RK Nathan J:

The 1st plaintiff was and is a public listed company and at all material times wholly owned by the 2nd plaintiff which was a licensed stock broking company. The defendant was at all material times a very senior member of the Malaysian Bar. The defendant was also appointed by the United Nations as the Special Rapporteur on the Independence of Judges and Lawyers of the United Nations Commission on Human Rights.

Terms Of Reference

At its 15th session, the Commission on Human Rights in resolution 1994/ 41, noting both the increasing frequency of attacks on the independence of judges, lawyers and court officials and the link which exists between the weakening of safeguards for the judiciary and lawyers and the gravity and frequency of violations of human rights, requested the chairman of the commission to appoint, for a period of three years, a special rapporteur whose mandate would consist of the following tasks:

(a) To inquire into any substantial allegations transmitted to him or her and report his or her conclusions thereon;

(b) To identify and record not only attacks on the independence of the judiciary, lawyers and court officials but also progress achieved in protecting and enhancing their independence, and make concrete recommendations including the provision of advisory services or technical assistance when they were requested by the State concerned;

(c) To study, for the purpose of making proposals, important and topical questions of principle with a view to protecting and enhancing the independence of the judiciary and lawyers.

The Alleged Defamatory Statement

Between about September and November 1995, the defendant spoke and thereby published to one David Samuels, a staff writer of the International Commercial Litigation magazine (the magazine) and/or other representatives of the magazine, of and concerning the plaintiffs, and of and concerning them in the way of their said business and in relation to their conduct therein the following words alleged to be defamatory in the circumstances, set out below:

In answer to questions from the said representatives about the cases in which Dato' V.K. Lingam represented Insas Berhad and Megapolitan Nominees Sdn Berhad against the Ayer Molek Rubber Company Berhad, Malaysia Borneo Finance Holdings (MBfH) and its subsidiaries against the East Asiatic Company (EAC), Tan Sri Dato' Vincent Tan Chee Yioun against the publishers of the Malaysian Industry and others and Berjaya Industrial Berhad and Berjaya Corporation (Cayman) Berhad against CS First Boston; and about the alleged abuse of judicial procedures and/or about the alleged corruption of the Judiciary by Dato' V.K. Lingam and his clients in those cases the defendant said:

It would be unfair to name any names, but there is some concern about all this among foreign businessmen based in Malaysia, particularly among those who have litigation pending.

I do not think that Malaysia would be able to repeat the result when its system of justice was ranked at the beginning of 1995 by the World Economic Forum in the top 25 systems in the world on the basis of replies by major companies in Malaysia, when asked what level of confidence they had in the justice system in the country in which they were located.

Complaints are rife that certain highly placed personalities in the business and corporate sectors are able to manipulate the Malaysian system of justice.

But I do not want any of the people involved to think I have yet made up my mind.

Although these complaints only really came to prominence because of the judge-choosing allegations in the Ayer Molek affair, people first started to question the integrity of the judiciary after the M$10 million ($4 million) libel award which Vincent Tan received on October 22 last year.

The Plaintiffs' Case

It was the plaintiffs' case that the said words in their natural and ordinary meaning in the context in which they were spoken meant and were understood to mean that the plaintif