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2020 MarsdenLR 1878
HIGH COURT MALAYA KUALA LUMPUR
HISHAM TAN SRI HALIM – Appellant
Versus
TEH FARIDAH AHMAD NORIZAN & ANOR – Respondent
[Suit No: WA-23NCVC-33-09-2017]
The court affirmed that slanderous statements made by the defendants against the plaintiff, which were made in a public setting, constituted defamation and were actionable per se, failing under the defenses of fair comment and qualified privilege.
Headnote:(A) Defamation Act 1957 – Slander – The court held that the plaintiff's claims against the defendants for slander were proven based on defamatory statements made by the defendants in the presence of others, which were deemed capable of lowering the plaintiff's reputation. The plaintiff’s claims for conversion and trespass were dismissed due to insufficient proof of wrongful appropriation or trespass. (Paras 23, 29, 86)
(B) Fair Comment – The defendants could not successfully plead fair comment as their statements were not based on true factual underpinning and were made in an inappropriate context that did not align with the public interest. (Paras 34, 45)
(C) Qualified Privilege – The defence of qualified privilege failed as the defendants acted with malice and personal bias against the plaintiff, violating the principles governing comments made under duty. (Paras 49, 52)
Facts of the case: The plaintiff claimed the defendants made slanderous remarks about him concerning his ability to protect his children during a hospital visit, amidst a familial dispute. The defendants counterclaimed for alleged injuries caused by the plaintiff. (Paras 1-4, 86)
Findings of Court: The court found that the plaintiff established his claim for slander, supporting his case with evidence of the context and witnesses present at the time of the statements. However, the defendants' claims for conversion and trespass were unsubstantiated. (Paras 86-89)
Issues: The key issues revolved around the nature of the defendants’ statements, their applicability for fair comment and qualified privilege, and whether the elements of conversion and trespass were established. (Para 4)
Ratio Decidendi: The court determined the statements made by the defendants were slanderous as they exposed the plaintiff to hatred and contempt, failed under the defences of fair comment and qualified privilege due to lack of truth and malice, respectively. (Paras 28-29, 52)
Result: The defendants were ordered to pay RM60,000 in general damages to the plaintiff. (Para 86)
JUDGMENT
Introduction
[1] The plaintiff's ("P") main claim against the first defendant ("D1") and second defendant ("D2") is for slander. D1 and D2 are sisters, and are collectively referred to as the "defendants".
[2] The alleged slander occurred during an incident on 7 July 2017 ("incident") at the Sungai Buloh Hospital ("Sg Buloh Hospital") paediatric wardroom, where the defendants uttered allegedly defamatory words against P in the presence of various people. P seeks general, aggravated and exemplary damages and an apology from the defendants.
[3] In addition, P has a claim against D2 for conversion and trespass to property, and seeks the return of the property or alternatively their value in the sum of RM626,824.27 and damages.
[4] The defendants, in turn, filed a counterclaim for damages against P for allegedly causing physical injury to the defendants.
[5] The trial was previously part-heard by another judge and then continued before me. I allowed P's claim for slander against the defendants. However, I dismissed P's claim for conversion and trespass to property against D2. I also dismissed the defendants' counterclaim against P. These are the grounds of my judgment.
Background
[6] On 18 August 2007, P married Maya binti Ahmad Fuad ("wife"). P and wife were gifted with two children, namely (i) Misha binti Hisham (four years old at the material time) ("older child") and (ii) Myra binti Hisham (two years old at the material time) ("younger child"). Older child and younger child are collectively referred to as the "children".
[7] On 20 February 2017, wife left the matrimonial home at Hampshire Park Apartment ("apartment"), taking the children with her and went to stay at D2's house. D2 is wife's mother. On 22 February 2017, wife commenced proceedings in the Selangor Syariah Court for divorce and custody of the children. On wife's application, the Syariah Court by an ex parte order dated 23 February 2017 ("ex parte order") gave her interim custody of the children. P was given visitation rights, provided he first informed and obtained consent of wife and provided further that the children were accompanied by wife or her representative during the visitation.
[8] On 21 March 2017, the Syariah Court, on P's application, amended the ex parte order ("amended ex parte order") and gave P overnight visitation rights for two nights each week, from 5pm on Thursday until 5pm on Saturday. Pursuant to the amended ex parte order, the children would be picked up weekly by P from D2's house at 5pm on Thursday and returned at 5pm on Saturday. The defendants both admitted in Court that they were aware of P's overnight visitation rights under the amended ex parte order.
[9] On 30 June 2017, P received a call from an officer of Polis Diraja Malaysia ("PDRM"), Inspector Imolly Anak Merka ("lnsp lmolly") from the Shah Alam District Police Headquarters. lnsp Imolly informed P that wife had lodged a police report, alleging that older child had been sexually assaulted by a driver employed by P's family ("driver"). The alleged molestation ("alleged molestation") was said to have taken place at the house of Tan Sri Halim Mohammad ("TSH"), who is P's father, between 22 June 2017 to 24 June 2017 whilst the children were with P and his family.
[10] According to P, he knew that the alleged molestation was not true based on the following.
(i) The children were with P at all times and had no contact with driver. On 22 June 2017 at around 5pm, P picked up the children from wife and they were driven by P's own driver ("P's driver"). P and the children went to TSH's house and spent the night there.
(ii) On 23 June 2020, P took the children to KLCC and Pavilion shopping mall. Again they were driven by P's driver. Thereafter, they went back to P's apartment (not to TSH's house) and remained there until they were returned to wife on 24 June 2020.
(iii) The interior and exterior of TSH's house are equipped with CCTV. The CCTV recording does not show the alleged
