The requirement for a plaintiff to establish reference in defamation claims is crucial; vague references do not suffice for actionable defamatory statements.

[1] This is an appeal against the decision of the trial judge in allowing the respondent's action against the appellants for damages for libel that was allegedly written, printed and published or caused to be written, printed and published of the respondent/plaintiff by the appellants/defendants in a national Malay language newspaper, the Harian Metro daily on the 10 April 2007. The said article appeared at p 14 of the said newspaper, entitled "Siasat Kontrak LKIM" with the sub-heading "Lembaga Pengarah lapor BPR" (impugned article). The impugned article purportedly contained the words complained of on the alleged wrongdoings of the respondent/plaintiff in his capacity as the Director General of the Malaysian Fisheries Development Authority or Lembaga Kemajuan Ikan Malaysia (LKIM), a statutory body incorporated under the LKIM Act 1972.

[2] The order in respect of liability favouring the respondent was made on 24 March 2014 and the order in respect of quantum was made on 24 April 2014.

[3] It must also be mentioned here that the 1st appellant/1st defendant was at all material times the Chief News Editor of the said Harian Metro newspaper, and an employee of the 2nd appellant. The 2nd appellant/ 2nd defendant is the publisher, printer and proprietor of the Harian Metro and also of the Berita Harian and New Straits Times which are respectively another Malay language and English language newspapers. The 3rd appellant/3rd defendant was at all material times the Chairman of the Board of Directors of LKIM.

[4] The impugned article is set out verbatim in full in para 3 of the statement of claim. It reported that LKIM through its Chairman, the 3rd appellant/3rd defendant, had three months before, lodged a report with the Anti-Corruption Agency (ACA) calling for an investigation into the award by LKIM's management of a construction contract for the construction of the Kuala Kedah LKIM Complex which was alleged to be questionable and did not comply with contract awards procedure. The 3rd appellant/3rd defendant had gone to the 2nd appellant/ 2nd defendant to relate the events that led to his report lodged with the ACA as he heard nothing from the ACA after the three months' lapse. The respondent/plaintiff claims that the impugned article refers to him personally and bear meanings defamatory of him personally.

[5] We must also make a note here that the same story came out as a report simultaneously in the New Straits Times and Berita Harian newspapers on 10 April 2007. The respondent/plaintiff had filed two separate actions against the two newspapers. Both cases were dismissed at the High Court level as well as during appeal at the Court of Appeal.

Issues

[6] In this appeal, the relevant issues are as follows:

(i) Whether there was reference to the respondent/plaintiff;

(ii) Whether the words complained of are capable of a defamatory meaning;

(iii) Whether the defence of Reynolds Privilege applied; and

(iv) Whether the defence of Absolute Privilege applied since the impugned article reports on the content of an ACA report.

Note: This defence of Absolute Privilege was raised by the learned trial judge although it was not part of the pleaded defence

Decision

[7] Whether there was a reference to the plaintiff.

7.1 It is the learned trial judge's finding that the words complained of as set out in para 3 of the statement of claim referred to and were understood to refer to the respondent/plaintiff even though his name is not stated in the impugned article. Her reason was as the impugned article was substantially a regurgitation of the 3rd appellant/defendant's report to the ACA and as the report to the ACA was lodged because LKIM was not satis