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2021 MarsdenLR 4172
FEDERAL COURT PUTRAJAYA
NOR AZIZ MAT ISA – Appellant
Versus
SUN TEOH TIA (SAC) & ORS – Respondent
[Civil Appeal No: 01(f)-38-11-2019(W)]
Absolute privilege for defamatory statements in police reports does not extend to disciplinary proceedings against police officers when the statements do not concern crime reporting.
Headnote:(A) Criminal Procedure Code – Section 107 – Public Officer (Conduct and Discipline) Regulations 1993 – The court held that absolute privilege does not extend to defamatory statements in police reports made for disciplinary proceedings against police officers. (Para 28)
(B) Disciplinary Actions – Police officers must be accountable for defamatory statements made against superior officers, and disciplinary actions are justified when the public interest is not served. (Para 27)
(C) Public Policy – The court emphasized that extending absolute privilege too broadly undermines the rule of law and accountability in public service. (Para 24)
Facts of the case: The appellant, a dismissed police officer, argued that a police report he lodged should be protected by absolute privilege to avoid disciplinary action. (Para 12)
Findings of Court: The court ruled that the appellant’s statements were not made in good faith for reporting crimes, but rather to tarnish the reputation of his superior. (Para 27)
Issues: The primary issue was whether disciplinary proceedings could be based on statements made in a police report under absolute privilege. (Para 11)
Ratio Decidendi: The court determined that absolute privilege does not immunize public officers from accountability for defamatory statements made in police reports unrelated to criminal investigations. (Para 28)
Result: The appellant's appeal was dismissed.
Introduction
[1] The short legal question that arises in this appeal is whether absolute privilege should be extended to the defamatory statements contained in a police report lodged by a police officer under s 107 of the Criminal Procedure Code (" CPC ") for the purpose of disciplinary proceedings against him under the Public Officer (Conduct and Discipline) Regulations 1993 ("Regulations 1993").
[2] The courts below opined that the ambit of absolute privilege should not be extended for such purpose. For the reasons set out later in this judgment, we agree with the decisions of the courts below.
The Outline Facts
[3] The appellant was, until his dismissal on 18 August 2015, a police man with the Royal Malaysia Police ("RMP") for 27 years.
[4] A show cause letter dated 12 September 2013 was issued to the appellant informing that the 2nd respondent had decided to pursue disciplinary proceedings against him pursuant to reg 37 of the Regulations 1993, with a view to dismiss or reduce in rank. There were 12 charges preferred against the appellant:
(i) The 1st to 9th charges were in respect of the appellants failure to report physically to the battalion chief;
(ii) The 10th charge was in respect of the appellants police report dated 27 August 2012 for which the appellant had insulted the Inspector General of Police ("IGP");
(iii) The 11th charge was in respect of the appellants statements for which he had insinuated that the IGP was in good terms with the Bridge Commander and any reports made against him would have no effect (tidak akan membawa kesan); and
(iv) The 12th charge was that the appellants conduct had adversely tarnished the image of the public service.
[5] The appellant had responded to the show-cause letter vide his letter dated 31 December 2013.
[6] After considering the appellants representation, the 2nd respondent found that the appellant was not guilty of misconduct in respect of the 1st to 9th charges. The 2nd respondent found that the appellant was guilty of misconduct in respect of the 10th to 12th charges. The punishment imposed against the appellant are as follows:
(i) The 10th charge, the appellants service was terminated; and
(ii) The 11th and 12th charges, the appellant was given a warning.
The 2nd respondent had informed the appellant of its decision vide letter dated 21 August 2015.
[7] Dissatisfied with the decision, the appellant filed an application for judicial review. The High Court refused the application. The appellants appeal to the Court of Appeal was dismissed.
Police Report No: Sg Siput (U) 002450-12
[8] Central to the present appeal was the police report lodged by the appellant which became the subject matter of the 10th charge and upon which the appellants service was terminated. The report, with the impugned words appearing in bold, reads as follows:
"Jutaan terima kasih diucapkan kepada Tan Sri Ismail Haji Omar selaku Ketua Polis Negara kerana menamatkan perkhidmatan saya (di buang kerja) nasib saya baik kerana tidak di buang daerah. Perpatah inggeris berkata kalau ikan busuk di kepala ini bermakna surat yang dibuat oleh pegawai bawahan KPN pun turut sama busuk. Sepanjang 23 tahun saya bekerja dibawah pucuk pimpinan 7 orang Ketua Polis Negara, dalam 205 sejarah PDRM tidak pernah lagi PDRM diberi penghinaan oleh seorang Ketua Polis Negara yang begitu bodoh dan dayus yang boleh disamakan dengan lawak seperti Mr Bean. Tepatlah kata pepatah orang-orang bodoh sentiasa mencari orang yang boleh untuk ia dikagumi. Yang anehnya, bagaimana orang yang bodoh boleh menjadi KPN?".
The High Courts Decision
[9] The main reason of the High Court refusing the appellants application for judicial review was that the defence of absolute privilege did not apply to disciplinary proceedings under Regulations 1993. The High Court stated:
viii) Kes-kes yang dirujuk pada pandangan saya adalah tidak relevan dengan tindakan tatatertib yang dijalankan terhadap Pemohon. Kes-kes yang dirujuk adalah saman fitnah
