[30] It is very important to point out that the case of Lee Yoke Yam v Chin Keat Seng did not deal, as in our present case, with the subsequent publication of the defamatory statements contained in the police report by its maker to the public at large. In other words, Lee Yoke Yam v Chin Keat Seng was basically a case dealing with the absolute privilege accorded to a police report and the occasion of making the police report to the police by a person, which is a step towards the conduct of criminal proceedings. [31] It also bears noting that prior to Abdul Manaf bin Ahmad v Mohd Kamil Datuk Haji Mohd Kassim [2011] 4 MLJ 346, a defamatory statement made in a police report was only protected by the defence of qualified privilege. In Abdul Manaf bin Ahmad 21 v Mohd Kamil Datuk Haji Mohd Kassim, the Court of Appeal held that “there is no doubt that defamatory statements in police reports must attract the defence of absolute privilege for reasons of public policy. If actions can be brought against complainants who lodge police reports, then it would discourage the reporting of crimes to the police thereby placing the detection and punishment of crime at serious risk”. The Federal Court in Lee Yoke Yam v Chin Keat Seng found that the decision of the Court of Appeal to the effect that the defence of absolute privilege should be extended to statements made in a police report under section 107 of the Criminal Procedure Code for reasons of public policy was correct. [32] The second case referred to in the question, is the case of Taylor v Serious Fraud Office. Taylor’s case itself was a defamation action in which the defendants were held entitled to absolute privilege. In this case, an investigator employed by the Serious Fraud Office was investigating a conspiracy to defraud. No charges were brought against the plaintiff. In the course of the investigation, the investigator prepared documents that the plaintiff considered them to be defamatory of him. The plaintiff commenced proceedings for libel against the Serious Fraud Office and others. 22 The House of Lords held that absolute immunity from suit which applied to witnesses in respect of statements made in court extended also to out of court statements which could fairly be said to be part of investigating a crime or a possible with a view to a prosecution. In explaining that absolute privilege is accorded to statements made in a police report, Lord Hoffmann said: “…I find it impossible to identify any rational principle which would confine the immunity for out of court statements to persons who are subsequently called as witnesses. The policy of the immunity is to enable people to speak freely without fear of being sued, whether successfully or not. If this object is to be achieved, the person in question must know at the time he speaks whether or not the immunity will attach. If it depends upon the contingencies of whether he will be called as a witness, the value of the immunity is destroyed. At the time of the investigation it is often unclear whether any crime has been committed at all. Persons assisting the investigation with their inquiries may not be able to give any admissible evidence; for example, their information may be hearsay, but none the less valuable for the purposes of the investigation. But the proper administration of justice requires that such people should have the same inducement to speak freely as those whose information subsequently forms the basis of evidence at a trial.” 23 [33] In the case of Westcott v Westcott [2008] EWCA Civ 818, Ward LJ, in delivering the judgment of the court observed that the House of Lord in Taylor v Serious Fraud Office established the principle that immunity for out of court statements is not confined to persons who are subsequently called as witnesses. The policy being to enable people to speak freely without inhibition and without fear of being sued, the person in question must know at the time he speaks whether or not the immunity will attach. Because society expects that criminal activity will be investigated and, when appropriate, prosecuted, all those who participate in a criminal investigation are entitled to the benefit of absolute privilege in respect of the statements, which they make. That applies whether they are informants, investigators, or prosecutors. [34] Taylor v Serious Fraud Office is an important authority for the proposition that the subsequent publication or the use of the contents of a police report in judicial or quasi-judicial proceedings, (which is not the situation in our present case), is protected by absolute privilege based on public policy consideration. [35] The next case referred to in the question is Darker v Chief Constable of the West Midlands Police. The first point to note is that this is not a case dealing with a claim for defamation. The 24 claimants in this case brought action against the police for conspiracy to injure and misfeasance in public office. It is also noteworthy that this case is cited by learned counsel for the plaintiff to underline the point that absolute privilege is in principle inconsistent with the rule of law. The protection should not be given any wider meaning than is absolutely necessary in the interests of the administration of justice. Lord Cooke expresses this in the following terms: “Absolute immunity is in principle inconsistent with the rule of Law but in a few, strictly limited, categories of cases it has to be granted for practical reasons. It is granted grudgingly, the standard formulation of the test for inclusion of a case in any of the categories being McCarthy P’s proposition in Rees v Sinclair [1974] I NZLR 180 at 187: ‘The protection should not be given any wider application than is absolutely necessary in the interests of the administration of justice….” [36] It can be seen from the foregoing analysis that if one looks at the matter as a question of principle, a common thread running through the cases is the emphasis on public policy consideration, where the defence of absolute privilege prevails. Public policy consideration will affect how much weight is given to free speech and the protection of reputation in the judicial balancing process. 25 [37] We now return to the rival contentions of the parties. In the instant case, there can be no doubt that the contents of the statement in the police report lodged by the defendant in their literal and ordinary meaning were understood to mean, among others, that the plaintiff is a criminal, a thief and is someone who is not honest. If the suit of the plaintiff against the defendant claiming relief for defamation and damages related only to the police report lodged by the defendant against the plaintiff, it is clear that the defamatory statements in the police report is within the protection of the defence of absolute privilege for reason of public policy, thus the plaintiff’s claim could not succeed for the reason that it disclosed no cause of action and is frivolous and vexatious. There was no dispute on this. The police report is absolutely privileged and therefore not actionable for the purpose of the law of defamation. The police report lodged by the defendant is the first step in the process of criminal investigation by the police. The police cannot investigate a possible crime without the alleged criminal activity coming to their notice. With such a report, the crime will be investigated and the perpetrator be brought to justice. In our opinion, the grounds of public policy which explain the basis for the absolute privilege rule is to encourage honest and well-meaning persons to assist in the process of investigating a crime 26 with a view to prosecution by relieving the persons who lodged the police report from the fear of being sued for something they say in the reports. [38] Nonetheless, as we have seen, in the present case, the defendant to whose conduct the claim relate, when approached by the reporters after she had lodged the police report against the defendant, repeated what was stated in the report to the reporters at a press conference. That is the crucial difference between the present case and the case of Lee Yoke Yam v Chin Keat Seng. This became an issue and raised an important point of law. The claim for defamation by the plaintiff was based on the subsequent publication of the contents of the police report to the public at large that was later published in Harian Metro. [39] The issue raised and the arguments by both sides turned upon this fundamental question: whether the defence of absolute privilege should likewise be extended to the subsequent publication of the contents of a police report by its maker to the public at large? Publication means the making known of the defamatory statements, after it has been written, to some person other than the person of whom it is written. 27 [40] In the main, the Court of Appeal in the present case relied substantially on the judgment of this Court in Lee Yoke Yam v Chin Keat Seng to conclude that absolute privilege is accorded to the repetition of the police report by the defendant to the reporters. The Court of Appeal also relied on Tan Sri Dato’ Seri Musa Hj Hassan v Dato’ Seri Anwar Ibrahim and Sharifuddin Mohamed & Anor v Dato’ Anas Khatib Jaafar & Another Appeal. The material passage of the judgment of the Court of Appeal is follows: “[33] In this appeal, the evidence adduced plainly shows that the impugned words in the article were in fact nothing more than a regurgitation of the words in the police report. The police report was republished in the impugned article. We agree with the Defendant that the learned trial judge had erred when she concluded that that the defence of absolute privilege is not available to the Defendant. The publication of the alleged defamatory contents of the publication in the Harian Metro attracts the same privilege in an ancillary manner as that attaching to the police report. We are, therefore of the considered view that the publication of the impugned article in Harian Metro would enjoy the protection of absolute privilege in an ancillary manner.” [41] Unfortunately, the Court of Appeal in the present case ignored or overlooked the fact that Lee Yoke Yam v Chin Keat Seng was not a case dealing with the subsequent publication of 28 the contents of a police report by its maker to the public at large. The following point has already been made earlier but deserved to be reiterated: the two cases could not be more different from each other. As we have seen, in Lee Yoke Yam v Chin Keat Seng, the plaintiff’s cause of action against the defendant is grounded on defamation whereby the plaintiff contended that the defendant had defamed him by lodging the police report alleging that the plaintiff had admitted misappropriating a sum of RM200,000.00. In the pleadings, the plaintiff specifically pleaded and provided particulars on the part of the defendant in making the police report. However, in the present case, the critical difference lies in that the plaintiff’s cause of action is grounded on the fact that the defendant had repeated in the press conference what was stated in the police report that was subsequently published in Harian Metro. We find that the case of Lee Yoke Yam v Chin Keat Seng is not applicable to the present case. [42] Similarly the majority of the Court of Appeal in the case of Kalung Makmur Sdn Bhd v Lo Yen Nyuk, that was referred to by learned counsel for the defendant, ignored or overlooked the fact that Lee Yoke Yam v Chin Keat Seng is distinguishable. Kalung Makmur Sdn Bhd v Lo Yen Nyuk is a case in which the 29 respondent lodged a police report alleging that the appellant had lost three cheques, which were handed to the latter by the former. According to the appellant, the words in the police report were understood to mean, inter alia, that the appellant was a criminal and an untrustworthy professional entity. The respondent subsequently published the police report by affixing it at the public notice board of the Condominium. The subsequent publication of the police report was alleged to have brought the appellant’s reputation into disrepute. The appellant commenced an action against the respondent based on the tort of libel. Relying on the case of Lee Yoke Yam v Chin Keat Seng, the majority of the Court of Appeal in Kalung Makmur Sdn Bhd v Lo Yen Nyuk inaccurately concluded that the publication of the police report by affixing it at the public notice board was protected by absolute privilege and, as such, no cause of action arose from such a report, overlooking or ignoring, with respect, the fact that there is in fact a difference in Lee Yoke Yam v Chin Keat Seng. [43] This brings us to the High Court case of Tan Sri Dato’ Seri Musa Hj Hassan v Dato’ Seri Anwar Ibrahim that was relied by the Court of Appeal in the present case. We observe that the High Court in that case referred to Evan on Defamation 3rd edition, 30 pages 142-143 and also the case of Clarence Wilfred v. Tengku Adnan Tengku Mahmud & Anor [1983] 1 CLJ 136; [1983] CLJ (Rep) 518 to hold that the subsequent publication of the police report, an absolutely privileged document, would enjoy the same protection of ancillary absolute privilege. This is not a correct proposition of the law. It is altogether unprecedented and there is no authority on which it can be founded to support the proposition. The fundamental difficulty that we have with the decision of Tan Sri Dato’ Seri Musa Hj Hassan v Dato’ Seri Anwar Ibrahim is that upon closer reading, there is nothing in both the pages of Evan on Defamation and the case of Clarence Wilfred, which is capable of being read or support the proposition to the effect that a police report being an absolutely privileged document, the subsequent publication of it also enjoys the protection of absolute privilege in an ancillary manner. There seem to be no authority for this proposition. On the contrary, derivatives or ancillary privilege arises where the defendant is acting as the agent of a person who is entitled to rely on the defence of qualified privilege. Thus, where a person who has been publicly defamed replies to the attack publicly, the privilege extends to protect a newspaper, which published the reply of the person defamed (see Doris Chia’s 31 Defamation, Principles and Procedure in Singapore and Malaysia, 2016 edition at paragraph 11.43). [44] In the same way, the Court of Appeal in Sharifuddin Mohammed & Anor v. Dato Annas Khatib Jaafar & Another [2016] 3 CLJ 574 also fell into serious error when it erroneously relied on Lee Yoke Yam v Chin Keat Seng and Tan Sri Dato’ Seri Musa Hj Hassan v Dato’ Seri Anwar Ibrahim, to hold that the subsequent publication of the Anti Corruption Agency report, is an absolutely privileged document, which would enjoy the same protection of ancillary absolute privilege. [45] We agree with the general rule that the extension of absolute privilege must be viewed with the most jealous suspicion and resisted unless its necessity is demonstrated. As stated by Brennan CJ, Dawson J, Toohey J and Gaudron J in their joint judgment in Man v O’Neill 191 CLR 204: ‘It may be that the various categories of absolute privilege are all properly to be seen as grounded in necessity, and not on broader grounds of public policy. Whether or not that is so, the general rule is that the extension of absolute privilege is “viewed with the most jealous suspicion, and resisted, unless its necessity is demonstrated”. Certainly, absolute privilege should not be 32 extended to statements which are said to be analogous to statements in judicial proceedings unless there is demonstrated some necessity of the kind that dictates that judicial proceedings are absolutely privileged.’ [46] As we have seen, the same point was made by Lord Cooke in Darker v Chief Constable of the West Midlands Police, and we respectfully agree with him, that absolute privilege should not be given any wider meaning than is absolutely necessary in the administration of justice. [47] In our opinion, there is no valid reason of public policy why the maker of a police report should be free from accountability by way of defamation action to publish the defamatory words contained in the police report to the world at large. As a matter of public policy, there is no sufficient basis or necessity to expand the ambit of the absolute privilege protection to cover the subsequent publication of the report to the world at large. In that situation, the right of the maker of the police report to speak and write freely to the public at large cannot override an individual’s interest in protecting his reputation. To be more specific, the absolute privilege must at some point give way to protection against reputational damage that it cannot override the individual’s right to have access to the 33 courts to seek a remedy for the defamation on him (see Doris Chia’s Defamation, Principles and Procedure in Singapore and Malaysia, 2016 edition at paragraph 9.6 for a useful discussion on the factors which the court may take into account in deciding if a communication would be protected by absolute privilege). [48] It is in the hands of judges to strike an appropriate balance between freedom of expression and the protection of reputation. It is necessary here to balance the freedom of expression against the interest of the individual. In our opinion, Courts should not extend the ambit of absolute privilege unnecessarily. To hold otherwise would result in persons irresponsibly slandering others with impunity. The laws of libel and slander provide the primary legal means for defending reputation, and responding to unwarranted and damaging allegations (see Gately on Libel and Slander, twelfth edition, paragraph 1.1). For it should not be supposed that protection of reputation is a matter of importance only to the affected individual and his family; protection of reputation is conducive to the public good (per Lord Nicholls in Reynolds v Times Newspapers Ltd [2001] 2 AC 127). Indeed, the freedom of expression and the responsibilities that comes with 34 it is enshrined in Article 10 of the Federal Constitution (see Syarikat Bekalan Air Selangor Sdn Bhd v Tony Pua Kiam Wee [2016] 6 AMR 66). [49] In our opinion, there is no public policy consideration to recognise that once the police report is absolutely privileged it remains so at whatever occasion it is subsequently published. We agree with the contention of learned counsel for the plaintiff that any public policy and interests of justice do not envisage this. Against such specific contention, we note that learned counsel for the defendant did not respond or address this point. In our opinion, absolute privilege will not attach to the subsequent publication of the contents of the police report to the public at large save where the contents were made in or in connection with judicial or quasi-judicial proceedings. At the same time, we would add that whether the defence of qualified privilege protects it, is a matter which we would leave to a case where the question must necessarily be determined. [50] Furthermore, it has not been demonstrated in the present case of the necessity for the defendant to publish the contents of the police report to the public at large. In this regard, it bears noting, as found by the learned High Court judge, that in her 35 testimony in Court, the defendant offered no justification or explanation why it was necessary or reasonable for her to repeat the contents of the police report at the press conference beyond saying that she merely answered the questions posed to her by the reporters. In Farrell v St. John’s Publishing Co. Ltd [1986] N.J. No.19, the defendant newspaper published statements referring to a confidential report of the plaintiff deliberately setting fire in an apartment building. The Court of Appeal of Newfoundland held that “no privilege attaches to the unwarranted publication of such report”. [51] It follows therefore that on the question of law posed, we conclude that subsequent publication of a police report by its maker to the public at large is not protected by absolute privilege, save where the contents of the police report were made in or in connection with judicial proceedings. In consequence, our answer to the question is in the negative. The Additional Point [52] It is important to note, as we have pointed out earlier, that the defendant also raised the defence of justification in the proceedings in the courts below. It is trite law that the defence of justification is a complete defence to a defamation action (see 36 Syarikat Bekalan Air Selangor Sdn Bhd v Tonv Pua Kiam Wee). In the High Court, it was held that the defendant failed to prove the defence of justification, whereas the Court of Appeal had accepted the defence of justification. The Court of Appeal, among others, found that there is cogent or credible evidence of the material fact that she had entrusted the plaintiff with RM200,000.00 cash on 29.12.2012 to be banked in and that the defendant failed to do so as instructed. In the result, the Court of Appeal held that the impugned statement is substantially true. Hence, the plaintiff’s action for defamation cannot succeed. Aggrieved by the decision of the Court of Appeal, the plaintiff filed, as seen earlier, a Motion to seek leave to appeal this Court. [53] It is pertinent to note that on 31.11.2017, the plaintiff’s Motion for leave to appeal was heard by this Court in which two questions were sought to be considered. First, concerning absolute privilege, and secondly regarding the defence of justification. This Court allowed the first question concerning absolute privilege but refused the question pertaining to the defence of justification. It is therefore clear that although we have answered the question pertaining to absolute privilege in favour of 37 the plaintiff, still it will not affect the result of the appeal one way or another. [54] That, however, is not the end of the matter. At the hearing before us, learned counsel for the plaintiff raised the additional point of the defence of justification. He submitted that the plaintiff is not precluded from raising the issue of the defence of justification in the present appeal because this Court has the power and therefore the discretion to permit the plaintiff to argue a ground which falls outside the scope of the question regarding which leave to appeal had been granted in order to avoid a miscarriage of justice (citing Menteri Sumber Manusia v Association Of Bank Officers, Peninsular Malaysia [1999] 2 MLJ 337 and Datuk Harris Mohd Salleh v Datuk Yong Teck Lee [sued in his personal capacity and as an officer of the second respondent] & Anor [2017] 6 MLJ 133). [55] He then submitted that the Court of Appeal had departed from established law and applied the wrong burden of proof to the defence of justification. He brought to our attention the following highlighted passage of the judgment of the Court of Appeal: ‘[137] The Defendant had adduced evidence of her source of income and explained in cross examination her source of 38 payment. The person who made the payment to the Defendant was called as witness. DW4 testified in court that he had issued the voucher (Exhibit D2) to the Defendant for the payment of “bayaran ihsan daripada saya atas semua urusan perniagaan”. DW4 confirmed in his evidence that he had made the cash payment of RM243,000.00 to the Defendant. The Defendant’s father (DW3) gave evidence that he witnessed the Defendant receiving and counting the large sum of money in 28.12.2012. Her Ladyship doubted the veracity of DW4 and DW3’s evidence citing various discrepancies in their testimony. However, her Ladyship has forgotten that the burden is always on the Plaintiff to prove his case. The Learned Judge should have asked whether it is plausible for a person in the Defendant’s position to have cash of RM243,000 on the day in question. During cross-examination, Plaintiff readily admitted that the Defendant definitely had more money than RM243,000.00. No evidence was adduced by the Plaintiff to prove that the intention of the Defendant filing the police report and making the accusations against him was because he knew of her alleged affair with a Minister. Her Ladyship also failed to consider the veracity and credibility of the Plaintiff as a witness, especially his conduct after he failed to return to work and his disappearance immediately after the alleged incident.’ 39 [56] He concluded his submission by saying that the highlighted portions supported his contention that a serious miscarriage of justice had occurred in that the Court of Appeal misdirected itself in requiring the plaintiff to establish the defence of justification. Accordingly, it was argued that the finding of justification ought to be reversed by this Court, and that the order of the Court of Appeal should be set aside and the order of the High Court be restored. [57] In our opinion, this line of argument has no merit. We agree that as a matter of broad general principle, this Court is not prevented to add in new questions in order to achieve the ends of justice (see Terengganu Forest Products Sdn Bhd v Cosco Container Lines Co Ltd & Anor and other application [2011] 1 MLJ 25). [58] To this end, we have read the judgment of the Court of Appeal in its entirety and the Record of Appeal. In our opinion, the complaint of learned counsel for the plaintiff was due to a mistaken reading of the judgment of the Court of Appeal. He misapprehended the terms of the judgment of the Court of Appeal in making the submissions. It is very important to understand the context in which the Court of Appeal made the observations. 40 [59] On the first highlighted portion, clearly what the Court of Appeal meant is that the plaintiff instituted the defamation action and it is trite law that the plaintiff would bear the burden to proof that the impugned statements were in fact defamatory in nature. It is wrong to suggest that the Court of Appeal required the plaintiff to establish the defence of justification. It is trite that the burden lies on the defendant to establish the defence of justification (see International Times v Leong Ho Yuen [19801 2 MLJ 86, S. Pakianathan v Jenni Ibrahim [1988] 2 MLJ 173 and Tun Datuk Patinggi Haji Abdul-Rahman Ya’kub v Bre Sdn Bhd [1996] 1 MLJ 393). [60] As to the second highlighted portion, it has to be remembered that the defendant lodged a counterclaim against the plaintiff. The relevant portion of the plaintiff’s Reply and Defence to Counter Claim is as follows: “7. Paragraphs 11, 12, 13, 14 and 15 of the Amended Defence are not admitted and the Plaintiff will rely and adopts the Statement of Claim. The Plaintiff will prove those allegations in Court later during the trial.” [61] It was the plaintiff’s case that the defendant maliciously published the impugned defamatory statements. In his witness 41 statement, the plaintiff made allegations towards the defendant involving a Minister. Bearing in mind the allegations advanced by the plaintiff that the impugned defamatory statements was maliciously made by the defendant, the Court of Appeal was correct in holding that there was no evidence adduced by the plaintiff to prove that the intention of the defendant filing the police report and making the accusation against the plaintiff was because he knew of her alleged affair with a Minister. [62] In light of the above, it has not been shown that a serious miscarriage of justice had occurred for us to intervene. Conclusion [63] In view of the conclusion that we have reached with regard to the question of law and the additional point on the defence of justification, the result is that this appeal fails and must be dismissed. Dated this day, 30th January 2019. -sgd- (AZAHAR BIN MOHAMED) Federal Court Judge 42 For the Appellant: Datuk Seri Gopal Sri Ram, Latheefa Koya, Shahid Adli bin Kamarudin, Damien Chan and Khairul Anwar Messrs. Daim & Gamany For the Respondent: Tan Sri Dr Muhammad Shafee bin Abdullah and Wan Aizuddin bin Wan Mohammed Messrs. Shafee & Co.