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Court of Appeal of Malaysia |
] [Hide Context] IN THE COURT OF APPEAL OF MALAYSIA (APPELLATE JURISDICTION)
THE PALACE OF JUSTICE PUTRAJAYA
CIVIL APPEAL NO. W-01(IM)-80-2009
Appellants
(1) TAN SRI MUSA BIN DATO’ HJ HASSAN (2) TAN SRI ABDUL GANI BIN PATAIL
(3) GOVERNMENT OF MALAYSIA
v.
Respondent
UTHAYAKUMAR A/L PONNUSAMY
[In the matter of the High Court of Kuala Lumpur, Civil Suit
No. S6-21-5-2008]
Plaintiff
Uthayakumar a/l Ponnusamy
v.
Defendants
(1) Tan Sri Musa bin Dato’ Hj Hassan
(2) Tan Sri Abdul Gani bin Patail
(3) Government of Malaysia
CORAM:
K N SEGARA, JCA
MOHD HISHAMUDIN YUNUS, JCA ABDUL AZIZ ABDUL RAHIM, J
DISSENTING JUDGMENT OF MOHD HISHAMUDIN YUNUS, JCA
This is an appeal against the decision of the learned Judge of the High Court of Kuala Lumpur who had dismissed the appellants’
application under Order 18 rule 19(1)(a), (b) or (d) of the Rules of the High Court 1980 to strike out the respondent’s suit against
them for defamation.
I am dismissing the appeal with costs.
The respondent is an advocate and solicitor of the High Court of Malaya. He is the legal adviser to an organization called the ‘Hindu
Rights Action Force’ or ‘Hindraf’, an organization that advocates the rights of marginalized Indians in Malaysia and campaigns
against racial discrimination in this country.
The first appellant, Tan Sri Musa Hassan, was the Inspector General of Police (the IGP), Malaysia, at the material time.
The second appellant, Tan Sri Abdul Gani Patail, is the Attorney- General of Malaysia (the AG).
On 25 November 2007 the respondent and Hindraf organized a massive street rally in Kuala Lumpur to express discontent as
to the treatment of Malaysian Indians by the Government of Malaysia.
On 13 December 2007 the respondent was detained under the
Internal Security Act 1960 (ISA).
The first and second appellant had made statements to the press, and these press statements were reported in the media as follows:
(1) reported in the Star on 7 December 2007 (press statement of Tan Sri Musa Hassan);
(2) reported in the New Straits Times on 7 December 2007 (press statement of Tan Sri Musa Hassan);
(3) reported in the Utusan Malaysia on 8 December 2007 (press statement of Tan Sri Abdul Gani Patail on 7
December 2007); and
(4) reported in the New Straits Times on 15 December 2007 (press statement of Tan Sri Musa Hassan).
At the High Court the respondent had filed an action for defamation against the appellants claiming that the above press statements
had defamed him in that the statements had alleged that he and the leaders of Hindraf had links with terrorist organizations
and local gangsters and were involved in activities that incite racial hatred.
The respondent’s writ was filed on 4 January 2008.
The appellants’ joint statement of defence was filed on 5 June 2008.
The appellants’ striking out application (by summons in chambers) was filed on 11 June 2008. The application was supported by three
supporting affidavits namely, -
(1) an affidavit by Dato’ Kamaludin bin Md Said, Senior Federal Counsel, Attorney-General’s Chambers, affirmed on 10
June 2008;
(2) an affidavit by Puan Kalsom binti Abdul Aziz, Crime Investigation Officer, Police Headquarters, Dang Wangi, Kuala
Lumpur, affirmed on 9 June 2008; and
(3) an affidavit by Puan Kalsom binti Abdul Aziz, Crime Investigation Officer, Police Headquarters, Dang Wangi, Kuala
Lumpur, affirmed on 3 March 2009.
The respondent, Mr. Uthayakumar, in opposing the application, filed only one affidavit, namely, an affidavit affirmed by him
on 18
December 2008.
The appellants’ striking out application was on the grounds that the respondent statement of claim discloses no reasonable
cause of action (i. e. limb (a) of subrule (1)); or, alternatively, that it is scandalous, frivolous or vexatious (i.
e. limb (b) of subrule (1)); or,
alternatively, that it is otherwise an abuse of the process of the Court
(i. e. limb (d) of subrule (1)).
In this judgment, for convenience, I shall be referring to the appellants as ‘the defendants’ (or as ‘the first defendant’
or ‘the second defendant’, as the case may be), and to the respondent as ‘the plaintiff’.
As said earlier, at the High Court, the plaintiff’s claim against the defendants is for damages for the tort of defamation; and
that the claim arises out of certain statements made by the first and second defendants to the media on 7 December 2007 and 15 December
2007 namely, to the New Straits Times, the Star and the Utusan
Malaysia.
It is averred in paragraph 11 of the statement of claim that the first defendant (Tan Sri Musa Hassan, the Inspector General of Police)
had told the Star newspaper and reported on 7 December 2007 that –
It is also averred in the same paragraph of the statement of claim that the first defendant had told the New Straits Times on 7 December
2007 –
In paragraph 15 of the statement of claim it is further alleged that the first defendant had told the New Straits Times on 15 December 2007 that –
The first ground on which the defendants apply to strike out the statement of claim is that the statements by the defendants
to the press on the various dates mentioned do not refer to the plaintiff, Mr. Uthayakumar. They only refer to the organization,
‘Hindraf’.
Thus the issue here is whether their press statements refer to Mr. Uthayakumar, or whether they only refer to Hindraf. Or, at the
very least, whether the question as to whether or not their press statements refer to Hindraf as well as to the plaintiff,
is an issue that deserves to be tried.
I shall begin by referring to the statement of claim of the plaintiff. It reads –
I shall now refer in full to the press reports as referred to in the statement of claim. The Star online report reads –
thestar online
Friday December 7, 2007
By LOURDES CHARLES and ANDREW SAGAYAM
------------------------------------------------------------------------------------ newsdesk@thestar.com.my
KUALA LUMPUR: There are signs lately that the Hindu Rights Action Force (Hindraf) is trying to garner support from terrorist groups, the police charged yesterday.
Inspector-General of Police Tan Sri Musa Hassan said Hindraf has also set up a fund by misleading the public into believing that the money is to finance its activities.
“We view such matters very seriously. It is also very worrying especially when we live in a multi-racial society.
“The police will not hesitate to take stem action against anyone to ensure that peace and security prevails in this country,” he said.
Musa also said the group was trying to sow hatred towards the
Government and that its actions could spark racial clashes.
He said such dangerous sentiments were being widely spread via Hindraf forums, distribution of books and leaflets, on websites as well as service.
“It is also trying to rope in gangsters to prevent local authorities from demolishing illegal temples in the near future.
“The fanning of such racial sentiments among the Indians is very unhealthy and dangerous,” Musa said, adding that the police would not hesitate to invoke the Internal Security Act (ISA) against those who abused technology to stoke racial hatred or unrest.
One of Hindraf’s leaders, P. Uthayakumar, was reported as saying in an interview in Monday’s edition of Singapore’ New Paper that that he would not rule out using violence.
He was quoted as saying that the protest by monks in Myanmar last
September inspired Hindraf’s public protest.
“The monks were prepared to die for their cause. I’ve shown slides of monks getting shot and killed during my road shows and I think it struck a chord with the people.
“I think it’s quite unlikely we’ll head down that path towards a civil war but there’s always that possibility. Some of the uneducated may resort to violence,” Uthayakumar was quoted as saying by the paper.
He also allegedly made similar statements in an interview with Indian national television in a programme called Times Now, where he warned of serious consequences.
The New Straits Times report of 7 December 2007 reads –
KUALA LUMPUR: The Hindu Rights Action Force’s (Hindraf) actions are aimed at stoking hatred against the government and inciting racial unrest in the country.
This was discovered following intense police investigations in the past six months into the unregistered movement’s activities.
In a statement released by Inspector-General of Police Tan Sri Musa Hassan yesterday, it was also revealed that the movement is seeking help from terrorists and local gangsters in achieving their goals.
“There have also been signs that the group has been actively canvassing for support and assistance from terrorist groups,” he said.
“They are also lobbying for international support from India, the United
Kingdom, the United States, the United Nations and Europe.
“They have given a twisted and distorted picture to the international community on the status of Indians in Malaysia.
A Hindraf email sent to British Prime Minister Gordon Brown mentioned “ethnic cleansing” of Indians in Malaysia by an Islamic extremist government. The government has also been accused of sidelining and denying the rights of the Indian community in the economic, education and public sectors.
This has allegedly resulted in the Indian community going backward despite the country celebrating its 50th year of independence.
In describing the allegations as false, baseless and slanderous in nature, Musa said these sentiments have also been spread through forums, books, leaflets, websites and text messages locally.
“They have been actively sowing racial sentiments among the Indians in the country with the aim of inciting hatred and uprising against the government.”
Intelligence also revealed that Hindraf had duped their supporters into raising funds for their cause.
“Hindraf has been monitored by police since July 28. It is an unregistered organization which was founded by five lawyers and a senior executive from a private firm,” Musa said.
The group is also believed to have been behind violent protests against the local authorities who attempted to demolish temples that had been built illegally.
Those involved in the protests claimed that the destruction of the holy shrines was simply another act by the government of clamping down on freedom of religion in Malaysia.
Investigations have also revealed that the involvement of secret society members to prevent the demolition of shrines and temples in the future.
Hindraf also displayed its stubborn side by insisting on organizing an illegal gathering on Nov 25 despite not having a permit to do so.
It allegedly also lied to the Indians who attended the gathering by not handing over a petition to the British High Commission despite having ample opportunity to do so.
“This shows their real intention of causing chaos and mayhem in the capital. They also twisted and distorted the entire incident by accusing police of using excessive force on the demonstrators,” Musa said.
“This situation is very worrying as Malaysia is a multi-racial society and police are not taking this matter lightly. The authorities will not hesitate to take action to protect public order and security in the country.
Musa advised the public not to be influenced by baseless allegations and rumours spread by irresponsible parties through the Internet and text messages as it can cause anxiety and worsen the situation.
Those caught for spreading these text messages or false news can be arrested under Section 28 of the Internal Security Act 1960. If found guilty, they can be fined up to RM10,000 or jailed for three years or both.
Meanwhile, Hindraf founder leader P. Waytha Moorthy warned that Malaysia could become another Sri Lanka, which has been wracked by violence for several decades due to clashes between the government and the Liberation Tigers of Tamil Eelam.
Waytha Moorthy was interviewed by Indian newspaper, the Indian Express, which published the report last Saturday. He has been traveling abroad extensively to lobby for support from non-government organizations and politicians.
Waytha Moorthy’s brother. P. Uthayakumar told The New Paper in Singapore that violence was a possibility that the Indian community would consider in order to push their agenda.
That report appeared on the front page of the New Paper on Dec 4.
The full press report in the Utusan Malaysia of the Attorney- General, Tan Sri Gani Patail (reported on 7 December) is as follows:
SHAH ALAM 7 Dis. – Terdapat laporan polis yang dibuat oleh orang awam mengatakan Hindu Rights Action Force (Hindraf) memang mempunyai hubung kait dengan puak pelampau pemberontak Harimau Pembebasan Tamil Eelam (LTTE).
Peguam Negara, Tan Sri Abdul Gani Patail berkata, sekiranya tiada bukti dan perkara itu tidak benar nescaya beliau tidak akan menyebutnya di Mahkamah Terbuka baru-baru ini.
“Kita tidak boleh menyokong atau mempunyai urusan kewangan dengan organisasi seperti itu kerana ia akan memberikan implikasi yang serius.
“Namun, saya percaya siasatan lanjut sedang dijalankan berhubung laporan polis tersebut.” Katanya.
Ditanya sama ada mereka yang dinamakan dalam laporan polis itu akan didakwa dalam waktu yang terdekat. Abdul Gani menjawab, pendakwaan tidak akan dibuat dengan sewenang-wenangnya.
“Ini bukannya perkara main-main. Sebab itu, saya menyebut perkara ini di dalam Mahkamah. Memang ada laporan polis sebab itulah saya memandang serius perkara ini.
“Seluruh dunia juga risau jika mereka mempunyai hubungan dengan LTTE,” kata Abdul Gani kepada pemberita sejurus Mahkamah Tinggi di sini petang ini membenarkan permohonan peguam penyokong Hindraf supaya prosiding semakan yang difailkan ditangguhkan sehingga Isnin ini.
Peguam Negara menyatakan demikian ketika diminta mengulas kenyataan beliau yang berhujah di hadapan Hakim Mahkamah Sesyen di sini kelmarin bagi membantah 31 penyokong Hindraf dibebaskan dengan ikat jamin.
Dalam pada itu, peguam P. Uthayakumar yang mewakili penyokong Hindraf mencabar Abdul Gani, Ketua Polis Negara dan Perdana Menteri mengemukakan bukti bahawa Hindraf mempunyai kaitan dengan LTTE.
Uthayakumar juga menjemput mereka mengadakan sidang akhbar bersama Hindraf bagi membolehkan mereka mengemukakan bukti.
Sementara itu, peguam M. Manoharan hari ini memfailkan semakan di tiga buah Mahkamah berasingan setelah tidak berpuas hati dengan keputusan-keputusan yang dibuat ke atas 96 penyokong Hindraf yang didakwa terlibat dalam perhimpunan haram di sekitar ibu Negara 25
November lalu.
Beliau ketika dihubungi memberitahu permohonan semakan jenayah berhubung keputusan Hakim Mahkamah Sesyen, Azimah Omar telah difailkan di Mahkamah Tinggi di sini hari ini.
Turut difailkan ialah semakan berhubung keputusan Majistret Sesyen Selayang dan Mahkamah Majistret Kuala Lumpur yang menolak bantahan awal peguam-peguam berhubung pertuduhan yang didakwa tidak lengkap dan cacat.
The New Straits Time report of 15 December 2007 reads –
KUALA LUMPUR: The detention of the five Hindu Rights Action Force (Hindraf) leaders under the Internal Security Act on Thursday was imperative.
Inspector-General of Police Tan Sri Musa Hassan said investigations into the movement’s activities since July had deemed the five to be a threat to national security.
“They clearly have links with International terrorist organizations and they are involved in activities that amount to inciting racial hatred.”
He said the evidence against them and the proposal to detain them under the ISA were forwarded to Prime Minister Datuk Seri Abdullah Ahmad Badawi, who is also internal security minister.
Musa was commenting on the arrest of lawyers P. Uthayakumar, R. Kengadharan, V. Ganabatirau, M. Manoharan and a senior executive with Malaysia Building Society Bhd, K. Vasantha Kumar.
The four lawyers were legal advisers for Hindraf while Vasantha Kumar was the movement’s co-ordinator. All were sent to the Kamunting
detention centre in Taiping, Perak, for two years under Section 8(1) of the
Internal Security Act 1960.
The five were key officials of Hindraf, which organized a rally here on Nov
25 where some 10,000 Indians protested against alleged racial discrimination.
Musa also said the five were also trying to sow hatred towards the government, adding that their actions could spark racial clashes.
He said inflammatory sentiments were being widely spread through their forums, distribution of books and leaflets, on websites as well as through the short messaging service.
“The fanning of racial sentiments among Indians is very unhealthy and dangerous.”
When asked whether the ISA would be used on Uthayakumar’s brother, P. Waytha Moorthy, who is currently overseas garnering support for Hindraf, Musa did not rule out that possibility.
“We cannot arrest him now as he is overseas.”
Waytha Moorthy was also charged with sedition last month, but was released on bail.
He is believed to have then gone to India to garner support there. Currently he is said to be in the United Kingdom.
Musa also did not rule out the possibility that more Hindraf leaders and supporters would be arrested under the ISA.
He urged Hindraf leaders and supporters not to continue going against the government and the law.
“We would not hesitate to take similar action against them.” He also pointed out that Hindraf was not a legal organization.
In my judgment, the above press statements of the IGP and the AG, if one were to read them conjunctively and in their proper contexts,
and bearing in mind that the plaintiff is an advocate and solicitor, the legal adviser to Hindraf and a prime mover of the organization,
and being one of those detained under the ISA on 13 December 2007, one will appreciate that, not only do the statements refer to
Hindraf, they also do refer to the plaintiff and some other individuals as well. Each press statement cannot be looked at in isolation.
They are part of a series of press reports made one after another within a short duration of
time on the same subject-matter – on Hindraf and its leaders and on their activities; and on the plaintiff who is one of
the leaders of Hindraf.
It is to be recalled that, in his New Straits Time press statement of 7
December 2007, the Inspector General of Police had said –
“Hindraf has been monitored by police since July 28. It is an unregistered organization which was founded by five lawyers and a senior executive from a private firm,” Musa said.
Now, who are these ‘five lawyers and a senior executive from a private firm’? Bearing in mind that Mr. Uthayakumar is an advocate
and solicitor, has pleaded that he is a legal adviser of Hindraf and a prime mover of the said organization (see paragraph
20 of the statement of claim), and was one of the leaders of Hindraf who was subsequently detained under the ISA, to my mind the
inference that can fairly be made is that Mr. Uthayakumar was one of the ‘five lawyers’ mentioned by the IGP; or, at the very
least, the issue as to whether or not the plaintiff was meant to be one of the ‘five lawyers’ is a triable one and should not
be summarily dismissed as being devoid
of merit. It is, however, true that the fact that the IGP was referring to Mr. Uthayakumar as being one of the ‘five lawyers’
was not that clear then because the IGP in the press statement of 7 December did not mention the names of the five lawyers. But the
fact that Tan Sri Musa Hassan was referring to Mr. Uthayakumar and the five others became clear when Tan Sri Musa Hassan gave the
subsequent New Straits Time press statement of 15 December 2007, that is to say eight days later, when he was reported to have said
-
Musa was commenting on the arrest of lawyers P. Uthayakumar, R. Kengadharan, V. Ganabatirau, M. Manoharan and a senior executive with Malaysia Building Society Bhd, K. Vasantha Kumar.
And that brings me to the press report of 15 December 2007. Now, of the four above-mentioned press reports, the report of the New
Straits Time of 15 December is a clear evidence that the first defendant’s (Tan Sri Musa Hassan/IGP) allegations about the
plaintiff being involved in terrorist organizations and acts of terrorism and inciting racial hatred were, not only directed at
the organization, Hindraf, but were also leveled at Mr. Uthayakumar, the plaintiff, and five others (including four lawyers).
In the press statement of 15 December 2007, Tan Sri Musa Hassan said –
The detention of the five Hindu Rights Action Force (Hindraf) leaders under the Internal Security Act on Thursday was imperative.
…
They clearly have links with International terrorist organizations and they are involved in activities that amount to inciting racial hatred.
Now, in the context of the above press statement, the pertinent question to ask is: who was Tan Sri Musa Hassan referring to when he mentioned –
five Hindu Rights Action Force (Hindraf) leaders
and when he used the pronoun ‘They’ or ‘they’ in his press statement. There is no doubt that by ‘five Hindu Rights Action Force (Hindraf) leaders’ and by using the pronoun ‘They’ or ‘they’ Tan Sri Musa Hassan had meant Mr. Uthayakumar and four others namely –
(1) lawyer, Mr. Kengadharan; (2) lawyer, Mr. Ganabatirau;
(3) lawyer, Mr. Manoharan; and
(4) senior executive, Mr. Vasantha.
That this is so is made very clear by that part of the same report that states –
Musa was commenting on the arrest of lawyers P. Uthayakumar, R. Kengadharan, V. Ganabatirau, M. Manoharan and a senior executive with Malaysia Building Society Bhd, K. Vasantha Kumar.
…
Musa also said the five were also trying to sow hatred towards the government, adding that their actions could spark racial clashes.
I now move on to the second defendant, Tan Sri Gani Patail, the
Attorney-General.
It is to be recalled that I have, above, set out in full the Utusan Malaysia press report that contains his 7 December press statement
(reported in the Utusan Malaysia on 8 December 2007).
The second defendant, like the first defendant, also denies that he was referring to the plaintiff in the above press statement.
He contends that he was merely referring to an organization called Hindraf. In my judgment, whilst it is true that Mr.
Uthayakumar’s name is not specifically mentioned in the above press report, nevertheless, the issue whether or not Tan Sri Gani
Patail was also referring to the plaintiff (besides Hindraf) in the above press statement should also be a matter that should be
resolved by means of a trial. I am unable to convince myself that Tan Sri Gani’s contention (that he was not referring to the plaintiff
at all) must be accepted without there being any necessity at all for a trial. I ask myself: from the pleadings and the affidavit
evidence, can it be fairly concluded that the plaintiff’s claim, that Tan Sri Gani Patail in his press statement was not only referring
to Hindraf but was also referring to the plaintiff, is a claim that is obviously unsustainable (see Bandar Builder Sdn Bhd & 2 Ors v United Malayan Banking Corporation Bhd [1993] 2 AMR 34)? In my judgment the answer surely must be in the negative. I so hold for the following reasons. Firstly, it is not
disputed that Mr. Uthayakumar is an advocate and solicitor, and has pleaded that he is the legal adviser to Hindraf and a prime mover
of that organization, and was
arrested under the ISA on 13 December 2007. In this regard, the learned High Court Judge, in her grounds of judgment, has rightly
observed –
On its own Hindraf cannot operate without individuals manning it. The activities of Hindraf can only be carried out by individuals.
Secondly, in the above press statement, Tan Sri Gani Patail had made reference to a police report. Mr. Uthayakumar, in paragraph 14 of his affidavit in reply, alleges that the police report referred to by Tan Sri Gani Patail had named him and some others. It is to be recalled that the press report states –
Terdapat laporan polis yang dibuat oleh orang awam mengatakan Hindu Rights Action Force (Hindraf) memang mempunyai hubung kait dengan puak pelampau pemberontak Harimau Pembebasan Tamil Eelam (LTTE).
Peguam Negara, Tan Sri Abdul Gani Patail berkata, sekiranya tiada bukti dan perkara itu tidak benar nescaya beliau tidak akan menyebutnya di Mahkamah Terbuka baru-baru ini.
“Kita tidak boleh menyokong atau mempunyai urusan kewangan dengan organisasi seperti itu kerana ia akan memberikan implikasi yang serius.
“Namun, saya percaya siasatan lanjut sedang dijalankan berhubung laporan polis tersebut.” Katanya.
Ditanya sama ada mereka yang dinamakan dalam laporan polis itu akan didakwa dalam waktu yang terdekat. Abdul Gani menjawab, pendakwaan tidak akan dibuat dengan sewenang-wenangnya.
“Ini bukannya perkara main-main. Sebab itu, saya menyebut perkara ini di dalam Mahkamah. Memang ada laporan polis sebab itulah saya memandang serius perkara ini.
“Seluruh dunia juga risau jika mereka mempunyai hubungan dengan LTTE,” kata Abdul Gani kepada pemberita sejurus Mahkamah Tinggi di sini petang ini membenarkan permohonan peguam penyokong Hindraf supaya prosiding semakan yang difailkan ditangguhkan sehingga Isnin ini.
Peguam Negara menyatakan demikian ketika diminta mengulas kenyataan beliau yang berhujah di hadapan Hakim Mahkamah Sesyen di sini kelmarin bagi membantah 31 penyokong Hindraf dibebaskan dengan ikat jamin.
Significantly, the plaintiff’s averment that he is one of those named in the police report is not rebutted by Tan Sri Gani Patail.
Thirdly, the application to strike out the statement of claim is that of the second defendant (jointly with the first defendant).
Thus, the legal burden is on the second defendant to show to the Court that the plaintiff’s suit is frivolous and vexatious or
an abuse of the Court process. This can easily be done by exhibiting the police report showing that Mr. Uthayakumar is
not one of those named in the police report. But the second defendant chose not to do so. In fact the second defendant chose not to depose
any affidavit at all. Indeed, he had some other person (namely, Senior Federal Counsel, Dato Kamaludin) to depose an affidavit
to state on his behalf that he was not referring to the plaintiff at all.
Fourthly, the matter must also be judged in the following context. Tan Sri Gani, being the Attorney-General, had to co-operate
and work closely with Tan Sri Musa Hassan, the IGP, on the Hindraf matter. The investigation and arrest of persons in the Hindraf
matter
were carried out by the police, that is to say, officers under the command of the IGP; whilst legal advice and prosecution
are within the domain of the Attorney-General. Obviously the IGP and the AG co-operated, consulted and shared information with
one another. Thus what Tan Sri Gani Patail said to Utusan Malaysia on the 7
December and what Tan Sri Musa Hassan said to the New Straits Times and The Star on 7 and 15 December cannot be look at in isolation.
The information released by these two high officials of the Government to the press were closely inter-related or inter-connected
and must be looked at and judged in conjunction with one another. Now, if Tan Sri Musa Hassan, in his press statements
(and, particularly, the 15 December press statement), was clearly referring to Mr. Uthayakumar and some other individuals that he
had named therein, is it not plausible to argue then that Tan Sri Gani Patail in his press statement, in referring to Hindraf, was
also referring to the plaintiff and the same individuals?
The four newspaper reports which I have referred to in this judgment were tendered as exhibits (Exh. KMS-1, exh. KMS-2, exh. KMS-3
and exh. KMS-4) by Senior Federal Counsel, Dato Kamaludin in his first
affidavit affirmed on 10 June 2008. The purpose of tendering the newspaper reports in full is to show to the Court that the defendants
in their press statements were merely referring to Hindraf, the organization, and not at all to the plaintiff. In paragraph
7 of his affidavit, Dato’ Kamaludin avers –
7. Kesemua keratan surat khabar yang disebutkan di atas dengan jelasnya tidak merujuk kepada Plaintif tetapi merujuk kepada HINDRAF.
However, in my judgment, the reports do not appear to support the defendants’ contention. On the contrary, the full press reports
only go to show that there is substance in the plaintiff’s claim that the defendants’ press statements, as pleaded
to in the statement of claim, not only refer to Hindraf but they also do refer to the plaintiff.
In Nevill v Fine Arts Co [1897] 1 A. C. 68 Lord Halsbury L. C. said
(at p. 72 –
It is necessary to take into consideration, not only the actual words used, but the context of the words.
In Smith v Walker [1912] S. C. 224 Lord Kinnear said (at p. 228 –
Words in themselves apparently innocent may be shown to have a defamatory meaning when they are read with reference to the circumstances in which they were uttered or written, and with reference to the context in which they appear.
On the basis of these principles, the plaintiff should be given an opportunity to have his day in Court and that his claim ought
not to be summarily dismissed without a trial.
The House of Lords case of Knupffer v London Express Newspaper, Limited [1944] AC 116, referred to by the defendants, can be distinguished. Firstly, Knupffer is not a case of striking out. In that case the trial Court made a finding, after a full trial, that the defamatory words published
in newspaper refer to the plaintiff. That decision was subsequently reversed by the Court of Appeal, and, on appeal, the House
of Lords upheld the decision of the Court of Appeal. Secondly, in Knupffer the words published never mentioned at all the plaintiff’s name, whereas in the present case the plaintiff was obliquely referred
to in the New Straits Times report of 7
December 2007 and was specifically mentioned in the press report of
15 December 2007.
There is another point taken up by the learned counsel for the respondent/plaintiff, Encik Manoharan, in his submission.
Learned counsel pointed out that the supporting affidavit of the defendants’ striking out application was deposed by Dato’ Kamaludin
bin Mohd Said, a Senior Federal Counsel of the Attorney-General’s Chambers (I am putting aside Puan Kalsom’s affidavits for the
moment, as her affidavits are not relevant for this issue). The affidavit was not deposed either by Tan Sri Musa Hassan
or by Tan Sri Gani Patail. Now, the defendants, in their joint statement of defence, deny that the press statements refer to Mr.
Uthayakumar. Their position is that they were merely referring to an organization called Hindraf; and that they were not referring
to the plaintiff at all. In my judgment, the persons who ought to make the denial should have been Tan Sri Musa Hassan and Tan Sri
Gani Patail themselves. The defendants should have deposed the affidavit; and not Dato’ Kamaludin Said. Dato’ Kamaludin’s affidavit
is contentious. It is the principle that a solicitor cannot affirm a contentious affidavit. It is the litigant himself
who must affirm the affidavit (see Kaplands Sdn Bhd v Lee Chin Cheng Dengkil Oil Palm Plantations Sdn Bhd [2000] 4 CLJ 281; Million Group Credit Sdn Bhd v Lee Shoo Khoon [1985] 1 CLJ
181; and Seng Huat Hang Sdn Bhd v Chee Seng & Co Sdn Bhd [1985] 2 CLJ 97). Since Dato’ Kamaludin is a Senior Federal Counsel the same principle would apply; for he was assuming, here, a
role similar to that of a solicitor for the defendants.
In their defence, the defendants have also pleaded qualified privilege. For the purpose of this appeal, both the defendants have raised
the issue of qualified privilege in their memorandum of appeal. However, I do note that in the appellants’ written submission before
this Court the argument of qualified privilege appears to be advanced only in respect of the first defendant, Tan Sri Musa Hassan.
For the defence of qualified privilege to succeed, the defendants have to allude to facts to show that the defendants were under a
moral, social or legal duty to communicate the defamatory matter to the recipient. There is also the requirement that the recipient
must be under a duty or to have an interest in receiving the publication. In S.
However, there are occasions upon which, on grounds of public policy and convenience, a person may, without incurring legal liability, makes statements about another which are defamatory and in fact untrue: Watt v. Longsdon [1930] 1 K. B. 130. These occasions are called occasions of qualified privilege. A communication made bona fide upon any subject- matter in which the party communicating has an interest, or in reference to which he has a duty, is privileged, if made to a person having a corresponding interest or duty although it contains a criminatory matter which, without this privilege, would be slanderous and actionable: Harrison v. Bush [1885] 5 E. & B. 344. The duty may be legal, social or moral, and the person to whom the communication is made must have a corresponding interest or duty to receive it. The reciprocity is essential: Adam v. Ward [1917] A. C. 309.
In my judgment, although the defendants have pleaded qualified privilege, it is not clear either from the statement of defence
or the affidavit of Dato Kamaludin or the defendants’ written submission in what manner the defamatory press statements were
made on
occasions of qualified privilege. In any case, there are no affidavits deposed by the defendants’ themselves to explain how their
press statements are protected by qualified privilege. As rightly observed by the learned High Court Judge, Senior Federal
Counsel Dato’ Kamaludin is in no position to depose any affidavit on their behalf to show the existence of circumstances
justifying the defence of qualified privilege.
Be that as it may, I know of no authority or principle of law that a defamatory statement to the press by a Government officer (the
IGP and the AG are Government officers) is protected by qualified privilege. Indeed, it is unthinkable that a Government
officer is at liberty to make defamatory press statements vilifying a person, and when sued by that person for defamation, may successfully
invoke the defence of qualified privilege. Surely that cannot and should not be the law. The case of Dato’ Seri Anwar Ibrahim v Dato’ Seri Dr. Mahathir bin Mohamad [1999] 4 MLJ 58, cited by the appellants, is irrelevant for our purpose. In any case, on the pleadings, at the very least, whether
or not facts do exist to justify the defence of qualified privilege should only be determined after a full trial.
[Appeal dismissed with costs]
(Dato’ Mohd Hishamudin bin Mohd Yunus) Judge, Court of Appeal
Palace of Justice
Putrajaya
Date of decision: 9 March 2011
Date of written grounds of judgment: 4 August 2011
Senior Federal Counsel Puan Suzana bt Atan and Senior Federal Counsel Puan Normastura bt Ayub (Office of the Attorney-General) for
the appellants
Encik M. Manoharan (Messrs M. Manoharan & Co) for the respondent
] [Hide Context]
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