JUDGMENT

Abdul Hamid Mohamad JCA:

The Appeal

In the High Court the respondent had sued the appellant and two others for defamation. The court gave judgment for the respondent against the appellant and the other two defendants who did not appeal to this court. This judgment is in respect of the appeal by the appellant only.

The Cross-appeal

The respondent had also filed a notice of cross appeal against what he considered as inadequacy of the damages awarded. Both the appeal and the cross-appeal were scheduled to be heard together. The appellant who appeared in person (so was the respondent) raised a preliminary objection to the respondent's cross-appeal. We heard their respective arguments, upheld the preliminary objection and struck out the respondent's cross-appeal with costs. We then proceeded to hear the appellant's appeal. This judgment is only in respect of the appeal proper.

The Facts

Both the appellant and the respondent are advocates and solicitors. They are also politicians belonging to two opposing parties: the appellant belonging to opposition DAP and the respondent belonging to the M.I.C., a component of the ruling Barisan National. The appellant was at the material time a member of Parliament and the State Legislative Assembly while the respondent was the Deputy Speaker of the Dewan Rakyat (Parliament). It is not disputed that they had had their differences and clashes prior to the incident that leads to this action.

The respondent has sued the appellant in another matter. In that suit, the Supreme Court ruled in favour of the appellant and the respondent was ordered to pay the taxed costs of RM9,414.38 including the allocatur fees.

On 5 February 1996, the respondent's solicitors, Messrs. Murthi & Partners, faxed to the respondent the allocator together with a letter from the appellant. The letter says that since the respondent had not responded to the appellant's earlier notice of demand, the appellant was preparing execution proceedings and that the respondent "should face the consequences following therefrom." Being dissatisfied with the conduct of his solicitor, the respondent decided to take over the conduct of the matter. On 9 February 1996, the respondent telephoned the office of Karpal Singh & Co. and spoke to one Mr. Manoharan, the legal assistant. The respondent asked for time. When the respondent finally received the file from his solicitors, he was out of time to apply for further review and decided to settle the sum. He sent a notice of change of solicitors and a Bank Buruh (Malaysia) Berhad cheque for the said sum.

On 16 February 1996 the respondent received a phone call from the bank informing him that he had issued a cheque from an account that had been closed.

Subsequently, the respondent was informed by one Mr. Indran, an accountant of Karpal Singh & Co. that there was a problem with the cheque. On the same day the respondent made a replacement cheque from Bank of Commerce client's account for the same amount. The respondent also prepared a letter to Messrs. Karpal Singh & Co., for the attention of Mr. Indran. The letter, dated 16 February 1996 inter aliasays that the respondent regrets that the earlier cheque was issued from a wrong account due to clerical error. The letter also requested Mr. Indran to send his office boy to collect the replacement cheque immediately. Mr. Indran could not oblige the request and agreed to the respondent's proposal to send the cheque by post notwithstanding the fact that a long stretch of holidays was imminent. On the same day the respondent faxed the letter of 16 February 1996 to the appellant's firm.

The appellant left for holidays in India and returned on 26 February 1996. The respondent telephoned Mr. Indran who again could not send an office boy to collect the cheque. So, on 28 February 1996 the respondent posted the letter of 16 February 1996 together with the replacement cheque to the appelllant. The letter was received on 1 March 1996.

On 2 March 1996 the