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2022 MarsdenLR 3052
HIGH COURT MALAYA SHAH ALAM
MOHAMED APANDI ALI – Appellant
Versus
LIM KIT SIANG – Respondent
[Civil Suit No: WA-23CY-37-07-2019]
Defamatory statements calling for explanations in a public interest context may not be actionable if justified and contextualized appropriately.
Headnote:(A) Federal Constitution - Article 145(2) - Criminal Procedure Code - Section 376(1) - Tortious defamation claim against the defendant for allegedly defamatory statements published regarding the plaintiff's actions during the 1MDB scandal - Court clarified the scope and elements of actionable defamation, emphasizing the importance of context and interpretation by the ordinary person (Paras 17, 28, 30).
(B)
Defamation Law - The court reiterated that not all defamatory statements are actionable, establishing distinctions between levels of defamation and defenses such as justification and fair comment (Paras 20, 37, 146).
(C)
Findings of Court:
The court concluded that the defendant’s statements calling for explanations from the plaintiff regarding his actions were not actionable as defamation but justified given the public's interest in the 1MDB scandal (Paras 141, 142).
(D)
Result:
Plaintiff's claim dismissed, with costs ordered in favor of the defendant (Paras 162, 163).
JUDGMENT
A. Introduction
[1] The present case before this Court is a claim for tortious defamation involving two prominent individuals wherein the plaintiff is claiming for inter alia RM10 million in general damages against the defendant for the publication of an article authored by the defendant which the plaintiff alleged was defamatory and had tarnished his reputation.
[2] The plaintiff is Mohamed Apandi Ali who once held one of the most important positions in the public service as the Attorney General of Malaysia ("the Malaysian AG/the AG"). The plaintiff's tenure as the Malaysian AG reigned from 2015 to 2018 which coincided with the reign of the ex-Prime Minister Najib Razak.
[3] At this juncture, it is pertinent to observe that art 145(2) of the Federal Constitution explicitly prescribed that the AG shall have the power, exercisable at his discretion, to institute, conduct or discontinue any proceedings for an offence, other than proceedings before a Syariah Court, a native Court or a Court-martial. In addition, s 376(1) of the Criminal Procedure Code ("the Code") has vividly spelt out that the AG shall be the Public Prosecutor of Malaysia who shall have the control and direction of all criminal prosecutions and the proceedings instituted and governed under the Code.
[4] It must be mentioned here that the plaintiff also previously served as a member of the Malaysian Judiciary serving as a Judge of the Federal Court, the Court of Appeal, the High Court, and as a Judicial Commissioner of the High Court, prior to his appointment as the Attorney General on 27 July 2015.
[5] Whilst the defendant, Lim Kit Siang undeniably is a notable senior and veteran politician under the umbrella of the political party, namely, the Democratic Action Party (DAP). The defendant is a member of Parliament for the constituency of Iskandar Puteri having a public service centre at No 15-01, Jalan Prima Niaga 1, Taman GP Prima, 81550 Geiang Patah, Johor DT and/ or at address C/O DAP@ Jalan Yew off Jalan Pudu, 55100 Kuala Lumpur.
[6] This Court wishes to emphasise that the plaintiff's claim for damages in the present defamation suit against the defendant is by large related to the globally infamous 1MDB (inclusive of the SRC) scandal which is still plaguing the nation to this very day.
[7] Indeed, so much has been uttered, commented, and lamented on what history can only regard as 'the greatest and vile corruption and thievery of the modern times'.
[8] Succinctly so, the plaintiff during his AG's tenure (during the reign of the ex-Prime Minister Najib Razak) and at the height of the scrutiny and revelations of the 1MDB scandal now takes issue against the defendant's published words and statements regarding the plaintiff's alleged actions (and inactions) in dealing with the investigations and prosecution of the 1MDB scandal during his tenure as the Attorney General.
[9] Articulating his thoughts regarding the numerous prosecutions (now, even criminal conviction) of known individuals embroiled in the 1MDB scandal, the defendant lamented and published an article entitled "Dangerous Fallacy to Think Malaysia's on the Road to Integrity" dated 6 May 2019 in the defendant's own blog (which later was republished by MalaysiaKini in its own website) ("the Impugned Article"). The Impugned Article, inter alia, contains the following excerpts:
"... I must thank Pandikar for finally identifying his role in the 1MDB scandal in his continuing attempt to whitewash the 1MDB scandal, belonging to the group referred to by the prime minister in Ipoh, who felt the Pakatan Harapan government should not continue but that the country should go back to the corrupt government of the past which made Malaysia a kleptocracy.
Pandikar has turned the Sandakan by-election into a touchstone about Malaysia's commitment to get to the bottom of the heinous 1MDB scandal and to transform Malaysia from a global kleptocracy to a leading nation in integrity or to go back to the old corrup
