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2023 MarsdenLR 100
COURT OF APPEAL PUTRAJAYA
ABDUL AZEEZ ABDUL RAHIM – Appellant
Versus
LIM GUAN ENG – Respondent
[Civil Appeal No: P-02(NCvC)(W)-1892-12/2020]
In defamation cases, a statement asserting guilt must be justified with sufficient evidence; mere allegations or calls for investigation do not suffice.
Headnote:(A) Defamation Act 1957 - The court addresses the complexities of defamation claims within the political sphere, emphasizing the need for accountability and the balance between political discourse and judicial integrity. (Paras 3, 4, 5)
(B) Justification - The court found that the Respondent's statements carried the highest Chase Level 1 imputation, indicating the Appellant's guilt in a serious act, yet the Respondent failed to prove this justification adequately. (Paras 23, 24, 41, 62)
(C) Fair Comment and Qualified Privilege - The court determined that the Respondent did not meet the necessary criteria for these defenses, citing malice and a lack of verification. (Paras 51, 59, 61)
Facts of the case:
The Appellant, a former MP, claimed defamation against the Respondent, who publicly accused him of corruption related to the Penang Undersea Tunnel Project shortly after a Notice of Demand was issued against the Appellant. (Paras 1, 12, 18)
Findings of Court:
The court concluded that while the Respondent's statements were defamatory, he did not successfully establish a defense of justification, fair comment, or qualified privilege. (Paras 62, 63)
Issues: The key issues included the appropriate Chase Level imputation of the Respondent's statements, the sufficiency of the defense of justification, and the applicability of fair comment and qualified privilege. (Paras 29, 41, 51)
Ratio Decidendi: The court ruled that the Respondent's statements constituted a clear assertion of guilt rather than a call for investigation, and the Respondent's failure to substantiate his claims negated his defenses. (Paras 41, 62)
Result: The appeal was allowed, and the Respondent was ordered to pay RM250,000 in damages and RM70,000 in costs.
| Table of Content |
|---|
| 1. political statements and defamation (Para 1 , 2 , 3 , 4 , 5) |
| 2. factual background of the defamation claim (Para 6 , 7 , 8 , 9 , 10 , 11 , 12 , 13 , 14 , 15 , 16 , 17 , 18 , 19 , 20 , 21 , 22) |
| 3. high court's findings on defamation (Para 23 , 24 , 25 , 26 , 27 , 28) |
| 4. issues raised in the appeal (Para 29 , 30 , 31 , 32) |
| 5. chase levels of imputation in defamation (Para 33 , 34 , 35 , 36 , 37 , 38 , 39 , 40) |
| 6. defence of justification and its requirements (Para 41 , 42 , 43 , 44 , 45 , 46 , 47 , 48 , 49 , 50) |
| 7. defence of fair comment and its application (Para 51 , 52 , 53 , 54 , 55 , 56) |
| 8. qualified privilege and responsible journalism (Para 57 , 58 , 59 , 60) |
| 9. final decision on the appeal (Para 62 , 63) |
| 10. damages and costs awarded (Para 64) |
A. Introduction
[1] The Appeal before us concerns a claim for defamation by Abdul Azeez Abdul Rahim ("the Appellant") against the alleged defamatory statements published by Lim Guan Eng ("the Respondent") regarding the oft-debated Penang Undersea Tunnel Project ("the PUTP / the Project").
[2] We are most aware that the PUTP even to date remains a live issue within the political sphere and also the Criminal Courts considering the prosecutions involving known political personas which are still presently ongoing. Much has been said by many political figures from many political fronts regarding the PUTP and the alleged scandals and corruption that shrouded the Project.
[3] As a general rule, the Courts ought not to interfere with statements published within the political realm as political debate and discourse are also an integral system of check and balance to ensure that the executive remains responsible and accountable in its exercise of power.
[4] On the same note, neither should the executive interfere with the judicial system as a means of advancing their campaign, agenda, or propaganda. Nonetheless, the Courts also remain as an invaluable means of check and balance to unravel malfeasance, malpractices, and corruption as and when there is a genuine call for such judicious revelation. This is the difficult dilemma and nuance when political statements are put before the Courts for a claim for defamation. Especially so considering our nation's democratic voting system largely tilts on public image at large and is indeed malleable to ad hominem propaganda which would make any political facet to appear to be unsavoury or unfavourable in the public's eyes. Thus, the Court's task in such cases alike the present Appeal is indeed a heavy one.
[5] The Court must identify whether the alleged defamatory statements were a genuine cry for integrity and accountability, or instead a mere ploy to tarnish the image and subdue the political influence of a rival faction. Notwithstanding, as much as possible, the Court ought not to descend from the Bench to be assimilated or absorbed into the executive's theatre of politics.
B. Background Facts
[6] For better understanding of the matter at hand, it is only apt for us to lay down the essential facts of the case which had led the Appellant to file the present case.
[7] The Appellant was a former Baling Member of Parliament, who was also at the time, the Chairman of the Board of Tabung Malaysia, and a United Malays National Organization ("UMNO") Supreme Council Member.
[8] The Respondent on the other hand was the Chief Minister of Penang and was also the 4th Secretary General of the Democratic Action Party ("DAP").
[9] The events which form the basis of the Appellant's claim against the Respondent unfolded during the months before the 2018 General Election, which was then held on 9 May 2018.
[10] Consortium Zenith Construction Sdn Bhd ("Zenith") was the PUTP's appointed Main Contractor. The present Appeal's saga began with issuance of Zenith's Notice of Demand to one, Abdul Jabarullah Kadersah ("Jabarullah / the alleged proxy") as well as the Appellant on 23 February 2018 ("the NOD").
[11] The NOD essentially claims for the return of an all
