LIM Guan Eng v the China Press Berhad (PA-23NCvC-2-01/2021)

The Defendant: Oh Tong Keong (OTK) is a politician. He held a press conference. He invited the media to come to his press conference. He talked about the Plaintiff (P). P is a well-known politician. A press statement about the press conference was emailed out to various persons in the media.

A “China Press” journalist attended the press conference. She wrote an article about what OTK said at the press conference. It was published in both print and online forms.

P sued OTK and the “China Press” for libel, for the allegedly defamatory words and statements in the press statement and the “China Press” article.

Should P succeed in his cause for libel? In other words, does OTK and the “China Press” have defences to P’s suits for defamation?

P filed two libel suits—one against OTK vide Suit PA-23NCVC-1- 01/2021 (Suit 1), and the other against China Press Berhad vide Suit PA-23NCVC-2-01/2021(Suit 2). Both Suit 1 and Suit 2 arise out of OTK’s press conference on 25.9.2019.

In Suit 1, OTK applied for, and (I was informed) with the consent of P and China Press Berhad, obtained an Order dated 20.10.2021 to “consolidate” Suit 1 and Suit 2, and for the two suits “to be tried together”. The Order to consolidate and try the two suits together was granted by the then-presiding Judicial Commissioner.

Having read the two respective sets of pleadings, however, it is my view, that the two suits perhaps should not have been consolidated. First, the two suits consist of P’s different causes for libel against different defendants: OTK and China Press Berhad.

Second, consolidating the two suits means combining them into one suit, so that the trial becomes a single trial for the combined suit. This is distinct from trying the two separate suits “at the same time”, as provided for under Order 4 Rule 1 of the Rules Of Court 2012, where, to save time and costs, the evidence produced through the witnesses common to both suits would bind all the parties in both suits.

Third, OTK’s defences and China Press Berhad’s defences are different. There are three sets of impugned words (statements). P’s cause against OTK is that he published or caused to be published the 1st set of impugned words (allegedly his words). P’s cause against OTK is also for causing China Press Berhad to publish the 2nd and 3rd sets of impugned words (published by China Press Berhad in two identical news articles). Accordingly, OTK’s defences against publishing or causing the publication of the 1st set of impugned words, are different to OTK’s defences against causing the publication of the 2nd and 3rd sets of impugned words, which are also different from China Press Berhad’s defences against publishing those 2nd and 3rd sets of impugned words.

For example, whilst China Press Berhad mounts the Lucas Box justification defence and the defence of Reportage concerning the 2nd and 3rd sets of impugned words, OTK did not or could not mount these defences.

Nevertheless, the trial proceeded as though the two suits were “consolidated” and “tried together”.

I make this remark to point out that in my respectful view, these two suits should have been kept separate i.e. not consolidated (even though they could have been tried at the same time), which would have kept the issues between P and OTK separate and distinct from the issues between P and China Press Berhad. This would have made the trial somewhat less complicated.

P’s pleaded case can be summarised as follows.

P was and is an elected Member Of Parliament (of the Bagan electoral constituency) and the State Legislative Assembly of Penang (of the Air Putih electoral constituency)—since 8.3.2008.

P was the Chief Minister of Penang from March 2008 to April 2018.

P then became the Federal Government’s Finance Minister from May 2018 to February 2020.

P was and still is, at the material time of this suit, the Secretary General of the political party: the Democratic Action Party (DAP).

OTK was the Chairman of the political party: the Parti Gerakan Malaysia (Gerakan), at its Penang chapter.

On 25.9.2019, OTK held a press conference at the Gerakan headquarters in Penang. It was attended by many members of the media.

At the press conference, OTK, as Gerakan’s National Deputy Chairman and the State Chairman of Gerakan’s Penang chapter, made statements about P that were defamatory. The First Impugned Statement 21. P’s cause against OTK is not for any alleged slander uttered at the press conference on 25.9.2019. Instead, it is for libel.

After the press conference, on the same day (25.9.2019), OTK published or caused to be published the words of a statement containing the words set out below. These words were excerpts from a press statement written in the national language, which Gerakan sent out to various members of the media by email. I will refer to the press statement as either the “press statement” or the “email”. There were 16 recipients of the press statement or email. The First Impugned Statement (FIS), as pleaded, contained these words— “Sidang Media Oh Tong Keong, Timbalan Pengerusi Parti Gerakan Rakyat Malaysia Nasional, 25/9/2019: Timbalan Pengerusi Parti Gerakan Rakyat Malaysia Nasional, Oh Tong Keong mempersoalkan Lim Guan Eng sama ada beliau mengenali Hendrick wakil dari Syarikat Hiburan WGW dan kenapa syarikat itu dikecualikan daripada membayar cukai hiburan. Oh Tong Keong menunjukkan gambar Lim Guan Eng yang ditanggap bersama-sama dengan Hendrick dalam sidang media pada hari ini. Beliau berkata, dari interaksi kedua-dua orang itu dalam gambar itu, kami percaya bahawa mereka berdua saling kenal mengenal satu sama lain. Maka, beliau menggesa Lim Guan Eng memberi penjelasan kenapa syarikat hiburan itu boleh menikmati hak keistimewaan itu dengan dikecualikan membayar cukai hiburan. Beliau berkata, dalam keadaan meleset sekarang, kedua-dua kerajaan tempatan di bawah kerajaan negeri PH menaikkan kadar cukai pintu yang telah membebankan rakyat Pulau Pinang. Selain itu, Kementerian Kewangan juga mengenakan cukai ke atas minuman ringan atau soda pada tahun lepas, namun Syarikat Hiburan WGW menikmati hak keistimewaan bebas cukai. Kenapa rakyat jelata perlu membayar cukai sedangkan syarikat itu dikecualikan daripada membayar cukai hiburan? … Antara perkara yang perlu dijelaskan adalah mengapakah syarikat itu boleh dikecualikan daripada membayar cukai hiburan? Pengecualian daripada cukai adalah di bawah kuasa Kementerian Kewangan, maka saya ingin bertanya, apakah pandangan Lim Guan Eng selaku Menteri Kewangan terhadap hal itu. ‘Mengapakah syarikat ini yang dapat menikmati hak keistimewaan ini? Mengapakah Kerajaan PH memanjakan pihak syarikat itu?’ [emphases are mine]

I note that the FIS is not the entire content of the press statement/email. The FIS consists of the caption (subject matter) and the 1st, 2nd, 3rd, 7th and 8th paragraphs of the 16-paragraph press statement/email (which Gerakan sent to the 16 recipients). The Second Impugned Statement 24. China Press Berhad owns, publishes and distributes the leading Chinese language daily newspaper called the “China Press”. I will refer to the publisher: China Press Berhad and the newspaper it publishes: “China Press” interchangeably as “CP”.

CP has both printed and online versions. The printed version is the conventional physical newspaper. The online version is published and circulated over the internet through its online portal. CP has a wide circulation and enjoys a large readership and subscription base.

On the day after the 25.9.2019 press conference i.e. on 26.9.2019, CP published (in print) a news article, where its caption and an excerpt from the article constituted the Second Impugned Statement (SIS). The SIS, as pleaded, contains the following caption and excerpt— “Syarikat WGW Menikmati Keistimewaan Potongan Cukai? Oh Tong Keong Minta Lim Guan Eng Memberi Penjelasan” “(Pulau Pinang 25hb) Pengerusi Parti Gerakan Rakyat Malaysia (“PGRM”) Pulai Pinang, Oh Tong Keong menunjukkan beberapa keping gambar Menteri Kewangan Lim Guan Eng bersama Pengarah Urusan Syarikat WGW Entertainment Sdn. Bhd., Hendrick Huang, serta surat rasmi Kementerian Pelancongan mengenai tawaran permohonan potongan cukai, dan menyoal sama ada Lim Guan Eng tahu tentang perkara ini? Beliau bertanya kepada Lim Guan Eng sama ada beliau mengenali Hendrick Huang dan syarikat ini, dan mengapa boleh ada hak istimewa untuk potongan cukai?” [emphases are mine]

I similarly note that the SIS is not the entire content of the news article. The SIS consists of the caption (subject matter), with only the 1st and 2nd paragraphs of the 9-paragraph CP article. The Third Impugned Statement 28. The CP news article was actually written earlier. It was written on the very day of the press conference i.e. on 25.9.2019. On 25.9.2019, CP published an earlier online version of the article in its online portal. The Third Impugned Statement (TIS), as pleaded, and as published in CP’s online portal, contains an identical excerpt as the SIS (but without the caption)— “(Pulau Pinang 25hb) Pengerusi Parti Gerakan Rakyat Malaysia (“PGRM”) Pulai Pinang, Oh Tong Keong menunjukkan beberapa keeping gambar Menteri Kewangan Lim Guan Eng bersama Pengarah Urusan Syarikat WGW Entertainment Sdn. Bhd., Hendrick Huang, serta surat rasmi Kementerian Pelancongan mengenai tawaran permohonan potongan cukai, dan menyoal sama ada Lim Guan Eng tahu tentang perkara ini? Beliau bertanya kepada Lim Guan Eng sama ada beliau mengenali Hendrick Huang dan syarikat ini, dan mengapa boleh ada hak istimewa untuk potongan cukai?”

I again note that the TIS is not the entire content of the online article. The TIS consists of only the 1st and 2nd paragraphs of the same 9-paragraph CP article.

P asserts that OTK caused CP to publish the SIS and TIS. The reason P says so is that both the print and online articles “allude to and are based on” OTK’s statements made at his 25.9.2019 press conference—paragraph 8 of the Re-Amended Statement Of Claim.

P pleads that all three impugned statements refer to P.

P pleads that the natural and ordinary meaning of the FIS is that—

WGW Entertainment’s director is Hendrick Huang;

WGW organised a concert called Fantastic Duo 2019;

the concert did not materialise;

WGW was granted full exemption from paying entertainment tax;

P was closely acquainted with Huang;

P granted WGW the full exemption from entertainment tax in his capacity as the Finance Minister;

P must explain the reason that the Ministry Of Finance (MOF) granted the entertainment tax exemption to WGW.

P pleads that the natural and ordinary meaning of the SIS and TIS are the same as for the FIS, except that instead of a “full exemption from entertainment tax” (as stated in the FIS), the meaning was “the privilege of deduction in entertainment tax” (as stated in the SIS and TIS).

The FIS also carried defamatory “connotations and imputations”, which include—

P used his authority and power as the Finance Minister to secure the tax exemption in WGW’s favour;

P used his authority and power as the Finance Minister to secure the tax exemption in WGW’s favour because of his “close association” with WGW’s director: Huang;

P abused his position as the Finance Minister by “manipulating the MOF” to grant the tax exemption to WGW;

P “maliciously exercised his power” as the Finance Minister “to practice bias and favouritism”, and by extension, “a policy of discrimination”;

P is “bereft of integrity and honesty”:

P has “brought disrepute to the public office” which he held;

P is “not a person of good character”;

P does not deserve to hold the “esteemed position and honourable office” of the Finance Minister.

The SIS and TIS also carried the same defamatory “connotations and imputations” as the FIS, except that instead of relating it to “tax exemption”, they related it to “tax deduction”.

P pleads that neither the MOF nor he, as the Finance Minister, granted WGW “any exemption or privilege” concerning the payment of taxes.

P pleads that the impugned statements are “devoid of truth and substance” i.e. not true.

P pleads that the impugned statements are therefore “highly defamatory” of P. The impugned statements disparaged him in his personal and official capacities, and in the context of his office, profession and calling. The impugned statements exposed him to humiliation, ridicule, odium, contempt and public scandal. The impugned statements gravely injured his character, reputation and good name. The impugned statements have deeply lowered his standing in the estimation of right-thinking members of society.

On 6.1.2020, P issued a Notice Of Action to OTK, demanding that OTK publishes an unconditional and unreserved apology, and retract the impugned statements. OTK refused to heed the demand. Thus, this suit for libel.

Among the reliefs and remedies that P claims, P seeks aggravated damages. P asserts that aggravated damages are warranted because—

the manner in which, and the motive with which, OTK defamed P heightened the humiliation and injury to P’s feelings;

OTK deliberately convened a press conference for the very purpose of “decimating and injuring” P’s character and his office;

there was no reason for OTK to convene the press conference to utter the statements that were eventually published by CP;

the impugned statements received wide publicity and broad coverage through CP’s publications. THE LAW ON LIBEL APPLICABLE TO THESE TWO SUITS The three elements for libel 41. To succeed in a suit for defamation, particularly in libel, P must prove these three trite elements—

the words complained of (the impugned statements) are defamatory;

the impugned statements refer to P;

the impugned statements were published to persons other than to P i.e. third parties. Whether the impugned statements are defamatory: the meaning-of-the-words issue 42. This issue is a common issue in P’s cause against OTK and P’s cause against CP.

These are the principles I have to follow when I determine whether the impugned statements, in their natural and ordinary meaning, are defamatory. First, whether the impugned statements were “calculated to expose the plaintiff to hatred, ridicule or contempt in the mind of a reasonable man or would tend to lower the plaintiff in the estimation of right-thinking members of society generally”—the Court Of Appeal judgment in Bre Sdn Bhd & Ors v Tun Datuk Patinggi Hj Abdul Rahman Ya’kub [2005] 3 MLJ 485 (CA) at MLJ page 490, paragraph [10]; [2005] 3 AMR 1; [2005] 2 CLJ 645; [2005] 1 MLRA 289.

Second, to determine whether the impugned statements are defamatory, the test is whether the impugned statements “would tend to lower the plaintiff in the estimation of right-thinking members of society generally”. The impugned statements “could still be defamatory even if they did not lower a plaintiff in the estimation of those to whom they were published”.

It is therefore not material whether the impugned statements actually defamed P. The “law looks only to the tendency” of the impugned statements to do so—the High Court judgment in Tun Datuk Patinggi Haji Abdul Rahman Ya’kub v Bre Sdn Bhd & Ors [1996] 1 MLJ 393 (HC); [1995] 4 MLRH 877; [1995] CLJU 304, which was affirmed by the Court Of Appeal on appeal.

Third, whether the impugned statements “impute to the plaintiff any dishonourable or discreditable conduct”, or “a lack of integrity”— Chok Foo Choo @ Chok Kee Lian v The China Press Bhd [1999] 1 MLJ 371 (CA) at MLJ page 374, paragraph H; [1999] 1 AMR 753; [1999] 1 CLJ 461; [1998] 2 MLRA 287.

Fourth, whether the impugned statements tend to “excite against the plaintiff the adverse opinion of others”, or “tend to lower the plaintiff in the estimation of right-thinking members of society generally”, or constitute an attack on the plaintiff’s “moral character” in the context of “a crime, dishonesty, untruthfulness, ingratitude or cruelty”—Syed Husin Ali v Sharikat Penchetakan Utusan Melayu Berhad & Anor [1973] 2 MLJ 56 (HC) at MLJ page 58, paragraph D; [1973] CLJU 146; [1973] 1 MLRH 153.

Fifth, when I am evaluating whether the impugned statements are defamatory i.e. whether the natural and ordinary meaning of the words used contain a defamatory meaning—

I am to consider the meaning of the words objectively; in other words, the meaning of the words to “ordinary reasonable persons using their general knowledge and common sense”;

I am not to confine the words to their “strict literal meaning” but to extend them to “inferences and implications which could reasonably be drawn” by such reasonable persons;

the “meaning intended by the defendant is irrelevant”; no “extrinsic evidence” is admissible to construe the words; the “meaning must be gathered from the words themselves” —Mohamed Hafiz Mohamed Nordin v Eric Paulsen and Another Appeal [2019] 1 MLJ 580 (CA) at paragraph [22]; [2018] 8 AMR 558; [2019] 1 MLRA 125; [2018] CLJU 1731, at MLJ page 587.

Sixth, when I determine whether the impugned statements are defamatory, I am to consider the meaning of the words in the eyes of the “ordinary and reasonable” person, with “fair average intelligence”, who is “not avid for scandal”, but “who may engage in some degree of loose thinking” and “reading between the lines”, but “who, at the same time, should not be unduly suspicious”—Lim Guan Eng v Ruslan bin Kassim and Another Appeal [2021] 2 MLJ 514 (FC) at paragraph [87]; [2021] 4 CLJ 155; [2021] 3 MLRA 207; [2021] AMEJ 0200.

Seventh, when I consider whether the impugned statements are defamatory of P, I must consider the words of the impugned statements “in the context of the whole” (here: the whole press release/email and the whole news article), and “not simply on isolated passages”—Lim Guan Eng v Ruslan Kassim (supra) at MLJ paragraph [88] or CLJ paragraph [30]. Whether the impugned statements refer to P

Here, in both P’s cause against OTK and P’s cause against CP— the fact that the impugned statements refer to P is not in dispute. It is agreed that the impugned statements refer to P. Whether the impugned statements were published to third parties: the publication issue 52. This is an issue only in P’s cause against OTK. It is not an issue between P and CP.

These are the statute law and the case law principles that I am to follow, concerning whether OTK published the impugned statements to third parties. First—section 114A of the Evidence Act 1950 provides for a statutory presumption of “the fact of publication” when certain factors are present.

One presumption is this—a person who “in any manner facilitates” the publication or republication of a publication is presumed to have published or republished the contents of the publication.

Another presumption is that a person who has custody or control of any computer from which a publication originates is presumed to have published or republished the contents of the publication.

These two presumptions, however, are rebuttable. The opposing side can prove the fact to the contrary. In other words, the person concerned (defendant) can prove that he or she did not publish or republish the contents of the publication.

“Publication” is defined to include a statement, or a representation—in writing, in print, in pictorial form, or in any other form “displayed on the screen of a computer”. The FIS was part of the content of the press statement/email. P refers to the email as a press statement, presumably because it was worded as such. But whether it is referred to as the email, or as the press statement (made in conjunction with OTK’s 25.9.2019 press conference)—is not material to the merits of OTK’s case. The FIS was a publication for the application of section 114A.

The FIS consists of the 1st, 2nd, 3rd, 7th and 8th paragraphs of a 16- paragraph press statement (the caption or heading of the press statement is excluded). The press statement was part of an email which “Gerakan Penang” sent to media entities.

The email containing the press statement (which contains the FIS) was sent to media entities that included the New Straits Times, Bernama, Berita Harian, Sinar Harian, The Star, The Malay Mail, Free Malaysia Today (FMT), The Sun, Utusan, Malaysiakini, and The Malaysian Insight.

Another fact to note is that the caption or heading of the press statement reads: “Sidang Media Oh Tong Keong, Timbalan Pengerusi Parti Gerakan Rakyat Malaysia Nasional, 25/9/2019”

The pertinent parts of section 114A of the Evidence Act 1950 are set out below for reference— Section 114A. Presumption of fact in publication.

A person whose name, photograph or pseudonym appears on any publication depicting himself as the owner, host, administrator, editor or sub-editor, or who in any manner facilitates to publish or re-publish the publication is presumed to have published or re-published the contents of the publication unless the contrary is proved.

…

Any person who has in his custody or control any computer on which any publication originates from is presumed to have published or re-published the content of the publication unless the contrary is proved.

For the purpose of this section—

…

“publication” means a statement or a representation, whether in written, printed, pictorial, film, graphical, acoustic or other form displayed on the screen of a computer.

Second—the current law is that an unincorporated association (such as Gerakan) cannot be sued, nor can it sue, for libel. But, when any of the unincorporated association’s members publish a libel, everyone who authorised or participated in the libellous publication can be sued. And when any member is defamed, that person can sue for libel in his or her own name.

The Federal Court (FC) in Lim Lip Eng v Ong Ka Chuan [2022] 4 MLJ 454 (FC); [2022] 4 AMR 753; [2022] 5 CLJ 847; [2022] 5 MLRA 208 referred to section 9 (c) of the Societies Act 1966 (Act 335) and cited, with approval, Gatley on Libel and Slander (11th ed, Sweet & Maxwell). The FC propounded— [36] A company has legal personality and is not only able to possess or own property but more importantly, to sue and be sued in its own name. It therefore has a reputation generally related to its trade or commerce for which it may sue to protect, while a society is dependent on its members even to sue. A society is not, on its own, a legal entity and cannot even sue or be sued in its own name. This is clearly stated under sub-s 9(c) of Act 335 [Societies Act 1966]. [37] There is similar opinion in Gatley on Libel and Slander (11th Ed, Sweet & Maxwell) at p 251 para 8.28: Where members of an unincorporated group publish a libel each one who authorized or participated in it is personally liable in the normal way. Where the members of such a group are defamed, each has his own action if sufficiently identified by the libel. An action for libel will not lie against an unincorporated association or body of persons in its collective name, for as an entity it can neither publish nor authorize the publication of a libel. Nor can it sue, for it lacks sufficient personality. [emphases added]

Third—a person who authorises another person to publish a libel, is liable for that libel—Carter-Ruck on Libel and Privacy (6th ed, LexisNexis), at page 107, paragraph 5.22—

5.22 A person who authorises an agent or employee to make defamatory imputations of the claimant or who grants to another a right to print, publish, reproduce or sell a publication containing a defamatory imputation is liable for such publication [with a footnote citing: Godfrey v Demon Internet Ltd [2001] QB 201, [1999] 4 All ER 342]. [note and emphasis added]

I will first analyse P’s cause against OTK, the issues that arise in this cause, and OTK’s defences against the cause against him OTK’s “original email” argument 66. OTK raises several arguments. I intend to discuss and analyse, not every argument mounted by OTK, but the substantive (meaningful) ones. During oral submissions, I asked OTK if he would consider dropping his “original email” argument. But he responded that he would not consider it, and instead insisted on pursuing that argument. I heard the argument. I heard P’s response to the argument. And here is my analysis.

The “original email” argument is this. OTK argues that the 16- paragraph email (containing the FIS), which was produced and used at trial, was not the “original email” sent out from the email: “publicity.gerakanpg@gmail.com” (Gerakan Penang email).

The email was included in the Common Bundle Of Documents. The parties had agreed that the email is a Part B document. A Part B document, accordingly to Order 34 Rule 2(2)(e) of the Rules Of Court 2012, is a document “where the authenticity is not disputed but the contents are disputed”.

OTK argues that the email that was produced and used at trial is not the “original email” because, at the bottom of the email, there was a disclaimer by Lee Hishammuddin Allen & Gledhill (LHAG). OTK argues that the email that was produced and used at trial was an email issued by LHAG, and not an email sent out from the Gerakan Penang email. OTK argues that P has failed to tender the “original email” at the trial.

PW2 (Predeep Nambiar, the Bureau Chief at FMT) and PW3 (Theresa Susan Loone, a journalist at Malaysiakini) testified as P’s witnesses. One of the facts that they both testified to was that they received the 25.9.2019 email/press statement from the Gerakan Penang email (as it was addressed to the email addresses of the various media entities, including FMT and Malaysiakini). But OTK argues that they both testified that the email that they received did not have the LHAG disclaimer. In other words, the email produced and used at trial is not either of the emails they actually received.

OTK argues that as P failed to tender the original email, P’s cause against OTK must fail. OTK argues that P’s libel suit against OTK must fail on this ground alone.

To support this ground (principle), OTK cites the case law authority of Mohammad Yazid Lim Mohamad Aziz & Anor v Mohd Javerd Mohd Nizar & Anor [2015] AMEJ 624 (HC); [2014] CLJU 1841; [2014] MLRHU 1300. OTK submits that in this case, “the Federal Court” held that (quoting from OTK’s written submissions) “the plaintiff’s claim against the defendant for damages for libel ought to fail because the plaintiffs have failed to produce the computer print-out of the original email that was sent by the 1st defendant”.

It is alarming for me to find that the judgment in Mohammad Yazid (supra) cited by OTK is a 176-page judgment of the High Court (in Kuala Lumpur), not the Federal Court. I am alarmed that OTK made the wholly inaccurate representation that Mohammad Yazid (supra) is a Federal Court case law authority, which would bind me under the principle of stare decisis. (The principle of stare decisis means that I am bound to follow the principles propounded by an earlier case, particularly if that case was decided by a Court that is higher than the High Court, namely the Court Of Appeal and the Federal Court.) My findings 74. I find that OTK’s “original email” argument has no merit. I will not dismiss P’s cause against OTK on this ground. My reasons are these. One—as Mohammad Yazid (supra) is a High Court case law authority, with respect, I am not bound by the reasoning (or even the principle) propounded in it.

Two—when I asked OTK for the reason that he agreed to place the email in Part B of the Common Bundle Of Documents, his retort, through counsel, was that he had wanted to place the email in Part C, but at a case management session, it was the Court which had asked him to place it in Part B. In other words, it was the Court who made him do so (place the email in Part B).

I am of the view that it was right and proper for the email to be placed in Part B to be used and referred to at trial. OTK does not plead or take the position that the email was forged or fabricated. OTK does not dispute that the email that was produced and used at trial contains the words of the email/press statement that was sent out from the Gerakan Penang email to the various media entities. OTK does not dispute that the email that was produced and used at trial contains the FIS.

In other words, it is what the email contains (its contents) that is material, not the source of the email per se (in itself).

If OTK was insistent on inspecting the “original email” to check on its content, during the process of Discovery—the discovery of the parties’ respective documentary evidence)—OTK could have issued a Notice To Produce to P, to compel P to produce the “original email”. But OTK did not do this.

OTK could also have applied to an Order for P to produce the “original email”. But OTK did not do this either.

If OTK was insistent on inspecting the “original email”, during the process of Discovery, OTK could have asked any of the 16 recipients of the email to produce the “original email” which they received from the Gerakan Penang email. But, again, OTK did not do so.

Another fact to note is that the “original email” was issued from the Gerakan Penang email. If OTK was insistent on inspecting the “original email” before he would agree to place the email in Part B of the Common Bundle Of Documents, OTK could have checked the Gerakan Penang email in his own office. He is the State Chairman of Gerakan Penang.

If he was not minded to do this, OTK could have given to P a Notice To Produce the “original email”, and P could have, in turn, issued Gerakan Penang, or OTK himself (as State Chairman), a letter requesting for the “original email”. And if P’s request was ignored, P could have applied for a Court Order compelling them to produce the “original email”.

Three—PW2 and PW3 testified that the contents of the email that they respectively received (the equivalent of the “original email”) are the same as the body of the email produced and used at trial, except for the LHAG disclaimer appearing at the bottom of the email (which is inconsequential in its evidential effect).

Four—OTK admits that Gerakan Penang had sent out the “original email”.

It is hardly available to OTK to assert that P’s cause against him should fail simply because the “original email” was not produced for use at trial.

It is, however, a clear illustration of how a party, who by being (for lack of a better word) difficult in the conduct of their case, causes additional costs and time to be unnecessarily incurred. PUBLICATION OF THE FIS Did OTK publish the FIS or cause the FIS to be published?

To sustain his cause against OTK for the FIS, P has to prove, on the balance of probabilities, that OTK published the FIS or caused the FIS to be published.

OTK refutes this fact. OTK asserts that—

He did not send the email/press statement.

Both PW2 (Predeep Nambiar from FMT) and PW3 (Theresa Susan Loone from Malaysiakini) testified that they did not receive the email/press statement personally from him.

The email/press statement was sent from the Gerakan Penang email.

Both PW2 and PW3 testified that they received the email/press statement from the Gerakan Penang email.

He does not know who exactly sent the email/press statement. He attempted to find out who sent the email, but could not get an answer.

Even if the section 114A Evidence Act 1950 presumption of publication is invoked, it can only be invoked against Gerakan, and not against him personally. He argues that this is because there is no evidence that he is the “owner, host, administrator, editor or sub-editor” of the email/press statement.

OTK seeks to dissociate (isolate) himself from the email/press statement (which contains the FIS). He even asserts that it was the Gerakan “publicity team” or someone from the publicity team who sent the email/press statement, and as such, he is not vicariously liable for that team’s or that person’s act of sending out the email. My findings 90. I find that OTK’s arguments on this issue are untenable. One— although he denies that he sent the email, and it was some unidentified person who sent the email—he does not plead, nor does he testify to the fact that he did not know the content of the email/press statement i.e. no knowledge that the FIS was published through the email/press statement.

In other words, he does not plead, nor does he testify that he did not know about the email or the content of the email (and hence did not know that the email contained the words of the FIS).

Two—OTK was Gerakan’s National Deputy Chairman. OTK admitted in cross-examination that the function of the Gerakan publicity team—whom he asserts sent out the email i.e. published the email, i.e. published the FIS—was to communicate with the media and to publish to the media the press statements made by Gerakan’s National Chairman and Deputy National Chairman (OTK himself).

Three—OTK admitted in cross-examination that the Gerakan publicity team carries out its function under the “control and authorisation (kawalan, pengiktirafan dan kebenaran)” of the National Chairman and the Deputy National Chairman. In other words, under his authorisation and control. Put differently, whatever the Gerakan publicity team does—in communicating with the media and publishing press statements for the Deputy National Chairman—they do it with OTK’s authorisation and under his control.

Four—OTK further admitted in cross-examination that—

he is the “boss” of the staff in Gerakan Penang;

he authorised the Gerakan Penang staff to provide the Gerakan publicity team with the audio recording of his press conference and the photographs that were published together with the FIS, SIS and TIS.

Five—PW2 (Predeep Nambiar of FMT) testified that in his previous communication with OTK, OTK had on numerous occasions sent press statements to him from that same Gerakan Penang email.

Six—PW3 (Theresa Susan Loone of Malaysiakini) similarly testified that in the past, OTK’s press statements were emailed to her through the same Gerakan Penang email.

Applying section 114A of the Evidence Act 1950, I am compelled to find that OTK facilitated the publication of the email/press statement (which contains the FIS) to the media. I also find that OTK had custody or control over the computer that sent out the email/press statement.

Applying the principles gleaned from the case law authority of Lim Lip Eng (supra), and the authority of Cutter-Ruck on Libel and Privacy (supra)—I find that OTK authorised the publication of the email/press statement (which contains the FIS). I thus find that OTK published the FIS or caused the FIS to be published to third parties. THE MEANING OF THE WORDS OF THE FIS Are the words of the FIS defamatory i.e. do the words of the FIS bear a defamatory meaning?

I bear in mind that the FIS are the 1st, 2nd, 3rd, 7th and 8th paragraphs (5 paragraphs) in OTK’s 16-paragraph press statement published to various members of the media.

The words of the 1st paragraph state that OTK questioned whether (sama ada) P knew Huang, and questioned why (kenapa) WGW was exempted from having to pay entertainment tax.

The words of the 2nd paragraph state that—

OTK showed, at the press conference, a photograph that captured P together with Huang;

OTK said that from the interaction between P and Huang captured in the photographs, “we (kami)” i.e. Gerakan, believed that they were acquainted (saling kenal mengenal) with each other;

hence (maka), OTK urged P to explain (memberi penjelasan) why (kenapa) WGW could enjoy the special privilege (boleh menikmati hak keistimewaan) of an exemption from paying entertainment tax (dikecualikan membayar cukai hiburan).

The words of the 3rd paragraph state that—

OTK said that in the deteriorating state of the economy then, both the state government under Pakatan Harapan (PH) raised the rate of assessment (menaikkan kadar cukai pintu), which had burdened Penang citizens (membebankan rakyat Pulau Pinang);

besides that (selain itu), the MOF had also imposed a tax (juga mengenakan cukai) on soft drinks or sodas in the past year;

yet (namun), WGW enjoyed tax-free special privileges (menikmati hak keistimewaan bebas cukai);

why (kenapa) did the citizenry (rakyat jelata) have to pay tax while WGW was exempted from paying entertainment tax (dikecualikan daripada membayar cukai hiburan)?

The words of the 7th paragraph state that—

among the matters that required explanation was: why was WGW exempted from paying entertainment tax (mengapakah syarikat itu boleh dikecualikan daripada membayar cukai hiburan)?

tax exemption is under the jurisdiction of the MOF, hence OTK wanted to ask: what is the opinion of P as the Finance Minister about this matter (apakah pandangan Lim Guan Eng selaku Menteri Kewangan terhadap hal itu).

The words of the 8th paragraph state that—

“Why did WGW get to enjoy this special privilege (Mengapakah syarikat ini yang dapat menikmati hak keistimewaan ini)?”;

“Why did the PH government indulge WGW (mengapakah kerajaan PH memanjakan pihak syarikat itu)?”

The other paragraphs of the press statement include words that relate to—

OTK’s remarks about the Chairman of the Tourism Committee of Penang, the Tourism Department Of Malaysia, the Deputy Minister Of Tourism, Culture and Arts (MOT), and the PH government for allowing WGW to use the MOT’s official logo;

OTK urging the government to pass laws that strictly govern the management of entertainment companies so that what had happened (cancelling the concert when the public had bought tickets to go to the concert) will not happen again;

OTK’s criticism of the government for not resolving the problem;

OTK’s suggestion that ticket holders lodge police reports, and for the police to stop the persons responsible from leaving the country until the problem is resolved.

I find that these other paragraphs of the press statement do not give any further context for the objective reasonable person who evaluates the ordinary and natural meaning of the words of the FIS.

Assessing the ordinary and natural meaning of the words of the FIS through the eyes of the ordinary reasonable person expounded by case law authorities, I find that the ordinary and natural meaning of the words of the FIS is that: P, as the Finance Minister in the MOF, which has jurisdiction over tax matters, had given [past tense] WGW a tax exemption from having to pay entertainment tax, because of his acquaintance with Huang. And P must explain to the public the reason that he or the MOF had given [past tense] WGW the tax exemption.

I therefore find that the words of the FIS, as a matter of law, are capable of bearing a defamatory meaning. And as a matter of fact, I also find that the words of the FIS are libellous of P.

At trial, P testified that—

he did not know Huang;

he was not acquainted with Huang;

in his capacity as the Finance Minister, he had never granted any tax exemption or tax deduction to Huang’s company: WGW.

P’s evidence was unchallenged. And OTK did not produce any evidence that proved otherwise.

About the photographs that showed him together with Huang in a group of people—P testified that whenever he attended functions, he was frequently asked by the public to take photographs with them. He would normally accede to their requests. He maintained that he did not know Huang, and he was not acquainted with Huang.

As such, I find that the words of the FIS are libellous of P because they mean or are imputed to mean that—

P had given an entertainment tax exemption to WGW, a company which organised a concert that was cancelled, and which did not refund money to the ticket buyers;

P abused his position and power as the Finance Minister to give the tax exemption to WGW;

P gave WGW the entertainment tax exemption because he was acquainted with WGW’s managing director: Huang;

by doing this, P practised bias and favouritism, even though he was in public office;

P is not a person of good character and integrity. P’s cause against OTK for the FIS

In conclusion, I find that P has proven, on the balance of probabilities, the three elements to mount a cause for libel against OTK for the FIS. P has satisfied me that—

the words of the FIS were defamatory of P;

it is undisputed that the FIS refer to P;

OTK published the words of the FIS or caused the words of the FIS to be published to third parties. DOES OTK HAVE A DEFENCE FOR THE FIS?

I now analyse whether OTK has a defence for publishing the FIS or causing the FIS to be published. What defences to libel did OTK plead in his Amended Defence? This is a matter of serious contention between P and OTK. It was perilously unclear from OTK’s Amended Defence as to whether OTK pleaded the defences of justification, fair comment and qualified privilege for the FIS.

In the process of digesting and considering the written submission and oral submissions, I posed questions for P and OTK to answer. The purpose of my questions was to make P and OTK both take a clear position that is consistent with each other as to whether OTK pleaded the defences of justification, fair comment and qualified privilege. This way, I can analyse P’s cause under the FIS and the defences OTK pleaded against it.

Unfortunately, in answer to my questions, P and OTK came back to me with diametrically opposing positions. No concessions were made, and no quarters given. P insists that OTK’s only pleaded defence concerning the FIS is a “bare denial”. OTK put P to strict proof that the FIS was defamatory of P.

P was emphatic that OTK did not plead justification, fair comment and qualified privilege. And that OTK’s written submissions on the defences of justification, fair comment and qualified privilege concerning the FIS were afterthoughts. P cited the paragraphs of OTK’s Amended Defence to support this position.

On the other, opposite end—OTK insists that he had pleaded the defences of justification and qualified privilege, and even the Lucas Box defence. OTK cites the paragraphs of his Amended Defence to submit that a denial of P’s pleaded natural and ordinary meaning of the words of the FIS and the imputations that can be derived from the words of the FIS, somehow constitutes a plea of justification and qualified privilege, and the Lucas Box defence. Put in another way—a denial of the meaning of the words in the FIS constitutes a plea of justification, qualified privilege and the Lucas Box defence.

I looked closely at OTK’s Amended Defence and found that OTK did not plead the defences of justification and fair comment, nor the Lucas Box defence concerning the FIS. (OTK appeared, however, to have pleaded the defence of qualified privilege against the FIS.)

My reasons for finding that OTK did not plead the defences of justification, fair comment and the Lucas Box defence concerning the FIS, include the following reasons. Re justification 121. One—when OTK pleaded the particulars of his defence of justification (under paragraph 14 of his Amended Defence), he referred i.e. replied only to the paragraphs in the Re-Amended Statement Of Claim (SOC) that relate only to the SIS and the TIS (not the FIS).

Two—OTK also referred to the “news article (keratan akbar)”, which can only mean the SIS and the TIS (and not the FIS). Only the SIS and the TIS appeared in CP’s two articles. The FIS appeared in a press statement/email that was sent to the media after OTK’s press conference (not in CP’s news article). Re fair comment 123. Three—when OTK pleaded the particulars of his defence of fair comment (under paragraph 16 of his Amended Defence), he similarly referred i.e. replied only to the paragraphs in the Re-Amended SOC that pertain to the SIS and the TIS (not the FIS).

Four—in OTK’s answer to the questions that I posed, OTK verified that he is not relying on the defence of fair comment concerning the FIS because—

”he was not the author” of the FIS;

”he was not the maker” of the FIS; and

he had no “access or control” over the email from which the press statement containing the FIS was sent. Re qualified privilege 125. Five—when OTK pleaded the particulars of his defence of qualified privilege (under paragraph 17 of his Amended Defence), he referred all-encompassingly to “the statements P refers to in the Re-Amended SOC”, which would include the FIS.

To my mind, however, if OTK takes the position that he does not rely on the defence of fair comment concerning the FIS because he did not publish the FIS, and did not cause the FIS to be published (he was not the author, the maker of the FIS, and he had no access or control over the email that sent out the FIS)—he can hardly rely on the defence of qualified privilege against the FIS.

To rely on and maintain the defence of qualified privilege, OTK must have first published or caused the FIS to be published. The defence of qualified privilege can only be raised if the impugned words were published on an occasion of privilege. An occasion of privilege is when OTK had the duty (social, moral or legal) to publish the impugned words—to persons who had the corresponding interest to receive (to be informed about) the impugned words.

In other words, if OTK asserts that he did not publish the FIS or cause the FIS to be published, he cannot rely on the defence of qualified privilege concerning the FIS. To rely on the defence of qualified privilege, he must necessarily admit that he published the FIS (on an occasion of privilege).

Anyhow, since OTK has pleaded the defence of qualified privilege, I will consider later whether OTK can succeed on the defence of qualified privilege against the FIS. Re the Lucas Box defence 130. Six—as for the Lucas Box defence—OTK simply asserts that even though he has not expressed it or labelled it as the Lucas Box defence, he has indeed pleaded the Lucas Box defence because the Lucas Box defence is simply the defence of justification. And he has pleaded justification. In other words, by pleading the defence of justification, he has in effect pleaded the Lucas Box defence.

But as I alluded to above—when OTK pleaded the particulars of his defence of justification, he answered i.e. replied only to the paragraphs in the Re-Amended SOC that pertain to the SIS and the TIS (not the FIS). It is therefore difficult to accept that OTK pleaded the Lucas Box defence, just by pleading justification.

More glaringly, during a previous session of oral submissions (on 20.3.2025), I asked OTK’s counsel whether OTK is relying on the Lucas Box defence. OTK’s counsel answered that since OTK had not pleaded the Lucas Box defence, OTK is not relying on the Lucas Box defence. I do not comprehend the reason that OTK now seeks to renege on his representation that he is not relying on the Lucas Box defence.

The Lucas Box defence can be summarised like this—P pleads the ordinary and natural meaning of the words of the FIS, and asserts that the FIS is defamatory. To mount a Lucas Box defence, OTK must plead that the ordinary and natural meanings of the words of the FIS are not as P pleads are the meaning of the words. Instead, OTK pleads that the ordinary and natural meaning of the words of the FIS bear different meanings, and those other meanings do not make the words of the FIS defamatory of P.

To put it differently and illustratively—P pleads that the words of the FIS mean A, B and C, and they are defamatory of P. A Lucas Box defence is that the words of the FIS do not mean A, B and C. Instead, the words of the FIS mean X, Y and Z, which meanings are not defamatory of P.

But in OTK’s Amended Defence, OTK did not plead this. Although OTK denied that the words of the FIS mean A, B and C, OTK did not plead that the words of the FIS have the meanings X, Y and Z, which are not defamatory of P. OTK did not plead the Lucas Box defence. Can OTK succeed on the defences of justification and qualified privilege against the FIS?

OTK represented that he is not relying on the defence of fair comment. But OTK insists on relying on the defences of justification, qualified privilege and the Lucas Box defence. I have dealt with the Lucas Box defence. That leaves the defences of justification and qualified privilege.

I have already opined above that OTK did not plead the defence of justification against the FIS, and the defence of qualified privilege is not available to OTK (because he asserts that he did not publish the FIS or cause the FIS to be published). But, if I am wrong about OTK not pleading the defence of justification and that the defence of justification is not available to him and QP—in other words, OTK had in fact pleaded justification and qualified privilege avails to OTK —I will now analyse whether OTK succeeds with these two defences. Justification 138. The law: the principles to apply in considering the defence of justification include the following principles. First—the burden to establish the defence of justification is on the defendant. It falls on the defendant to prove that the impugned words are true. Put conversely, the law does not place the burden on the plaintiff to prove that the impugned words are false. The law “presumes”, in the plaintiff’s favour, that the impugned words are false—S. Pakianathan v Jenni Ibrahim [1988] 2 MLJ 173 (SC) at page 177; [1988] 1 CLJ 771; [1988] 1 MLRA 110.

Second—the “defence of justification is a complete defence” to a cause for libel. Even the question of “malice or bad faith does not arise”. But “in order to succeed”, the defendant “must establish the truth of all the material statements”, including the libellous words— Tun Datuk Patinggi Haji Abdul Rahman Ya’kub (supra).

Third—the “burden of proof is on the defendant to prove that the allegations made are true, or are substantially true”—Dato’ Seri Mohammad Nizar Jamaluddin v Sistem Televisyen Malaysia

My findings 141. I find that OTK has failed to discharge his burden of proving that the words of the FIS, or the imputations from the words of the FIS, are true i.e. that P had given a tax exemption (or deduction) to WGW. And the reason that P gave the tax exemption (or deduction) to WGW was because P knew Huang or was acquainted with him.

To the contrary, P affirmatively testified that he (as the Finance Minister), or the MOF, had never given WGW any tax exemption; that he did not know Huang; that he was not acquainted with him. This evidence was unrefuted.

The facts stated in the FIS are not true. The FIS is not based on true facts.

OTK also argues that section 8 of the Defamation Act 1957 assists him. Section 8 provides that where there are several “distinct” charges of libel against the defendant, to succeed in the defence of justification, the defendant does not have to prove the truth of every charge. As long as the defendant can prove the truth of several charges (and not several other charges), the defendant is still able to rely on the defence of justification, if the charges that the defendant is unable to prove as true “do not materially injure the plaintiff’s reputation”.

Section 8 is set out here for reference (with my emphasis added)— Section 8. Justification. In an action for libel or slander in respect of words containing two or more distinct charges against the plaintiff, a defence of justification shall not fail by reason only that the truth of every charge is not proved if the words not proved to be true do not materially injure the plaintiff’s reputation having regard to the truth of the remaining charges.

I find that section 8 does not assist OTK. Section 8 applies only if OTK is able to prove a few defamatory imputations are true, but not all of them. And, the imputations that are not proven to be true do not materially injure P’s reputation. Here, OTK has failed to prove the truth of any of the defamatory imputations, namely, that P had given a tax exemption to WGW; that P knew Huang or was acquainted with him; and that P gave WGW the tax exemption because he knew or was acquainted with Huang.

I hold that OTK’s defence of justification for the FIS fails. Qualified Privilege 148. The law: the principles to apply in considering the defence of qualified privilege include these principles. One—to succeed on a defence of qualified privilege against a suit for libel, the defendant has to show that the impugned words or statements were published on a privileged occasion, which is an occasion where the defendant has a duty or interest to publish them to persons who have a corresponding and reciprocal duty or interest to receive them—Tun Datuk Patinggi Haji Abdul Rahman Ya’kub (supra), citing the House Of Lords’ judgment in Adam v Ward [1917] AC 309 (HL), at page 334.

Two—just because the impugned words or statements relate to a matter of public interest, “does not necessarily entitle anyone to assume a duty to communicate it to others”, particularly when the words or statements are libellous. Put differently, no one should be permitted to libel another by asserting that he has a duty to publish the impugned words or statements, simply on the ground that they relate to a matter of public interest— Tun Datuk Patinggi Haji Abdul Rahman Ya’kub (supra), at MLJ page 411.

Three—journalists, editors and newspapers “do not have special positions so as to entitle them to rely on the defence of qualified privilege on any matters” which they want to publish— Tun Datuk Patinggi Haji Abdul Rahman Ya’kub v BRE Sdn Bhd & Ors (supra), also at MLJ page 411.

Four—the defence of qualified privilege developed to include the defence of responsible journalism (or Reynolds’ Privilege). The defence of responsible journalism requires that—

the impugned words or statements were published “on a matter of public interest”; and

the public had “a responding interest in receiving” the words or statements;

and once (1) and (2) are established, the defendant “acted reasonably in publishing the impugned words” —Syarikat Bekalan Air Selangor Sdn Bhd v Tony Pua Kiam Wee [2015] 6 MLJ 187 (FC); [2015] 6 AMR 66; [2015] 8 CLJ 477 paragraph [34]; [2015] 6 MLRA 63.

Five—the factors to be considered on whether the defendant succeeds on the defence of responsible journalism in the present two suits include—

the “seriousness of the allegation”—if the allegations in the impugned words or statements are “not true”; and “the more serious the allegation, the more the public is misinformed and the individual is harmed”;

the “nature of the information” i.e. to what extent is the subject matter of the impugned words or statements “a matter of public concern”;

the “steps taken to verify the information”;

“whether comment was sought from the plaintiff”, since the plaintiff “may have information others do not possess”;

“whether the article contained the gist of the plaintiff’s side of the story”; —Syarikat Bekalan Air Selangor (supra), at paragraph [34] citing Reynolds v Times Newspaper Ltd [1995] 4 All ER 609 (HL).

Six—responsible journalism is not only available to members of the media but also to individuals (like OTK), who publish or cause to be published words or statements which they assert to be matters of public interest— Syarikat Bekalan Air Selangor (supra).

Seven—in the context of the defence of responsible journalism, there can be no duty to publish, and the public can have no corresponding interest to receive, “materials which the publisher has not taken reasonable steps to verify”—Datuk Harris Mohd Salleh v Datuk Yong Teck Lee & Anor [2017] 6 MLJ 133 (FC); [2017] 7 AMR 317; [2018] 1 CLJ 145 at p184, paragraph [46]; [2017] 6 MLRA 281.

Eight—also in the context of responsible journalism, “no public interest is served by publishing or communicating misinformation. But the publisher is protected, if he has taken such steps as a responsible journalist would take to try and ensure that what is published is accurate and fit for publication”—Datuk Harris Mohd Salleh (supra), quoting Lord Hobhouse in Reynolds v Times Newspaper (supra). My findings 156. I am compelled to find that neither the general defence of qualified privilege nor the more specific defence of responsible journalism is available to OTK.

One—OTK received several documents and photographs from someone by the name of Tan Kuan Chee. The documents include the MOT’s letter dated 25.6.2019 and Tourism Malaysia’s letter dated 6.8.2019. The photographs include two photographs of a group of people, with P and Huang both appearing in the photographs. OTK provided or displayed the documents and photographs at his press conference.

One of the background matters behind the press conference was the scandal about Huang’s company: WGW, selling tickets to the Fantastic Duo concert and later cancelling the concert without refunding the ticket buyers’ money.

OTK’s statements at the press conference imputed that P (the Finance Minister) or the MOF had granted WGW the privilege of a tax deduction; that P was acquainted with Huang; and that P granted WGW the tax deduction because of his acquaintance with Huang.

But OTK took no steps (produced no evidence) to verify these imputations. There was no evidence that these imputations were true. As P testified that these imputations were not true, and there is no evidence to the contrary, I am compelled to find, on the balance of probabilities, that the imputations were not true.

The imputations were therefore misinformation (false information). There can be no duty to publish false information. There is also no duty to receive false information. The defence of qualified privilege is not available to OTK, who published or caused to be published false information.

Two—OTK calls upon the defence of responsible journalism, asserting that his statements were a matter of public interest. But he did not satisfy the required factors that may allow him to call upon the defence of responsible journalism. He did not take sufficient steps to verify the truth of his imputations. He testified that he attempted to contact P (by calling P’s office) before the press conference. But when he could not contact P, he proceeded to hold the press conference anyway.

OTK testified that he contacted P’s service centre, but could not get through i.e. he did not speak to anyone. The evidence discloses that OTK called the service centre only once, two days before the press conference.

Such conduct discloses OTK’s recklessness, particularly because of the seriousness of the imputation—that the Finance Minister had given a tax deduction to WGW (a company which had caused loss to members of the public) on account of his acquaintance with WGW’s managing director: Huang.

I therefore find that OTK fails in his defences of justification and qualified privilege against the FIS. WHAT ARE OTK’s DECIPHERABLE ARGUMENTS (DEFENCES)?

What are OTK’s decipherable arguments (defences) against the FIS? These are the arguments that I am able to glean from his written submissions.

One—the FIS consists of only 5 of the 16 paragraphs in the press statement. The other 11 paragraphs either do not refer to P, or they contain words that are not defamatory of P. OTK argues that “by adopting the holistic approach”, the other 11 paragraphs, which are not defamatory of P “would act as the antidote to ameliorate the alleged ‘sting’ caused by” the 5 paragraphs of the FIS. OTK makes a cursory reference to a “Bane and Antidote approach”, without saying anything else. OTK does not submit what this “Bane and Antidote approach” is. He does not say whether this approach to ascertain a defence to a cause for libel is obtained from binding or even persuasive case law authority.

Thus, without knowing whether this “Bane and Antidote approach” is a principle in defamation law that I am to apply to OTK’s case, I decide that I will continue to analyse whether P has satisfied the three elements to succeed in this cause for libel. I reiterate that I found that P has satisfied the three elements.

Two—OTK appears to argue that the FIS is only “a call for [P] to give explanation”. OTK submits that a call for an explanation “cannot be treated as defamatory”. OTK cites an isolated extract from the High Court judgment in Lim Guan Eng v Datuk Tan Teik Cheng & Anor [2023] MLJU 1983 (HC); [2023] AMEJ 1829; [2023] 1 CLJU 1800; [2024] 1 MLRH 217, to support his argument. The extract (in CLJU paragraph [40](d)) reads like this— In any event, the final sentence in the Article takes away any sting in the Impugned Statement. A person who is making an unequivocal allegation would not ask for an explanation. A reasonable man reading the final sentence in the Impugned Statement would accept that an explanation might be forthcoming from P on the issue. And would therefore not have the tendency to pass any judgment on him yet;…

I find OTK’s argument not cogent. Firstly—this extract (sub-paragraph) is one of the several grounds that the High Court gave for finding that the impugned statement in that case was not defamatory of the plaintiff there: also Lim Guan Eng. This extract is not a legal principle (ratio decidendi) that I am bound to apply to the facts of these two suits before me.

Secondly, I find that it is correct for OTK to argue that one of the matters that OTK calls P to explain is—why did P give WGW an exemption from paying entertainment tax? OTK’s call for this explanation presupposes that P had given to WGW the tax exemption. OTK incorrectly makes this presupposition. From the evidence produced, I find, as a proven fact, that neither P nor the MOF had given WGW an exemption from entertainment tax. In effect, OTK was calling P to explain an incorrect presupposition of fact—that P had already given WGW the tax exemption.

I find that OTK’s arguments do not sway me from my finding that OTK has published or caused to be published the FIS, which contains words referring to P and words which, in their natural and ordinary meaning, are defamatory of P.

And so I find that OTK is liable to P for libel for publishing or causing the publication of the FIS. PUBLICATION OF THE SIS AND TIS Did OTK cause the SIS and TIS to be published?

To sustain his cause against OTK for the SIS and TIS, P has to prove, on the balance of probabilities, that OTK caused CP to publish the SIS and TIS.

In his Amended Defence, OTK refutes (does not admit) this fact (of causing CP to publish the SIS and TIS), and puts P to strict proof of this fact.

P submits that OTK caused CP to publish its two identical articles, containing the SIS and TIS, because “the subject of both articles allude to and are based on the press conference convened on 25.9.2019 and the statements he [i.e. OTK] has issued” (paragraph 8 of the Re-Amended SOC). The law on causing someone to publish defamatory statements 177. My starting point on this issue is to be mindful of the law on causing someone else to publish defamatory statements. First—where someone gives an interview to a journalist, or holds a press conference after inviting the media to come to the press conference—it is undeniable that he intends for what he says in the interview, or at the press conference, to be published. Since he intended for his words to be published, he has caused the journalist or the media to publish his words. The journalist, or the media, does not need to have published his exact same words. It suffices that the words published were of the “sense and substance” of his words—Mullis, A. & Doley, C, Carter-Ruck on Libel and Privacy, (Sixth Edition), LexisNexis, 2013, page 110, paragraph 5.28.

Quoting Carter-Ruck on Libel and Privacy (supra) at paragraph 5.28— Liability where originator of statement authorises, secures or participates in the republication 5.28 A person who authorises, whether expressly or impliedly, secures or participates in the republication of a defamatory imputation is liable for such republication. Thus, if a person gives an interview to press reporters intending that the substance of the interview should be published in their respective newspapers, and the newspapers publish those statements, not necessarily in precisely the same words but adhering to the sense and substance of them, the individual making them will be liable not merely for slander for publishing them to the reporter but for libel in that he authorised the publication which subsequently was made in the newspaper itself. [emphasis added]

Carter-Ruck on Libel and Privacy (supra) cites the case law authority of Parkes v Prescott (1869) LR 4 Exch 169, at 17, per Montague Smith J— Where a man makes a request to another to publish defamatory matter, of which, for the purpose, he gives him a statement, whether in full or outline, and the agent publishes that matter, adhering to the sense and substance of it, although the language be to some extent his own, the man making the request is liable to an action as the publisher. If the law were otherwise it would in many cases throw a shield over those who are the real authors of libels, and who seek to defame others under what would then be the safe shelter of intermediate agents. [emphasis added]

Second—I am guided that if a defendant, by holding a press conference, “intended and caused” the statement that he makes at the press conference to be published, he is liable for the subsequent publication of his defamatory statements—Prem Anand Loganathan v Dhinagaran Jayabalan [2016] MLJU (HC) 1149; [2016] AMEJ 2227; [2016] CLJU 1562; [2016] MLRHU 1624 per Justice Lim Chong Fong (now JCA), CLJU at paragraph [32]— In Datuk Haji Shabudin Bin Yahaya & 3 Ors v Dr. Afif Bin Bahardin (supra) [[2016] MLRHU 300] I have held that the published written statement consequent to a press conference is evidence of the slander besides also a libel if the defendant intended and caused it to be so published… [emphasis added] My findings 181. I find that OTK caused the two CP articles, which contain the SIS and the TIS, to be published by CP. These are the reasons for my finding so. One—in cross-examination, OTK admitted that the CP article (and hence the SIS and TIS) were “based on (berdasarkan)” and “related to (berkenaan dengan)” his press conference.

Further, OTK expressly admitted that the SIS and the TIS were the translations (into Bahasa Malaysia) of the Chinese statements which he made at the press conference. (The statements which he made at the press conference were made in Mandarin.)

Furthermore, OTK did not dispute that the two CP articles (which contain the SIS and TIS) contain statements attributed to him.

Also, OTK did not disassociate himself from the words attributed to him in CP’s two articles.

Two—OTK invited members of the media to attend his 25.9.2019 press conference. This was OTK’s clear intention to have the media publish his statements at the press conference. He well knew that the members of the media would note down or record his statements at the press conference.

DW2 (Neoh Ghee Yea): the CP reporter who was present at the press conference, testified that she recorded OTK’s statements, drafted the article (which contained the SIS and TIS). And DW3 (Lim Meng Piew): CP’s Chief Executive Editor, approved the draft for publication.

Are the words of the SIS and TIS defamatory i.e. do the words of the SIS and TIS bear a defamatory meaning?

I reiterate that I find that OTK caused CP to publish the SIS and TIS. If the words of the SIS and the TIS are found to bear a defamatory meaning, OTK is liable for the libel caused by the SIS and TIS.

I reiterate that P pleads that the natural and ordinary meaning of the SIS and TIS are the same as for the FIS, except that instead of a “full exemption from entertainment tax”, the meaning was “the privilege of deduction in entertainment tax”.

Accordingly, P pleads that the natural and ordinary meaning of the SIS and TIS are that—

WGW Entertainment’s director is Hendrick Huang;

WGW organised a concert called Fantastic Duo 2019;

the concert did not materialise;

WGW was granted a tax deduction in entertainment tax;

P was closely acquainted with Huang;

P granted the tax deduction in entertainment tax in his capacity as the Finance Minister;

P must explain the reason that MOF granted the entertainment tax deduction to WGW.

The SIS and TIS also carried defamatory “connotations and imputations”, which include—

P used his authority and power as the Finance Minister to secure the tax deduction in WGW’s favour;

P used his authority and power as the Finance Minister to secure the tax deduction in WGW’s favour because of his “close association” with WGW’s director: Huang;

P abused his position as the Finance Minister by “manipulating the MOF” to grant the tax deduction to WGW;

P “maliciously exercised his power as the [Finance Minister] to practice bias and favouritism”, and by extension, “a policy of discrimination”;

P is “bereft of integrity and honesty”:

P has “brought disrepute to the public office” which he held;

P is “not a person of good character”;

P does not deserve to hold the “esteemed position and honourable office of the Finance Minister”.

I bear in mind that the SIS and TIS are the 1st and 2nd paragraphs of CP’s two identical 9-paragraph articles.

The words of the 1st paragraph of the SIS and TIS state that—

OTK showed a few photos of the Finance Minister: P which were taken with the managing director of WGW: Huang, and a formal letter from the MOT offering WGW to apply for tax deduction (tawaran permohonan potongan cukai), and questions whether P knew about this matter.

The words of the 2nd paragraph state that—

OTK questioned P as to whether P knew (mengenali) Huang and WGW, and why was there a special privilege for a tax deduction (mengapa boleh ada hak istimewa untuk potongan cukai?).

The other paragraphs of the two identical articles include words that relate to—

the other Gerakan office bearers who were present at the press conference;

OTK’s remark that even in the deteriorating state of the economy at the time, the government was frequently exploiting the citizenry and imposing taxes for various reasons, but how was it that WGW, a profit-driven entertainment company, got to enjoy tax deductions;

OTK showing three letters from the MOT, which disclosed that WGW could apply for tax deduction; and the Deputy Minister Of Tourism issued a letter of thanks to WGW, as well as a letter permitting WGW to use the MOT’s logo;

OTK saying that as the MOT had approved WGW to use its logo, the MOT is now responsible for what happened, and the government must help the ticket buyers to claim refunds;

OTK revealing that the MOT had known about WGW before, and so, after the incident had occurred, the MOT should not deny that WGW was permitted to use the MOT’s logo.

I find that these other paragraphs of the identical articles do not give further context to the objective reasonable person, who evaluates the ordinary and natural meaning of the words of the SIS and TIS. The small further context from these other paragraphs is that the MOT informed that WGW could apply for an entertainment tax deduction, and the Finance Minister: P, had granted WGW the special privilege of tax deduction.

Assessing the ordinary and natural meaning of the words of the SIS and TIS through the eyes of the ordinary reasonable person expounded by case law authorities, I find that the ordinary and natural meaning of the words of the SIS and TIS is that: The photographs produced at the press conference showed that P knew Huang, and P, as the Finance Minister, must answer why WGW was given the special privilege of a tax deduction.

I find that the ordinary reasonable person would find the words of the SIS and TIS to mean that P had given the privilege of a tax deduction to WGW, and he had to explain i.e. give reasons why he had done that.

I therefore find that the words of the SIS and TIS, as a matter of law, are capable of bearing a defamatory meaning. I also find that the words of the SIS and TIS are in fact libellous of P.

At trial, P testified that—

he did not know Huang;

he was not acquainted with Huang;

in his capacity as Finance Minister, he had never granted any tax exemption or tax deduction to Huang’s company: WGW.

P’s evidence was unchallenged. And CP did not produce any evidence that proved otherwise.

About the photographs that showed him together with Huang in a group with other persons—P testified that whenever he attended functions, he was frequently asked by members of the public to take photographs with them. He would normally accede to their requests. He maintained that he did not know Huang, and he was not acquainted with Huang.

As such, I find that the words of the SIS and TIS are similarly libellous of P because they, similar to the FIS, mean or are imputed to mean that—

P had given an entertainment tax deduction to WGW, a company which organised a concert that was cancelled, and which did not refund money to the ticket buyers;

P abused his position and power as the Finance Minister to give the tax deduction to WGW;

P gave WGW the entertainment tax deduction because he was acquainted with WGW’s managing director: Huang;

By doing this, P practised bias and favouritism, even though he is in public office;

P is not a person of good character and integrity. P’s cause against OTK for the SIS and TIS

In conclusion, I find that P has proven, on the balance of probabilities, the three elements to mount a cause for libel against OTK for the SIS and the TIS. P has satisfied me that—

the words of the SIS and TIS were defamatory of P;

it is not disputed that the SIS and TIS refer to P;

OTK caused the words of the SIS and TIS to be published to third parties. DOES OTK HAVE A DEFENCE AGAINST THE SIS AND TIS?

OTK asserts that he has pleaded the defences of justification, fair comment and qualified privilege against the SIS and TIS. I have dealt with the defences of justification and qualified privilege. As I find that the meaning of the words of the SIS and TIS are the same as the FIS, except that the FIS states “tax exemption” while the SIS and TIS states “tax deduction”—I similarly find that OTK cannot rely of the defences of justification and qualified privilege as defences against the SIS and TIS.

The remaining defence is fair comment. Fair Comment 207. The law: the principles to apply in considering the defence of fair comment include the following principles. First—the “fundamental requirement” to decide whether the defence of fair comment is available to a defendant, is to determine “whether the impugned statement is a statement of fact” or an “opinion” made from the facts—Dato’ Sri Dr Mohamad Salleh bin Ismail & Anor v Mohd Rafizi bin Ramli [2022] 3 MLJ 758 (FC); [2022] 4 AMR 695 at paragraph [30]; [2022] 5 CLJ 487; [2022] 4 MLRA 718.

Second—a comment is “a statement of opinion on facts”. “It is comment to say that a certain act which a man has done is disgraceful or dishonourable; it is an allegation of fact to say he did the act so criticised.”—Gatley, C. Gatley on Libel and Slander, 11th ed., Sweet & Maxwell. 2008, page 39, which was cited with approval in Dato’ Sri Mohamad Salleh (supra).

Third—“a libellous statement of fact is not a comment or criticism on anything”—Tun Datuk Patinggi Haji Abdul Rahman Ya’kub (supra), citing the case law authority of Lee Kuan Yew v JB Jeyaratnam [1979] 1 MLJ 281 (HC); [1978] 1 MLRH 681.

Fourth—to succeed with the defence of fair comment, the defendant must prove these elements of the defence—

that the impugned words or statements are comments, “though they may consist of “ inferences of fact;

that the comments are “on a matter of public interest”;

that the comments are “based on facts, truly stated”;

that the comments must be “fair” and “which a fair-minded person can honestly make on the facts proved”— —Tun Datuk Patinggi Haji Abdul Rahman Ya’kub (supra), at MLJ page 408, paragraph C-E

Fifth—to rely on the defence of fair comment, the defendant must first “establish a sufficient substratum of facts” on which he draws inferences (or comments). Then he must establish that the facts on which his comments or inferences were made “must be truly stated so that the readers may form their own opinion whether the comment or inferences were well founded”.

In other words, the substratum of facts that the defendant relies on to make his comments or inferences “must be true and existing”. “A writer may not suggest or invent facts and the comment upon them, on the assumption that they are true.” This means that the defence of fair comment “is not available” to the defendant if he “invented or created the facts he intended to rely” on— Dato’ Sri Dr Mohamad Salleh bin Ismail (supra), at paragraph [45]. My findings 213. OTK pleads and argues that the SIS and TIS are ”fair comment on a matter of public interest” in the form of asking P some questions of public interest. The pertinent question that OTK alleges that he asked P to answer was: Does Huang or WGW have a special privilege for a tax deduction? (Adakah Huang atau WGW mempunyai hak istimewa bagi potongan cukai?)

I find OTK’s argument untenable, for these reasons. One— according to the words of the SIS and TIS, OTK did not ask the question above: Does Huang or WGW have a special privilege for a tax deduction? The question that OTK actually asked was: Why was there a special privilege for a tax deduction? I find this question to mean that a special privilege for tax deduction was already given to WGW, and P had to answer to the public why (give the reason) such a special privilege for tax deduction was given to WGW.

The question presupposed that WGW was in fact given the special privilege for tax deduction—which is untrue.

Two—OTK’s comments (in the form of the question he posed), were not based on facts which were true i.e. they were based on facts which were not true. There is no evidence to prove that P gave WGW a special privilege for tax deduction. There is no evidence that P knew Huang. There is no evidence to prove the inference that P gave WGW a special privilege for tax deduction because he knew Huang.

In other words, OTK’s comments or questions or inferences were not based on “facts, truly stated”. And the substratum of facts which he relied on to make his comments or questions or inferences were not “true and existing”. The defence of fair comment is fundamentally not available to OTK.

And so I find that OTK cannot avail himself of the defence of fair comment against the SIS and TIS. DOES CP HAVE A DEFENCE AGAINST THE SIS AND TIS?

As its defences, CP pleads that the words of the SIS and TIS were not defamatory. CP also pleads the Lucas Box justification defence, fair comment, qualified privilege, reportage and section 12(2) of the Defamation Act 1957 (read with Part II of the Schedule to the Act). The words of the SIS and TIS were not defamatory 220. First, CP argues that the words of the SIS and TIS were not defamatory. CP argues that OTK was merely posing questions to P, and posing legitimate questions cannot be defamatory, as they were not allegations of fact. CP argues that it was not defamatory to ask whether the Finance Minister knew about the MOT’s offer of tax deductions to WGW. CP cites the case law authority of Lim Guan Eng v Datuk Tan Teik Cheng (supra), which CP, like OTK, submit is an authority for the proposition that a call for an explanation is not defamatory. My finding 221. I do not find favour with CP’s argument.

Firstly—in the context of the issues in these two suits, “calling for an explanation” is when OTK had asked a question to this effect: "Did P, the Finance Minister, give WGW, a company which organised and then cancelled a concert without refunding the ticket buyers their money, a tax deduction?” But this is not what OTK asked P in the press conference.

What OTK asked in the press conference was a question to this effect: “Why did P, the Finance Minister, give WGW, a company which organised and then cancelled a concert without refunding the ticket buyers their money, a tax deduction?”, or “P appears to know Huang. Why did P, the Finance Minister, give Huang’s company: WGW, a company which organised and then cancelled a concert without refunding the ticket buyers their money, a tax deduction?”

These questions clearly pre-suppose that P had already given WGW the tax deduction.

I find that an ordinary reasonable man, with reasonable intelligence and discernment, would comprehend the words of the SIS and TIS to bear this meaning.

Secondly—CP argues that the words of the SIS and TIS, and the article as a whole showed that tax deductions were given to WGW by the MOT. CP makes this conclusion because OTK had, at the press conference, shown MOT’s letter dated 25.6.2019. A closer scrutiny of the contents of that letter discloses that the MOT stated that—

it had no objections (tiada halangan) against WGW getting sponsorship;

it is prepared to give its approval for tax deduction (bersedia untuk memberikan kelulusan potongan cukai) if the organisers comply with (mematuhi) the current guidelines, and subject to (tertakluk kepada) the terms and conditions contained in the provisions of the Income Tax Act 1957;

the MOT’s support does not constitute an approval for tax deductions because WGW must still submit the required application for tax deduction.

I find that, at best, the MOT gave WGW a conditional preparedness to facilitate an application for tax deduction, which was subject to WGW’s formal application, and subject to compliance with the current applicable guidelines and the provisions of the Income Tax Act 1957.

Thirdly—I find that the ordinary reasonable man reading the words of the SIS and TIS would not understand the meaning of the words to mean—

that tax deductions were given to WGW by the MOT;

that OTK was merely asking P (since P would know, as P was the Finance Minister) whether P knew about MOT’s offer for tax deductions;

that OTK was merely asking P for an explanation.

Instead, as alluded to earlier, the ordinary reasonable man would understand that the words of the SIS and TIS mean that—

P knew Huang and WGW;

P, who was the Finance Minister, had given WGW the special privilege of tax deduction, and now he had to explain why he had given WGW that special privilege of tax deduction.

I find that CP should fail on this argument that the words of the SIS and TIS were not defamatory. I find them to be defamatory. The Lucas Box justification defence 231. The Lucas Box defence of justification was propounded through the UK Court Of Appeal case of Lucas Box v Associated Newspapers Group PLC & Ors [1986] All ER 177 (UKCA). CP describes it this way—a defendant is entitled to plead his own meanings of the impugned words or statements, which, if they are supported by the facts and upheld by the Court, the defendant succeeds on the defence of justification.

The Federal Court elaborated on the Lucas Box defence in Syarikat Bekalan Air Selangor (supra), at paragraphs [51] and [61]. The defendant can plead his own ordinary and natural meaning of the impugned words or statement, and endeavour to prove the meanings he pleads. But the defendant must plead “clearly and explicitly” the very meanings which he seeks to justify.

CP submits its own meanings to the SIS and TIS (at paragraph 10 of CP’s Amended Defence, and in its written submissions), which include these meanings—

after showing a few photographs of P and Huang, and the letter from the MOT offering tax deductions if an application is made, OTK asked P whether he was aware of the matter;

OTK asked P whether he knew Huang and WGW, and why it has the special privilege of tax deductions;

OTK said that in an economic recession, the government was exploiting the people with taxes and with all sorts of excuses, but why is it that an entertainment company motivated by profit can enjoy tax deductions;

OTK showed the three MOT letters where the MOT had—(i) expressed a readiness to grant approval for tax deductions if an application was made with the relevant documents; (ii) thanked WGW for organising the concerts; and (iii) allowed WGW to use its logos;

OTK said that since it was confirmed that the MOT had approved WGW to use its logos, the MOT is responsible for helping ticket buyers get their refund. My findings 234. One—CP submits that these meanings are supported by the facts, which are proven by the evidence. But, I merely need to point out one critical fact (and hence meaning), which is that OTK questioned P: “why did WGW have the special privilege of tax deductions?”, and “why is it that a profit-motivated company like WGW can enjoy the special privilege of tax deductions?” This means that P had already given WGW the special privilege of tax deductions. But this fact is not true. P never gave WGW the special privilege of tax deductions.

CP has failed to prove that P had given WGW the special privilege of tax deductions, such that he must now explain to the public (and CP’s readers) why he gave WGW the special privilege of tax deductions, thus making the Lucas Box defence untenable.

Two—If P, as the Finance Minister, had not granted WGW the special privilege of tax deductions—which is true here—there would have been nothing that P needed to explain to the public.

Three—the remaining paragraphs (words) of the two articles containing the SIS and the TIS were about the MOT offering to facilitate a formal application (if WGW were to make one) for tax deductions. The remaining paragraphs have little to do with whether P had given WGW a special privilege of tax deductions.

I therefore find that the Lucas Box justification defence is not available to CP. Public Interest 239. The defences of reportage, qualified privilege, the section 12(2) statutory defence, and fair comment require the subject matter of the impugned words or statements to be on a matter of public interest. It is not in dispute that the subject matter of the impugned words (granting a special privilege of tax deductions to WGW, which organised, sold tickets for, and later cancelled, the Fantastic Duo concert, and not refunding the ticket buyers’ money)—was a matter of public interest.

But, I must say that public interest cannot arise from misinformation or untrue statements (statements not based on facts). I must also say that public interest cannot be used as the basis or reason to spread misinformation or make untrue statements.

”No public interest is served by publishing or communicating misinformation”—the Federal Court in Datuk Harris Mohd Salleh (supra), quoting Lord Hobhouse in Reynolds (supra), at CLJ page 184, paragraph [46].

Also, “a matter of public interest does not necessarily entitle anyone to assume a duty to communicate it to others, especially if any statement related to that matter may be libellous”—Tun Datuk Patinggi Haji Abdul Rahman Ya’kub (supra) at MLJ page 411, paragraph G-H.

The premise of public interest cannot excuse OTK and CP from publishing words and statements that are defamatory of P, when the words and statements constitute misinformation or untrue statements. The defence of qualified privilege

For CP to rely on the defence of qualified privilege in the sense of responsible journalism, one of the facts that CP is required to show is that it has acted reasonably.

And four of the factors that I must consider when I consider the defence of responsible journalism are—

the seriousness of OTK’s allegations;

whether CP took steps to verify what OTK showed (the photographs and the letters), and to verify what OTK said at the press conference;

whether CP sought P’s comment on what CP wanted to report (publish); and

whether the article also carried P’s “side of the story”. My findings 246. I find that CP has failed to satisfy the requirements of the defence of responsible journalism. My reasons are as follows.

One—what OTK showed and said at his press conference was damning of P. The allegations or imputations against P were serious. Yet CP did not take the step to ask P about the photographs and the MOT letters. CP did not ask P to clarify whether he knew Huang, and whether he: the Finance Minister, or the MOF, had in fact granted WGW a tax deduction. CP also did not include, in its articles, P’s version of the facts concerning the imputations against him.

Two—CP should have, but did not, realise that OTK was P’s political rival. P and DAP were in the ruling government. OTK and Gerakan were in the opposition. OTK was the National Deputy Chairman of Gerakan and Chairman of Gerakan Penang. All the more reason for CP to have sought P’s side of the story on this matter of public interest.

I find that—

CP did not consider or act on the seriousness of the imputations contained in the SIS and TIS;

CP failed to act reasonably in the context of responsible journalism;

CP failed to procure P’s version of the matter, or at least P’s comments on the matter;

as a result, CP failed to publish a balanced article, which the exercise of some acts of responsible journalism may have achieved.

I find that CP cannot avail itself of the defence of responsible journalism, and the wider qualified privilege defence. The defence of reportage 251. The defence of reportage is a specie of the defence of qualified privilege. CP did not perform responsible journalism, such as verifying the truth of OTK’s allegations and imputations, as well as seeking P’s version of the matter and his comments. But even though CP did not perform responsible journalism, CP may still be able to rely on the defence of reportage.

The law: the defence of reportage was elaborated by Ward LJ in Roberts and another v Gable and others [2008] 2 WLR 129 (UKCA). The principles that can be gleaned from the case include these principles—

the report (the words or statements published) must be in the public interest;

reportage is “neutral reporting without adoption or embellishment or subscribing to any belief in the truth” of the impugned words and statements;

if the journalist does this, he or she does not need to take reasonable steps to verify the truth and accuracy of the words and statements that he or she publishes;

but the defence of reportage is lost “if the journalist adopts the report and makes it his own”, or “if he fails to report the story in a fair, disinterested and neutral way”;

to qualify as reportage, “the report, judging the thrust of it as a whole, must have the effect of reporting, not the truth of the statements, but the fact that they were made”. And “if… 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 neutral fashion the fact that it has been said without adopting the truth”.

So, if CP reported (published the SIS and TIS) on a matter of public interest, and reported what someone else (here: OTK) said on the matter, without putting forward what was said as being true, but just the fact that it was said, and reporting it in a fair, disinterested and neutral way—CP can avail itself the defence of reportage.

But, to rely on reportage, CP must satisfy three requirements propounded by our defamation law. The three requirements are—

there must be an ongoing public dispute between two or more parties;

the journalist has reported the words and statements made by all the respective parties in the ongoing public dispute;

the journalist must have maintained neutrality and impartiality; the publication must be fair and balanced, with no embellishment of the statements made, and with no “adoption” of one statement in favour of another. In other words, the journalist must not be seen to be taking sides— Mkini Dotcom Sdn Bhd & Ors v Raub Australian Gold Mining Sdn Bhd [2021] 5 MLJ 79 (FC); [2021] 6 AMR 545; [2021] 7 CLJ 145 at paragraphs [78] and [79]; [2021] 5 MLRA 37.

CP submits, though, that there is no requirement of an ongoing political dispute with reciprocal statements made, for CP to rely on reportage. For this proposition, CP relies on the 2008 UK Court Of Appeal case of Charman v Orion Publishing Group Ltd and Ors [2008] 1 All ER 750 (UKCA). At paragraph [91] of that judgment, the UKCA held that “The reportage doctrine…cannot logically be confined to the reporting of reciprocal allegations. A unilateral libel, reported disinterestedly, will be equally protected”.

Adhering to the principle of stare decisis, I find that I am bound to follow the Federal Court and Court Of Appeal case law authorities to limit the application of reportage to the factual circumstance where there is an ongoing public dispute between two or more parties. Here, the evidence does not disclose an ongoing public dispute between OTK and P on this matter of a tax deduction supposedly given to WGW. This requirement is not met.

Also, the statements of both or all sides must be reported, neutrally and impartially. And the report must be fair and balanced. But CP has not reported P’s version or side of the matter that OTK made statements about. CP has not maintained a level of neutrality and impartiality. The article was rendered not fair and not balanced. These requirements too are not met.

As such, I find that CP has not satisfied the requirements of the defence of reportage. The defence of fair comment 259. To succeed on the defence of fair comment, CP must prove that the SIS and TIS “are comment on a matter of public interest based on facts, and the comment is one which a fair minded person can honestly make on the facts proved”—Joshua Benjamin Jeyaratnam v Goh Chok Tong [1989] 3 MLJ 1 (PC); [1989] 1 MLRA

500.

CP argues that OTK was merely sharing his opinion that WGW had been given a special privilege, as it was offered tax deductions, when ordinary people were made to pay more taxes by the PH government. OTK queries P, as the Finance Minister, as to whether he knows Huang and whether he knows that the MOT offered WGW tax deductions. My findings 261. Just as I found that OTK cannot rely on the defence of fair comment, I similarly find that CP too cannot rely on the defence of fair comment.

Simply put, as there is no evidence that P had granted Huang’s company: WGW any tax deductions, and much less that P granted the tax deductions because he knew Huang—CP’s comments, based on OTK’s statements, were based on facts that were not true. The section 12(2) statutory defence 263. CP argues that section 12(2) of the Defamation Act 1957 gives protection to CP to report matters of public concern at public meetings. And section 2 of the Defamation Act 1957 defines public meetings to include press conferences.

Press conferences attended by members of the press and the public is an important vehicle for promoting discussion of matters of public concern—Turkington v Times Newspapers Ltd (Northern Ireland) [2000] UKHL 57 (HL). My findings 265. I find that the defence that CP asserts that it has through section 12(2) (read with Paragraph 2 of Part II of the Defamation Act Schedule), is not available to it. My reasons are these.

One—a reading of section 12(2) with Paragraph 2 of Part II of the Schedule, and the section 2 definition of “public meeting”, shows that it is not as straightforward as CP makes it out to be. Section 12(2), Paragraph 2 of Part II of the Schedule, and section 2 of the Defamation Act 1957 are set out in succession below (with my emphasis added)— Section 12. Qualified privilege of newspapers.

In an action for libel in respect of the publication of any such report or matter as is mentioned in Part II of the Schedule to this Act, the provisions of this section shall not be a defence if it is proved that the defendant has been requested by the plaintiff to publish in the newspaper in which the original publication was made a reasonable letter or statement by way of explanation or contradiction, and has refused or neglected to do so, or has done so in a manner not adequate or not reasonable having regard to all the circumstances.