Gopal Sri Ram JCA (Majority):

[1] This appeal raises a short but interesting point in the context of private international law. It has to do with whether the High Court in Malaya has jurisdiction to try the plaintiffs' action for libel against the defendant. There is of course no new point of law here. It is merely a matter of applying settled principles to the particular facts of this case. And those facts, in so far as relevant to the narrow point here, may be shortly stated.

[2] On 3 September 1996 the second defendant sent a facsimile message addressed to the second plaintiff at Kuala Lumpur. It was transmitted to the fax number of the first plaintiff also at Kuala Lumpur. It was sent out of London. It was prepared on the letterhead of the second defendant. It was signed by the first defendant. On its face, it appears to have been copied to four other persons. (Two of these persons are within Malaysia.) That is to say, they are within the jurisdiction of the High Court. Of that there is no dispute.

[3] It is the plaintiffs' case that the facsimile message in question contains defamatory matter. They therefore instituted the present action against the defendants. Their claim is based in tort. They applied for and obtained leave under RHC O 11 r 1 to serve their writ out of jurisdiction on the defendants in England. The defendants entered a conditional appearance to the writ and applied to discharge the order granting leave. They succeeded. The plaintiffs now appeal to us.

[4] Before dealing with the merits of this appeal, it is appropriate that this opportunity be taken to re-state the principles generally governing jurisdiction in the field of private international law. They are beyond argument.

[5] To begin with, as a matter of private international law, the High Court in Malaya (and this applies equally to the High Court in Sabah and Sarawak) may entertain an action in personam only if it has jurisdiction to do so. It is to be emphasised that the expression "jurisdiction" is one that may be used in a variety of senses and therefore takes its colour from the context of its use: Lipohar v. The Queen [1999] 200 CLR 485, at 516-517. In the present context it refers to the authority of the High Court in three senses, namely, jurisdiction over the parties; jurisdiction over the subject matter of the action; and jurisdiction over the cause of action.

[6] First, jurisdiction over parties. The jurisdiction of the High Court is available to any plaintiff, Malaysian or foreign, save an enemy alien in time of war. See, Porter v. Freudenberg [1915] 1 KB 857. Next, any defendant, save those immune from suit, for example, foreign sovereigns, diplomats and other consular officers protected by written law, may be impleaded as a defendant to an action governed by principles of private international law.

[7] Second, jurisdiction over the subject matter of the action. Here, it is settled by what has come to be known as the rule in the Mocambique (British South Africa Company v. Companhia de Mocambique [1893] AC 602) that the High Court has no jurisdiction to adjudicate upon rights of property in or the possession of foreign immovable property even though the parties to the dispute are domiciled or resident in Malaysia. See Potter v. Broken Hill Pty Co Ltd [1906] 3 CLR 479; Hesperides Hotels Ltd v. Muftizade [1979] AC 508. The rule in the Mocambique may apply to foreign movable property as well. See, Tyburn Productions Ltd v. Conan Doyle [1991] Ch 75; Pearce v. Ove Arup Partnership [1997] Ch 293. However, in personam relief may be decreed in an action relating to foreign property if the defendant is resident within the jurisdiction of the High Court. See Penn v. Lord Baltimore [1750] 27 ER 1132; Richard West & Partners (Inverness) Ltd. v. Dick [1969] 2 Ch 424.

[8] Third, jurisdiction over the cause of action. The jurisdiction of the High Court over a cause of action rests on the twin pillars of effectiveness and submission. Effectiveness mea