Back
2008 MarsdenLR 4821
COURT OF APPEAL PUTRAJAYA
ABDUL MANAF AHMAD – Appellant
Versus
MOHD KAMIL DATUK HJ MOHD KASSIM – Respondent
[Civil Appeal No: S-02-1052-2004]
[1] This is an interesting case. It has to do with the interpretation to be given to s. 18 of the Sabah Limitation Ordinance (Cap 72) in the context of an action for defamation and malicious falsehood. But first the facts.
[2] The plaintiff and defendant are members of the Tawau Native Timber Co-operative Society ("the Society"). The affairs of the Society were managed by an administration committee called the Lembaga Jawatankuasa Pentadbir. In 1985, when the plaintiff was the Society's honorary treasurer and the defendant a member of the committee in question there was disagreement between them about the management of the business and affairs of the Society. This led to the defendant lodging a police report against the plaintiff alleging criminal breach of trust. The report was lodged on 29 July 1987. Investigations commenced and the plaintiff was arrested on the same day. However, he was later released. Some five years later, in 1992, he was arrested again. Once again he was released. A few months later, he was informed by the police that the case against him had been closed. On 13 October 2000 the Public Prosecutor wrote to say that he had decided not to act upon the complaint. On 23 March 2001, the plaintiff issued writ and claimed damages for defamation and malicious falsehood. The defendant raised several defences including limitation. The learned judge who tried the case acceded to the limitation defence and dismissed the action. The plaintiff has now appealed to us.
[3] When this appeal was called on, the attention of counsel on both sides was drawn to the decision of the Court of Appeal of the Federated Malay States in Martin Rheinus v. Sher Singh , where it was held that a statement made by a person to a police officer in the course of police investigation is absolutely privileged. In the course of his judgment, Willan CJ referred, without any criticism, to the observation of the trial judge in that case as follows:
He [the trial judge] held, however, that the statement was absolutely privileged, and, after citing several Indian cases, decided 'that no distinction can be drawn between the privilege which must be accorded to an information given to a police officer under section 107 of the Criminal Procedure Code and to a statement recorded by a police officer under section 112 .
[4] It is implicit from Martin Rheinus v. Sher Singh that both statements made in first information reports under s. 107 of the Criminal Procedure Code and in police statements made under s. 112 thereof are absolutely privileged for the purpose of the law of defamation. I consider this to be good law. And I find support for the view I take of the matter from the decision of several Indian cases including Bapalal & Co. v. V. Krishnaswami Iyer AIR [1941] Mad 26. That was a case in which a letter of complaint to the police by the defendant alleging that the plaintiff had committed a crime was held to be absolutely privileged and therefore not actionable. By reason of what I have said thus far, I am unable to agree with the view expressed in Hoe Thean Sun & Anor v. Lim Tee Keng; [1999] 1 CLJ 187; [1999] 1 AMR 245 , that a defamatory statement in a police report is only protected by the defence of qualified privilege. It is apparent from the report of that case that the decision in Martin Rheinus v. Sher Singh was not brought to the attention of the High Court. There is no doubt that defamatory statements in police reports must attract the defence of absolute privilege for reasons of public policy. If actions can be brought against complainants who lodge police reports, then it would discourage the reporting of crimes to the police thereby placing the detection and punishment of crime at serious risk. The criminal law readily provides for a remedy against persons who make false police reports.
[5] Learned counsel's response to the privilege point is that it was not taken by the defendant in its defence in the instant cas
