Azmi (Malaya) CJ:

I have had the advantage of reading the judgment of my brother Mr. Justice Raja Azlan Shah and agree with him that the appeals should be allowed with costs here and in the Court below. The order of the Court below and the subpoena issued against the appellant be set aside.

The deposit made by the two appellants be paid back to them.

Raja Azlan Shah J.: An action for slander had been commenced by Tun Tan Siew Sin, Minister of Finance, against the respondent Inche Hasnul bin Abdul Hadi in Malacca High Court Civil Suit No. 38 of 1964. It arose out of a statement alleged to have been made by the respondent of and concerning the plaintiff at an election rally held at Pekan Ayer Molek, Malacca, on 5 April 1964 and published in the Utusan Melayu of 7 April 1964. The same slander was repeated by the respondent at another election rally held at Bertam Ulu Village, Malacca, on the evening of 7 April 1964. In view of the pending trial it is wise to say as little as possible about the case. Assuming that the defamatory statements were made by the respondent, there is established a series of publications each of which constitutes a separate tort. First, there is the publication by the author, that is, the respondent, to the audience at the two rallies for which he is solely responsible. Secondly, there is the publication by the printers and publishers of Utusan Melayu for which the author, the printers and publishers are jointly liable. In Civil Suit No. 38 of 1964 the plaintiff, as can be seen from the endorsement of his writ, sues for slander against the respondent as the author of the defamatory words spoken of him at the election rallies.

The defence is a total denial. It is the respondent's case that both the appellants can give material and relevant evidence to establish the defence contention that the alleged defamatory words published in Utusan Melayu and purported to have been uttered by the respondent are fabricated by Utusan Melayu against the respondent. In other words, the respondent says he did not make the defamatory statements as published by Utusan Melayu but that in all probability they were published by the appellants. In order to establish that, he intends to call the appellants as his witnesses to testify that on some other occasions Utusan Melayu had published defamatory statements purported to have been made of the respondent by the appellants and that subsequently they had requested Utusan Melayu to publish denials of such statements.

Writs of subpoena ad testificandum were accordingly issued and served on Tun (Dr.) Ismail bin Dato' Haji Abdul Rahman, the then Minister of Home Affairs, (the first appellant), and Inche Abdul Ghafar bin Baba, the then Chief Minister of Malacca, (the second appellant), to give evidence for the defence at the trial of the above-named suit. Both appellants thereupon filed separate applications by way of summons-in-chambers to set aside the writs as vexatious and an abuse of the process of the Court. The proceedings were adjourned into open Court and judgment was given against the appellants. They have now appealed against that interlocutory order. The judgment of the learned Judge contains a concise and clear summary of the issues and arguments, and his reasons for dismissing the applications are as follows:

It is clear from the record that both the first and the second applicants were not present on those occasions when the defamatory words were alleged to have been uttered by the defendant and they can, therefore, be of no assistance to the defence as to the actual words uttered by the defendant on those occasions. However, both the first and the second applicants have had experience of gross misreporting of their own speeches regarding the defendant's character by the Utusan Melayu on some other occasions and this piece of evidence, in my view, is indirectly relevant and material to the defence case.

What are the facts? The first appellant says he has