Mohamed Dzaiddin CJ:

This is an application for leave to appeal from the decision of the Court of Appeal under s. 96(a) of the Courts of Judicature Act 1964 (CJA).

Encik Karpal, for the applicant, formulated three questions for our consideration. However, in the course of his submission he wanted leave to be granted only on two questions, namely:

(1)Whether the Court of Appeal was right in holding the convictions of Sukma Darmawan and Dr. Munawar Anees by the Sessions Court, Kuala Lumpur and the admission of the facts read out in Court by both of them could constitute a defence of justification in respect of the offending words meriting dismissal of the applicant's suit under Order 18 rule 19 of the Rules of the High Court, 1980; and

(2)Whether the Court of Appeal was right in relying on the principle in Lange v. Atkinson3 NZLR (1988) 424 and concluding the decision of the learned trial Judge on the issues of qualified privilege should not be disturbed having regard to the application to strike out the applicant's suit being one under Order 18 rule 19 of the Rules of the High Court, 1980.

We are of the view that the question of law as distilled from the above questions for the consideration of the court is whether in a defamation action the High Court can decide on the defence of justification and qualified privilege without a trial to dismiss the applicant/plaintiff's suit against the defendant/ respondent under O. 18 r. 19 RHC.

Section 96(a)CJA provides that an appeal shall lie from any judgment or order of the Court of Appeal ... involving a question of general principle decided for the first time ora question of importance upon which further argument and a decision of the Federal Court would be to public advantage. In Datuk Syed Kechik Syed Mohamed v. The Board of Trustees of the Sabah Foundation[1999] 1 CLJ 325at 336 this court held that the Federal Court grants leave to appeal from the Court of Appeal sparingly and will not grant such leave unless the following criteria are satisfied by the intending appellant: (1) the judgment of the Court of Appeal has raised a point of general principle which the Federal Court has not previously decided or a point of importance upon which further argument and a decision of the Federal Court would be to public advantage; and (2) if the point is decided in favour of the intending appellant, there is a prima faciecase for success in the appeal. Regarding criteria (2), the court observed (at p. 332) that an assessment of the prospects of success should leave be given is, of course, an important factor which the Federal Court would have to take into account. It is however not necessary for the intending appellant to demonstrate to the court the probability and a reasonable likelihood of the appeal succeeding in the event of leave being granted. All he needs to do is to show that on first impression, the appeal might succeed.

In our view, the question which we formulated above raises a question of general principle not previously decided by the Federal Court. It comes under the first criteria of s. 96(a). However, Datuk Syed Kechikheld that the two criteria of the section is not exclusive. Hence, as assessment of the prospects of success should leave be granted is an important factor which the Federal Court would have to take into account. On this point, we note that Encik Karpal merely deposed in his supporting affidavit that "if any or all issues raised are decided in the applicant's favour, there is a prima faciecase for success in the appeal." There was no submission made on this point to demonstrate that there a a prima faciecase for success in the appeal.

After reading the grounds of judgment of the trial judge (see [1999] 7 CLJ Supp 32) we find he has correctly addressed the issues of justification and qualified privilege raised by the respondent in his defence. We hasten to add that he relied on the facts admitted and the confession as to the acts of gross indecency in the