The defense of fair comment applies in defamation cases when opinions are based on true facts and the commentator acts without malice.

Azahar Mohamed CJM:

Introduction

[1] The 1st appellant, Datuk Seri Dr Mohamad Salleh bin Ismail was the Chairman And Director of the 2nd appellant, National Feedlot Corporation Sdn Bhd. Both the appellants sued the respondent, Mohd Rafizi Ramli for damages for defamation. The respondent at all material times was the Director of Strategy of a political party. The appellants claimed that the respondent had defamed them at a press conference. The sting, as contended by the appellants, was the allegation by the respondent that public funds were used to purchase properties for the 1st appellant's own personal and family gain contrary to public interest.

[2] The High Court decided in favour of the appellants. The 1st appellant was awarded with the sum of RM150,000 as damages whereas a sum of RM50,000 was awarded to the 2nd appellant, as well as RM100,000 being the costs to be paid to the appellants.

[3] The respondent's appeal to the Court of Appeal was allowed and the High Court's decision was reversed. Hence, in the instant appeal, the main focus is on the defence of fair comment as raised by the respondent.

Background Facts

[4] Beginning from November 2007, the 2nd appellant entered into an Implementation Agreement and a Loan Facility Agreement with the Government of Malaysia ("the Government"). Under the Implementation Agreement, the 2nd appellant was appointed to implement the National Meat Policy 2006, in particular to develop, promote and nurture competency in the farming of beef and cattle for the production of beef and beef products through the National Feedlot Centre Project ("the Project"). The Project was intended to reduce the nation's dependency on imported meat. It was funded by the Government and the land for the project was also provided by the Government. Under the Loan Facility Agreement, the Government provided the 2nd appellant a loan facility of RM250 million to fund the Project. It is important to note that the terms of this agreement contained a covenant that the money disbursed was only to be used for the purpose of the Project.

[5] More significant still, out of the RM250 million, all but a sum of RM71 million was drawn down. That sum of RM71 million that was deposited in a fixed deposit account held by the 2nd appellant in Public Bank became embroiled in the defamation action filed by the appellants against the respondent.

[6] As events unfolded, the Project was subject to audit by the Auditor General. In November 2011, the Auditor General published its report on the status and progress of the Project, which brought to light a number of its failings. This 2011 report as described by the High Court "to be the touch-paper that ignited a conflagration of controversy".

[7] The dispute in this case arose when the respondent convened a press conference on 7 March 2012. So far as the evidence goes, at this press conference, he made a number of allegations against the appellants, the gist of which was that the sum of RM71 million that had been deposited with Public Bank was used as a leverage for personal loans that were used for the purchase eight (8) units of commercial offices in KL Eco City ("the Eight (8) units"), an office block under development in Kuala Lumpur.

[8] The basis of these allegations was founded on certain documents that the respondent claimed to have received anonymously. These documents, some of which, were appended to his press release in redacted form, were print-outs from the records of Public Bank, showing the appellants' customer profile, the companies related to the appellants and of directors of such companies, and the details of the Eight (8) units.

[9] Eventually, the appellants commenced the present action against the respondent. The appellants claimed that the press statements made by the respondent, ordinarily suggest the following imputations that:

(a) The appellants misused public funds for their own personal gain contrary to public interest, in particular the government loan given