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2021 MarsdenLR 2033
HIGH COURT SABAH & SARAWAK SIBU
GOVERNMENT OF STATE OF SARAWAK – Appellant
Versus
DATO SRI WONG SOON KOH – Respondent
[Suit No: SBW-21NCvC-3/6-2020]
Defamatory statements made in a political context must be assessed based on public interest and context; a failure to properly name the party in a defamation suit can be fatal to the claim.
Headnote:(A) Federal Constitution – Article 10(1)(a) – Defamation – Suit by government entity against opposition leader for defamation in relation to statements made about a settlement with Petronas – Plaintiff failed to establish proper party as plaintiff – Court found that no defamation occurred as the statements were contextual and evaluated under the two-tier test for defamation (Paras 1, 34, 113).
(B) Defamation – Burden of proof – Plaintiff must demonstrate defamatory meaning and reference to them – Statements were found to be justifiable expressions about public interest and political accountability (Paras 14, 36).
(C) Qualified Privilege – The defendant’s statements were made in the interest of public discourse regarding political accountability and transparency (Paras 91).
Facts of the case: Plaintiff, a coalition government, alleged defamation for statements concerning a settlement with Petronas over sales tax. The statements questioned the fairness of the settlement and asserted lack of transparency in negotiations (Paras 2, 5, 10).
Findings of Court: Plaintiff failed to properly name the MMKN as a co-plaintiff; the Impugned Words were not defamatory when considering context and public interest (Paras 31, 113).
Issues: Whether the statements made by the defendant were capable of bearing a defamatory meaning; whether the correct entity was suing for defamation (Paras 11, 19).
Ratio Decidendi: The court reasoned that the nature of the communications, given the political context, did not meet the threshold of at law being deemed defamatory; the statements were justified in the political arena (Paras 90, 113).
Result: Plaintiff's claim dismissed with costs of RM30,000 to the defendant (Paras 113).
Preliminaries
[1] It is trite, well-worn and well settled in many eloquent iterations that freedom of speech under our Federal Constitution is not absolute. Among several statutory and other common law curtailments of freedom of speech is the tort of defamation, which demands that freedom of speech must at some point give way to protection against reputational damage. (Datuk Darryl SC Goon (now JCA), Jan [2018] JMJ at p 206).
[2] This case involves a suit between politicians, the plaintiff, having the majority of the seats in the Sarawak Dewan Undangan Negeri (DUN) through its coalition of parties known by its acronym "GPS", as the executive, while the defendant, the leader of the Opposition party known as "PSB", in the same State.
[3] Although reeking of classic political rivalry between the group in power and the group that is not, this defamation suit had its genesis in another dispute, this time between the plaintiff and Petroleum Nasional Berhad ("Petronas").
[4] The plaintiff had passed law imposing a sales tax on the sale of petroleum products where such products were mined or won from within the boundaries of Sarawak State. Petronas disputed liability for such tax and sought by an action of Judicial Review in 2019 ("the JR") at the Kuching High Court to have such tax law declared a nullity. Around the same time the plaintiff commenced a writ action against Petronas to recover the newly imposed tax which by then had fallen into arrears.
[5] The outcome of the JR was that His Lordship Tuan Azhahari Kamal Ramli in Petroliam Nasional Berhad (Petronas) v. Comptroller Of State Sales Tax Sarawak & Ors, [2021] 1 CLJ 430 ruled in March 2020 at the Kuching High Court in favour of the plaintiff, and that Petronas,
"was bound by any State law passed by the State's Legislature, including the State Sales Tax Ordinance".
[6] The plaintiff and Petronas then applied to stay all other proceedings commenced in the Kuching High Court (including the appeal by PETRONAS to the Court of Appeal against the decision of the JR) while they entered into negotiations to settle the disputed Sales tax. These negotiations culminated in a settlement when on the 8 May 2020 both the plaintiff and Petronas issued a signed joint statement ("the Joint Statement") which expressly referred to the payment of RM2 billion of sales tax arrears by PETRONAS to the plaintiff.
[7] Almost immediately, the defendant on the same day, that is the 8 May 2020, ("the defendant's Press Statement") issued a press statement which in essence questioned the terms of the settlement evidenced from the contents of the Joint Statement.
[8] The plaintiff through YB Sharifah Hasidah bt Sayeed Aman Ghazali (PW1) quickly issued a press Statement on the 9 May 2020 ("the plaintiff's Statement") seeking to clarify certain matters in the Joint Statement.
[9] Seemingly not satisfied, the defendant issued a second statement dated the 9 May 2021 ("defendant's Reply Statement") seeking to clarify certain aspects of his earlier statement and in part response to the plaintiff's Statement.
The Impugned Words
[10] On the 10 June 2020 the plaintiff filed at the Sibu High Court Registry, a Statement of Claim (encl 2) suing the defendant for defamation arising from the content of the defendant's Reply Statement. The words complained of are reproduced from para 3 of the plaintiff's Statement of Claim:
"3. On or about the 9 May 2020, the defendant in his capacity as president of PSB issued or caused to be issued and published a Press Statement, a copy whereof is hereto annexed as "Appendix A", to the media or newspapers circulating in the State of Sarawak and posted on Facebook containing, inter alia, the following defamatory words about and/or concerning the plaintiff, namely:
(a) "...the Sarawak Government owes an explanation to the DUN and the people of Sarawak why Petronas was allowed to pay only RM2 billion when it owed RM3.8 billion. Why the massive discount?".
(b) "More impor
