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2025 MarsdenLR 2154
HIGH COURT MALAYA SHAH ALAM
DATIN PADUKA CHE ASMAH IBRAHIM – Appellant
Versus
KAMARUL ZAMAN YUSOFF – Respondent
[Civil Appeal No: BA-12BCY-7-10-2024]
Defamatory statements must be evaluated based on ordinary meanings and context; the defence of justification and fair comment can absolve liability if the essence of the statement is true.
Headnote:(A) Defamation Law - Elements of defamation - The principles for defamation stipulated in Ayob Saud v. TS Sambanthamurthi - The court must assess the meaning of words from the perspective of a reasonable person - The words 'makar' used in Impugned Words must be construed within context and broadly, without relying on narrow meanings (Paras 8, 9, 10, 20, 32).
(B) Defences - Defendant's defences of justification and fair comment proved - The Impugned Words found not defamatory and in fact substantiated as a fair comment upon the Plaintiff's writings (Paras 30, 34, 41).
Facts of the case:
The Appellant was found liable for defamation by the Sessions Court and ordered to pay damages, apologize, and not repeat the statements. Following an appeal by the Defendant, the High Court dismissed the Plaintiff's claims, ruling the words published were not likely to be understood as defamatory (Paras 1, 2, 4, 29).
Findings of Court:
The High Court concluded that the Impugned Words do not convey the alleged defamatory imputations when viewed in full context (paras 10, 20, 29).
Issues: The primary issues included whether the Impugned Words were defamatory and whether the Defendant proved the defence of justification and fair comment (Paras 8, 30, 35).
Ratio Decidendi: The court found that the Impugned Words could not sustain the claimed defamatory meaning based on the common understanding of the language within the context it was used, and thus concluded the Plaintiff's accolades of defamation were unfounded.
Result: Appeal allowed.
| Table of Content |
|---|
| 1. defamation case background and parties involved. (Para 1 , 2 , 3 , 4 , 5 , 6) |
| 2. determination of defamatory meaning. (Para 7 , 8 , 14 , 15 , 16 , 20 , 21) |
| 3. test for understanding defamatory words. (Para 9 , 10 , 11 , 12 , 13) |
| 4. interpretation of implication in defamation. (Para 18 , 19 , 22 , 23 , 24) |
| 5. defenses of justification and fair comment. (Para 30 , 31 , 32 , 33 , 34) |
| 6. court's conclusions on appeal outcome. (Para 39 , 40 , 41) |
Introduction
[1] The Appellant/Defendant was found liable to the Respondent/Plaintiff for defamation after a full trial, and was ordered by the Sessions Court to pay global damages of RM100,000.00, issue a public apology and an admission that the impugned statements are false and be restrained by an injunction from repeating the libel, with costs of RM30,000.00.
[2] Referring to the parties as they were in the Court below, this Court heard the Defendant's appeal and allowed the appeal, set aside the Judgment of the Sessions Court and ordered costs at the High Court and below in the sum of RM30,000.00 for the Defendant. The Plaintiff has appealed to the Court of Appeal against this decision.
Undisputed Facts
[3] The Plaintiff was at the time when the facts leading to the action in the Court below unfolded, a senior lecturer at Universiti Utara Malaysia. The Defendant was the CEO of Yayasan Kebajikan Negara and held positions in Pertubuhan IKRAM Malaysia and Parti Pejuang Tanah Air.
[4] On 29 April 2021, the Defendant published the following pleaded words on her Facebook page ("Impugned Words"):
"Tak insaf-insaf lagi hamba Allah ini. Yang hairannya setiap bulan ramadhan ada sahaja makar yang dibuatnya".
[5] The Impugned Words were accompanied by a link to an article in the New Straits Times of the same date titled "Calls to sack UUM lecturer Kamarul grow louder" ("NST Article") and a photo of a published apology issued by the Plaintiff to the Defendant on 20 June 2020 for making a defamatory statement against the Defendant ("Notice of Apology").
[6] The Impugned Words were therefore published and unambiguously referred to the Plaintiff. The Plaintiff took umbrage over this and sued.
Analysis And Finding
[7] The Plaintiff's pleaded case is not based on republication of the NST Article but solely on the Defendant's Impugned Words. The plea is that by its natural and ordinary meaning and/or by innuendo, the Impugned Words meant and were capable of being understood to mean the following defamatory imputations ("Defamatory Imputations"):
a) Plaintif telah berulang-ulang kali membuat kenyataan-kenyataan yang memfitnah individu lain;
b) Plaintif tidak pernah insaf;
c) Plaintif adalah seorang yang sering membuat makar (tipu daya); dan
d) Plaintif sering membuat makar (tipu daya) dalam bulan Ramadhan.
[8] The elements of a claim in defamation are well established per Ayob Saud v. TS Sambanthamurthi ; ; [1989] 1 CLJ (Rep) 321 . Since publication of the Impugned Words to third parties and their reference to the Plaintiff are not disputed, the issues that arose in the appeal were:
(a) whether the Impugned Words meant and were capable of being understood to mean the pleaded Defamatory Imputations; and
(b) if so, whether the Defendant was able to prove her defence of justification and fair comment upon a matter of public interest.
Meaning Of Impugned Words
[9] The test involved in determining whether or not the words complained of are defamatory is a two-stage process. Firstly, it must be considered what meaning the words would convey to an ordinary person; and secondly, it must be considered whether under the circumstances in which the words were published, a reasonable man would be likely to understand that in a defamatory way ( Raub Australian Gold Mining Sdn Bhd v. Hue Shieh Lee ; ; [2019] 2 AMR 525 ["Raub Australian Gold Mining"]; Chok Foo Choo v. The China Press Bhd ; ; ). This is a question of law that turns upon the construction of the words published.
