Tuanku Nur Zahirah v XXXX (W-02(NCvC)(W)-2109-11/2022)

CLARE LOUISE BROWN 10

CHONG TON SIN 11

VINLIN PRESS SDN BHD … RESPONDENTS 12 13 (Dalam Perkara Guaman No: WA-23NCvC-66-11/2018 14 Di Mahkamah Tinggi Malaya di Kuala Lumpur) 15 16 ANTARA 17 TUANKU NUR ZAHIRAH … PLAINTIF 18 19 LAWAN 20

CLARE LOUISE BROWN 21

CHONG TON SIN 22

VINLIN PRESS SDN BHD … DEFENDAN –DEFENDAN 23 24 25 26 27 23/02/2024 16:32:07 W-02(NCvC)(W)-2109-11/2022 Kand. 34 CORAM: 1 YA DATO’ HADHARIAH BINTI SYED ISMAIL, JCA 2 YA TUAN MOHAMED ZAINI BIN MAZLAN, JCA 3 YA DATUK AZHAHARI KAMAL BIN RAMLI, JCA 4 5 GROUNDS OF JUDGMENT 6 7 A. Introduction 8 9 [1] This is an appeal by the Plaintiff in the Court below against the 10 decision of the High Court on 31.10.2022 in dismissing her defamation 11 claim against the Defendants. We heard the appeal on 22.9.2022 and 12 reserved our decision to 12.12.2023. We unanimously allowed the appeal 13 and now provide the grounds of our decision. The parties will be referred 14 to as they were in the High Court. 15 16 B. Back ground facts. 17 18 [2] The Plaintiff is the Sultanah for the State of Terengganu. The 1st 19 Defendant is and was at the material time the author of The Sarawak 20 Report: The Insight story of the 1MDB Expose (the said book). The 2nd 21 Defendant is the publisher of the said book whereas the 3rd Defendant is 22 the printer of the said book. The book was released in August 2018 and in 23 the words of learned counsel for the Plaintiff: 24 25 “covering 1 Malaysia Development Berhad (1MDB) scandal from its 26 inception as Terengganu Investment Authority (TIA), the diversion of 27 funds from 1MDB under the central of Najib Razak and Jho Low and 1 the events, leading up to the May 2018 General Elections” 2 3 [3] More than 2,000 copies of the said books were sold. The Plaintiff’s 4 claim is founded on the statement at page 5 of the said book whereby it 5 was stated: 6 7 “In April he had netted himself an official advisory role at the newly set- 8 up sovereign wealth fund designed to invest the oil revenues from the 9 Malaysian State of Terengganu (since elections in this oil state had 10 just been won by the opposition, BN was ruthlessly looking for its 11 revenues into a friendly controlled entity). Jho was also friendly with a 12 key player in Terengganu, the wife of the Sultan, whose acquiescence 13 was needed to set up the fund and he later cited her support as having 14 been crucial to his obtaining the advisory position. This was the fund 15 that would shortly be converted into the scandalous entity known as 16 1MDB” 17 18 [4] It is the Plaintiff’s case that these impugned statements are 19 defamatory of her. The Plaintiff’s pleaded case that the impugned 20 statements, in its natural and ordinary meaning and/or imputation is 21 capable of being defamatory as it brings the following imputations:- 22 23

The Plaintiff interferes with the administration of the state 24 of Terengganu;

(ii) The Plaintiff used her position to influence and to establish 26 Terengganu Investment Authority and to set up the 27 sovereign wealth fund; 28

(iii) The Plaintiff consented to the establishment of the 1 sovereign wealth fund;

(iv) The Plaintiff used her position to assist and /or support Jho 3 in obtaining Jho’s advisory role in the sovereign wealth 4 fund of Terengganu Investment Authority;

The Plaintiff is involved in corrupt practices;

(vi) The Plaintiff is associated with and has close ties with 7 persons with questionable character namely Jho, whose 8 reputation based on media reports is a playboy and one 9 who sought by authorities;

(vii) The Plaintiff has the ability to influence the administration 11 of the State of Terengganu and that is one who is running 12 the administration and affairs of the State of Terengganu. 13 14 C. Summary of the High Court’s decision 15 16 [5] It must be noted that the Plaintiff had earlier on obtained summary 17 judgement against the Defendants pursuant to O14A of the Rules of 18 Courts 2012 which was allowed by the then presiding judge. On appeal, 19 the Court of Appeal had, on 24.8.2021, allowed the appeal and ordered 20 that the case be heard by full trial by the learned Judicial Commissioner 21 (JC). After a full trial, the learned JC ruled that the Plaintiff had failed to 22 prove that the impugned statements is defamatory of her and dismissed 23 the claim. His Lordship stated that: - 24 25 “no negative connotations can be made in reading the impugned 26 statements although this is obviously a matter of mistaken identity”. 27 [6] In arriving at his finding, the learned JC had attempted to determine 1 the words “whose acquiescence” that appear in in impugned statements. 2 In his judgement, he had observed that none of the parties had provided 3 detailed explanation the linguistic or grammatical rules in determining the 4 impugned statements. The learned JC stated that as the issue before him 5 concerned English grammar, he had applied the established and normal 6 English grammar rules in determining the meaning of the said words. He 7 had also referred to the dictionary meaning of the said word before 8 concluding that the sentence “Jho was also friendly with a key player in 9 Terengganu, the wife of the Sultan, whose acquiescence was needed to 10 set up the fund and he later cited her support as having been crucial to his 11 obtaining the advisory position”, the word “whose” refers to “the wife of the 12 sultan”, i.e. the Plaintiff, and it is used as a possessive pronoun to indicate 13 her ownership or association with the actions described in the sentence 14 namely, the acquiescence”. 15 16 [7] Applying the above finding to the case before him, the learned JC 17 found that nothing in the impugned statements could suggest that in its 18 natural and ordinary meaning the alleged imputations as pleaded nor that 19 any negative connotation that can be drawn to arrive at the pleaded 20 connotation. The learned JC also found that the impugned statement “does 21 not in any way degrade the Plaintiff’s reputation” 22 23 [8] The learned JC also ruled that in the event that he was wrong in 24 finding that the impugned statements bears no defamatory connotation 25 against the Plaintiff, the Defendants have successfully established the 26 defence of justification. 27 D. Appellant’s Argument 1 2 [9] Before us, learned counsel for the Plaintiff submitted that the learned 3 JC had erred in admitting extrinsic evidence in analysing the natural and 4 ordinary meaning of the impugned statements. It was contended that the 5 learned JC had made detailed and over-elaborated analysis of the 6 meaning of the words contained in the impugned statements by referring 7 to dictionary meaning of those words and also relying on the testimony of 8 a witness (John Ellison Khan, DW2) before finding that the impugned 9 statements are not defamatory. By doing so, it was submitted that the 10 learned JC had relied on inadmissible evidence in arriving at his finding. It 11 was further submitted that there is no evidence whatsoever to show that 12 the Plaintiff was involved in the establishment of TIA or affairs of the state 13 and supported Jho Low in obtaining the advisory position in TIA or involved 14 with Jho Low. In fact, the 1st Defendant admitted during the trial that there 15 was no basis for her to make any statement about the Plaintiff when the 16 first print of the said book was published in August 2018. Learned counsel 17 also pointed out that there was an amendment made by the Defendants in 18 the later print of the said book whereby reference to the Plaintiff was 19 substituted with the Sultan’s sister. In this regard, it was submitted that the 20 impugned statements were indeed defamatory of the Plaintiff hence the 21 need to make the amendments. Further, it was submitted that the learned 22 JC ought to have ruled that the impugned statements, made at the height 23 of the “grotesque scandal” (i.e. the 1MDB scandal), a reasonable man 24 would have found the impugned statements linking to the Plaintiff as 25 having committed the guilty acts as alleged in the impugned statements. 26 In this respect, it was also submitted that the learned JC had failed to 27 properly consider the nature of comments found on social media that had 1 ridiculed the Plaintiff’s character. On the defence of justification, it was 2 argued that since, during the trial, the Defendants had apologized on the 3 ground of an honest mistake or unintentional mistake, the Defendants are 4 precluded from raising the justification defence. On the issue of damages, 5 it was submitted that, in the event that this court finds the impugned 6 statements defamatory and the defence of justification fails, we are 7 empowered to assess and award damages to the Plaintiff. 8 9 E. Respondent’s argument 10 11 [10] For the respondents, it was submitted that the learned JC did not 12 commit any appealable error which justifies appellate interference by this 13 court. It was submitted, among others, that the learned JC was correct in 14 holding that there was nothing sinister or derogatory in the use of a few 15 key words in the impugned statements namely “acquiescence”, “key 16 player” and ‘support”. Learned counsel also submitted that the learned JC 17 was correct in finding that it is too far-fetch to impute that the Plaintiff 18 interfered in the administration of the State as it was common knowledge 19 that Her Highness did not. It was further submitted that the appeal is mainly 20 on the finding of facts made by the learned JC; hence the appellate court 21 should be slow in disturbing such finding. It was highlighted to us that the 22 1st Defendant did issue a media statement apologising to the Plaintiff after 23 realising an error in referring to the Plaintiff, instead of the Sultan’s sister, 24 in the impugned statements pertaining to her purported acquiescence with 25 Jho Low and her involvement in the administration of the State of 26 Terengganu. Further, the 1st Defendant had arranged for what was in effect 27 a “corrigendum” to be slipped into all books still on the shelves amending 1 the word “wife “appearing in the impugned statements to “sister” instead. 2 Be that as it may, the Defendants take the stand that the fact that the 1st 3 Defendant unwittingly and mistakenly referred to the Plaintiff in the 4 impugned statements. 5 6 F. The issues in this appeal. 7 8 [11] The main issues in this appeal are: 9 10

Whether the learned JC was justified in finding that the 11 impugned statements is not defamatory of the Plaintiff. 12 13

(ii) Whether the learned JC was right in finding that the defence 14 of justification had been established by the Defendant. 15 16 G. The Law 17 18 [12] While freedom of speech is one of the fundamental liberties 19 guaranteed by Article 10 (1) (a) of the Federal Constitution, it is also trite 20 law that this freedom is not absolute. The law prescribed certain limitation 21 to this freedom; hence section 500 of the Penal Code governs the offence 22 of criminal defamation, whereas the Defamation Act 1957 is the statute 23 that govern defamation law in Malaysia; and defamation is a cause of 24 action in the law of torts as in the present appeal. 25 26 [13] To succeed in her claim, the Plaintiff must prove, on the balance of 1 probability the following facts: 2 3

There must be publication of the impugned statements.

(ii) The impugned statements must refer to the Plaintiff.

(iii) The impugned statements is defamatory. 6 7 [14] In proving whether the impugned statements is defamatory, the 8 Plaintiff must clear two hurdles: - 9 10

Whether the impugned statements in it’s natural and 11 ordinary meaning are capable of conveying a defamatory 12 meaning or concerning the Plaintiff.

(ii) Whether the impugned statements are capable of being, and 14 were in fact, defamatory of the Plaintiff. 15 16 [15] In this regard, the court must carry out an objective test to determine 17 whether, under the circumstances in which the words are published, a 18 reasonable man to whom the publication was made would be likely to 19 understand it in a defamatory or libellous sense. The approach in the 20 construction of the words complained of is to consider the meaning of such 21 words would convey to ordinary reasonable person using their general 22 knowledge and common sense; it is not confined to strict literal meaning 23 of the words but extend to any reference or implication from which persons 24 can reasonably draw. It is irrelevant what the publisher intended the words 25 complained of to mean; it is also irrelevant what readers understood the 26 words complained of to mean for the purpose of deciding their ordinary 27 and natural meaning. There is no necessity for the Plaintiff to prove falsity 1 of the words complained of once they are found to be defamatory of him. 2 (see Allied Physics Sdn Bhd v Ketua Audit Negara (Malaysia) & Anor 3 and other Appeals [2017]7 CLJ 347 and Raub Australian Goldmining 4 Sdn Bhd v Hue Shieh Lee [2019]3 CLJ 729, 5 6 [16] There must be evidence that the impugned statements may tend to 7 “lower the Plaintiff in the estimation of right-thinking members of society 8 generally” or “to expose him to hatred, contempt or ridicule”. An imputation 9 may be defamatory whether or not it is believed by those to whom it is 10 published (see Tun Datu Patinggi Haji Abdul Rahman Ya’kub v Bre 11 Sdn Bhd [1996] 1 MLJ 393). 12 13 14 [17] As to whether the impugned statements is defamatory, the decision 15 in Syed Husin Ali v Sharikat Perchetakan Utusan Melayu Berhad & 16 Anor [1973], 1 LNS 146; [1973] 2 MLJ 56 is of useful guidance: - 17 18 “A defamatory imputation is one to man’s discredit, or which tends to 19 lower him in the estimation of others, or to expose him to hatred, 20 contempt or ridicule, or to injure his reputation, in office, trade or 21 profession, or to injure his financial credit. The standard of opinion is 22 that of right-thinking person’s generally. To be defamatory, the 23 imputation needs to have no actual effect on a person’s reputation, the 24 law looks only to its tendency” 25 26 [18] We also remind ourselves that the words complaint of must be 27 viewed from the prevailing attitude of the society at the time of the 28 publication (see Raub Australian Goldmining Sdn Bhd (supra)). 1 Further, since the Plaintiff is relying on the natural and ordinary meaning 2 of the impugned statements, no extrinsic evidence is admissible when 3 interpreting the impugned statements. 4 5 H. Our Analysis and findings 6 7

Whether the impugned statements in it’s natural and 8 ordinary meaning are capable of conveying a defamatory 9 meaning or concerning the Plaintiff. 10 11 [19] At the risk of being repetitive, we remind ourselves that the Plaintiff 12 is relying on the natural and ordinary meaning of the impugned statements 13 thus making extrinsic evidence inadmissible in determining the defamatory 14 nature of the impugned statements. However, in his judgement the learned 15 JC had considered extrinsic evidence in arriving at his conclusion on the 16 true meaning of the impugned statements. The learned JC had referred to 17 the dictionary meaning for the words “acquiescence” “key player” and 18 “support” in Merriam Webster dictionary : 19 http://www.merriam.webster.com/dictionary/acquiescence, Cambridge 20 English Dictionary at 21 http://dictionary.cambridge.org/dictionary/english/acquiescence. Oxford 22 English Dictionary at 23 http://www.oed.com/view/Entry/2928?redirectedFrom=acquiescence#eid 24 and Lexico at “Support” Lexico.Oxford University Press 2021. 25 http://www.lexico.com/definition/support. (see paragraph [101], [103], 26 [104], and [107] of the Grounds of Judgement) 27 1 [20] The learned JC also considered what the 1st Defendant meant by the 2 word “key player” where at Q&A 18 of the witness statement the 1st 3 Defendant testified: 4 5 18th Q: What about the facts that you referred to the Plaintiff as a “key 6 player in Terengganu”? 7 8 : … I certainly do not mean by “key player” that she interfered 9 with matters of state or used her position to influence matters of state 10 or was running the state of Terengganu. The words “key player” are 11 innocuous. I just meant someone of importance 12 13 [21] The learned JC also considered the evidence of DW 2 at page 57 of 14 the Grounds of Judgment: 15 16 6th Q: Why did you interpret the word “acquiescence” to mean that of 17 the Sultan? 18 19 : … The passage contains no suggestion that the Sultan’s wife, 20 even as a “key player in Terengganu”, held any real power in the state, 21 or was in a position to engage in “acquiescence”. So, I could not 22 interpret the passage as referring to her acquiescence. 23 24 11th Q: In paragraph 11 of the Statement of Claim… the Plaintiff has 25 also alleged that the passage imputed defamatory meanings. Were 26 these imputed meanings what you understood from the passage? 27 28 : … The passage does state that Jho was “friendly” with the 29 Plaintiff, but it cannot see how any reasonable reader would leap from 30 that statement to the suspicious that the Plaintiff “is involved in corrupt 1 practice”. Nowhere in the passage is there any suggestion that the 2 Plaintiff know that Jho was a person of “questionable character” etc. 3 As far as I can tell, the passage simply contains no imputation of 4 corruption on the part of the Plaintiff or the Sultan. 5 6 The passage does refer to the Plaintiff as a “key player in 7 Terengganu”, but again, that is certainly not saying the same thing as 8 “she is the one who is running the administration and affair of the state 9 of Terengganu”. For someone to be a “key player”, it is necessary to 10 be a noteworthy person but, it is not necessary to be a person of 11 power. To call her “a key player” would not be to claim any powerful 12 role for her in state affairs or administration. 13 14 [22] Further the learned JC also considered the following evidence of DW 15 2 (see page 106 of the Grounds of Judgment) as follows: 16 17 10 Q: What is your understanding of the position of the passage that 18 reads “he later cited her support as having been crucial to his obtaining 19 the advising position”? 20 21 : … I understand it to mean that the person called Jho claimed 22 that his success in obtaining the advisory position was largely thanks 23 to the “support” of the Sultan’s wife. The word “support” denotes 24 assistance, in the sense of vouching for or favouring or endorsing. It 25 constantly doesn’t suggest anything determinative. Even the word 26 “crucial” doesn’t suggest that. A common-sense interpretation of the 27 passage might be that the Sultan’s wife provided a favourable 28 reference on behalf of Jho, and that this reference contributed to the 29 decision made by the person who actually makes the appointments 1 (perhaps the Sultan?) to appoint Jho”. 2 3 [23] It must be noted that based on the dictionary meaning and the 4 evidence of DW 1 and DW 2, the learned JC ruled that the words “key 5 player” and “support” are not derogatory of the Plaintiff (see paragraph 104 6 and 105 of the Grounds of Judgment). 7 8 [24] In our opinion the learned JC had erred when considering 9 inadmissible extrinsic evidence in determining the ordinary and natural 10 meaning of the impugned statements. The impugned statements must be 11 considered and understood from its original printed form without the need 12 to carry out an extensive research of its meaning; but at the same time, a 13 reader should not rush to make a conclusion on whether or not the 14 statement is defamatory. We agree with the submission of learned counsel 15 for the appellant that “over-elaborate analysis should be avoided and the 16 court should certainly not take a too literal approach to the task”. (Clerk & 17 Lindsell on Torts 23rd Ed). In this a respect learned counsel for the 18 appellant also cited the case of Stocker v Stocker [2019], 3 AII ER 647 19 where the United Kingdom Supreme Court states: 20 21 “[25] Therein lies the danger of the use of dictionary definition to 22 provide a guide to the meaning of an alleged defamatory 23 statement. That meaning is to be determined according to how 24 it would be understood by the ordinary reasonable reader. It is 25 not fixed by technically, linguistically precise dictionary 26 definitions, divorced from the context in which the statement 27 was made.” 28 [25] This in our view reflects the correct approach in determining the 1 issue before this court. 2 3 [26] We are of the opinion that in determining the ordinary and natural 4 meaning of the impugned statements, the court must only look at the 5 statement itself. Any interpretation based on extrinsic evidence, such as 6 dictionary definition as in the present case, would unnecessarily add the 7 burden of proving the defamatory nature of the impugned statements on 8 the Plaintiff. 9 10 [27] In this case the learned JC had considered the extrinsic evidence 11 before concluding at paragraph 104 and 105 that the words “key player” 12 and “support” are not defamatory. In our opinion this is not a correct 13 approach to be taken when determining the natural and ordinary meaning 14 of the impugned statements. Hence the learned JC had erred in his finding 15 that warrants appellate interference by this court. 16 17 H(ii)-. Whether the impugned statements are capable of being, and 18 were in fact, defamatory of the Plaintiff. 19 20 [28] The next issue is whether the impugned statements is defamatory of 21 the Plaintiff? In this respect, it must be noted that during the trial before the 22 learned JC as well as in this appeal, the Defendant had admitted that there 23 was a mistake in the impugned statements with regard to the identity. It 24 was admitted by the 1st Defendant that the Plaintiff had never introduced 25 Jho Low to the Sultan of Terengganu pertaining to the setting up of the 26 TIA. It was the Sultan’s sister, Tengku Dato Rahimah who introduced Jho 1 Low to the Sultan. 2 3 [29] This fact, in our view, is relevant in determining whether the 4 impugned statements is defamatory. Another relevant fact to be 5 considered is the prevailing attitude at the time of the public action (Raub 6 Australian Goldmining Sdn Bhd (supra)). 7 8 [30] As stated earlier, based on the facts of this case, the Plaintiff must 9 show that on the construction of the impugned statements in its ordinary 10 and natural meaning, it bears the imputation ascribed to by the Plaintiff 11 and are defamatory of her. 12 13 [31] We have read the impugned statements and taking into 14 consideration the admission of mistaken identity of the Plaintiff by the 1st 15 Defendant as well as the prevailing attitude of the society at the time of 16 publication, the impugned statements were capable of being defamatory 17 of the Plaintiff in the way it was imputed by the Plaintiff in the statement of 18 claim. 19 20 [32] We take notice that the book that carries the impugned statements 21 was published in August 2018, some five months after the General 22 Election in May 2018. It is common knowledge that 1MDB was one of the 23 issues raised during the election campaign which led to the defeat of the 24 Barisan Nasional government. Jho Low is also named as one of the person 25 responsible for the scandal. Hence any connection between the Plaintiff 26 and Jho Low as described in the impugned statements, would convey, to 27 an ordinary reasonable person using their general knowledge and 1 common sense, the imputation of the words complained of as pleaded by 2 the Plaintiff (see Tun Datuk Patinggi Haji Abdul Rahman Ya’kub 3 (supra)). 4 5 [33] It must be noted that the law does not confine the strict and literal 6 meaning of the words but extends to any reference or implication from 7 which a person can reasonably draw. It is also trite that the impugned 8 statements must be considered as a whole bearing in mind, inter-alia, the 9 context in which they were used (see Institute of Commercial 10 Management United Kingdom v The New Straits Times Press 11 (Malaysia) Bhd [1993], 1 MLJ 408). Hence, on the facts of the case, we 12 are of the opinion that the impugned statements is defamatory. We are 13 also of the view that the impugned statements is defamatory of the Plaintiff. 14 The defamatory part of the impugned statements can be seen in the 15 allegation that the Plaintiff was said to have supported Jho Low to be 16 appointed the advisory position at the newly set-up sovereign wealth fund 17 (the Terengganu Investment Authority (TIA)). We are of the view that this 18 in the mind of a reasonable person, using their general knowledge and 19 common sense of the prevailing circumstances and the time when the 20 book was published, implied that the Plaintiff has used her position to 21 support Jho Low in obtaining Jho’s advisory role in TIA, that the Plaintiff 22 has the ability to influence the administration of the State of Terengganu 23 and that the Plaintiff is involved in corrupt practice. 24 25 [34] In this respect, the law states that it is irrelevant what the Defendant 26 intended the impugned statements to mean (AJA Peter v OG Nio & Ors 27 [1980] 1 MLJ 226). In our view, no matter what the 1st Defendant intended 1 the impugned statements to mean, from on the facts of the case, at the 2 time of the publication of the book, the impugned statements were 3 calculated to expose the Plaintiff to hatred, ridicule or contempt in the mind 4 of a reasonable man or would tend to lower the Plaintiff in the estimation 5 of right - thinking members of society generally (see Syed Husin Ali 6 (supra)) and (JR Jeyaretnam (supra)). 7 8 [35] The magnitude of the impugned statements on the society can be 9 seen from the negative comments posted by the commentators in the 10 Malaysiakini News portal. One such comment clearly ridiculing the Plaintiff 11 is as follows: - 12 13 “Dedak ridden cops trying to tarnish Clare whose expose of 14 1MDB saved the country. They should be questioning the 15 Sultanah (i.e the Plaintiff) how much she got from Jho Low. I’ll be 16 very shocked if she denied knowing Fatty Jho” 17 18 [36] We are unable to agree with the learned JC that the negative 19 comments mainly commented on the Plaintiff’s action in filing this action 20 and has nothing to do with the publication of the impugned statements. In 21 our opinion the negative comments by the commentator were directed to 22 the Plaintiff on the purported corrupt practices by the Plaintiff. This is 23 evident when the commentator questioned how much the Plaintiff “got from 24 Jho Low”. This clearly shows that the Plaintiff’s reputation was being 25 ridiculed and degraded as being a person who is involved in corrupt 26 practices. 27 1 [37] Hence, we are of the opinion that the learned JC fell into plain error 2 when he ruled that the statement is not defamatory of the Plaintiff. 3 4 I.

(iii) - Defendants’ defence 5 6 [38] The learned JC had ruled that the Defendants had successfully 7 proved the defence of justification and Lucas Box. 8 9 [39] It bears repetition that in the course of the trial and this appeal, the 10 1st Defendant admitted that there was an honest mistake on her part when 11 writing the impugned statements in 2018. It was admitted by the 1st 12 Defendant that the Plaintiff did not introduce Jho Low to the Sultan, Tengku 13 Dato Rahimah, the Sultan’s sister did. By raising the Lucas Box principle, 14 the 1st Defendant must explain the meaning of the words that the Plaintiff 15 makes of the impugned words. She must give an alternative meaning and 16 give particulars to justify that meaning (see Khairy Jamaluddin v Dato 17 Seri Anwar Ibrahim [2015] 3 CLJ 1062) 18 19 [40] In paragraph 12 (i) to (v) of the statement of defence, the 1st 20 Defendant pleaded the alternative meaning of the impugned statements. 21 However, upon reading the said paragraphs, we are of the opinion that 22 those paragraphs are not related to the impugned statements. Those 23 paragraphs explain the concerns of the Terengganu royal family in the 24 management of the TIA resulting in the decision to abort the setting up of 25 TIA. There was no reference to any of the impugned statements and the 26 meaning the 1st Defendant meant. 27 [41] Obviously those paragraphs did not show any alternative meaning 1 intended by the 1st Defendant to the impugned statements. It did not 2 explain why the Plaintiff had been referred to in the impugned statements. 3 4 [42] Further, it was submitted by learned counsel for the Plaintiff that in 5 relying on the defence of justification, the 1st Defendant must show that the 6 impugned statements is actually the truth of the imputation of the overall 7 statement. (Chong Swee Huat & Anor v Lim Shian Ghee t/a L & G 8 Consultant & Education Services [2009] 4 CLJ 113). As stated earlier, 9 the 1st Defendant has failed to show the alternative meaning of the 10 impugned statements. Put it differently the 1st Defendant has failed to show 11 the truth of the impugned statements. Further, it was admitted by the 1st 12 Defendant that she did not verify the facts as to whether the Plaintiff was 13 involved in the setting up of TIA. Hence, we are of the view that the 14 impugned statements was published deliberately. In the circumstances the 15 Defendant has failed to establish their defence of justification (see Dato 16 Seri Mohammad Nizar bin Jamaluddin v Sistem Televisyen Malaysia 17 Berhad & Another [2014] 3 CLJ 560). 18 19 [43] For the above reasons, we are of the view that the learned JC was 20 plainly wrong in his finding when he ruled that the Defendant has 21 successfully raised the defence of justification which warrants appellate 22 interference. 23 24 25 26 27 J.

(iv) - Damages 1 2 [44] The learned JC did not deal with the issue of damages. In view of 3 our finding that the impugned statements was defamatory of the Plaintiff, 4 it is our duty now to assess the damages to be awarded to the Plaintiff 5 (see Raub Australian Gold Mining Sdn Bhd v MKINI Dotcom Sdn Bhd 6 [2018] 1 LNS 62). In this respect, libel is a tort actionable per se, i.e. 7 without proof of actual harm. The law presumes that when a man’s 8 reputation is assailed, some damage must result (see MGG Pillai v 9 Vincent Tan [1995] 2 CLJ 912. 10 11 [45] In assessing the damages, we take into account the following 12 factors: 13 14

Lack of Remorse 15 While admitting that there was an honest mistake on her part 16 in publishing the impugned statements, the 1st Defendant did 17 not mention about this mistake during an interview with Free 18 Malaysia Today on 18.9.2018. She also did not mention about 19 the mistake during an interview with Sarawak Report on 20 27.9.2018. Further, despite the said mistake, the 1st Defendant 21 also did not apologize to the Plaintiff at any time before the 22 filing of the action in the High Court. 23 24 25 26 27

(ii) Plaintiff’s standing in society 1 2 The Plaintiff is the Sultanah of Terengganu. Being the Sultan’s 3 consort, she is well known by the people. The impugned 4 statements obviously had tarnished her image. The negative 5 comments that were published in the Malaysiakini news 6 referred to in paragraph 30 shows the extent of damage that 7 was inflicted on her by the impugned statements. 8 9

(iii) Extend of the publication 10 11 The 1st Defendant admitted that only 2,000 copies of the said 12 book were sold. We are of the view that the book was not 13 widely circulated even though we do not dismiss the possibility 14 that the said book or the impugned statements may have been 15 circulated via the internet or social media. 16 17 [46] Based on the above reasons, we award damages to the Plaintiff in 18 the sum of RM 300,000.00. In our view, since the 2nd and 3rd Defendants 19 are the publisher and the printer of the book that contains the impugned 20 statements, they are jointly liable for the damages caused by it. Hence, we 21 order that the damages awarded to the Plaintiff be paid by all Defendants 22 jointly. 23 24 25 26 27 J. Conclusion 1 2 [47] Based on the aforesaid reasons, we are of the opinion that the 3 learned JC was plainly wrong in dismissing the Plaintiff’s claim. The appeal 4 is allowed. The order of the High Court is set aside. We order that the 1st, 5 2nd and 3rd Defendants to jointly pay damages in the sum of 6 RM300,000.00. In addition, we also allow the Plaintiff’s claim in paragraph 7 29 (b) (ii) and (ii) against the 2nd Defendant and paragraph 29 (c) (ii), (iii) 8 and (iv) of the statement of claim. 9 10 Dated: 12th December 2023 11 12 - SGD - 13 DATUK AZHAHARI KAMAL BIN RAMLI 14 JUDGE 15 COURT OF APPEAL, MALAYSIA 16 17 18 For the Appellant : Dato’ Mohd. Haaziq Pillay bin Abdulah, 19 Vishnu Kumar A/L Athi Kumar, Mohd Hilmi 20 bin Hj Sarbini, Manisha A/P S 21 Sugunesegaran 22 (Tetuan J.S. Pillay & Mohd. Haaziq) 23 24 For the Respondents : Americk Sidhu, Mervyn Lai Wei Shiung, 25 Shara Jayapavan. 26 (Tommy Thomas) 27