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2025 MarsdenLR 5012
HIGH COURT MALAYA SHAH ALAM
DATIN PADUKA CHE ASMAH IBRAHIM – Appellant
Versus
KAMARUL ZAMAN YUSOFF – Respondent
[Criminal Trial No: BA-12BCY-7-10/2024]
The court held that the Impugned Words were not understood as defamatory by an ordinary reasonable person, and the core imputation of repeated defamation was found to be true.
Headnote:(A) Defamation Law - Elements of defamation established in Ayob Saud v. TS Sambanthamurthi - Impugned Words must be construed in context and not literally - The ordinary reasonable person standard applied in assessing defamatory meaning. (Paras 8, 9, 10, 12, 27)
(B) Defence of Justification - Essential truth of the sting of the libel must be established; it suffices if the core imputation is true. (Paras 31, 33)
(C) Defence of Fair Comment - Comments must be on a matter of public interest and based on facts; burden of proving malice lies with the plaintiff. (Paras 35, 38)
Facts of the case:
The Defendant was found liable for defamation after publishing statements on social media that referred to the Plaintiff, a lecturer, which the Plaintiff claimed were defamatory. The Defendant's appeal was allowed, setting aside the lower court's judgment.
Findings of Court:
The Impugned Words were not likely to be understood in a defamatory sense by an ordinary reasonable person; the Plaintiff's repeated defamation claims were found to be in substance true.
Issues: Whether the Impugned Words were defamatory and whether the Defendant could prove justification and fair comment.
Ratio Decidendi: The court determined that the Impugned Words, when read in context, did not amount to actionable defamation and established that the core imputation of repeated defamation was true.
Result: Appeal allowed.
Introduction
[1] The Appellant/Defendant was found liable to the Respondent/Plaintiff for defamation after a full trial, and was ordered by the Sessions Court to pay global damages of RM100,000.00, issue a public apology and an admission that the impugned statements are false and be restrained by an injunction from repeating the libel, with costs of RM30,000.00.
[2] Referring to the parties as they were in the Court below, this Court heard the Defendant's appeal and allowed the appeal, set aside the Judgment of the Sessions Court and ordered costs at the High Court and below in the sum of RM30,000.00 for the Defendant. The Plaintiff has appealed to the Court of Appeal against this decision.
Undisputed Facts
[3] The Plaintiff was at the time when the facts leading to the action in the Court below unfolded, a senior lecturer at Universiti Utara Malaysia. The Defendant was the CEO of Yayasan Kebajikan Negara and held positions in Pertubuhan IKRAM Malaysia and Parti Pejuang Tanah Air.
[4] On 29 April 2021, the Defendant published the following pleaded words on her Facebook page ("Impugned Words"):
"Tak insaf-insaf lagi hamba Allah ini. Yang hairannya setiap bulan ramadhan ada sahaja makar yang dibuatnya".
[5] The Impugned Words were accompanied by a link to an article in the New Straits Times of the same date titled "Calls to sack UUM lecturer Kamarul grow loudef ("NST Article") and a photo of a published apology issued by the Plaintiff to the Defendant on 20 June 2020 for making a defamatory statement against the Defendant ("Notice of Apology").
[6] The Impugned Words were therefore published and unambiguously referred to the Plaintiff. The Plaintiff took umbrage over this and sued.
Analysis And Finding
[7] The Plaintiff's pleaded case is not based on republication of the NST Article but solely on the Defendant's Impugned Words. The plea is that by its natural and ordinary meaning and/or by innuendo, the Impugned Words meant and were capable of being understood to mean the following defamatory imputations ("Defamatory Imputations"):
a) Plaintif telah berulang-ulang kali membuat kenyataan-kenyataan yang memfitnah individu lain;
b) Plaintif tidak pernah insaf;
c) Plaintif adalah seorang yang sering membuat makar (tipu daya); dan
d) Plaintif sering membuat makar (tipu daya) dalam bulan Ramadhan.
[8] The elements of a claim in defamation are well established per Ayob Saud v. TS Sambanthamurthi ; [1989] 1 CLJ (Rep) 321. Since publication of the Impugned Words to third parties and their reference to the Plaintiff are not disputed, the issues that arose in the appeal were:
(a) whether the Impugned Words meant and were capable of being understood to mean the pleaded Defamatory Imputations;
(b) if so, whether the Defendant was able to prove her defence of justification and fair comment upon a matter of public interest.
Meaning Of Impugned Words
[9] The test involved in determining whether or not the words complained of are defamatory is a two-stage process. Firstly, it must be considered what meaning the words would convey to an ordinary person; and secondly, it must be considered whether under the circumstances in which the words were published, a reasonable man would be likely to understand that in a defamatory way ( Raub Australian Gold Mining Sdn Bhd v. Hue Shieh Lee ; ; [2019] 2 AMR 525 ["Raub Australian Gold Mining"]; Chok Foo Choo v. The China Press Bhd ; ; ). This is a question of law that turns upon the construction of the words published.
[10] According to the authoritative judgment in Tun Datuk Patinggi Haji Abdul Rahman Ya'kub v. Bre Sdn Bhd & Ors ; ("Tun Datuk Patinggi") on this area of the law:
"The approach in the construction of the words complained of is to consider the meaning such words would convey to ordinary reasonable persons using their general knowledge and common sense; it is not confined to strict literal meaning of the words but extends to any reference or implication from which persons can reaso
