Yeoh Tseow Suan v Musa Bin Haji Hassan (W-02(NCvC)(W)-2301-12/2024)

The Appeal before us was an Appeal against the Learned Judicial Commissioner’s (“LJC”) decision to dismiss the Appellant’s defamation action against the Respondent.

The parties involved in the Appeal before us are two renowned and prominent individuals as well as public figures in their respective fields.

Hannah Yeoh Siew Tuan (“the Appellant / Hannah Yeoh / Plaintiff”) is a veteran politician who had been actively involved in politics since 2008 and was formerly a State Assemblywomen for Subang Jaya serving from 2008 until 2018. The Appellant is currently a Member of Parliament representing the Segambut constituency and at the material time, she held a ministerial post in which she served as the Minister of Sports and Youth. Upon the 3 recent reshuffling of the cabinet, the Appellant was appointed as the Minister of the Federal Territories on 17.12.2025.

While Musa Bin Hassan (“Respondent / Musa Hassan / Defendant”) formerly held the highest position in the Royal Malaysian Police (“PDRM”) as the Inspector General Police of Malaysia (“IGP”). The Respondent served as the eighth IGP for a period of slightly over four years beginning from 1.9.2006 and he subsequently retired from the post on 13.9.2010.

The Appellant (the Plaintiff) had mounted a defamation suit against the Respondent (the Defendant) in the Kuala Lumpur High Court for the publication of numerous slanderous statements via a speech delivered by the Defendant during a Forum entitled “Wacana Isu Semasa Perjanjian Damai Hat Yai 1989: PKM Menyerah Diri?” held in Universiti Teknologi MARA (“UiTM”) of which the Defendant was invited as a speaker to deliver a speech.

It remains undisputed that since the forum was held by UiTM, the attendees of the forum would obviously include inter alia UiTM lecturers, students, and staff.

For the purpose of this grounds of judgment and for easy reference of the parties, the parties hereinafter shall be referred to in their original capacities before the High Court.

The Plaintiff claims that the Defendant’s speech contained and effectively published slanderous statements which were defamatory against the Plaintiff (“impugned statements”) The impugned statements read as follows: “Dan MEREKA ingin juga merosakkan agama Islam dalam negara ini kerana mereka mempunyai kaitan dengan EVANGELIST group. Mereka juga mempunyai kaitan dengan Yahudi untuk merosakkan negara ini. Dan banyak research yang telah saya buat, dimana saya dapati bahawa ada hubungan antara Evangelist group dengan Parti DAP di sini, ya, kerana MEREKA telah menulis buku, HANNAH YEOH JUGA telah menulis buku untuk menjadikan negara ini negara Kristian. Ada juga orang Melayu mengatakan, “Apa salah negara ini menjadi negara Kristian?” Astaghfirullahalazim. Sampai ada orang Melayu yang sanggup keluarkan perkataan itu. “Apa salahnya negara ini menjadi negara Kristian?” Memang kita dah banyak buat silap terutama politicians. Kita sendiri yang buat silap. Kita bagi muka banyak sangat dekat dia orang. Kemudian kita, sekarang ini UEC pun nak diiktirafkannya. Tetapi politicians ni, dia fikir diri dia sendiri, itu masalah dia. Dia bukan fikir fasal negara, bukan fikir fasal tuan-tuan, tidak. Dia fikir fasal, apa keuntungan dia dapat kepada diri dia. Ini masalah dia. Tetapi akhirnya, kita yang mendapat kesusahan kerana kita punya anak cucu tak tentu lagi negara ini menjadi negara mereka. Kita akan dijajah semula di mana kita tidak boleh menerima ini. Jadi kita perlu berjaga-jaga dan perlu bersuara.”

The Plaintiff claimed that the impugned statements had severely tarnished and disparaged her reputation. The Plaintiff succinctly contended that the unjust publication of the impugned statements had insidiously perpetrated a false and baseless narrative and belief (especially within the Malay Muslim majority of Malaysia) that: a. The Plaintiff intends to destroy Islam in Malaysia (merosakkan agama Islam dalam negara ini); b. The Plaintiff has ties with the Jews to destroy Malaysia (mempunyai kaitan dengan Yahudi); c. The Plaintiff had written her book to convert Malaysia into a Christian nation (menulis buku untuk menjadikan negara ini negara Kristian); and that d. The Plaintiff intends to menjajah Malaysia (Kita akan dijajah semula).

After a full trial, the LJC found that the Plaintiff had not proven her case on the balance of probabilities and that the Defendant had successfully proven his defences (and had therefore dismissed the Plaintiff’s action). The LJC had further awarded costs of RM40,000.00 to the Plaintiff to be paid by the Defendant.

From the LJC’s grounds of judgment (“GOJ”), it appears that the LJC had dismissed the Plaintiff’s claim primarily on five (5) grounds namely: 6 a. The Plaintiff had no locus standi or capacity to initiate/commence the defamation action against the Defendant (due to the alleged application of the ‘Derbyshire principle’); b. The impugned statements were not slanderous or defamatory of the Plaintiff; c. The impugned statements only expressly referred to “MEREKA” which did not explicitly refer to the Plaintiff; d. There was no publication of the impugned statements to a third party; and e. the Defendant had succeeded in establishing his defenses of justification, fair comment, and qualified privilege. C. THE APPEAL BEFORE US

We have perused the Memorandum of Appeal, the High Court’s Grounds of Judgment, the Records of Appeal and the parties’ respective written submissions and we are of the view that the Appeal before us can be can be appropriately decided by determining the following issues: a. Issue 1: Whether the LJC was correct in her finding that the Plaintiff had no locus standi or capacity to sue the Defendant for defamation; 7 b. Issue 2: Whether the LJC was correct in her finding that the Plaintiff had failed on the balance of probabilities to prove the elements of defamation namely; that the impugned statements were defamatory to the Plaintiff; that the impugned statements refer to the Plaintiff; and that there was publication of the impugned statements to a third party; and c. Issue 3: Whether the LJC was correct in finding that the Defendant had succeeded in proving the defence of justification, fair comment, and qualified privilege’. D. Issue 1: WHETHER THE LJC WAS CORRECT IN HER FINDING THAT THE PLAINTIFF HAD NO LOCUS STANDI OR CAPACITY TO SUE THE DEFENDANT FOR DEFAMATION

A cursory glance of LJC’s Grounds of Judgment (“GOJ”) would sufficiently reveal that the LJC had unfortunately and erroneously applied an outdated position of the Malaysian law in respect of defamation actions involving public officers. The LJC observed that the Plaintiff (during cross examination by the counsel for the Defendant) had testified that the Plaintiff had sued the Defendant in her capacity as an elected representative “Atas kapasiti saya merupakan seorang wakil rakyat” and not on her personal capacity. The LJC in her incorrect application of the Derbyshire principle, concluded that the Plaintiff (as an elected public officer or the government) cannot be allowed to sue for defamation as public policy requires that public officers shall remain open to any criticism in their conduct of official duty or in discharging their public duties. The LJC had further ruled that the Plaintiff can only sue for 8 defamation in her personal capacity regarding her private conduct. The LJC somehow also erroneously held that in the instance of the impugned statements, the proper party to bring an action against the Defendant would be the Plaintiff’s political party i.e the Democratic Alliance Party (“DAP”).

In support of her findings with regard to the issue of locus standi / capacity to sue, the LJC had placed staunch reliance on the singular and sole decision of the Court of Appeal in the case of Syed Nadri Syed Harun v Lim Guan Eng & Other Appeals [2018] MLJU 2101 which had applied the Derbyshire principle (albeit the Court of Appeal in Syed Nadri had misconstrued the true context and effect of the Derbyshire principle).

In wrongfully preferring the misconceived position in Syed Nadri, the LJC had rejected the Plaintiff’s argument that Syed Nadri’s position on the issue of locus standi of public officer to sue for defamation had already been overruled by the latest and highest authority of the Federal Court (“FC”) in the case of Lim Guan Eng v Ruslan Kassim and another appeal [2021] 2 MLJ 514 (Lim Guan Eng). Despite the literal and outright proclamation of the FC (in rectifying the Malaysian misconception and misapprehension of the Derbyshire principle) the LJC remained misguidedly insistent on applying the misconstrued stance in Syed Nadri on the erroneous notion that the FC in Lim Guan Eng had not ‘referred’ or ‘mentioned’ the case of Syed Nadri (and thus had not ‘overruled’ the position in Syed Nadri). An insistence which effectively transgressed upon the rudimentary principle and rule of stare decisis.

In failing to appropriately appreciate the true intricacies and core essence in the FC’s decision in Lim Guan Eng, the LJC still perpetuated the misconceived understanding and undue ‘extension’ of the rule in Derbyshire Principle within the Malaysian Courts that the FC in Lim Guan Eng had astutely rectified and set the record straight. For the umpteenth time within our shores, the Derbyshire principle had been ‘extended’ and transformed to carry a ‘rule’ that was not at all the true and ‘actual’ Derbyshire Principle. In actuality, the Derbyshire principle is simply that public interest and public policy necessitates that NO GOVERNMENT or LOCAL AUTHORITY should be allowed to maintain an action for defamation. Nowhere in Derbyshire did the House of Lords made any distinction between personal capacity and official capacity of individual persons holding governmental posts or offices. The House of Lords never sought to bar the right of any individual (notwithstanding in personal or official capacity) to maintain a defamation action (see Derbyshire County Council v Times Newspapers Ltd and others [1993] 1 All ER 1011): “A publication attacking the activities of the authority will necessarily be an attack on the body of councillors which represents the controlling party, or on the executives who carry on the day-to-day management of its affairs. If the individual reputation of any of these is wrongly impaired by the publication any of these can HIMSELF bring proceedings for defamation. Further, it is open to the controlling body to defend itself by public utterances and in debate in the council chamber. The conclusion must be, in my opinion, that under the common law of England A LOCAL AUTHORITY does not have the right to maintain an action of damages for defamation.”

We are beckoned to shine much needed attention and appreciation to the astute findings and deliberations of the FC in Lim Guan Eng to cease the proliferation of this grave misconception and undue ‘extension’ of the Derbyshire principle beyond its intended context and purpose. The LJC was under the mistaken and misconceived understanding that the Derbyshire principle was a principle inhibiting/restraining private individuals in the offices of the government from suing for defamation. This misconception cannot be farther from the truth.

The FC was indeed critical of this misconception and undue ‘extension’ of the Derbyshire principle. The FC made it unequivocally clear that the Court of Appeal in Utusan Melayu (M) Bhd v Dato’ Sri DiRaja Hj Adnan bin Hj Yaakob [2016] 5 MLJ 56 was “plainly in error” in extending the Derbyshire principle to distinguish between a public officer suing in personal capacity or official capacity: “[155] Be that as it may, in the context of the present appeal, the Court of Appeal in Adnan Yaakob was PLAINLY IN ERROR when interpreting the Derbyshire decision. This appears in para [16] of the judgment:

The generality of the above proposition, however, is not without any exception for Lord Keith of Kinkel in Derbyshire County Council, had laid down an exception which was stated in the following terms: A publication attacking the activities of the authority will necessarily attack on the body of councillors which represents the controlling party, or on the executives who carry on the day to day management of its affairs. If the individual reputation of any of these is wrongly impaired by the publication any of these can himself bring proceedings for defamation. The above passage therefore clearly does not restrict the rights of individuals holding public office from suing in a defamation action in his personal capacity.

With respect, Lord Keith, in the passage above, is referring explicitly to the individual reputations of those officials who are defamed whilst carrying out public functions in the day to day management of a public authority. That this must be the case is plain due to the reference at the outset to a publication attacking the activities of the authority. So, the passage really refers to attacks on individual executives when carrying on the functions of the authority and NOT IN RESPECT OF ANY MORAL MISCONDUCT ON PERSONAL MATTERS UNRELATED TO PUBLIC FUNCTIONS. So, UNLESS THE COURT OF APPEAL MEANT TO SAY THAT A PUBLIC OFFICIAL COULD BRING A PERSONAL ACTION IN DEFAMATION WITH RESPECT TO MATTERS INVOLVING HIS PUBLIC DUTIES, the reference to the passage in question is, with respect, misdirected.

That this must be the case is supported by a passage in Gatley on Libel and Slander (12th Ed, 2013) at para 8.20 which states: The Derbyshire case makes clear that the decision does not affect the right to sue of an individual member or officer of a governmental body if the statement about the body is capable of being interpreted as referring to the individual. Indeed, the ability of the individual to sue seems to be regarded as a reason for denying such a right to the body.”

The true nature and context of the Derbyshire principle is res ipsa loquitur from the parties of the English case itself. The case of Derbyshire involved A LOCAL AUTHORITY (NOT AN INDIVIDUAL PERSON) claiming for defamation. There is no fact, context, and reason for the House of Lords in Derbyshire to consider whether or not any individual person holding governmental office may or may not maintain a defamation action. The House of Lords was posed with the question, whether or not A GOVERNMENT (the Derbyshire County Council) as an elected BODY can sue its own electorate for defamation. And the House of Lords answered that question in the negative (in that a governmental BODY cannot sue its citizens for defamation). Somehow, over the years, and through many attempts at legal acrobatics, the true and simplistic essence of the Derbyshire principle had been lost in translation. On the extreme contrary to this misconception, the House of Lords made a clear and express finding that the inhibition again governmental bodies DOES NOT APPLY TO PROHIBIT INDIVIDUALS in governmental offices from maintaining a defamation action: “A publication attacking the activities of the authority will necessarily be an attack on the body of COUNCILLORS which 13 represents the controlling party, or on the EXECUTIVES who carry on the day-to-day management of its affairs. If the INDIVIDUAL reputation of any of these is wrongly impaired by the publication any of these can HIMSELF bring proceedings for defamation.”

Premised on the same grave misconception, the LJC attempted to distinguish the FC’s decision in the case Lim Guan Eng on the ground that Lim Guan Eng had commenced his defamation action against Ruslan Kassim in his personal capacity and not in his official capacity as the Chief Minister or the Government of Penang (although in reality the distinction between these two capacities are entirely irrelevant and a non-starter in the context of the Derbyshire principle). The FC in Lim Guan Eng had even highlighted the problematic exercise of demarcating between the two capacities: “[164] As I had indicated earlier, although in a different context, it is discriminatory that the reputation of public officials in matters affecting their official functions is singled out for adverse treatment. There are far more influential persons in the community who affect public life. As all persons are guaranteed equal rights under the Federal Constitution, there is insufficient basis and justification for the inequitable treatment. Being singled out as such may also seriously deter capable and deserving persons from seeking public office. The reason is obvious. Without the protection, public officials will be powerless to defend against attacks by the media and others who will no doubt be in a powerful position as the necessary checks, which the law of defamation normally provides, will be limited.

It may also be challenging to ascertain whether the plaintiff public official is bringing the suit in relation to personal or official matters. In essence, the former relates to one’s private life or previous character whilst the latter is concerned with a public official’s fitness for office. It does not take much prescience or foresight to appreciate that THE LINE WILL BE BLURRY and many such claims may overlap as matters regarding a public official’s private life might be relevant to his or her fitness for public office. Ex hypothesis, an arduous task awaits the judge who has to demarcate between the two.”

To curtail and cease the proliferation of this misconception of the Derbyshire principle (a gallant and respectable endeavour of the FC that the LJC somehow refused to respect) the FC in Lim Guan Eng had made clear pronouncements as to the true and unembellished rule in the Derbyshire principle: “[145] Thirdly, if, however, the impugned defamatory publications actually identify individuals in government in their attacks rather than being blanket critiques of government policy or action per se, then those individuals so identified have every right to commence actions in their personal capacities, if their reputations have been affected as a result. SO, NO DISTINCTION IS DRAWN BETWEEN A PUBLIC OFFICER BEING DEFAMED FOR CONDUCT IN HIS OFFICIAL CAPACITY AND HIS PERSONAL CAPACITY. As long as the defamatory statement is capable of being read as referring to the individual and not the government body as a whole, the individual officer is entitled to sue. …

This would also be consistent with the case law in the various common law jurisdictions as alluded to earlier. As was noted earlier, the cases demonstrate quite plainly that individual reputations, whether in their official or personal capacity, are all deserving of protection. Where the impugned defamatory publications actually identify individuals in government in their attacks rather than being blanket critiques of government policy or action per se, then those individuals so identified have every right to commence actions in their personal capacities, if their reputations have been affected as a result. SO, AT THE RISK OF BEING REPETITIVE, NO DISTINCTION IS TO BE DRAWN BETWEEN A PUBLIC OFFICER BEING DEFAMED FOR CONDUCT IN HIS OFFICIAL CAPACITY AND HIS PERSONAL CAPACITY. As long as the defamatory statement is capable of being read as referring to the individual and not the government body as a whole, the individual officer is entitled to sue. … [168] For all these reasons, it is my judgment that a public official must enjoy the same rights as other citizens and be allowed to sue for damages for defamation in any individual capacity whether in relation to personal or official matters. He need not avail himself to the provisions of the Government Proceedings Act 1956. Accordingly, the decision in the Adnan Yaakob case cannot be sustained.”

We support this ‘recalibration’ or ‘rectification’ of the Malaysian treatment of the Derbyshire principle not in ignorance of the importance of the public’s freedom to critique and keep the government in check and balance. Of course, as propounded in the Derbyshire case, the Derbyshire principle remains to have a ‘prohibitive’ effect specifically against the Government or any of its bodies or organs. The government or local authority ought not be allowed to expend the funds collected from the taxpayers’ coffers to mount defamation action against the very citizens or electorate that elected the government into power.

However, in the same manner the House of Lords in Derbyshire was aware some 33 years ago, we are equally aware that attacks against the government can at times fall or slip into ad hominem and personal attacks against PERSONS in office (not just the government) be it on personal matters on in his or her exercise in office. Especially considering the sensationalist journalism and the boom of social media and the internet in modern times (coupled with Malaysia’s decades of political divide and politicking on race, ethnicity, and religion), it is infinitely more compelling for prominent individuals from competing political spectrums to throw underhanded jabs against persons in office and for the Malaysian people to receive and spread the same attacks like wildfire. Thus, aside from the importance of freedom of speech and liberty to criticize the government, it is equally important that the Court must remain vigilant to not allow loose-lipped defamation and slander to be thrown at the faces of individuals in governmental positions or offices.

The Government is a notional and artificial construct which does not breathe, feel, experience and live life as human persons do. On the contrary, public officers are real humans living and enduring real lives leading real reputations and connections with the world and other humans. The Government as an artificial construct does not feel as humans do and the Government can and should endure 17 reasonable ridicule and constructive criticism by the people regarding its governance (or failure of governance). But public officers as real persons, would feel and experience the actual brunt of ridicule, shame, and disparagement in his or her own personal lives if the law and the Court would not extend the law’s protection against defamation to public officers.

Thus, when the defamatory or slanderous statements were directed personally against a public officer, the law should not care or discern whether or not that public officer is maintaining a defamation action under his or her personal or official capacity. It is of course easy to perceive this rule as a ‘draconian’ inhibitor of free speech especially in instances where the rule was abused to curb and silence the opposition. However, the law cannot be constructed or construed in the sole anticipation of abuse of power but must also anticipate genuine cases of abuse of liberties in equal measures (alike the Defendant’s abuse of his liberty of speech in the Appeal before us).

Thus, the grave error in the LJC’s findings was manifold. Firstly, the LJC fell into grave error to prefer an outdated and inferior decision of the Court of Appeal in Syed Nadri in outright rejection and ignorance of the prevailing legal position as set by the more recent and superior court’s decision of the FC in Lim Guan Eng. Secondly, the LJC had completely misread and misunderstood the true and full essence of the FC decision in Lim Guan Eng. Thirdly, the LJC had completely misunderstood and misconstrued the true and plain rule in the Derbyshire principle. Fourthly, in applying her misconstrued understanding of the Derbyshire principle, the LJC unlawfully deprived the Plaintiff of her fundamental liberty to equal 18 protection of the law and the locus standi to maintain her defamation action against the Defendant.

All of the above deliberations under this Heading considered, we hereby answer issue 1 in the NEGATIVE. The LJC fell into grave error in finding that the Plaintiff had no locus standi or capacity to sue the Defendant for defamation. The LJC’s entire exercise of distinguishing between personal and official capacities was entirely irrelevant and a non-issue. E. Issue 2: WHETHER THE LJC WAS CORRECT IN HER FINDING THAT THE PLAINTIFF HAD FAILED ON THE BALANCE OF PROBABILITIES TO PROVE THE ELEMENTS OF DEFAMATION NAMELY; THAT THE IMPUGNED STATEMENTS WERE DEFAMATORY TO THE PLAINTIFF; THAT THE IMPUGNED STATEMENTS REFER TO THE PLAINTIFF; AND THAT THERE WAS PUBLICATION OF THE IMPUGNED STATEMENTS TO A THIRD PARTY

Adding yet another error within the LJC’s roster of misconception and misapprehension of the law on defamation was the LJC’s puzzling ‘neutralization’ of the sting of the slander. The LJC fell into this severe error firstly by equating the sting of slander to the level of social media virality and engagement. Not only that, the LJC decided that there was no sting of slander considering the fact 19 that the Plaintiff still ‘enjoyed’ a modicum of electoral success post the publication of the impugned speech.

This is a grave misapprehension as to a basic and rudimentary rule in defamation law. In determining whether or not a statement was libelous or slanderous, the issue as to the ‘true’ or ‘actual’ extent of reputational damage is a non-issue. Just because a victim of slander can survive the slander or libel to cease and fight another day, does NOT exonerate the herald of falsity from his tortious wrong. It is akin to exonerating a tortfeasor who scratched and damaged the exterior of a car on the pretext that the damaged and scratched car can still be driven. In fact, and on the contrary, the fact that the Plaintiff still found electoral success despite the scathing slander thrown on her good name further reflects the Plaintiff’s good character (which in turns further highlights the mala fide design of the slander to besmirch the Plaintiff’s renown for good reputation).

The test whether the impugned statement/s are defamatory or not is very much settled. The Federal Court in Raub Australian Gold Mining Sdn Bhd (in creditors voluntary liquidation) v Hue Shieh Lee [2019] 3 MLJ 720 had restated the definition of a defamatory imputation: “There is no precise test to be applied to determine whether or not any given words are defamatory. His Lordship Mohamed Azmi J (as he then was) in the case of Syed Husin Ali v Syarikat Percetakan Utusan Melayu Berhad & Anor [1973] 2 MLJ 56 at p 58, quoting Gatley on Libel and Slander (6th Ed) at p 4, stated the following: There is no wholly satisfactory definition of a defamatory imputation. Any imputation which may tend ‘to lower the plaintiff in the estimation of right thinking members of society generally’, ‘to cut him off from society’ or ‘to expose him to hatred, contempt or ridicule’, is defamatory of him. An imputation may be defamatory whether or not it is believed by those to whom it is published. It was further quoted that: A defamatory imputation is one to a man’s discredit, or which tends to lower him in the estimation of others, or to expose him to hatred, contempt or ridicule, or to injure his reputation in his office, trade or profession, or to injure his financial credit. The standard of opinion is that of right thinking person’s generally. TO BE DEFAMATORY AN IMPUTATION NEED HAVE NO ACTUAL EFFECT ON A PERSON’S REPUTATION; THE LAW LOOKS ONLY TO ITS TENDENCY.”

Echoing the Federal Court’s excerpt above, it was certainly wrong for the LJC to even consider the ‘actual’ effect on the Plaintiff’s reputation when considering whether or not the impugned statements carry a defamatory imputation. It should NOT be within the horizon of the near future that the Courts are pressed to look at mere view counts, share counts, likes to dislikes ratio, and online comments or simply the virality of a slander before the Court can determine whether or not a statement was defamatory or not. This might seem not too severe of an issue, but in actuality it is a dangerous precedent and course to be charted for the law to be 21 developed in the future. The law and the Court’s primary purpose is to serve the people as the utmost revered platform for adjudication of disputes. To expect the Court to consider a case based on the virality of a matter is to betray that purpose and degrade the Courtroom to become mere public pageantry for the case to be paraded to the public and be determined by means of public popularity, and no longer by due process.

At the risk of being repetitive, it was resoundingly obvious that by the plain words of the impugned statements, the impugned statements clearly carry multiple defamatory imputations of which clearly would expose the Plaintiff to contempt, ridicule, and hatred especially by the Malay Muslim majority in Malaysia: a. The Plaintiff intends to destroy Islam in Malaysia (merosakkan agama Islam dalam negara ini); b. The Plaintiff has ties with the Jews to destroy Malaysia (mempunyai kaitan dengan Yahudi); c. The Plaintiff had written her book to convert Malaysia into a Christian nation (menulis buku untuk menjadikan negara ini negara Kristian); and that d. The Plaintiff intends to menjajah Malaysia (Kita akan dijajah semula).

All of the above under this section considered, we hereby find that the LJC had completely erred in finding that the impugned statements were not defamatory against the Plaintiff. On the 22 contrary, any reasonable person of sound and average mind would be able to identify the defamatory nature of the impugned statements. E (ii): The impugned statements clearly and obviously refer to the Plaintiff [34] To our dismay, the LJC undertook an extremely simplistic and completely bare position as to the issue of whether or not the impugned statements had referred to the Plaintiff. In ignoring the vast and extensive realm of law in defamation, the LJC somehow made an exceedingly brief and abrupt finding that the impugned statements had not ‘expressly’ referred or named the Plaintiff. To wit we recall the most basic rule in defamation law that ‘reference’ to the claimant need not necessarily be express or explicit. We need only recall the landmark House of Lords decision in KNUPFFER APPELLANT; AND LONDON EXPRESS NEWSPAPER, LIMITED RESPONDENTS., [1944] A.C. 116: “It is an essential element of the cause of action for defamation that the words complained of should be published "of the plaintiff." WHERE HE IS NOT NAMED the test of this is whether the words would reasonably lead people acquainted with him to the conclusion that he was the person referred to.

We can only ponder as to the underlying reason the LJC did not endeavor further into this rudimentary rule and go past beyond her simplistic ‘outlook’ over this element. But the law since decades past had already found that ‘reference’ to the claimant can be proven even without expressly naming the claimant. It is perplexing that the LJC had failed to properly appreciate this profound realm on 23 defamation law especially considering that this principle was very recently restated by the Court of Appeal in the reported case of Liu Thian Leong & Ors v Jee Nyen Chong (sued in his personal capacity and as an office-bearer of the Jawatan Kuasa Dewan Siburan (Siburan Hall Committee) under the provision of s 9(c) of the Societies Act 1966) & Ors [2022] 1 MLJ 420: “[27] We find that the learned trial judge correctly directed herself on the law with regard to plaintiffs who are not named in a defamatory publication. Counsel for the defendants failed to cite any authority that says that plaintiffs must in all cases be named in a defamatory publication to be clothed with the right to sue. Gatley on Libel and Slander, the authoritative work on defamation law that is often cited in our courts, also states A PERSON WHO IS NOT NAMED IN A DEFAMATORY PUBLICATION MAY SUE. The learned trial judge quoted the following passage from the 11th Ed, para 7.2 at [213] which sums up the position as follows: But although the claimant is not named in words, he may, nevertheless, be described so as to be recognised; and whether that description takes the form of a word-picture of an individual or the form of a reference to a class of persons of which he is or is believed to be a member, or any other form, if in the circumstances the description is such that a person hearing or reading the alleged libel would reasonably believe that the plaintiff was referred to, that is a sufficient reference to him’ per Isaacs J. in David Syme v Canavan (1918) 25 CLR 234 at 238; Lawrence v Newberry (1819) 64 LT 797; Shah v United African Press [1961] EA 93; Raul Amon International Pty Ltd v Telstra Corp [1998] 4 VR 798 Vict CA.”

It is pertinent to appreciate the learned authors’ excerpt above that reference to the claimant can arise in two manners. First being that the defamatory statement to directly or indirectly referring to the claimant. Second being that the defamatory statement to infer that the claimant belongs (or is a member) of a class of persons. In this case, it was obvious that the impugned statements had referred to the Plaintiff in both manners: a. Express and explicit reference to Hannah Yeoh (the Plaintiff) as the author of a book ‘designed’ to convert Malaysia into a Christian nation; and b. By way of indirect suggestion, refer to the Plaintiff to belong within the same class of “MEREKA” of which MEREKA is the group of people who intends to destroy Islam in Malaysia, who has ties with the Jews to destroy Malaysia, and who intends to conquer Malaysia again.

We are of the considered view that the LJC had erroneously took extremely simplistic of an approach to a complex and thoroughly ‘suggestive’ string of words and phrases. Just because ‘mereka’ does not explicitly refer to Hannah Yeoh, it was still admitted and irrefutable that Hannah Yeoh was mentioned explicitly in close proximity and in collective contextual reference to “Mereka”. In fact, even if the Plaintiff (Hannah Yeoh) is not referred to be within the same class as “MEREKA”, one of the Defendant’s impugned statements explicitly named Hannah Yeoh as the author of her 25 book which the Defendant accuses to have been intended to be used to convert Malaysia into a Christian nation.

It was not at all rocket science for the LJC to plainly and simply identify that by all means and measures, the Defendant was clearly and undoubtedly either referring to the Plaintiff or referring to the Plaintiff to be within the class of “Mereka”. The LJC had not appropriately and justly endeavoured to do so and thus, we are pressed to undertake this simple exercise now at the Appellate level: REFERENCES / PROXIMATE SUGGESTIONS IMPUGNED STATEMENTS Reference to the group “Mereka” as a group that intends to destroy Islam in Malaysia as “Mereka” has ties an Evangelist group This effectively groups “Mereka” together with the Evangelist Group. Dan MEREKA ingin juga merosakkan agama Islam dalam negara ini kerana mereka mempunyai kaitan dengan EVANGELIST group. Reference to the group “Mereka” as a group that has ties with the Jews to destroy Malaysia This effectively groups “Mereka” together with the Evangelist Group and the Jews Mereka juga mempunyai kaitan dengan Yahudi untuk merosakkan negara ini Reference to the group “Mereka” as part of an Evangelist group has ties with DAP (which by obvious suggestion, proximity, and innuendo refers to the Plaintiff as a member of DAP and ultimately a member of Mereka). All discerning Malaysians who have knowledge that the Plaintiff is a member of DAP can easily and reasonably identify this malicious veiled suggestive reference to the Plaintiff via her political affiliation. This effectively groups “Mereka” together with the Evangelist Group, the Jews, the DAP, and the Plaintiff Dan banyak research yang telah saya buat, dimana saya dapati bahawa ada hubungan antara Evangelist group dengan Parti DAP di sini Indirect yet obviously suggestive and proximate reference that the Plaintiff (as a member of Mereka) ALSO (“JUGA”) published a book with the intention to convert Malaysia into a Christian nation (effectively to ‘destroy’ Islam in Malaysia). If the Defendant intends to refer to the Plaintiff in isolation (separate from “Mereka”), then there was no reason at all for the Defendant to use the word “JUGA” (ALSO) immediately after “Hannah Yeoh”. The use of the word JUGA must only logically and literally be in ya, kerana MEREKA telah menulis buku, HANNAH YEOH JUGA telah menulis buku untuk menjadikan negara ini negara Kristian 27 reference to ‘another’ person or entity and it was no mere coincidence that the impugned statements were referring also to ‘Mereka’. Otherwise the use of the word JUGA would be illogical (and we respectfully doubt that the Defendant as an esteemed Former IGP would be so illogical). This effectively groups “Mereka” together with the Evangelist Group, the Jews, the DAP, and the Plaintiff General conclusive reference to all of the above (“Mereka”, Evangelist group, the Jews, DAP, and the Plaintiff) that the group’s concerted movement would lead to Malaysia being conquered ‘again’ Tetapi akhirnya, kita yang mendapat kesusahan kerana kita punya anak cucu tak tentu lagi negara ini menjadi negara mereka. Kita akan dijajah semula di mana kita tidak boleh menerima ini. Jadi kita perlu berjaga-jaga dan perlu bersuara

The table above should sufficiently reveal the Defendant’s thinly veiled references to the Plaintiff. It is beyond obvious that the Defendant was subtly juxtaposing the Plaintiff’s name to be immediately proximate to all these groups under the umbrella of “Mereka” and was subtly making defamatory insinuations by suggestively presenting facts as to the Plaintiff’s religion and political affiliation proximate to the defamatory accusations.

All of the above under this section considered, we hereby find that the LJC had utterly erred in finding that the impugned statements were not referring to the Plaintiff. It was clear that the Defendant had grouped Hannah Yeoh to be within the same class or group of people of “Mereka” as he had referred to “Hannah Yeoh JUGA” immediately after his scathing reference to “Mereka”. There is simply no other logical or sensible reason for the use of the word JUGA other than the clear intention of inferring that Hannah Yeoh was ALSO a member of Mereka.

Continuing the list of misconceptions of the law, the LJC somehow found that there was no publication of the impugned statements to a third party DESPITE THE ADMITTED AND IRREFUTABLE FACT THAT THE IMPUGNED STATEMENTS WERE DELIVERED IN A SPEECH WHICH THE DEFENDANT HAD DELIVERED BEFORE AN ENTIRE AUDIENCE OF UITM STUDENTS, LECTURERS, AND STAFF. It was profoundly perplexing that the LJC still refused to make a positive finding of a clear publication of the impugned statements.

Instead (and in full ignorance of the fact of the in-person and offline publication of the impugned statements via the speech) the LJC kept circling around the online streaming and posting of the speech on Facebook. The LJC erroneously ‘exonerated’ the Defendant on the supposition that he was merely an invited speaker with no knowledge that the forum would be broadcasted online and that he 29 only knew the existence of the Facebook Live Streaming at the end of the forum during the Q&A session.

In furtherance of this misconception, the LJC further found that there was no element of publication as the live streaming was carried out by UiTM to which the Defendant had no control over.

And perhaps the most startling misconception by the LJC on this issue was that the LJC still refused to make a positive finding of publication despite citing that the online publication statistics revealed that there was one percent (1%) engagement (WHICH WAS ALREADY A GLARING POSITIVE EVIDENCE OF PUBLICATION.) It seemed that the LJC had thoroughly misdirected herself to fail to appreciate that publication can be proven even if the defamatory statement was conveyed to ONE SOLE and SINGULAR THIRD PARTY. And a 1% percentage of engagement sufficiently means THERE ALREADY WAS PUBLICATION which led to users to engage with the post.

Adding further error in the LJC’s long list of misconceptions was the LJC’s negative finding of publication merely because ‘there were no negative comments posted on the Facebook post’. Against which the LJC concluded that the impugned statements were not ‘widely’ spread. Yet again, the law does not make a distinction between a widely spread publication or a ‘modestly’ spread publication of slander. It intrigues us that the LJC was not able to identify that the mere fact of a “spread” of the impugned statements (albeit modest) is still a spread (publication) of the impugned statements.

The law had long been settled on what constitutes publication of a defamatory statement (as had been explained and illustrated by the Supreme Court in the case of S. Pakianathan v. Jenni Ibrahim & Another case [1988] 1 CLJ Rep: 233: “In order to constitute publication, the defamatory matter must be published to a third party, and not simply to the Plaintiff. By publication is meant the making known of the defamatory matter, after it has been written, to SOME PERSON other than the person of whom it is written.”

It had long been a set principle even in our own shores that publication can be achieved even if the defamatory statement was conveyed to ONE PERSON (third party). There need not even be a ‘plurality’ of third parties. (see Ayob bin Saud v. TS Sambanthamurthi [1989] 1 MLJ 315): “In support of the said averment, the Plaintiff called Miss Ooi Ah Moi (PW2) to testify that at the material time she was employed by the Plaintiff in his firm as a general clerk. Her duties included the opening of files and correspondences received by the firm. When shown exh P5, she stated that she remembered opening it. She read its contents, searched for the connecting file and passed it for the Plaintiff’s attention. Under cross-examination, she stated that she also carried out secretarial duties for the Plaintiff. She received an average of ten letters per day and normally opened these letters and read their contents. The letter P5 together with the file was given to the Plaintiff personally. In addition, exh P5 was also sent to Perianayagam, who was the defendant’s agent. Upon these 31 evidences, I am satisfied and I hold that there is sufficient publication to a third person.”

We fail to understand on what legal basis did the LJC rely on when she undertook the ‘exercise’ to ascertain the ‘scale’ of publication in determining the element of publication. This is yet again a very dangerous precedent for the law of defamation to stand on. It is thoroughly undesirable for the law to insist that a claimant to produce a long list of witnesses just to testify en masse to prove a ‘large scale’ of publication just to succeed in proving the element of publication.

The law is clear and so was the LJC’s error was obvious. Again, it is far from rocket science to identify that delivering a speech in a forum (notwithstanding closed-door “tertutup” or otherwise) was indeed publication of the impugned statements. What more live-streaming and posting the forum online on Facebook.

All of the above under this section considered, we hereby find that the LJC had fallen into grave error in finding that the impugned statements were not published when the contrary was so obvious, admitted, and beyond refute.

Thus, all of the above deliberations under the Heading considered, were by answer issue 2 in the NEGATIVE. The LJC had undoubtedly fallen into grave error in finding that the Plaintiff had failed to prove all the elements of defamation. F. ISSUE 3: WHETHER THE LJC WAS CORRECT IN FINDING THAT THE DEFENDANT HAD SUCCEEDED IN PROVING THE DEFENCE OF JUSTIFICATION, FAIR COMMENT,

At this juncture, we are made aware of the LJC’s misconceptions in dealing with the elements of defamation. Unfortunately, upon our perusal of the LJC’s GOJ, we regretfully identified that the trail of misconceptions also trickled down onto the LJC’s misconceived maneuvering of the intricacies of three (3) defences in the realm of defamation. Not only that, the LJC had also misconstrued the law of evidence particularly in the law surrounding the different treatments of witness of fact and expert witness.

Before we embark on the LJC’s misconceptions on the defences against defamation, it is pertinent first to highlight the LJC’s gross confusion and error in treating the testimony of Dr. Kamarul Zaman Yusof (“KZY”) as the Defendant’s witness of fact (NOT EXPERT EVIDENCE). It was plain to see that a vast majority of the Defendant’s defence largely rests on KZY’s testimony. And it is also obvious that KZY’s evidence by and large COMPRISES OF KZY’S OPINIONS AS EXPRESSED IN KZY’S OWN FACEBOOK POSTS. Now let’s pause for a moment to consider this skeptical scheme of the Defendant in thwarting the Plaintiff’s claim. Instead of tendering hard and real evidence as to all of the allegations /accusations the Defendant had thrown at the face of the Plaintiff, the Defendant instead saw it appropriate merely rely on KZY’s non-expert OPINIONS (NOT FACTS). Now, this curious scheme which found the ‘favour’ of the LJC is legally erroneous and problematic in two fronts: 33 a. Firstly, it is wholly wrong for the LJC to flip-flop, approbating and reprobating her stance on the type of witness KZY is. It was exceedingly wrong for the LJC to accept KZY’s OPINION evidence when KZY as an ordinary witness (NOT EXPERT WITNESS) can only tender evidence of FACTS; and b. Secondly, since KZY had not tendered evidence as to facts, there is nothing in his testimony that is factual that could assist the Defendant in proving even a paltry amount of truth (so as to prove his defences against defamation).

The LJC’s confusion was obvious. At one breath the LJC outright found that KZY was an ordinary witness of fact. At the same breath the LJC also concluded that the Defendant was entitled to rely on KZY’s ‘expert’ opinions considering KZY was supposedly a “fellow academician with credentials” (of which was a serious misapprehension of the law as the credentials and laurels of a witness is only relevant to prove the credibility of an Expert witness). This confusion was clearly reflected in para 71 of the LJC’s GOJ: “[71] Concerning Dr KYZ ’s testimony, the plaintiff contends that since he was not qualified as an expert witness and did not meet the requirements under O 40A of the Rules of Court 2012 (‘the ROC 2012’), his opinions should be given little to no weight. The defendant ’s counsel clarified during the trial that Dr KYZ did not testify as an expert witness. Accepting the Plaintiff's arguments, I DID NOT TAKE DR KYZ AS AN EXPERT BUT AS A PLAIN WITNESS. However, the DEFENDANT REGARDED DR KYZ AS AN EXPERT when he referred to Dr KYZ ’s 34 academic writings and analysis when he made the IS and SSIS. Based on the academic background of Dr KYZ, the defendant cannot be faulted in having regard to Dr KYZ as a FELLOW ACADEMICIAN WITH CREDENTIALS”

The above excerpt was a self-contradiction of the highest order. In one paragraph the LJC had misdirected herself in that she found that DR KZY was not an expert witness YET ALLOWED THE DEFENDANT TO REGARD AND REFER TO KZY AS AN EXPERT WITNESS. It is an acute misdirection of the law for the LJC to deem DR KZY as an ordinary witness of fact BUT AT THE SAME TIME ALLOW DR KZY TO TESTIFY EVIDENCE OF OPINION AS AN EXPERT WITNESS. The law of evidence since decades past had been unapologetically clear that an ordinary witness of fact can only testify only of factual matters that the plain witness had observed with his senses (of which the witness beliefs to be facts). If the plain witness had not been tendered into Court in the manners and procedures that makes him or her an Expert Witness, the plain witness has no business to ‘enlighten’ the Court of his or her opinions. A plain witness is not tendered into Court in the manners and procedures which properly establishes the plain witness as an ‘expert’ of which, by law the court can rely on his or her opinion as an expert. And it is in fact wrong of the Court to ask a plain or non-expert witness of his or her opinion on matters. (see REGINA v. DAVIES [1962] 1 WLR 1111): “that while a witness could quite properly state his general impression whether or not the driver of a vehicle had taken drink, describing the facts relied on, he was not … in the expert witness category, and it was improper to ask him his opinion of the 35 driver's fitness or unfitness to drive, so that the opinion evidence was wrongly admitted.”

This fundamental and rudimentary rule was recently restated by the Court of Appeal in the case of Maheswari a/p Eliathamby & Anor v Koperasi Serbaguna Kebangsaan Bhd & Ors [2019] 1 MLJ 440:

We wish to reiterate that not just any witness can express his opinion in a court of law. Witnesses of facts testify only on what he has observed with his senses and relate the evidence to the court during trial. It is left to the trial judge to then make the proper inferences from the evidence adduced in making the findings of facts. This is BECAUSE IT IS TRITE THAT ONLY OPINIONS OF EXPERTS ARE ADMISSIBLE IN ANY COURT OF LAW.

This Turner’s case was followed in the Singapore case of Chou Kooi Peng & Anor v Public Prosecutor [1998] 3 SLR 593. See also the case of Syed Abu Bakar bin Ahmad v Public Prosecutor [1984] 2 MLJ 19 (FC). In essence what this means is that expert evidence is only admissible to furnish the court with scientific information which is likely to be outside the experience and knowledge of the presiding judge. Opinions of non-experts are not admissible. In other words, witnesses of facts simpliciter, keep their opinions, whatever they may be, to themselves.

We also refer to the very recent decision of the High Court in Public Prosecutor v Voon Kong Yaw [2024] MLJU 3885: “[26] Generally, an ordinary witness is only entitled to give evidence of facts perceived and where the witness’s opinion is offered, THE COURT WILL NOT ACCEPT IT AS EVIDENCE. Referred: R v Davies [1962] 1 WLR

Opinion evidence is generally prohibited as it is unreliable as it may be based on improper grounds or motives, and might even mislead the court, a witness cannot be prosecuted for perjury for expressing an opinion and the reception of an opinion evidence would usurp the function of a judge. Referred: “Law of Evidence - A Commentary by Srimurugan Alagan” at paragraph 45.1, page 186. [27] Unlike an ordinary witness, an expert witness is not only allowed to present evidence of facts but may express an opinion in so far as the matter under examination relates to the expert witness specialized knowledge and field.” [58] Thus, since the LJC and in fact the Defendant’s own counsel had admitted during trial that KZY was not tendered as an expert witness, therefore: a. it was entirely wrong for the Defendant to tender KZY’s opinion as KZY was not an expert witness who could give opinions; and b. it was entirely wrong for the LJC to admit and consider KZY’s testimony of opinion as KZY’s opinion as an ordinary witness of fact is inadmissible. [59] And even if for a moment that KZY’s ‘opinions’ were admissible (which they were inadmissible), we do not hesitate to NOT place any credence or weight as to his ‘opinions’ on the Plaintiff, CONSIDERING THE PLAINTIFF HAD ALREADY SUCCESSFULLY SUED AND WON A DEFAMATION ACTION AGAINST KZY FOR THE VERY SAME ‘OPINION EVIDENCE’ and FACEBOOK POSTS THAT KZY WERE PROFFERRING IN THE CASE HERE. It is well within our discretion to take judicial notice of this decision now (at this juncture) as this decision had effectively determined and confirmed the falsity of ‘KZY’s opinion evidence’ (especially considering the fact that the Defendant is ‘importing’ the same breadth of KZY opinion evidence to resist the Plaintiff’s defamation action here). [60] It is not mere coincidence that KZY’s court-found defamation bears enormous similarity with the Defendant’s impugned statements here as KZY’s opinions is where the Defendant’s defences live and die on. And in the same manner that the Defendant’s case here is entirely bereft of factual evidence, KZY’s loss against the Plaintiff also mirrors the Defendant’s total absence of evidence (see Hannah Yeoh Tseow Suan v Kamarul Zaman bin Haji Yusoff [2025] MLJU 3166): “[76] In any case, the Defendant essentially relied on his opinion based on his understanding of a few lines from the Book. This in no way establishes the truth or substantial truth of the Second Impugned Words. [77] It was also astounding that in paragraph 124, encl. 124, the learned counsel for the Defendant referred to the matter regarding “luahan kawan-kawan beragama Islam” in submitting that this is in relation to the defence of justification when, as elaborated in paragraph 19 above, the counsel had earlier taken the opposite stance that these “luahan” are not related to the defences at all and this led to the ruling by this Court to allow the Defendant’s witnesses to give evidence confined only to the meaning of those words. [78] In sum, after having read the Defendant’s pleadings and the parties’ submissions, and having closely examined the paragraphs in the Book which were pleaded in the particulars of the defence of justification, I was unable to make a finding in the Defendant’s favour because the burden of proof is on him to justify the meanings as pleaded by the Plaintiff as he did not plead any alternative meanings and he conceded under oath to the meanings as pleaded by the Plaintiff. This means that the Defendant is required to justify that the Plaintiff -

is a criminal as she intends to proselytise Muslims in this country through her politics; (b harbours a hidden religious agenda and therefore is a politician who cannot be trusted;

is a threat to Islam in Malaysia;

is a hypocrite and lacks integrity and is not fit to be a representative of the people; and

is willing to accept mixing race and religion with politics so long as it benefits Christianity but will condemn those who mix Islam with politics. However, the Defendant did not adduce any evidence of any Muslim having been converted to Christianity upon reading the Book or that the Plaintiff has been convicted of the crime of proselytising Muslims in this country. The Defendant’s pleaded particulars reflect only 11 paragraphs or pages out of the Book of 111 pages. The selection of 11 paragraphs, isolating them from the rest of the Book, and of the context in which the Book was written, would obviously not provide the reader with a proper understanding of the entire Book. BY MAKING STINGING STATEMENTS AND ALLEGATIONS ABOUT THE PLAINTIFF WITHOUT FULLY UNDERSTANDING THE BOOK IN ITS PROPER CONTEXT, THE DEFENDANT HAD ACTED WITH MALICE.” [61] It was apparent that our appellate interference is already warranted owing to the LJC’s misdirection in appropriately understanding and applying the law of evidence. Now, since we have addressed the glaring error in the LJC’s misapplication of the law of evidence, we shall accordingly move on to determine the correctness of the LJC’s findings as to the Defendant’s defences of justification, fair comment, and qualified privilege. As we have mentioned earlier in this judgment, it was to our surprise that the LJC had not even appropriately identify, demarcate, and distinguish between the 3 distinct and different forms of defences against defamation. The Plaintiff highlighted (and we are inclined to agree) that the LJC’s address and treatment of the Defendant’s defence was a baffling analysis which mixed up elements from different forms of defence against defamation into other forms of defence against defamation. [62] It was obvious from the LJC’s grounds of judgment, that the LJC had not carefully understood the legal ingredients and legal operation of these different defences before the Defendant can earn a reprieve vide these defences. We are beckoned to highlight that the LJC had made positive findings on the defence of justification, fair comment and qualified privilege the LJC by lumping the three defences together without any clear explanation on why was the Defendant justified in making the statement? or what were the evidence produced by the Defendant to justify the truth or some truth in the impugned statements? or which part of the impugned statements were statements of fact and which parts were comments. [63] We agree with the learned counsel for the Plaintiff that the LJC had erroneously found that the Defendant had succeeded in his defence of JUSTIFICATION by taking into consideration the principles relating to the other defences of fair comment and qualified privilege. This was clearly reflected at paragraphs 70, 75 and 76 of her GOJ all situated under the large Heading “Justification defence”: “JUSTIFICATION DEFENCE … [70] The Federal Court in Dato’ Sri Dr Mohamad Salleh bin Ismail & Anor v Mohd Rafizi bin Ramli [2022] 3 MLJ 758 (FC) (‘DS Dr Mohamad Salleh’) emphasised that the defence of fair comment exists precisely to allow the expression of views on matters of public interest, which this was. The forum was organised by the Kursi-UITM, which gave it institutional credibility. The defendant, as the former IGP, had a moral and social duty to speak on matters affecting national security, and the audience had a corresponding interest in receiving such information. Significantly, there is no evidence of malice, as the defendant said he based his statements on Dr KYZ’s academic analysis, spoke within the context of broader national security concerns, and had no control over the publication of his speech. [75] The constitutional right to freedom of expression and the public interest in allowing robust debate about national importance. DS Dr Mohamad Salleh consistently emphasises that fair comment and qualified privilege exist to protect such discourse. [76] In Ramadhar v Ramadhar and others [2020] UKPC 7 the Privy Council held that ‘The need for politicians to follow high standards in political debate and the expectation that politicians should be open to reasonable criticism are universal features of a democratic society’.” [64] In finding that the impugned speech was justified, the LJC took into account the following considerations: (i) the matter being a public interest matter; (ii) the IGP being a former IGP had a moral and social duty to speak on the matters; (iii) there is no malice on the part of the Defendant as his statements were based on his academic research and analysis, (iv) the matter concerns national security and dissemination of Christianity by the evangelism groups, and (v) the influence of Jewish groups in Malaysia where Islam is the official religion which requires serious debate / discussion as they become national issues. On this score, we wholly agree with the counsel for the Plaintiff that the LJC had committed a serious error of law, as the considerations or elements to prove the defence of justification are entirely different from defence of fair comment and qualified privilege. [65] We are unable to ascertain from which pocket of the law had the LJC found that the factors as to malice, morality or social duty, and national security would be even remotely relevant to establish the defence of justification. The defence of justification swings on the sole fulcrum of TRUTH and nothing else. The defence of justification is not a tool to allow a defamer to ‘escape’ the truth for the sake of ‘national security’ or social duty. A defendant pleading the defence of justification, should plead and prove what he or she had stated to be the truth. No amount of social duty, morality, or national security can lower the ‘threshold of truth’ to succeed in a defence of justification. [66] Since the LJC had not appropriately undertook this examination, the mantel falls upon us at this Appellate stage to put the Defendant’s defences through the proper wringer. F(i): The Defendant had not succeeded in proving a defence of justification [67] Rudimentary understanding of the defences against a defamation claim would entail the defences of justification, fair comment, and qualified privilege. Although all three defences typically involve varying degrees of truth, the nature and elements that make up each of the defences do not intersect with one another. Succinctly, the defence of justification involves justifying the defamatory statement by proving the truth of the defamatory imputation. Meanwhile, the defence of fair comment involves clear demarcation of the portion of the statement that the tortfeasor ‘believes’ as facts, and the latter portion of the statement that the tortfeasor is merely and fairly expressing his fair opinion. And lastly, the defence of qualified privilege is simply the defence of proving that the tortfeasor ought to be ‘protected’ as public policy and public interest demands or necessitates that the tortfeasor be free to say his piece on a matter of ‘public importance’. [68] As a starting point, the manner in which a Defence of justification must be pleaded is statutorily prescribed under Order 78 rule 2(3) of the Rules of Court 2012 which reads:

Where in an action for libel or slander the defendant alleges that, in so far as the words complained of consist of statements of fact, they are true in substance and in fact, and in so far as they consist of expressions of opinion, they are fair comment on a matter of public interest, or pleads to the like effect, he must give particulars stating which of the words complained of he alleges are statements of fact and of the facts and matters he relies on in support of the allegation that the words are true. [69] Distinct to the defence of fair comment, the defence of justification hinges on the TRUTH of all the accusations or defamatory imputations published by the Defendant. While the defence of fair comment not necessarily will fail if the Defendant fails to prove ALL of his allegations of facts are true (subject that the expression of opinion or comment is fair considering the circumstances and facts surrounding the case) (see Section 9 of the Defamation Act 1957). Thus, for justification to succeed, the Defendant must prove that all his statement of facts (or defamatory imputations) to be true. To prove as such, the rule of pleading the defence of justification mandatorily requires that the Defendant must specifically particularize and plead the FACTS he is stating to be true. [70] It is not sufficient for the Defendant to plead that he is ‘reliant’ upon another person’s statement or opinion to satisfy the threshold of truth. In fact, reliance on another person’s statement or opinion at best is hearsay, and is just prove that the ‘other’ person had perpetuated the defamatory statement. Such flawed pleading of ‘evidence’ betrays the very essence and rule of pleadings (as an instrument containing facts and not evidence) and so inherently flawed that such flawed pleading would be incapable of determination of its factual truth or factual falsity (as it is not a pleading of fact). This salient rule in pleading the defence of justification had been considered in ABDUL RAHMAN TALIB v SEENIVASAGAM & ANOR [1965] 1 MLJ 142b: “To establish a plea of justification, the defence must prove that the defamatory imputation is true. It is not enough for him to prove that he believed that the imputation was true, even though it was published as belief only. If A says of B that A believes B committed murder A cannot justify by saying and proving that A did believe it. A can only justify by proving the fact of murder. Similarly, if the defendant has written that A said that B, the plaintiff, had been convicted of theft it will be no defence for the defendant to prove that A did tell him so, that he honestly believed what A said, and only repeated it. He must prove as a fact that B was convicted of theft. If A repeats a rumour A cannot say that it is true by proving that the rumour in fact existed. A must prove that the subject-matter of the rumour is true. Again, if the words impute the commission of a specific offence, it is not enough to prove that the plaintiff was suspected of the alleged offence, or that he has a general reputation for committing such offence, although that may be proved in mitigation of damages. To succeed in his plea of justification, however, the defendant must prove as a fact that the plaintiff did commit the offence.” [71] Succinctly, to prove a defence of justification, the defendant cannot simply plead that he ‘relied’ on the rumor or ‘belief’ told to him by another. This manner of pleading would only limit the Defendant’s case to proving that a rumor was told onto him and not the core truth of that rumor. This would be a far cry from satisfying the threshold to prove justification. AND THIS WAS EXACTLY WHAT THE DEFENDANT HAD MISGUIDEDLY PLEADED. [72] So, what was the manner of which the Defendant had ‘particularised’ and pleaded his defence of justification? The Defendant’s defence of justification had been pleaded in paragraphs 8 (i) to (x) of his statement of defence (“SOD”): [73] So out of 10 paragraphs which were pleaded to setup the defence of justification, ONLY ONE OF THE PARAGRAPHS CONTAINED A STATEMENT OF FACT (paragraph 8(i) of the SOD). The other 9 remaining paragraphs were pleadings of ‘reliance evidence’ (8 of which was the Defendant’s pleading to rely on DR KZY’s opinions, while the last remaining 1 was the Defendant’s reliance on two books authored by one Ghazali Basri, and the other published by Majlis Agama Islam Selangor). The sole paragraph 8(i) contained a statement of fact regarding the Defendant’s belief of the Christianization Movement which he derived from his own ‘research’ and intelligence he had garnered during his term as the 8th IGP (of which none of these intelligence documents were ever tendered into Court). [74] Although it is pertinent to highlight that NOT EVEN ONE OF THESE 10 PARAGRAPHS PLEADED ANYTHING TOWARDS THE OTHER DEFAMATORY IMPUTATIONS THE DEFENDANT HAD PUBLISHED AGAINST THE PLAINTIFF. As far as the law and the Court is concerned, the Defendant HAD NOT ANSWERED AGAINST OR JUSTIFIED the Defendant’s defamatory imputation that: a. the Plaintiff had ties with the Jews to destroy Malaysia; b. the Plaintiff intends to destroy Islam in Malaysia; and c. the Plaintiff intends to ‘conquer’ Malaysia ‘again’. [75] Thus, from the outset, the Plaintiff had resoundingly failed to prove the defence of justification for the defamatory imputations that the Plaintiff had ties with the Jews, that the Plaintiff intends to destroy Islam in Malaysia, and that the Plaintiff intends to ‘conquer’ Malaysia again. [76] So, what would all of the above mean as against the vast majority of the Defendant’s plea for justification? The answer is simply that THERE WAS NO PROPER PLEADING BY THE DEFENDANT TO PLEAD THE DEFENCE OF JUSTIFICATION. There’s sage wisdom in the law that the rudimentary rule of pleading is that only facts need to be pleaded and not evidence. In the realm of pleadings, facts become that perimeter and scope of which the Court can ascertain what facts, narrative, and ultimately case that a litigant intends to prove and persuade the Court to believe. It gives due fairness and frankness for parties accordingly prepare their respective cases with all allegations and facts above board. Facts as pleading is a valuable threshold as parties can exert submissions and evidence to prove or disprove those facts. But when a litigant pleads evidence (what more reliance evidence of another person’s statement), there is no metric in which the Court can assign to ‘weigh’ the probative value and relevance of any evidence AS THE PLEADING WOULD NOT EVEN INFORM THE COURT WHAT FACT THE LITIGANT IS ATTEMPTING TO PROVE. And this is exactly the fatal flaw in the Defendant’s defence before us. He pleaded 9 paragraphs of evidence of which he supposedly ‘relies’ upon without clearly informing Court what fact in which the Defendant is attempting to prove. [77] And this was made worse by the fact that the ‘reliance evidence’ that the Defendant so pleaded, was his reliance on DR KZY’s opinions. As we have established above, DR KZY’s opinions as an ordinary witness of fact were entirely inadmissible as DR KZY was not an expert witness properly tendered and proven to be allowed to assist or ‘enlighten’ the Court with his opinions to determine the case. KZY was a witness of fact and thus, it was incumbent for the Defendant TO PROVE THE FACT OF THE DEFAMATORY IMPUTATION (AND NOT DR KZY’S OPINION ON THE MATTER). [78] It is immensely confounding that the LJC was unable to properly navigate these evidential and technical issues as to pleading and it was equally perplexing that the Defendant had failed to appropriately understand rudimentary rule of pleading and rules as to evidence. [79] The Defendant’s entire defence of justification fatally falters at this early technical juncture, what more the ensuing blunder when the Defendant attempted to refer to UNPLEADED PARTICULARS (in attempting to refer to small and specific portion of the Appellant’s book entitled “Becoming Hannah: A PERSONAL JOURNEY” (“Personal Book”) despite the fact that the specific portion of the Personal Book was never pleaded by the Defendant. It must be highlighted that in the realm of the defence of justification, the particularization of the facts that is intended to be relied upon to prove the truth of the defamatory imputation is critically pertinent. [80] Not only that, a proper particularization of the facts by the Defendant would necessarily afford the claimant the just opportunity prepares his or her case to answer against the Defendant’s defence. Otherwise, the Claimant would be left in the dark until the eve of the trial to finally ascertain the true scope of ‘facts’ of which the Defendant is relying upon to prove the truth of his defamatory imputations. This would be far too late and too unfair against the Claimant. Hence the reason the law prohibits the admission of evidence which fall outside or beyond the pleaded particulars of the defence of justification of a defendant (see Aaron & Ors v Cheong Yip Seng & Ors [1996] 1 SLR 623): “To some extent Mr Gray was justified in his criticisms of the respondents’ plea of justification and the way they conducted that defence. First, the particulars as pleaded on behalf of the respondents are far from ideal. Second, some of the evidence led or adduced in support of the plea of justification fell wholly outside the pleaded particulars. Third, the trial judge in finding that the defence of justification had been made out, with respect, did not confine herself to the particular case as pleaded by the respondents. The law on this is clear: the issues to be tried under the plea of justification are limited to the matters referred to in the particulars : Yorkshire Provident Life Assurance Co v Gilbert & Rivington [1895] 2 QB 148, 152.” [81] And thus, we wholly agree with the learned counsel for the Plaintiff that the LJC had failed to appreciate the fact that it is not sufficient for the Defendant to make a general or vague reference to the Personal Book without any clear and specific particularization of which portion of the Personal Book that the Defendant intended to prove as true facts so as to succeed in his defence of justification. Worse still, the Defendant had not even directly referred to the Personal Book and merely hid behind the shadow of DR KZY’s ‘opinions’ which referred to the Personal Book. It is resoundingly clear that the manner in which the Defendant had pleaded his defence of justification was so problematic that it makes for difficult determination and analysis for the Court and for clear arguments and preparation of both parties’ cases. [82] It was also wrong for the LJC to ignore this fatal flaw in pleading merely because the Personal Book was marked as a Part B Document. Just because a document was marked as a Part B Document does not automatically entitle the Court or any of the parties to admit that document as admissible evidence. The marking of Part B Document merely means that the authenticity of that document is not disputed and thus the maker of that document need not be called to testify on the authenticity of the document. Example being, a privileged document may be marked as Part B Document merely because the authenticity of the privileged document is not disputed. Nevertheless, the admissibility of the privileged document as an evidence still remains disputed and must be put to proper determination. The issue whether or not the privilege still applies remain at large. Similarly, although the Personal Book was marked as Part B Document before the Court, the admissibility of the Personal Book had not yet been determined as the parties are still at odds as to the true scope of the Defendant’s faulty pleadings. It is wrong for the LJC to take a shortcut and simply assume the final admissibility of the Personal Book as evidence just because it was marked as a Part B Document. [83] Notwithstanding, for the sake of completion (and if we were mistaken as to the admissibility of the specific portions of the Personal Book) we shall still proceed to determine the Defendant’s defence of justification in the hypothetical instance that the Defendants had properly pleaded the portions of the Personal Book (of which the Defendant had clearly failed to do): “And that’s precisely my second reason for writing this book. To glorify the Lord. May I glorify Him with this testimony and as you read my journey, I pray you see His hand at work. He is waiting to do the same in your life. Only obey. With God, all things are possible”. [84] It was puzzling to say the least that the LJC would still make a positive finding of justification despite the fact that LJC herself understood the plain and literal meaning of the excerpt above WAS A FAR CRY FROM THE DEFAMATORY IMPUTATIONS the Defendant was slandering the Plaintiff’s good name. Falling entirely short of proving that the Plaintiff was hell-bent on destroying Islam, conquering Malaysia, having ties with the Jews to destroy Malaysia, and that the Plaintiff intends to convert Malaysia into a Christian Nation, the LJC only found that the excerpt to mean that the Plaintiff adopts the evangelism approach to propagation and encouraging “OTHERS to embrace similar beliefs and to “consider or strengthen THEIR OWN CHRISTIAN FAITH”. “From my viewpoint, the plaintiff adopted the evangelism approach through testimony by sharing her personal experience with faith to encourage others to embrace similar beliefs. She uses her life story as a way to demonstrate what she believes is God’s influence and power, with the clear intention of encouraging readers to consider or strengthen their own Christian faith. The meaning of ‘evangelist’ is seen at p 57 F-CBOD-B.” [85] Thus, it was puzzling that the LJC would still make a positive finding of the defence of justification when the LJC herself was of the understanding that the excerpts MADE NO EXPRESS OR EVEN IMPLIED INTENTION OF TARGETED PROPAGATION TO MUSLIMS (OR ANY SPECIFIC PEOPLE OF OTHER FAITHS FOR THAT MATTER). The proper question that the LJC should have asked was, “can the perceived intent of propagating to a broad and non-descriptive ‘OTHERS’ be inferred to a ‘targeted’ propagation to Muslims or the ‘intention to destroy Islam’ or the intention to convert Malaysia into a Christian nation or the intention to conquer Malaysia, or maintaining ties with the Jews to destroy Malaysia?” The obvious answer is that such inferences COULD NOT BE MADE, and the LJC in her own GOJ was not able to make such damning and insidious inference. [86] In truth and actuality, the excerpt of the Personal Book at most and at best can be taken as the Plaintiff propagating the religion of Christianity (which is a fundamental right guaranteed under Art 11 Federal Constitution). There was nothing in the excerpt that insinuated that the Appellant intends the book to be used as a tool to ‘specifically’ propagate to Muslims with the intention to ‘destroy Islam’ and to convert Malaysia into a Christian nation. [87] It is more her own personal spiritual journey ‘inward’ to glorify god. (“May I glorify god.”) It is too far an assumption to say that this short excerpt of the entire book excerpt ‘contextualizes’ an intent of targeted propagation to Muslims. If this short of a paragraph can be taken as an outright propagation to Muslims, then by the same logic, the full length and heft of the bible should not be allowed to be on the shelves at all and all printers and publishers of the bible can be inferred as an attempt to ‘destroy Islam’ and turning Malaysia into a Christian nation (which is certainly preposterous). [88] There was no evidence led by the Defendant to prove any ‘initiative’, ‘incentives’, or ‘campaign’ of which the Plaintiff embarked on a ‘targeted distribution or dissemination’ of the Personal Book to the Muslims or in or around Malaysian Muslim’s places of worship. If anyone of any faith were to be inspired by the Plaintiff’s renown and achievements, and contributions within the Malaysian sociopolitical arena (which led to that person subsequently purchasing and reading the Personal Book), the propagation of Christianity there (if any) would have occurred on that person’s own choice and volition AND NOT ON ANY OF THE PLAINTIFF’S ‘ACTIVE’ ACT OF PROPAGATION. [89] As an aside, we believe that elected leaders of any race or religion, ought to dispense their duties as the people’s guardians vide exemplary leadership and governance.The LJC’s and the Defendant’s logic in this case would insist that any non-Muslim politician with a modicum of influence, can be seen as a ‘threat’ to Islam merely because that non-Muslim politician’s personal religious journey would inadvertently ‘affect’ or inspire Muslim electorates or citizens to ‘abandon’ his or her Muslim faith. Such egregiously flawed logic would dissuade good governance from elected leaders, and our great nation is already in dire need of genuinely good leaders and exemplary governance. On the same score, it is equally an opportunity for Muslim leaders to inspire awe and reverence to the Islamic religion via his or her own exemplary leadership which in turn can beget more cohesion in the iman and taqwa of the Malaysian Jemaah or even plant new seeds of iman and taqwa which could broaden the numbers of the Malaysian Jemaah. Succinctly, the personal religious journey of any Malaysian leader or politician should not be so easily perceived as a threat to Islam, and the majority Muslims in Malaysia. [90] Thus, at the most extreme of imputations, it can only reasonably be inferred that the Plaintiff is a devout Christian who credits much of her life and her decisions as a politician thus far to her faith in her God. She wrote the Personal Book to memorialize her personal journey into faith. Even if any portion of the Personal Book were to carry any meaning or intent of propagation, there was certainly nothing in the impugned excerpts referred to (but not pleaded) by the Defendant that proves any intention of targeted propagation to Muslim in Malaysia or even converting Malaysia into a Christian nation. [91] Notwithstanding, (even assuming we were wrong), and the excerpt of the Personal Book indeed somehow did evince an intention to propagate to Muslims (which it does not), it still DID NOT JUSTIFY the other defamatory imputations of i) intention to destroy Islam in Malaysia; ii) intention to conspire with the Jews to destroy Malaysia; and iii) intention to conquer Malaysia again. [92] Considering our deliberation in extenso under this section, we hereby find that the LJC had seriously erred in finding that the Defendant had proven his defence of justification. F(ii): The Defendant had not succeeded in proving a defence of fair comment [93] The defence of fair comment is statutorily codified under Section 9 of the Defamation Act 1957 which reads: “9. In an action for libel or slander in respect of words consisting partly of allegations of fact and partly of expression of opinion, a defence of fair comment shall not fail by reason only that the truth of every allegation of fact is not proved if the expression of opinion is fair comment having regard to such of the facts alleged or referred to in the words complained of as are proved.” [94] The core essence of the defence of fair comment is a clear demarcation between words of which the Defendant believes as fact, and words of which the Defendant had expressed as a matter of opinion or comment. In short, a defence of fair comment is simply that the Defendant opines Y due to the fact that he had stated to be true in X. A fair comment is more so a statement of opinion (reactionary to a fact) rather than a statement of fact in itself. [95] The Court of Appeal had in recent times restated the elements in proving a defence of fair comment in the case of Raja Syahrir bin Abu Bakar & Anor v Manjeet Singh Dhillon and other appeals [2020] 3 MLJ 482. These elements should be read conjunctively. A failure to prove any one of these elements would be fatal to the defence. a) The impugned statements were comments or opinion which were based on true facts; b) The comments or opinion were regarding matters of public interest; and c) The comments were made without malice and with genuine concern for the truth. [96] Hence the reason the rule of pleading as to the defence of fair comment is also unique and specific (so that parties and the Court would be able to ascertain between words that the Defendant had posited as facts, and words posited as opinion in reaction to the posited facts (see Order 78 rule 2(3) of the ROC 2012): “(2) Where in an action for libel or slander the defendant alleges that, in so far as the words complained of consist of statements of fact, they are true in substance and in fact, and in so far as they consist of expressions of opinion, they are fair comment on a matter of public interest, or pleads to the like effect, he must give particulars stating which of the words complained of he alleges are statements of fact and of the facts and matters he relies on in support of the allegation that the words are true.” [97] The clear distinction and demarcation between facts and opinion/comment in pleading the defence of fair comment is so crucial and essential, that failing to do so would BE FATAL TO THE DEFENCE. This is understandably so simply for the fact that if in case a Defendant had not appropriately particularized and distinguished his words between facts and opinions, then neither the parties properly prepare their cases nor the Court can make the appropriate determination as the Defendant had not even clearly particularized those words he stated to be the truth, and those words he stated as a reactionary comment/opinion. Both the parties and the Court would not be able to properly ascertain the admissibility of any evidence as the scope of the Defendant’s pleaded defence was not even clear in limine. (see Court of Appeal in Mohamed Apandi bin Ali v Lim Kit Siang [2024] 1 MLJ 306; Tan Sri Dato' Lim Guan Teik v Tan Kai Hee [2014] 9 MLJ 363) [98] Now, despite the well settled law and principle as to pleading the defence of fair comment, the Defendant had not undertaken even a single line of particularization between facts and opinions. The entire extent of the Defendant’s pleading for the defence of fair comment was just a meagre two sub-paragraphs in paragraphs 8(b)(i) & (ii) of the SOD: [99] It is astoundingly clear that the Defendant had not even bothered to undertake the mandatory requirement of particularising his defence between statements of facts and statements of opinion. In fact, a simple perusal of the impugned statements would sufficiently reveal that the entirety of the impugned statements were STATEMENTS OF FACTS and NOT COMMENT. The Defendant was not sharing his thoughts or opinion in reaction to a stated fact. [100] Thus, the Defendant’s defence of fair comment had thoroughly failed at two fronts. First being the front of the mandatory requirement as to pleading. Second being the front that the Defendant’s impugned statements were all clear statements of facts and not in any manner whatsoever an expression of ‘commentary’ or ‘opinion’ in reaction to a statement of fact. Since the Defendant’s defence of fair comment here had already fatally failed due to improper or defective pleadings, the other elements of the defence of fair comment need no longer be discussed as the issue had already become moot. Even if for a moment we ignore the obvious fatal flaw in the Defendant’s pleadings, it was also painstakingly obvious that the Defendant had failed to fulfil the very first element (which is to prove that the Defendant’s words were an expression of opinion or comment in reaction to a statement of fact). This is simply for the fact that none of the Defendant’s impugned statements were an expression of opinion but instead a clear accusation against the Plaintiff. [101] Considering our deliberation under this section, we hereby find that the LJC had utterly erred in finding that the Defendant had proven his defence of fair comment. F(iii): The Defendant had not succeeded in proving a defence of qualified privilege [102] Much had been said by the Defendant regarding his position at the forefront of ‘national security’ and that public policy necessitates that Defendant ought to be allowed to speak freely on sensitive matters like the position of the religion of Islam of which would be a matter of public interest especially in a Muslim majority nation like our Malaysia. Res ipsa the Defendant’s former designation as the ‘chief of police’ (in Malaysia, the IGP), it cannot be gainsaid or denied that the Defendant indeed has an interest or duty, and legal, social, or moral obligation to speak on such sensitive matters so as to avoid the nation from erupting into chaos and unrest. [103] That being said, the Defendant’s position as the former IGP does not and by all means should not present the Defendant with a carte blanche to say or publish anything and everything without any due care, responsibility, and accountability as to the truth or legitimacy of matters that the Defendant had published to third parties. We believe that it is thoroughly undesirable and in fact and unbefitting for the law to allow people of such power and influence to simply and carelessly perpetuate untruths without any due care of the legitimacy of matters he or she is disseminating to third parties or the public at large. [104] Nevertheless, it is pertinent to highlight here that there was very recent development of the law in Malaysia specifically in the aspect of the ‘Reynold’s 10 points Responsible Journalism test’ (“Reynold’s test”). For starters, the parties are at extreme odds as to the relevance and applicability of the Reynold’s test in the context of qualified privilege. The Defendant staunchly contends that the Reynold’s test is not a mandatory requirement to prove qualified privilege, while the Plaintiff argued that despite not being mandatory, the Reynold’s test remains as a valuable and inescapable guideline so as to determine whether or not the Defendant had or had not abused his qualified privilege. [105] The LJC and the Plaintiff were at odds as to the Federal Court decision in the case of Mkini Dotcom Sdn Bhd & Ors v Raub Australian Gold Mining Sdn Bhd [2021] 5 MLJ 79. The LJC insisted upon a generous application of the dissenting judgment of Harmindar Singh FCJ in Mkini Dotcom, in which His eminence dissented and insisted that the Reynold’s test should not be treated compulsory requirements to succeed in a plea of ‘responsible journalism’ (although Harmindar Singh FCJ did NOT ENTIRELY REJECT OR DECRY the Reynold’s test and instead concluded that it ought to be considered with due flexibility and practicality): “The cases are replete with warnings that the ten points should not be treated as compulsory requirements that will have to be met before a successful plea of responsible journalism can be accepted. As mentioned earlier, they are not ‘hurdles to be cleared’ (per Lord Bingham in Jameel) BUT MUST BE APPLIED IN A PRACTICAL AND FLEXIBLE MANNER HAVING REGARD TO PRACTICAL REALITIES (per Lord Nicholls in Bonnick v Morris). In Tony Pua’s case, in speaking for this court, Azahar Mohamed FCJ (now CJ Malaya) reiterated that the ten points were EXPLANATORY ONLY AND SERVED AS GUIDELINES WITH THE WEIGHT TO BE GIVEN VARYING FROM CASE TO CASE” [106] However, for the LJC to ignore the Reynold’s test would be a serious misdirection and misinterpretation of Harmindar Singh FCJ’s dissenting decision of which the LJC herself had quoted. It is apparent from the excerpt above that His eminence still prefaced and contextualized his decision with the caveat that the same Reynold’s test (though not compulsory) still “MUST BE APPLIED” although in a flexible and practical manner. [107] It is interesting to highlight that the Federal Court in Mkini Dotcom, had assumed and understood the defence of qualified privilege and ‘Reynold’s privilege’ to be ONE AND THE SAME TYPE OF DEFENCE. The Federal Court had done so in addressing the parties’ disputation as to the defence of “reportage” (or neutral and disinterested publication) and whether or not reportage can be likened to qualified privilege (and vice versa). Abdul Rahman Sebli FCJ (as His Lordship then was) had held as follows: “[13] What is clear from the judgment is that reportage will not protect the journalist who is guilty of either of the following acts:

if he adopts the report and makes it his own; or

if he fails to report the story in a fair, disinterested and neutral way. … [14]…In other words, the choice is either to plead reportage or responsible journalism. It would be a contradiction in terms for the pleader to plead, on the one hand, that he believes in the truth and accuracy of the defamatory statement and on the other to plead that he does not. [15] Whether it is the defence of reportage or the defence of qualified privilege, the publication must always meet the standards of responsible journalism… … [20] Having regard to the authorities, I am inclined to agree with the respondent that as a matter of doctrine the defence of reportage cannot be reconciled as part of the REYNOLDS DEFENCE OF RESPONSIBLE JOURNALISM OR QUALIFIED PRIVILEGE.” [108] We will not discern any deeper as to the defence of reportage as the defence of reportage was never pleaded by the Defendant. Nonetheless, the reason it was important for us to appropriately appreciate the Federal Court’s ratio decidendi above is that THE FEDERAL COURT HAD ACCEPTED AND TREATED THE DEFENCE OF QUALIFIED PRIVILEGE TO BE ONE AND THE SAME WITH DEFENCE OF REYNOLD’S RESPONSIBLE JOURNALISM. To be more exact, the Federal Court in the majority is of the mind that to succeed in a plea for qualified privilege, the defendant must necessarily meet the necessary standards of Reynold’s responsible journalism. Notwithstanding the nomenclature, the Federal Court was abundantly clear that the defence of qualified privilege and the Reynold’s test is NOT SEPARATE and NOT MUTUALLY EXCLUSIVE of one another. [109] The above is important to be fully appreciated as very recently, the Court of Appeal in Mohamed Apandi bin Ali v Lim Kit Siang [2024] 1 MLJ 306 (although agreeing with the High Court’s dismissal of Apandi Ali’s defamation claim against Lim Kit Siang) had a very slight and miniscule departure as to the High Court’s maneuvering of the defence of qualified privilege and the Reynold’s Test. The Court of Appeal without discussing the ratio decidendi of the Federal Court in Mkini Dotcom, had somehow found that the defence of qualified privilege is of a different and separate specie from the defence of responsible journalism. In short, the Court of Appeal was of the view that qualified privilege’s focus on the element of ‘malice’ cannot be reconciled with Reynold’s responsible journalism’s element of investigation of the truth: “[84] …The case of Syarikat Bekalan Air Selangor Sdn Bhd v Tony Pua Kiam Wee [2015] 6 MLJ 187; [2015] 8 CLJ 477, relied upon the plaintiff is a case where the defendant pleaded Reynolds privilege. In the case before us, the defendant did not plead Reynolds privilege. Therefore, the case of Syarikat Bekalan Air Selangor is not applicable to the case before us. The defendant in this case only pleaded traditional qualified privilege which he is entitled to do so. At this juncture, it is instructive for us to refer to the case of Dr Syed Azman bin Syed Ahmad Nawawi & Ors v Dato’ Seri Haji Ahmad bin Said [2015] 5 MLJ 141. In that case, the Court of Appeal explained that the Reynolds privilege is a separate and distinct defence from the traditional defence of qualified privilege as follows: [51] The controversy has however lingered on whether the Reynolds privilege was a new substantive defence or merely a specie of defence under the conventional defence of qualified privilege. In Grant v Torstar [2009] 3 SCR 640, the Supreme Court of Canada termed it a new defence of ‘responsible communication’ (Reynolds’s factors for analysis) and went on to observe that it produced an uneasy fit with the traditional qualified privilege defence.” [110] For the sake of completeness, we are of the view that we ought to follow the position of the apex court being the Federal Court’s decision in Mkini Dotcom. Firstly, of course out of due observance and adherence to the principle of stare decisis and secondly, considering we are of the mind that with utmost respect, it would be a tinge inaccurate to conclude that the element of malice in qualified privilege, and the element of investigation and verification in the Reynold’s test cannot be reconciled. We are of the view that the Reynold’s Test remains as a valuable tool and threshold (with due modifications per each case’s own facts and nuances) to determine whether or not the tortfeasor had published the defamatory statement with due concern as to the truth of what he was publishing. If by and large the tortfeasor had failed all or a resounding majority of the 10 points in the Reynold’s test, such cavalier indifference towards the truth can be inferred as malice. [111] In any case, we are aware and we ultimately agree with the Court of Appeal and the High Court’s decision in Apandi Ali’s case that Lim Kit Siang ultimately had proven his defence of qualified privilege (albeit with due observance and adherence to the ratio decidendi of the Federal Court in Mkini Dotcom). Relevant to the instant appeal before us, we disagree with the LJC’s decision to ignore the Reynold’s test in determining the viability of the Defendant’s defence of qualified privilege. In adherence to the Federal Court’s position in Mkini Dotcom, it remains incumbent upon the Defendant to satisfy the Reynold’s Test for him to earn the refuge and protection of qualified privilege. [112] Therefore, although we acknowledge that the Defendant is the former IGP and public policy may require that the IGP reasonably ought to hold the moral and social duty to speak on national security, it does not mean that the Defendant does not need to undertake some effort into responsible journalism and verification of truth before publishing his impugned statements. [113] The landmark case which propounded the Reynold’s Test (of responsible journalism) was the case of Reynolds v Times Newspapers Ltd and others, [1999] 4 All ER 609: The House of Lords in Reynolds stated as follows: “In considering whether allegations made in the press attracted qualified privilege, the matters to be taken into account, depending on the circumstances, included: the seriousness of the allegation; the nature of the information and the extent to which the subject matter was a matter of public concern; the source of the information; the steps taken to verify the information; the status of the information; the urgency of the matter; whether comment had been sought from the plaintiff; whether the article contained the gist of the plaintiff's side of the story; the tone of the article; and the circumstances of the publication, including the timing.” [114] Although the Reynold’s test for responsible journalism is not mandatory, it still serves as a useful gauge to examine the true nature and intent of an impugned statement. Thus, despite his moral and social duty as IGP, it is plain to see that there was no responsible journalism or investigation proven by the Defendant to afford the defence of qualified privilege to the Defendant. The Defendant had not tendered into Court the supposed researches and documents he so strenuously contended and largely falls back to KZY’s opinions (which we already found to be inadmissible). Beyond these two suppositions, the Defendant had not furnished any further evidence of any genuine attempt to verify the truth of the impugned statements. [115] The Defendant was clearly NOT entitled to rely on the defence qualified privilege. We hereby find that the LJC had certainly erred in finding that the Defendant was entitled to the defence of qualified privilege. [116] Considering our Negative answers in all sub-headings F(i), F(ii), and F(iii) above we hereby answer issue 3 in the NEGATIVE. The LJC had certainly fallen into grave error in finding that the Defendant had succeeded in proving the defence of justification, fair comment, and qualified privilege. [117] All of the above deliberations considered, we do not hesitate to find that the LJC was plainly wrong in dismissing the Plaintiff-Appellant’s claim. G. OUR DECISION AND AWARD ON DAMAGES [118] We find that there are glaring merits in the present Appeal. We therefore accordingly allow the Plaintiff-Appellant’s Appeal with costs. We hereby order that the findings and decisions of the LJC be reversed and set aside entirely. We therefore allowed the Plaintiff’s claim for tortious act of defamation against the Defendant with costs. Naturally flowing from our decision to allow the Plaintiff’s claim, we will now proceed with to consider the appropriate and fair damages to be awarded to the Plaintiff. In paragraph 24 of her statement of claim, the Plaintiff claims damages in the following heads: a. General damages; b. Aggravated Damages; and c. Exemplary Damages [119] It is trite that the general rule of damages is that it is compensatory in nature. The principle of law in awarding damages in defamation cases is very much established and well-settled. [120] For the purpose of determining the appropriate amount of damages to be awarded to the Plaintiff, we are guided by many decided cases on considerations ought to be considered in assessing damages. [121] In MGG Pillai v Tan Sri Dato Vincent Tan Chee Yioun [1995] 2 AMR 1776, the Federal Court set out the factors to be considered in assessing damages in a defamation case, namely: a. the position and standing of the plaintiff; b. the extent of the publication; c. the mental distress, hurt, anxiety and mental anguish caused to the plaintiff as a result of the libel; d. the uncertainty undergone in litigation; e. conduct of the Defendants from the time of the libel down to the very moment of the verdict; f. the absence or refusal of any correction, retraction or apology. ii. Datuk Harris Salleh v Abdul Jalil bin Ahmad [1984] 1 MLJ 7 iii. Tan Sri Dato Vincent Tan Chee Yioun v Haji Hasan bin Hamzah [1995] 1 MLJ 39 iv. Cassell & Co v Broome [1972] AC 1027). [122] As far as aggravated and exemplary damages are concerned, we are aware of an established trend (though not necessarily a rule) in the realm of defamation law specifically, that the Courts have been inclined to award a global sum. This trend was highlighted by the High Court in Tan Sri Lim Kit Siang v YB Dr Siti Mastura bt Muhammad and other suits [2024] MLJU 3687: “[85] First, the award of damages must not be exorbitant or excessive. Damages should be compensatory and not punitive. The tort of defamation exists to protect, not the person or the pocket, but the reputation of the person defamed. In actions for defamation, damages are awarded to compensate the plaintiff for the injury to his reputation. They operate to vindicate the plaintiff to the public and to console him for the wrong done. (See the Federal Court decision in Lim Guan Eng v Ruslan (supra, at page 244 MLRA, page 199 CLJ, page 572 MLJ). … [87] In Syed Nadri v Lim Guan Eng (supra), RM 150,000 was awarded as a GLOBAL SUM for general and aggravated damages: “[33] Having given our due consideration, we agreed with learned defendants’ counsel that the global award made by the learned trial judge was also excessive and not in line with the trend of cases. In Lim Guan Eng v Utusan Melayu (M) Bhd [2012] 2 MLJ 394; ; [2012] 2 CLJ 619 despite the plaintiff being a Chief Minister of Penang and a finding of malice in that case, the award made was RM 200,000.” [89] Regarding the trend of damages, the Federal Court in Datuk Harris Mohd Salleh v Datuk Yong Teck Lee (sued in his personal capacity and as an officer of the second respondent) & Anor [2018] 1 CLJ 145 at 207 - 208; ; [2017] 6 MLJ 133 at 185 - 186 set out a list as follows: …

(ii)Chin Choon @ Chin Tee Fut v Chua Jui Meng [2005] 3 MLJ 494; ; [2005] 2 CLJ 569. The Court of Appeal only allowed an award of RM 200,000 by way of GLOBAL AWARD of damages. And reversed the High Court decision in granting RM 1.5 million as damages; …

(vi)Lim Guan Eng v Utusan Melayu (M) Bhd [2012] 2 CLJ 619. The above mentioned involved a politician and also the Chief Minister of Penang. The court observed that global damages should be awarded to ensure that awards of monetary damages are not excessive and to avoid any double counting on the damages awarded. Despite this case involving a person of high ranking, the court decided to award RM 200,000 as general and aggravated damages and costs of RM 25,000 only.” [123] We have not identified any reason for us to depart from this established trend. Despite the fact that the effect upon the claimant is not relevant to determine a claim for defamation, it remains relevant in determining the appropriate quantum of damages to be awarded (see Hannah Yeoh Tseow Suan v Kamarul Zaman bin Haji Yusoff [2025] MLJU 3166; CHIN CHOON @ CHIN TEE FUT v CHUA JUI MENG [2005] 3 MLJ 4). We are aware that the Plaintiff (to her credit and good standing) had survived the defamation and still enjoyed political success post the publication of the impugned statements. We also accord some consideration to the larger context of the Defendant’s speech (although it does not exonerate the Defendant from his liability). The impugned statements were but a small portion of the entire length of the Defendant’s speech (though this fact should not lessen the sting of the Defendant’s slander upon the Plaintiff). Nevertheless, we believe it remains relevant (in determining quantum) to consider whether or not the Defendant’s slander was ‘central’ or the ‘focal’ point of (or merely a sidebar or an aside to) the speech delivered by the Defendant. [124] We are certainly aware of all of the Defendant’s wrongs (in that he had defamed the Plaintiff, and had failed to prove his defences and had not proven he had satisfactorily investigated the truth of his statements). Nonetheless, a wrong (or a plurality of wrongs) not necessarily justifies the additional award in aggravated or exemplary damages. Though wrong, we also consider the fact that the Defendant’s publication was largely influenced or was in reliance of KZY (an ‘academic’ whom the Defendant (mistakenly) misplaced much reverence and credence to). The Defendant’s impugned statements (though wrong and insidious) were merely a truncated ‘overview’ of the full extent of KZY’s defamatory statements (of which KZY had been found liable for defamation on his own respect). The impugned statements were insidious yet too brief to be considered so contumelious and brazenly incendiary/ fiery. [125] Considering the recent range of damages in cases for Defamation (see Lim Guan Eng v Ruslan bin Kassim and another appeal [2021] 2 MLJ 514 (FC); Raja Syahrir bin Abu Bakar & Anor v Manjeet Singh Dhillon and other appeals [2020] 3 MLJ 482), we hereby award a GLOBAL SUM of RM250,000.00 in damages in favour of the Plaintiff-Appellant to be paid by the Defendant-Respondent. [126] Lastly, we accordingly order that the Defendant-Respondent do pay the Plaintiff-Appellant costs of RM60,000.00 (here and below), subject to allocatur. Dated 13 January 2026 SGD -------------------- (AZIMAH BINTI OMAR) JUDGE FEDERAL COURT MALAYSIA For the Appellant - Messrs. Wei Jit (KUALA LUMPUR)

Dato’Ambiga Sreenevasan

Razlan Hadri bin Zulkifli

Sangeet Kaur Deo d/o Karpal Singh

Lim Wei Jit

Lee Guo Wen

Nevyn Vinosh Venudran

7.Harshaan Zamani

Mohd Khairul Azam bin Abdul Aziz

Nur Jehan bt Abu Bakar