RK Nathan J:

The Claim

The plaintiff's claim against the defendants is for damages for libel as well as for malicious falsehood, together with interest on any damages awarded and costs in respect of words published in an article under the heading:

Ostrich farms should provide prospectus

appearing in the issue of the "New Sunday Times" dated 23 March 1997.

Facts

The plaintiff is in the business of ostrich farming having begun the said business in December 1995 after obtaining pioneer status on 22 August 1996. The 1st defendant was the writer of the said article. The 2nd and 3rd defendants were at all material times the assistant editor and publisher of the said newspaper.

The plaintiff had advertised its business in "The Malay Mail" on Wednesday, 19 March 1997, which advertisement had appeared before the publication of the said article.

The Defence

The defences raised were that the words in the article were not defamatory of the plaintiff, that the article was a fair comment upon a matter of public interest, namely the issue concerning advertisements to the public by promoters of ostrich breeding and whether these attempts to solicit investments from the general public should be regulated, and that there was no proof of express malice shown to negative the defence of fair comment. The defence also denied the claim for malicious falsehood.

The Article

The entire article consists of 45 paras. The relevant portions of the article relied on by the plaintiff are paras. 1-5, 7-10, 41 and 45. I have not therefore in this judgment found the need to reproduce the entire lengthy article, except for the paragraphs relied on.

Para 1: An unobtrusive and relatively small advertisement inviting investment in ostriches was perched in a corner of an English daily last Wednesday.

Para 2: It made no claims on returns on investments. Rather it only mentioned that each breeding bird would cost RM10,000. By inference, a breeding pair would cost RM20,000. The total amount includes the management package.

No other charges would be levied.

Para 3: The advertisement also said replacement birds would be provided free for up to 24 months after the initial investment.

These were the only details in that advertisement.

Para 4: But past advertisements made outrageous claims of as much as 50 per cent annual returns on investments after three years and more if investors chose to sell the eggs or the chicks.

Para 5: The question is whether these promoters of ostrich breeding should be freely allowed to solicit investments. Should they not be subjected to some sort of rules?

Para 7: Thus, investors like you and I should shy away from participating in schemes that promote the breeding of such rarities.

Para 8: ... A study by the Ministry showed that the claims of the promoters were 'not always true'.

Para 9: The promoting farm might sell more of these big flightless birds than they really have.

Para 10: The breeder pair that you believed you had bought might have already been sold to other investors who, like you, plonked down wads of cash galvanised by the desire to garner hefty returns on investments.

Para 41: ... But there remain some of these farms which merely want to promote investment in ostriches as does the advertisement cited earlier.

Para 45: Given this backdrop, it is inexplicable why the Registrar of Companies does not require promoters of ostrich farms to issue a prospectus that lists the past performance, potential future gains as well as the risks involved for potential investors.

The Plaintiff's Advertisement

'INVEST IN OSTRICHES'

SUNGKAI - PERAK

"Special Introductory Offer"

* BREEDER BIRDS 10,000 RM * NO MORE MONEY TO PAY * ALL INCLUSIVE MANAGEMENT PACKAGE * FREE REPLACEMENT BIRDS UP TO 24 MONTHS * FARM INSPECTION WELCOME

PLEASE CONTACT:-

RATUS MESRA SDN. BHD.

TEL 03-7168 773 OR 010-2243605

FAX 03-7168775 OR 012-2016624

ASK FOR MR. MURRAY OR MR. BOYD

Findings Of The Court

Were The Words Defamatory Of The Plaint