Suriyadi Halim Omar, JCA

JUDGMENT

It was pleaded that the plaintiff (hereinafter referred to as the respondent), had been slandered by the defendants (appellants) at the school premises on 5.1.1998, sometime at about 8.20 a.m. There the respondent had seen the arrival of a police car. Two police officers thereafter alighted and the two appellants approached them. The respondent saw the first appellant talking to one of the police officers and she thereafter pointed at his direction. That officer i.e. Zambri (PW3) approached him and requested for his identity card. The respondent demanded to know the reason and Zambri said that the first appellant had reported of four men wanting to kidnap their child. He further added that the first appellant had said that he and his brother had tried to kidnap her child. The pleaded words were, “Perempuan itu telah membuat aduan bahawa adik encik Dato’ Abdullah Hishan b. Mohd Hashim dan encik disyaki cuba menculik anaknya”. This statement in its natural meaning and normal parlance meant, inter alia that the respondent was involved in the commission of a crime of kidnapping with his brother, he could be imprisoned, he was a cruel man and a danger to society apart from being immoral. As a result of the conduct of both the appellants Zambri was convinced that the respondent was a suspect in a kidnap attempt. He also added that the first appellant had asked him to arrest the respondent. The respondent was shocked and ashamed of the explanation what with parents of the other school children being around.

From a procedural point of view, the first hurdle of O. 78 r.3 of the Rules of the High Court 1980 had been overcome, when the respondent had meticulously particularised the facts and matter on which he relied upon complained of as being slanderous.

I now briefly touch on the law of defamation in relation to slander. There is only one tort of defamation, though in reality the law of defamation consists of two separate civil actions, one being the action in libel and the other slander (The Law of Defamation in Singapore and Malaysia by Keith R Evans; Principles of the Law of Tort in Malaysia by Wan Azlan Ahmad and Mohsin Hingun). We are only concerned with the latter action in this appeal. Slander consists of spoken words, gestures or inarticulate but significant sounds, with emphasis more on the hearing, and hence not in a more permanent form as compared to libel. In a nutshell it is transient in nature. Slander is actionable on proof of special damage which in layman’s term means actual damage that is capable of being estimated in money. Slanderous words, irrespective, will be actionable per se in four instances, with the relevant one for purposes of this case, being if the words impute the commission of a crime for which the plaintiff may be punished corporally as opposed to a mere fine (C. Sivanathan v Abdullah bin Dato Haji Abdul Rahman Luk Kai Lum v Sim Ai Leng

To succeed in an action of slander, as in libel, a plaintiff has to prove that the matter complained of, which emanated from the defendant is defamatory, refers to him (an issue of identification) and was transmitted to a third person (publication). The burden of establishing those ingredients at the outset rests on the plaintiff. Thereafter, if the plaintiff has succeeded in establishing the three ingredients, certain presumptions in favour of the latter then follows, namely that the matter complained of is true, and that in actions of slander where it is actionable per se, damage was caused to the plaintiff. The defendant in defence must rebut and establish that the remarks made were true and that the plaintiff has suffered no damage.

Despite the available evidence that:

(i)the first appellant had been identified by Zambri (PW3) as having made the remark of the respondent and his brother wanting to kidnap her child;

(ii) for the benefit of Zambri to identify the respondent the first appellant had pointed at his direction;

(iii)the first appe