Subsequent publication of police reports by its maker is not protected by absolute privilege in defamation actions.

[1] This appeal arises from the decision of the Court of Appeal dated 16 May 2017, which reversed the decision of the High Court. The appellant was the plaintiff, while the respondent was the defendant before the High Court.

[2] The appellants action in the High Court was one of damages for defamation. We are concerned in this appeal with whether the subsequent publication of a police report (an absolute privileged document) to the world at large, would enjoy the same protection of absolute privilege, and for that reason not actionable for the purpose of the law of defamation.

[3] On 26 February 2015, the High Court allowed the appellants claim and awarded general damages in the sum of RM150,000.00 with costs of RM40,000.00. The High Court dismissed the counterclaim of the respondent.

[4] However, on appeal by the respondent, the Court of Appeal reversed the judgment and set aside all the orders of the High Court and thus allowing the respondents counterclaim of RM200,000.00 with costs of RM50,000.00.

[5] We will be referring to parties in this judgment as they were in the High Court. This is the plaintiffs appeal.

The Facts

[6] The defendant is an actress. The plaintiff was her personal driver.

[7] On 29 February 2012, the plaintiff went to work as usual at the defendants house. The plaintiff was then asked by the defendant to count monies that she had just received. The defendant then handed to the plaintiff RM200,000.00 in cash and a cheque in the amount of RM120,000.00 to be banked in.

[8] Sometime later on the same day, the defendant tried to contact the plaintiff but was unsuccessful. At about 3.45pm, the defendant contacted Maybank Jalan Ampang Branch to enquire whether the monies she had handed over to the plaintiff had been banked in as instructed. The bank officer informed the defendant that there was no transaction made in respect to her bank account that day.

[9] The defendant, together with her sister and brother-in-law, went to the plaintiffs house to look for the plaintiff and was told by the plaintiffs mother that he was not at home.

[10] At about 6.30pm the same day, the defendant lodged a police report against the plaintiff at the Ampang Jaya police station. She stated the following in the police report:

"PADA 29 FEBRUARI 2012 JAM L/KURANG 1130HRS SAYA SEPERTI NAMA DAN ALAMAT DI ATAS NOORAZMAN BIN AZMI NO KP (7401214-14-6237) NO TEL (0193731974) PEMANDU PERIBADI SAYA TELAH MELARIKAN WANG TUNAI SEBANYAK RM200,000.00.

SAYA TELAH MENYERAHKAN WANG TERSEBUT KEPADANYA UNTUK BANK IN DALAM AKAUN SAYA."

[11] In essence, the defendant alleged in the report that the plaintiff had run off with the defendants money amounting to RM200,000.00. The plaintiff was referred to by his name in the police report. Clearly, the literal and ordinary meaning of the contents of the police report meant that the plaintiff is a criminal and untrustworthy. The words in the police report were plainly capable of being defamatory of the plaintiff.

[12] More important still, the following facts are irrefutable. After making the police report, the defendant was then approached by the reporters who were waiting for her outside the police station. The reporters had enquired the reason she went to the police station. The defendant informed them that she had lodged a police report against the plaintiff. She also repeated the contents of the report to the reporters. As we shall explain later, this is an important point that should be kept in mind.

[13] On 3 March 2012, Harian Metro published an article entitled "Zahidah Rafik Terkedu" (Z