Inclusion of documents in Part A does not entail admission of their truth in defamation cases, preserving the right to challenge such claims.

Introduction

[1] This appeal concerns an important but often taken for granted question of law: What is the evidential status of documents placed in Part A of the Bundle of Documents ("the BOD") which the parties rely on or refer to in the course of the trial? This bundle is commonly known as the "Bundle of Agreed Documents".

[2] After a full trial of the action in the High Court, the learned Judicial Commissioner ("JC") found the defendant liable and awarded a global sum of RM5 million in general, exemplary and punitive damages to the plaintiff. The instant appeal by the defendant is against both liability and quantum.

[3] We heard arguments on 30 June 2016 and reserved judgment to a date to be fixed. Having deliberated on the matter, we have reached a split decision. Our learned brother, Justice Hamid Sultan Abu Backer JCA would allow this appeal and has written a dissenting judgment whereas my learned brother Justice Prasad Sandosham Abraham JCA and I would dismiss the appeal on liability. This then is our majority decision, which we now deliver.

The Salient Facts

[4] For convenience, we shall refer to the parties as they were in the Court below, namely the appellant as the defendant and the respondent as the plaintiff. The facts insofar as they are relevant to issue are these. The plaintiff is a company involved in the development of a piece of commercial property known as Amcorp Trade Centre for sale, rental and investment. The defendant was at the material time the Chairman of the Amcorp Trade Centre Owners & Tenants Association.

[5] The plaintiff sued the defendant for defamation. The statements alleged to be defamatory of the plaintiff were contained in three documents in the form of letters which both parties agreed, were to be included in Part A of the BOD. The statements contained allegations that the plaintiff mismanaged the Amcorp Trade Centre, embezzled the funds, conducting the Annual General Meeting unfairly, abuse of power, oppressive management, cheating, dishonest conduct, and collecting unlawful profit.

[6] The three documents were subsequently admitted and marked as evidence without any reservation by both the plaintiff and the defendant. The defence raised by the defendant was two pronged, ie justification and qualified privilege. It is what we can perhaps describe as a defence of admission and avoidance - admitting that the statements were defamatory of the plaintiff but avoiding liability by saying that the statements were true and protected by privilege and therefore not actionable in defamation.

[7] Before the trial started, the defendant raised the point that since the defamatory statements were included in Part A of the BOD, the plaintiff was deemed to have agreed to the truth of the statements and as such had no right to cross-examination on the contents of the documents. The truth would be that the plaintiff had mismanaged the Amcorp Trade Centre, embezzled the funds, conducting the Annual General Meeting unfairly, abuse of power, oppressive management, cheating, dishonest conduct, and collecting unlawful profit.

[8] If we were to accede to the defendant's argument, it would mean that he had established his defence of justification without having to utter a word because clearly, the truth of these allegations would provide a complete defence to the claim: Dato' Seri Mohammad Nizar Jamaluddin v. Sistem Televisyen Malaysia Bhd & Anor, [2014] 3 CLJ 560. See also S Ashok Kandiah & Anor v. Dato' Yalumallai Muthusamy & Anor; [2011] 1 CLJ 460 where this Court held that no action lies in regard to a statement which injures the reputation of another if the statement is true.

[9] On the right to challenge the contents of the doc