Back
2023 MarsdenLR 35
COURT OF APPEAL PUTRAJAYA
MOHAMED APANDI ALI – Appellant
Versus
LIM KIT SIANG – Respondent
[Civil Appeal No: W-02 (W)-949-05-2022]
The court affirmed that statements made in the context of public interest can be protected under qualified privilege, provided they are not made with malice.
Headnote:(A) Defamation - Elements of defamation - The appellant must prove that the words are defamatory, refer to him, and were published to a third party - The court found that the words were not capable of bearing the defamatory meaning pleaded by the appellant. (Paras 2, 5)
(B) Justification - The defendant successfully proved his defense of justification as the lesser meaning was substantially true - The plaintiff's conduct as Attorney General contributed to the public perception of his involvement in the 1MDB scandal. (Paras 5, 36)
(C) Qualified Privilege - The defendant had a moral and social duty to inform the public about matters of national importance, and the defense of qualified privilege was upheld. (Paras 76, 90)
Facts of the case:
The appellant, a former Attorney General, sued the respondent, a politician, for defamation over remarks related to the 1MDB scandal published online. The court dismissed the claim on grounds that the statements were not defamatory in their context.
Findings of Court:
The court upheld the High Court's decision that the defendant's statements were justified and published under qualified privilege, affirming the dismissal of the appellant's claim.
Issues: The main issues were whether the statements were defamatory and whether the defenses of justification and qualified privilege applied.
Ratio Decidendi: The court ruled that the impugned words, when read in context, did not imply the appellant's involvement in criminality, and the defendant's publication was justified based on public interest.
Result: Appeal dismissed with costs.
| Table of Content |
|---|
| 1. elements of defamation claim. (Para 1 , 2 , 3) |
| 2. high court's grounds for dismissing claim. (Para 4 , 5) |
| 3. background of parties involved. (Para 8 , 9 , 10 , 12) |
| 4. plaintiff's contention and defendant's defenses. (Para 15 , 16 , 18 , 19) |
| 5. court's approach to determining defamatory meaning. (Para 20 , 21 , 22 , 28 , 31) |
| 6. justification as a complete defense in defamation. (Para 36 , 75 , 90) |
| 7. qualified privilege in defamation context. (Para 76 , 81) |
| 8. assessment of damages and court's final decision. (Para 100) |
Introduction
[1] The appellant (plaintiff) brought an action for defamation against the respondent (defendant) in relation to words written and published by the respondent in an online news portal known as "Malaysiakini."
[2] To succeed in his claim for defamation, the appellant had to prove three elements as follows:
(i) The words are defamatory;
(ii) It referred to him; and
(iii) It was published, that is, communicated, to a third party.
See: Mkini Dotcom Sdn Bhd & Ors v. Raub Autralian Gold Mining Sdn Bhd ; ; Ayob Saud v. TS Sambanthamurthi ; [1989] 1 CLJ (Rep) 321; Kian Lup Construction v. Hongkong Bank Malaysia Bhd ; ; .
[3] The respondent conceded that the words complained of refer to the appellant and that they were published to a third party. Thus, the second and third elements have been proven by the appellant. This leaves the court to decide on the first element, i.e, whether the impugned words was defamatory. The learned Judge held the words are defamatory. In this appeal, both parties have conceded that there is no challenge on this particular decision of the learned Judge and whether the words were defamatory is a non issue in this appeal.
[4] The test of whether the words complained of were defamatory of the appellant is whether the words published in their natural and ordinary meaning impute to the appellant any dishonourable or discreditable conduct or lack of integrity on his part? If the question invites an affirmative answer, then the words complained of are defamatory; see Chok Foo Choo v. The China Press Bhd ; ; [1999] 1 AMR 753 CA.
[5] After a full trial, the High court dismissed the appellant's claim with costs on four grounds as follows:
(i) The contents of the impugned words were not capable of bearing the defamatory meaning pleaded by the appellant and hence not defamatory of the appellant.
(ii) The contents of the impugned words were capable of bearing the lesser meaning pleaded by the respondent.
(iii) The respondent has successfully proven his defence of justification in that the lesser meaning were substantially true and justified.
(iv) The respondent has successfully proven his defence of qualified privilege in that he had a duty to make the impugned article to the public at large and the public had a right to receive the information given the 1MDB scandal is a case of public interest.
[6] Aggrieved by the decision of the High court, the appellant appealed to this court.
[7] In this judgment, we shall refer to the appellant as the plaintiff and the respondent as the defendant.
Background Facts
[8] The plaintiff is an advocate and solicitor of the High court of Malaya with over 45 years' experience in the legal field. In the said period, the plaintiff had been a Magistrate; the Director of Legal Aid Bereau Kota Bahru, Kelantan; Deputy Public Prosecutor; Legal Advisor to the Ministry of Commerce and Industry; Judicial Commissioner of the High court; High court Judge; Judge of court of Appeal of Malaysia; Judge of the Federal court of Malaysia and later appointed as the Attorney General of Malaysia. He held the position as Attorney General from 27 July 2015 until 4 June 2018.
[9] The defendant is a Member of Parliament for the Iskandar Puteri, Johor constituency. The defendant is a well known politician who holds the position of advisor to the Democratic Action Party (DAP), a major political party in Malaysia.
[10] The defendant agreed that on 6 May 2019, he had writ
