the High Court to adjudicate on the validity of a foreign law, i.e. the POFMA. The appellant’s challenge was instead on the extent of application of Singapore law to a citizen or entity of this country, lawfully exercising within Malaysia his rights to freedom of speech as enshrined and guaranteed by the Federal Constitution. In other words, the question is to what extent, if any, may the laws of one sovereign state have extra-territorial effect in another sovereign states in the context of comity among nations. We believe that this is the first time such a question has been brought to our courts and it is an important enough issue to be given in-depth consideration by the court. This is even more so when considering the potential legal consequences to the appellant arising from non-compliance to the Correction Direction. Under section 15(1) of the POFMA a person can be imprisoned or fined (or both) for non-compliance of a Correction Direction. Hence, it is clear that the appellant faces potential criminal sanction and penalty for any alleged breach of POFMA, and the Singapore authorities may have recourse to the Summons and Warrants (Special Provisions) Act 1971 to enforce the appearance of the appellant in Singapore in respect of the alleged offence. Pursuant to section 3 of the Act, a Magistrate in Malaysia is empowered to issue a summons for a person to appear in a Singapore Court if satisfied that it is a valid summons issued by a Singapore Court requiring the appearance of that person. [27] The situation is very unique. The appellant is a Malaysian entity. The offending publication by the appellant, i.e. the 16th Article, was published by the appellant in its website in Malaysia. The Correction Direction was served on the appellant in Malaysia, directing the appellant to insert a correction notice before the stipulated date. The appellant failed and/or refused to do as directed. This is an offence under POFMA in Singapore. The appellant can be summoned to appear in a Singapore Court through the assistance of the Malaysian courts pursuant to the Summons and Warrants (Special Provisions) Act 1971. In such a situation, where Malaysia has some treaty obligations to render assistance to the Singapore authorities, it becomes even more imperative for the issue raised the appellant in both OS be given the consideration that they deserve, instead of being summarily struck out. In coming to the decision to strike out both the OS, the High Court Judge had failed altogether to address this very crucial and important point of law – i.e. of the applicability of the principle of comity of nations as regards extra-territorial effect of a national law. [28] Thus, upon the facts and allegations pleaded in the pleadings, which we have highlighted above, can it be said that the OS applications disclose no reasonable cause of action, for the High Court to exercise its power to strike out the pleadings under O. 18 r.19(1)? Secondly based on the conflicting affidavits in support of the applications, can the High Court court exercise its power under the said Order or under its inherent jurisdiction to strike out the same pleadings on the ground that they are frivolous or vexatious or may prejudice embarrass or delay the fair trial of the action or these pleadings are otherwise an abuse of the process of the court under r.19(1)(b), (c) or (d) of O.18? [see Bandar Builder (supra)]. [29] Bearing in mind the established principles stated above, we say that this is not a plain and obvious case for striking out the pleading as disclosing no reasonable cause of action. Nor can we say that they are frivolous, vexatious or may prejudice embarrass or delay the fair trial of the action or that these pleadings are otherwise an abuse of process of the court. To that extent we find that the learned High Court had erred. [30] It has been said that so long as the pleadings disclose some cause of action or raise some questions fit to be decided by the judge, the mere fact that the case is weak and not likely to succeed at the trial is no ground for the pleadings to be struck out. The court should only strike out a suit sparingly and only when it is bound to fail at trial. We are of the considered view that there are serious questions to be tried in the OS of both Appeal 390 and Appeal 393 as the cases involved a consideration and resolution of applicability of two principles grounded in the international law of comity of nations and extra-territorial jurisdiction. The authorities further show that if there is a point of law which requires serious discussion, an objection should be taken on the pleadings and the point set down for argument under O. 33 r. 3 of the Rules of Court 2012. Conclusion [31] In view of the reasons as discussed above, we hold that both the decisions of the High Court allowing the striking out applications of the respondents is plainly wrong, which therefore warrants appellate intervention. [32] As such, both appeals are allowed and we set aside the orders of the High Court. Both matters are remitted to the High Court. We made no order as to costs. t.t. (YAACOB HAJI MD SAM) Judge Court of Appeal Malaysia Dated 11 October 2023 Solicitors : Counsels for the Appellant: Dato’ Dr Gurdial Singh Nijar Latheefa Koya Kamarudin Abraham Au Tian Hui Messrs Daim & Gamany Solicitors & Advocates Unit A-1-1, Block A, 8 Avenue, Jalan Sungai Jernih 8/1 46050 Petaling Jaya Selangor Darul Ehsan. Counsels for the Respondents: Suzana binti Atan (Senior Federal Counsel) Atiqah binti Zainal Abidin (Federal Counsel) Attorney General’s Chambers (Civil Division), No.45, Persiaran Perdana, Precint 4, 62100 Putrajaya.