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2026 MarsdenLR 112539
IN THE HIGH COURT OF MALAYA AT JOHOR BAHRU
NORADURA BINTI HAMZAH, JC
MUHAMAD FAIZ BIN IBRAHIM – Appellant
Versus
PENGURUS BESAR PERTUBUHAN PELADANG KAWASAN KOTA TINGGI TIMUR – Respondent
WRIT OF SUMMONS NO. : JA-21NCvC-6-08/2024
Counsel for the Plaintiff : Asiah Bt Abd Jali
: Messrs. Asiah Abd Jalil Law Chambers
Counsel for the First and : Mohd Khairul Azam Bin Abdul Aziz
Second Defendants : Messrs. Azam Aziz & Co.
A plaintiff in defamation must prove publication to a third party. Communication within a statutory reporting chain attracts qualified privilege, which requires the plaintiff to prove malice to defeat it. Haste or untidiness does not establish malice.
Headnote:(A) Defamation Act 1957 (Act 286) - Sections 8 and 3 - Rules of Court 2012 - Order 18 rule 12(1) and Order 78 rule 3 - Rules of Court 2012 - Order 14A - Evidence Act 1950 (Act 56) - Section 114(g) - Specific Relief Act 1950 (Act 137) - Section 41 - Akta Pertubuhan Peladang 1973 (Act 109) - Sections 19 and 24A - Akta Lembaga Pertubuhan Peladang 1973 (Act 110) - Injured reputation - Quantum of compensation.
(B) Defamation - Elements - Plaintiff must prove three essential elements: (1) the words are defamatory, (2) the words refer to the plaintiff, and (3) the words were published - Burden of proof lies on plaintiff - Only upon the plaintiff establishing all three does the burden shift to the defendant to make out a pleaded defence - Ayob Saud v. T.S. Sambanthamurthi [1989] 1 CLJ Rep 321 and Chong Swee Huat & Anor v Lim Shian Ghee (t/a L & G Consultants & Education Services [2009] 3 MLJ 665 cited - Publication requires making known of defamatory matter to a third party; uttering to the party libelled is no publication - S Pakianathan v Jenni Ibrahim [1988] 2 MLJ 173 cited - (Paras 70-72)
(C) Defamation - Defamatory meaning - Test - Whether words impute dishonourable or discreditable conduct or motives, or a lack of integrity - First task: whether words are capable of bearing defamatory meaning (question of law); second: whether they are in fact defamatory (question of fact) - Chok Foo Choo @ Chok Kee Lian v The China Press Bhd [1999] 1 MLJ 371 cited! - Words which report the conclusion of an investigation, as opposed to words which require an investigation, may be capable of a defamatory meaning - Sharifuddin Mohamed & Anor v. Dato’ Annas Khatib Jaafar & Another Appeal [2016] 3 CLJ 574 distinguished - (Paras 73, 79-83)
(D) Defamation - Publication - Communication within a reporting chain to persons who have a corresponding duty or interest to receive it may constitute publication, but such occasions attract privilege - Staff of the sender or recipient are not considered third parties for the purposes of publication where they form a necessary part of the organisation handling the communication - Subramaniam a/l Paramasivam v Courts Mammoth Bhd & Anor [2010] 9 MLJ 363 cited - (Paras 95, 99-100) (E) Defamation - Privilege - Absolute privilege - Complaints made to bodies statutorily empowered to investigate alleged wrongdoing and take action upon it, such as the SPRM, attract absolute privilege, which is not displaced by proof of malice - Lee Yoke Yam v Chin Keat Seng [2013] 1 MLJ 145 and Dato’ Dr Low Bin Tick v Datuk Chong Tho Chin and other appeals [2017] 5 MLJ 413 cited - Nor Aziz bin Mat Isa v Sun Teoh Tia (SAC) (Pengerusi Lembaga Tatatertib Polis Diraja Malaysia Bukit Aman) & Ors [2021] 2 MLJ 142 distinguished - (Paras 102-105) (F) Defamation - Privilege - Qualified privilege - Occasion where person who makes communication has an interest or duty to make it, and person to whom it is made has a corresponding interest or duty to receive it - Burden of proving malice to defeat privilege lies on plaintiff - Adam v Ward [1917] AC 309 cited! - Malice means use of a privileged occasion for a purpose other than that for which it exists, or making a statement without honest belief in its truth - Horrocks v Lowe [1974] 1 All ER 662 cited! - Malice is not established by showing investigation was hasty or untidy; it requires evidence of ill will or absence of honest belief - Abdul Aziz Jelani & Anor v. Peter Chua Swee Lai [2000] 2 CLJ 402 distinguished - (Paras 106-125) (G) Defamation - Justification - Defendant seeking to justify defamatory imputation must state clearly the meaning sought to be justified and give particulars - Failure to plead and particularise justification is fatal - Order 78 rule 3(2) of the Rules of Court 2012 and Lucas-Box v Associated Newspapers Group Plc & Ors [1986] 1 All ER 177 cited - (Paras 126-127) (H) Defamation - Damages - Libel is actionable per se, and law presumes damage where reputation is assailed - Plaintiff need not call witnesses to say they heard the words and thought the less of him - But the principle addresses the effect of publication, not its existence - MGG Pillai v. Tan Sri Dato’ Vincent Tan Chee Yioun & Other Appeals [1995] 2 CLJ 912 cited - (Paras 94, 144) (I) Declaratory Relief - Court may decline to grant a declaration where the same question is pending before another court of competent jurisdiction - Discretion to refuse declaration to pre-empt a pending criminal charge - Government of Malaysia v Lim Kit Siang; United Engineers (M) Bhd v Lim Kit Siang [1988] 2 MLJ 12 cited - Tan Sri Haji Othman Saat v Mohamed bin Ismail [1982] 2 MLJ 177 cited - (Paras 134-140)
Facts of the case:
The plaintiff, a public officer, sued his former and present superiors for defamation concerning an allegation of misappropriation made against him in the course of an internal statutory investigation. The allegation was that the plaintiff had abused his power and position and committed a breach of trust, causing a loss to the organisation. The plaintiff claimed the accusation was baseless and malicious and that it damaged his reputation. He sought a declaration that he never committed the alleged misconduct, damages of RM1,000,000, and other relief. The defendants denied liability, arguing failure to prove publication, that the words were not defamatory, that the civil court was not the proper forum, and alternatively relying on justification and privilege.
Findings of Court:
The court found that the words complained of referred to the plaintiff and were capable of bearing a defamatory meaning as they were conclusions of an investigation imputing dishonesty, not mere requests for investigation. The plaintiff failed to prove any general publication to a third party, and the claim failed on that ground. In the alternative, the court found that such publication as occurred was confined to the statutory reporting chain upon occasions of qualified privilege, which the plaintiff had not displaced by proof of malice. The referral to the SPRM was also protected by absolute privilege. The defence of justification would not have been made out due to failure to plead and prove it. The court declined to grant the declaration sought as the same question was pending before the Sessions Court. The court made no finding that the plaintiff committed the alleged conduct and stated his entitlement to a fair trial was unaffected.
Issues: The main issues were whether the words were defamatory, whether they were published to a third party, whether publication was protected by privilege, whether the privilege was defeated by malice, and whether the plaintiff was entitled to the declaration sought.
Ratio Decidendi: The court ruled that a plaintiff in defamation must prove publication to a third party. Communication within a reporting chain to persons with a corresponding duty or interest is publication but attracts qualified privilege. Malice, meaning absence of honest belief or use of the occasion for an improper purpose, must be proved by the plaintiff to defeat privilege, and is not established by showing the investigation was hasty or untidy. A court may decline a declaratory judgment where the same question is pending before a criminal court. Result : Plaintiff's claim dismissed with costs of RM80,000.00. Parties: The plaintiff was a public officer. The defendants were the first defendant (Pengurus Besar of a local body) and the second defendant (Pengarah of a state-level statutory body). The action against the third defendant (a Ministry) was withdrawn. Dissenting Opinions provided: none Alternative Viewpoints: The opinion of the plaintiff in his submissions is mentioned, but it is not a dissenting opinion. The plaintiff argued that absolute privilege does not protect a complaint containing untrue information, but the court distinguished the authority cited and found it not to support that proposition. (Para 104)
GROUNDS OF JUDGMENT
INTRODUCTION
1. This is a civil action in defamation. The plaintiff, a public officer serving with the Lembaga Pertubuhan Peladang ("the LPP"), sues his former and present superior officers in respect of an allegation of misappropriation made against him in the course of an internal statutory investigation.
2. At the commencement of the trial counsel for the plaintiff informed the court that the action against the third defendant, the Kementerian Pertanian dan Keterjaminan Makanan Malaysia, was withdrawn. The action accordingly proceeded against the first and second defendants only, to whom I refer collectively as "the defendants".
BACKGROUNDS
3. The plaintiff is a Malaysian citizen. He holds a diploma in agriculture from the Institut Pertanian Malaysia obtained in 2009 and has served as a public officer with the LPP since 2011. His substantive post throughout the material period was Penolong Pegawai Ehwal Ekonomi, Gred E29. Until December 2022 he served at the Pertubuhan Peladang Kawasan ("PPK") Kota Tinggi Timur as Pengurus Bahagian Ladang (Sawit). He is presently attached to the Cawangan Kejuruteraan of the Lembaga Pertubuhan Peladang Negeri Johor.
4. The first defendant is the Pengurus Besar of PPK Kota Tinggi Timur, a body registered under the Akta Pertubuhan Peladang 1973 [Act 109]. At the material time the office was held by Puan Noor Shafaatul Ain binti Zainal Abidin.
5. The second defendant is the Pengarah of the Lembaga Pertubuhan Peladang Negeri Johor, a statutory body established under the Akta Lembaga Pertubuhan Peladang 1973 [Act 110]. At the material time the office was held by Dato’ Sawalludin bin Ahmad.
6. Both defendants are sued in their official capacity as officeholders and not as named individuals. Neither officeholder gave evidence and neither was called by either party. The plaintiff confirmed in cross-examination, by reference to the senarai saksi, that none of the three witnesses listed for the defendants was the holder of either office and that of the three he knew only the second, DW2.
7. The defence was conducted throughout by the LPP at Kuala Lumpur. I return below to the significance of this.
8. The following narrative is drawn from the agreed facts in Enclosure 37, the agreed bundles of documents in Enclosures 39 and 40 and such of the evidence as was not in dispute.
9. On 28 November 2022 the plaintiff received a transfer directive, Arahan Pertukaran LPP Johor Bilangan 21 Tahun 2022, transferring him from PPK Kota Tinggi Timur to the Lembaga Pertubuhan Peladang Negeri Johor at Johor Bahru with effect from 1 December 2022. The plaintiff confirmed in cross-examination that the directive at page 2 was signed by the second defendant. The directive states no reason. His evidence, which I accept, is that he received it not physically but by WhatsApp, and that he was given very little time in which to relocate.
10. It emerged in the evidence of DW2 that the application for approval of the transfer was made by her by letter dated 29 November 2022 addressed to the Pengarah LPP Negeri Johor, the letter recording that the transfer had been sought by PPK Kota Tinggi Timur so that the internal investigation could be carried out at that office.
11. On 29 May 2023 the plaintiff received a notice to produce documents from the investigating officer appointed under sections 19 and 24A of Act 109, requiring production on or before 31 May 2023 of three documents. The first was the “perjanjian pajakan tanah kebun sawit”. The second was the “dokumen bayaran” in respect of those leases. The third was the “salinan geran tanah pajakan”. The plaintiff did not produce the documents within the period stipulated. His evidence is that the period allowed was two days and that the documents were in the hands of third parties from whom they had to be obtained.
12. On 12 June 2023 the plaintiff received a notice to attend examination and he attended on 13 June 2023.
13. On 11 September 2023 the plaintiff received the docum
