Mohamed Hafiz Mohamed Nordin v Eric Paulsen (W-02(NCVC)(W)-1668-08/2017)

(i) Civil Appeal No. W-02(NCvC)(W)-1490-07/2017 (‘Appeal 1490’); and

(a) the words were defamatory;

(b) the words referred to the plaintiff; and

(c) the words were published. (See:Ayob Saud v. TS Sambanthamurthi [1989] 1 CLJ 152; [1989] 1 CLJ (Rep) 321 at 324). [19] Mohamed Azmi J (as he then was) in Syed Husin Ali v. Sharikat Penchetakan Utusan Melayu Bhd & Anor [1973] 2 MLJ 56 at p. 58 said: “...the test of defamatory nature of a statement is its tendency to excite against the plaintiff the adverse opinion of others, although no one believes the statement to be true. Another test is: would the words 10 tend to lower the plaintiff in the estimation of right-thinking members of society generally? The typical type of defamation is an attack upon the moral character of the plaintiff attributing crime, dishonesty, untruthfulness, ingratitude or cruelty.” [20] Justice Richard Malanjum J (as he was then) in Tun Datuk Patinggi Haji Abdul Rahman Ya’kub v Bre Sdn Bhd & Ors [1996] 1 MLJ 393 at page 402 explained the correct approach in the construction of the words complained of: “... is to consider the meaning such words would convey to ordinary reasonable persons using their general knowledge and common sense; it is not confined to strict literal meaning of the words but extends to any reference or implication from which persons can reasonably draw.” [21] In Jeyaretnam Joshua Benjamin v Lee Kuan Yew [1992] 2 SLR 310, LP Thean J, succinctly explained what is natural and ordinary meaning of the word at pp. 318 to 319: “In determining the natural and ordinary meaning of the words complained of, the sense or meaning intended by the appellant is irrelevant. Nor for such purpose is the sense or meaning in which the 11 words were understood by the respondent relevant. Nor is extrinsic evidence admissible in construing the words. The meaning must be gathered from the words themselves and in the context of the entire speech made by the appellant on that occasion. It is the natural and ordinary meaning as understood by reasonable members of the audience at the Bedok car park on that evening using their general knowledge and common sense. Such meaning is not confined to a literal or strict meaning of the words, but includes any inferences or implications which could reasonably be drawn by such persons: see para 4.04 of Duncan and Neill on Defamation (2nd Edn)...” [22] The meaning must be gathered from the actual words used themselves and in the context of the article. In the context of these appeals, one of the essential ingredients was admitted by the defendant, that is, the Impugned Statement was published. That fact was an agreed fact. [23] Upon perusal of the learned High Court Judge’s grounds of judgment, we found that he had made a finding that the Impugned Statement had indeed referred to the plaintiff. Such can be seen from paragraph 10 of his grounds of judgment. We reproduce the relevant paragraph for convenience: 12 “[10] Saya juga dapati pengataan-pengataan Defendant tersebut secara lansung merujuk kepada Plaintiff. Adalah jelas Defendan telah menyebut nama Plaintif secara terang dan nyata di dalam pengataan beliau.” [24] The learned High Court Judge relied on the dissenting judgment of Her Ladyship Justice Zainun Ali,JCA (as she then was) in the case of Chong Swee Huat & Anor v Lim Shian Ghee (t/a L& G Consultants & Education Services [2009] 3 MLJ 665 and concluded that the plaintiff failed to prove that as a result of the Impugned Statement the plaintiff’s reputation has been adversely affected and tainted: “[12] ….Di dalam Chong Swee Huat & Anor v Lim Shan Ghee [2009] 1 MLRA 392, Mahkamah Rayuan memutuskan bahawa Plaintiff perlu mengemukakan keterangan membuktikan bahawa reputasi, kedudukan telah diburukkan oleh pengataan-pengataan berkaitan, menurut pandangan dan pendapat orang ramai dan akibatnya Plaintif dibenci dan dijauhi oleh orang ramai. [13] Berdasarkan keterangan yang dikemukakan saya dapati Plaintif tidak dapat membuktikan kedudukan tersebut. Plaintif hanya mengemukakan keterangan pendapat beliau sendiri bahawa maruah 13 telah tercalar dan menjadi buruk akibat pengataan yang dibuat oleh Defendan. Pendapat Plaintif ini tidak disokong oleh mana-mana keterangan lain yang dapat menunjukkan bahawa akibat dari pengataan Defendan, orang ramai telah menjauhkan diri dan mengelak dari berjumpa Plaintif.” [25] This court in the case of Keluarga Communication v Normala Samsudin [2006] 2 MLJ 700 reiterated that impugned statements must be viewed not in isolation, but rather in the context of the totality of the whole statement of which the impugned statement was but a part thereof: “[15] At the outset, we would state that the test to be applied when considering whether a statement is defamatory of a plaintiff is well settled in that it is an objective one in which it must be given a meaning a reasonable man would understand it and for that purpose, that is, in considering whether the words complained of contained any defamatory imputation, it is necessary to consider the whole article. Gatley on Libel & Slander (10th Ed) on this point at pp 108 and 110, inter alia, states as follows: It is necessary to take into consideration, not only the actual words used, but the context of the words. 14 It follows from the fact that the context and circumstances of the publication must be taken into account, that the plaintiff cannot pick and choose parts of the publication which, standing alone, would be defamatory. This or that sentence may be considered defamatory, but there may be other passages which take away the sting. [16] Still on the same point in the case of Charleston v News Group Newspapers Ltd [1995] 2 AC 65 Lord Bridge of Harwich in delivering the speech of the House of Lords at p 70 had quoted this passage as follows: ... the question here is, whether the matter be slanderous or not, which is a question for the jury; who are to take the whole together, and say whether the result of the whole is calculated to injure the plaintiff’s character. In one part of this publication, something disreputable to the plaintiff is stated, but that is removed by the conclusion; the bane and the antidote must be taken together.” [26] We observed that the learned judge failed to follow the settled principles of law and had not made any finding on the matters as discussed above. In our judgment the Impugned Statement in its natural and ordinary 15 meaning are clearly defamatory of the plaintiff and adversely affecting his reputation. As L.P. Thean J., in the case of Jeyaretnam Joshua Benjamin v Lee Kuan (supra) explained that in determining the natural and ordinary meaning of the words complained of, the sense or meaning intended is irrelevant nor meaning in which the words as understood by the Plaintiff relevant. Even extrinsic evidence should not be considered admissible in construing the said words. The meaning must be gathered from the actual words used in the context of the of the article. Having examined the Impugned Statement, we are of the considered view that the learned judge failed to direct his mind correctly in that regard when he concluded that the words in its natural and ordinary meaning were not defamatory. [27] In our judgment the Impugned Statement is derogatory, calculated to incite hatred and anger amongst the multi-religious groups and ethnicity in Malaysia. The Impugned Statement not only described the plaintiff as a fraudster, a liar who incites hatred of the Islamic religion, but also as a person funded and supported by foreign entities, such as the United States of America and the European Union. In their natural and ordinary meaning, the Impugned Statement meant and was understood to mean by reasonable and ordinary readers of the article that the plaintiff is anti–Islam. Therefore, taking the bane and the antidote of the article published the Impugned Statement 16 had only one purpose, that is, to tarnish the plaintiff’s character and reputation. Justification and fair comment [28] The learned High Court Judge had proceeded to consider the defence of justification and fair comment, in abundance of caution, in the event that he was wrong in holding that the Impugned Statement was not defamatory as against the Plaintiff. This appeared in paragraphs 19 and 20 of his grounds of judgment: “[19] Saya dapati Defendan telah gagal membuktikan kedua-dua pembelaan yang dikemukakan. Asas utama pembelaan justifikasi ini ialah Plaintif adalah peneraju Lawyers for Liberty dan Lawyers for Liberty ini telah diberikan dana dan Plaintiff telah menyalahgunakan dana ini. Keterangan-keterangan yang dikemukakan oleh Defendan gagal menunjukkan bahawa apa yang dikatakan oleh Defendan bahawa Plaintif mencari makan melalui penipuan, fitnah dan hasutan sama sekali gagal dibuktikan. Tidak ada keterangan yang dikemukakan oleh Defendan menunjukkan Plaintif melakukan perkara-perkara tersebut. 17 [20] Defendan juga gagal membuktikan pembelaan komen adil (fair comment). Saya bersetuju dengan penghujahan peguam Plaintif bahawa defendan sebenarnya membuat allegasi dan tidak memberikan komen apabila membuat pengataan-pengataan tersebut. Pengataan-pengataan Defendan ini juga tidak berasaskan fakta sebenar kerana Defendan sendiri tidak mengetahui fakta apa yang di katakan.” [29] The defence did indeed plead justification and fair comment. The defence of justification is a complete defence but to succeed in the defence of justification, it is imperative that the defendant establish the truth of all the material statements in the words complained of. [30] Lord Finlay in Sutherland And Others v Stopes [1925] AC 47 HL, at pp. 62 to 63 explained: “Such a plea of justification means that the libel is true not only in its allegations of fact but also in any comments made therein... the defendant has to prove not only that the facts are truly stated but also that any comments upon them are correct.” 18 [31] This Court in Dato Seri Mohammad Nizar bin Jamaluddin v Sistem Televisyen Malaysia Bhd & Anor [2014] 4 MLJ 242 said in order to succeed in the defence of justification: “……the defendants had to prove that the said defamatory statement as published by the defendants over TV3 was true, or was substantially true. When juxtaposed next to each other, the statements from the plaintiffs tweets and that of the defendants as published by them in the impugned report, the defendants had not only given an unwarranted slant to the tweets but also they had added facts allegedly attributable to the tweets when these added facts were not tweeted by the plaintiff in those tweets.” [32] We agree with learned High Court Judge that the defendant failed to show to the Court that what is said in the Impugned Statement was true or substantially true. Not a silver of evidence was adduced by the defendant to support that the Impugned Statement was indeed precisely true or, if at all, even remotely true. [33] In Dato Seri Mohammad Nizar bin Jamaluddin (supra) this Court explained that for the defence of fair comment to succeed it must be proven 19 that the defamatory statement made is an expression of opinion on matter of public interest upon which everyone is entitled to make fair comment: “[50] The law on the defence of fair comment is that if a defendant can prove that the defamatory statement is an expression of opinion on a matter of public interest and not a statement of fact, he or she can rely on the defence of fair comment. The courts have said that whenever a matter is such as to affect people at large, so that they may be legitimately interested in, or concerned at, what is going on or what may happen to them or to others, then it is a matter of public interest on which everyone is entitled to make fair comment. [51] The comment must be based on true facts which are either contained in the publication or are sufficiently referred to. It is for the defendant to prove that the underlying facts are true. If he or she is unable to do so, then the defence will fail. As with justification, the defendant does not to have to prove the truth of every fact provided the comment was fair in relation to those facts which are proved. However, fair in this context, does not mean reasonable, but rather, it signifies the absence of malice. The views expressed can be exaggerated, obstinate or prejudiced, provided they are honestly 20 held. If the claimant can show that the publication was made maliciously, the defence of fair comment will not succeed.” [34] In this case, the learned High Court Judge had ruled that the defendant had made unverified allegations of the plaintiff and thus, the defendant cannot succeed in the defence of fair comment. [35] Applying these principles to the present case, we find no reason to interfere with the decision of the learned Judge. We agreed with the learned High Court Judge that the defendant, with respect, cannot succeed in the defence of fair comment. Conclusion [36] Having considered the decision of the learned High Court Judge in its entirety in light of the materials placed before us and the able submissions by both learned counsel, oral as well as written, we were of the respectful view that there is an appealable error that had been shown by the appellant that could properly justify an appellate intervention. [37] The decision of the learned High Court Judge cannot, in the circumstances be sustained and is hereby set aside. On the evidence, the defendant is found liable for the defamation and that he had failed to 21 establish the defence of justification and fair comment. With regards to damages we find no reason to depart from the decision of the learned High Court Judge that the sum of RM100,000.00 is a reasonable amount as damages. [38] The Appeal 1490 is allowed with costs and Appeal 1668 is dismissed with costs. We awarded global costs of RM10,000 to be paid to the plaintiff subject to payment of allocatur and ordered the refund of the deposit. sgd HASNAH BINTI DATO’ MOHAMMED HASHIM Judge Court of Appeal, Malaysia Putrajaya Date: 26.11.2018 22 Counsels for the Appellant N Surendran Lateefa Koya Shahid Adli Kamaruddin Messrs Daim & Gamany M38, 2nd Floor, No. 1B, Jalan 10/3, 46000, Petaling Jaya, Selangor. Counsels for the Respondent Arik Zarik Ahmad Kamal Messrs The Chambers of Arik and Kamal 61, Jalan 8/35 Seksyen 8, 43650 Bandar Baru Bangi, Selangor.