LEE KUAN YEW V SEOW KEE LENG ( 1989 ) 1 MLJ 172

1) FACTS

a) The plaintiff was at all material times the Prime Minister of Singapore. The
defendant was at the material time a businessman and the secretary general
of the Singapore United Front (‘SUF’), a registered political party, and in the
1984 general elections was a candidate of his party. Polling day was 22
December 1984.

b) The plaintiff alleged that on 15 December 1984, at a political rally, the

defendant had falsely and maliciously spoken and published of and
concerning the plaintiff in the way of his office and in relation to his conduct
therein certain defamatory words. The plaintiffs solicitors delivered a letter to
the defendant on 19 December 1984 asking him to publish at his expense an
apology in terms of the draft enclosed with the letter.

c) The plaintiff’s terms included terms that the apology be published

immediately and with appropriate prominence in several national newspapers,
and be read by the defendant at the next SUF rally following delivery of the
letter, and further that the defendant do give his assurance and undertaking in
writing that he will not repeat the same or similar statements concerning the
plaintiff.

d) The plaintiff also sought an indemnity from the defendant for his costs, then
estimated at $500, and nominal damages of $1,000. The plaintiff issued a
writ against the defendant on 21 December 1984 claiming, inter alia,
damages for slander.

e) In his defence, the defendant admitted that his statements were defamatory of
the plaintiff. He pleaded that he accepted on 21 December 1984 the plaintiffs
terms as set out in his solicitors’ letter and that he proceeded with reasonable
diligence to comply with all the terms of the plaintiff but that before the
defendant could fully comply with all the terms, the plaintiff refused to
accept the defendant’s further compliance.

f) The defendant therefore pleaded the defence of accord and satisfaction. At

the trial, which commenced on 16 May 1988, the defendant withdrew the
defence of accord and satisfaction and his counsel read out a statement in
court withdrawing the defamatory statements and offering to publish an
apology and withdrawal in all the major newspapers.

g) Liability was admitted and, on the question of damages, the plaintiff claimed
aggravated damages while the defendant submitted that only nominal
damages be awarded.
2) HELD

a) Awarding aggravated damages to P.

b) In assessing damages for defamation, the court is entitled to take into

consideration the conduct of the plaintiff, his position and standing, the
nature of the defamatory statements, the mode and extent of publication, the
absence or refusal of any retraction or apology and the whole conduct of the
defendant before and during the action. The conduct of the defendant, his
conduct of the case and his state of mind are all matters which can be relied
on as aggravating the damage.

c) D’s purported apology in response to P’s letter was neither unreserved nor
sincere. In his ‘apology’ he repeated the defamatory statements and qualified
his apology. He admitted at the trial that he criticized P in the course of the
apology and implied that the statements he made were legitimate comments
and not defamatory. D had also conducted his defence vexatiously by making
unmeritorious applications to strike out the writ and initiating several
interlocutory appeals. He also persisted in a frivolous defence of accord and
satisfaction until the trial

d) D’s slanders were of a particularly vicious nature. In their literal meaning, the
words spoken by D meant that P had deliberately allowed a member of
Parliament to escape from Singapore after embezzling union funds, had
assisted or connived at or condoned PAP members corruptly enriching
themselves and would reject any attempt by members of the public to have
the conduct of MPs or ministers investigated. Allegations of corrupt and
criminal conduct are very grave charges, especially if they are made against
the Prime Minister of a country. D had no belief in the truth of his slanders
when he published them.

e) In the circumstances, the learned judge awarded damages of

S[dollar]250,000.
 HULTON & CO V JONES (1910 ) AC 20

1) FACTS

a) E. Hulton & Co. (D) printed an article written by its Paris correspondent that
accused a man called Artemus Jones of being an adulterer.

b) The article named the man and indicated that he was a church warden at
Peckham. Jones (P) was a lawyer named Thomas Artemus Jones of North
Wales. P was not a church warden and not did he reside in Peckham.

c) P was however employed by D and had submitted articles to the paper on

numerous occasions. At trial, P produced witnesses who had said they read
the article and found it to refer to P.

d) The trial judge charged the jury with not what the writer had intended but
how the statement would be understood. P got a verdict for 1,750 pounds. D
appealed. The House of Lords affirmed.

2) HELD

a) In the publication of matter of a libellous character, that is matter which

would be libellous if applying to an actual person, the responsibility is as
follows.

b) In the first place there is responsibility for the words used being taken to
signify that which readers would reasonably understand by them; in the
second place there is responsibility also for the names used being taken to
signify those whom the readers would reasonably understand by those names;
and in the third place the same principle is applicable to persons unnamed but
sufficiently indicated by designation or description.

c) My Lords, I demur to the observation so frequently made in the argument

that these principles are novel. Sufficient expression is given to the same
principles by Abbott C.J. in Bourke v Warren (cited in the proceedings), in
which that learned judge says: "The question for your consideration is
whether you think the libel designates the plaintiff in such a way as to let
those who knew him understand that he was the person meant.
d) It is not necessary that all the world should understand the libel; it is
sufficient if those who know the plaintiff can make out that he is the person
meant." I think it is out of the question to suggest that that means "meant in
the mind of the writer" or of the publisher; it must mean "meant by the words
employed."

e) The late Lord Chief Justice Coleridge dealt similarly with the point in Gibson
v Evans, when in the course of the argument he remarked: "It does not
signify what the writer meant; the question is whether the alleged libel was
so published by the defendant that the world would apply it to the plaintiff"

f) Order of the Court of Appeal affirmed and appeal dismissed with costs.
 CASSIDY V DAILY MIRROR NEWSPAPER ( 1929 ) 2 KB 331

1) FACTS

a) The claimant was known as the lawfully wedded wife of a famous race-horse
owner and former General of the Mexican Army.

b) The claimant and her husband lived separately but he often visited her at her
workplace. The defendant newspaper published a photograph of the
claimant’s husband with a woman labelled as Miss X, to whom – as alleged
by the attached article – he was engaged.

2) ISSUE

a) The claimant argued that the publication caused damage to her in that it was
intended to imply that her husband was living with her immorally. The
defendants denied any such intention and even the possibility of their
publication having such a meaning.

b) The defendants refused to admit, even after seeing evidence thereof, that the
claimant was married to the subject of the publication. The trial judge found
that in the circumstances of this case, the publication could be seen as having
a defamatory meaning.

c) He directed the jury that what mattered was the perception of the reasonably
minded person who knew the circumstances of the case. The jury found in
favour of the claimant.

3) HELD

a) The Court of Appeal held, affirming the lower court’s decision, that the
publication in question was capable of constituting defamation.

b) It found that the jury was right to find that the publication made the
reasonably minded person believe that the claimant’s moral character was
questionable.
 SANDISON V MALAYAN TIMES LTD & ORS ( 1964 ) 1 MLJ 332

1) FACTS

a) The plaintiff, a 52 year old rubber planter of over 25 years standing, was the
only senior expatriate officer in the Rubber Industry (Replanting) Board,
being its General Manager since 1959.

b) He was given notice of summary dismissal on October 26, 1962 and was
required forthwith to hand over his duties to another officer of the board not
later than October 31, 1962. On November 13, 1962 the defendant's
newspaper published an article with big headlines entitled "RRB Expatriate
'Packed Off' for Corruption".

c) The article stated that the services of a senior expatriate officer were
terminated on November 1, 1962 and his duties were taken over by a senior
local officer. It also contained the record of an interview by the defendants'
reporter with the Director of the Anti-Corruption Agency in which the latter
commented about the difficulties of obtaining a conviction in corruption
cases.

d) The plaintiff claimed that the defendants meant and were understood by the
readers to mean that the plaintiff was the person referred to in the report and
that he had thereby been greatly injured in his credit and reputation and in his
career as a rubber planter and had been brought to public scandal, odium and
contempt.

e) The plaintiff therefore claimed damages for libel. The defendants admitted
the publication but denied everything else. They contended that the
publication was made bona fide without malice or negligence and innocently
and that they made an offer of amends by letters dated January 3, 1963 and
January 24, 1963 which offers had not been withdrawn. Finally the
defendants relied on justification and claimed that the words complained of
were true in substance and in fact.

2) HELD

a) The headlines and the article following were defamatory in their ordinary and
natural meaning and the plaintiff was clearly pin-pointed in the article so as
to be instantly recognisable by all those readers of the newspaper who
happened to know him

b) In the context of the headlines and the article (read together) the reference to
obtaining a conviction in court made it clear beyond any equivocation that
the word "corruption" bore the meaning it has in the title of the Prevention of
Corruption Act

c) The defendants failed to justify that the plaintiff was corrupt in the sense
made in the headlines and article
d) The offer of amends was not made as soon as practicable after the defendants
received notice that the publication was or might be defamatory of the
plaintiff because a whole month elapsed between the date of the plaintiff's
notice and the defendants' reply.

e) It was no defence for the publishers to say that the publication was not
intended to be published of and concerning the plaintiff and that they had
exercised all reasonable care in relation to it.

f) The plaintiff's conduct as servant of the board was such as to have forfeited
whatever esteem in which he was held by others before his dismissal. His
summary dismissal by the board had left him little residue of credit and
reputation to be further damaged by the libel in the defendants' newspaper.
Accordingly the plaintiff would have one cent damages and costs.
 MGG PILLAI V TAN SRI DATO’ VINCENT TAN ( 1995 ) 2 MLJ 493

1) FACTS

a) The respondent, a well-known and successful businessman in Malaysia and

internationally, brought an action against the appellants and other persons
claiming damages for defamation and for conspiracy to defame. His
complaint was in respect of a series of articles (‘the articles’) appearing in a
magazine called Malaysian Industry (‘the magazine’).
b) At all material times, the third appellant was its editor- in-chief, while the
first appellant authored one of the articles complained of. The second and
fourth appellants were the printer and publisher, respectively, of the
magazine in question.
c) Prior to the commencement of the action, the third and fourth appellants
published an apology, without first sending a draft thereof to the respondent's
solicitors for approval, in a later issue of the magazine which, inter alia,
stated that ‘we further apologize if the said articles tarnished the reputation of
the [respondent]’.
d) The writ in these proceedings was served on 28 February 1994. Amongst the
appellants, only the second delivered a defence to the action. The court then
made an order on 22 August 1994, pursuant to a summons for directions,
setting the action down for trial which commenced on 10 October 1994. The
trial then went on from day to day, even exceeding the period originally
assigned to it, until its conclusion. After reserving judgment for a few days,
the High Court judge found the appellants and the other defendants liable and
awarded separate sums of general damages against them. [See [1995] 1 MLJ
39 .]
e) The appellants then appealed to the Court of Appeal. At the appeal, counsel
for the first and second appellants argued that:
i. The trial had proceeded with undue haste
ii. The damages claimed had not been proved
iii. The award made by the trial judge was too high and out of line with
the usual trend of awards for plaintiffs in defamation actions.
f) Counsel for the third and fourth appellants contended that
i. The trial judge was wrong in finding the third and fourth appellants
liable
ii. The award made was too high;
iii. The trial judge failed to take into account the apology published by
the third and fourth appellants which should have reduced the award
made against them; and
iv. The trial judge erred in making separate awards against each
appellant.

2) HELD

a) Held, dismissing the appeals: (Per Lamin PCA ) Where a person's character
was being assailed and the facts were so fresh in everyone's mind, justice
could not have been better served that [contd.]
b) Awarding the plaintiff a total of RM10m in damages against the defendants:
since no defence had been filed by the first to sixth defendants, they were
deemed to admit the averments pleaded by the plaintiff.
c) The first, second, third, fifth and sixth defendants were allowed to give
evidence in court only for the purpose of mitigating the damages against
them and not as evidence as to their defences. Accordingly, the third
defendants evidence on his defence of justification and fair comment, came
to nought.
d) It was a question of law for the court to decide whether the natural and
ordinary meaning of the words used in the articles were capable of conveying
a defamatory meaning of and concerning the plaintiff. Libel does not depend
on the intention of the defamer but on the fact of defamation and it was
irrelevant to consider the meaning the writer and publisher intended to
convey. The question was to be determined by an objective test.
e) The articles in their natural and ordinary meaning and[sol ]or by way of
innuendo, were defamatory of the plaintiff. They carried the innuendo that
the plaintiff was an unscrupulous and unprincipled businessman and were
calculated to disparage and discredit the plaintiff personally and in his trade.
The articles had lowered the plaintiff in the estimation of right thinking
members of society generally and brought him into contempt, hatred and
public ridicule.
f) The second and fifth defendants should have taken steps to ensure that what
had been published was what they had written. Although they had read the
articles soon after they were published, they did not take any steps to either
correct the articles or tender an unqualified public apology to the plaintiff
g) The apology published in the magazine was not a full and frank withdrawal
of the libel and was not a complete and unqualified apology or a fair
retraction. The apology in open court came too late and the fifth defendant
was still liable for libel although it would mitigate the damages to be
awarded against him
h) Even if the third defendant had filed his defence of justification and fair
comment, he bore the onus of proving what was written by him was true and
a fair comment. In view of the third defendant[rsquo ]s failure to substantiate
his defamatory allegations, the allegations remained unproved and untrue and
his defence of justification failed. Similarly, since the basic facts upon which
his comments were based were not true, his defence of fair comment would
also not succeed
i) Since the seventh defendants managing director did not give evidence on the
defences of justification, fair comment and privileged publication, it was held
to have abandoned them.
j) The defence of innocent publication is provided in s 7 of the Defamation Act
1957. The seventh defendants defence of innocent publication must fail
because two conditions had not been met, ie first, it could not be said that the
seventh defendant had published the articles innocently when the articles
plainly referred to the plaintiff and secondly, the seventh defendant had not
made an offer of amends as required under s 7(2) of the DA.
k) There appeared to be a concerted agreement between and among the
defendants to injure the plaintiff[rsquo ]s personal and commercial reputation
by the publication of the articles and they were jointly and severally liable for
the libel
l) For the purpose of assessing the amount of damages, the tort of conspiracy
merged with the tort of defamation.
m) In this case, the defendants calculated that the prospects of material
advantage from publishing the articles outweighed the prospects of material
loss. The award of damages must be sufficient to convince any person of the
baselessness of the libel and act as a signal to the public of the full
vindication of the plaintiffs reputation
n) Aggravated damages were awarded against the third defendant because he
had relied on justification and fair comment which he failed to establish and
he had further repeated the libel in court
o) As against the seventh defendant, the court took into account the fact that it
had pleaded justification and fair comment without any evidence whatsoever.
Accordingly, where a plea of justification fails, damages which would be
modest would become colossal
p) An injunction was also granted, inter alia, to restrain all the defendants from
further publication of similar libel of the plaintiff.
 CHAPMAN V ELLESMERE ( 1932 ) 2 KB 431

1) FACTS

a) The defence was held to avail the defendant in Chapman v. Lord Ellesmere
[1932] 2 KB 478. The facts of the case are: Don Pat, a horse, had won a race
organized by a club called Jockey Club. The manner in which the horse raced
interested the stewards of the club who accordingly ordered the horse to be
examined.
b) This was stipulated in the Rules of Racing of the Jockey Club. The stewards
held that the horse had been drugged and the case was taken before the
stewards of the club who were the defendants in this case. The plaintiff, Mr.
Chapman, was the trainer of the horse. He had to appear before the stewards
and answer for the status of the horse.
c) He was accorded a fair hearing. The stewards found that the horse was in fact
drugged and as a result disqualified him for that race and all future races.
They also withdrew Chapman’s licence as a trainer. Under the Racing Rules
the stewards were authorized to publish their decisions in the Racing
Calender.
d) This decision about Don Pat was published. Mr. Chapman complained of the
following words:
“The acting stewards of the Kempton Park Summer Meeting met on
September the 13th to receive the result of the examination which they had
ordered to be made of Don Pat after winning the Bedfont Highweight
Handicapp.
e) Having interviewed Mr. Rowe, the owner of Don Pat, and C. Chapman [ the
plaintiff], the trainer, they referred the case to the stewards o the Jockey Club.
The stewards of the Jockey Club (Lord Ellesmere acting for Lord Zetland)
after further investigation satisfied themselves that a drug had been
administered to the Horse for the purpose of the race in question.
f) They disqualified the horse for this race and for all futureraces under their
rules, and warned C. Chapman, the trainer of the horse, off New Market
Heath.”
g) The plaintiff said that the statement meant that he had actually been involved
in drugging Don Pat. This, however, was held to be a meaning which could
only be accepted by the Court as an innuendo.

2) HELD
a) The defence of consent was held by Slesser, L.J to avail the defendants
because the plaintiff had accepted the Rules of Racing (which were part of
the terms and condition to get the trainer’s licence) which permitted the
publication of their decisions in Racing Calendar.

b) That the words published contained a defamatory meaning in the form of an

innuendo, was a risk the plaintiff voluntarily assumed by assenting to the
rules of racing.
 ABDUL RAHMAN TALIB V SEERIVAGASAM & ANOR ( 1966 ) 2 MLJ 66

1) FACTS

a) This was an appeal against the decision of Hepworth J. who had held that the
defendants had made out their defence of justification ( [1965] 1 MLJ 142 ).

b) The plaintiff/appellant had claimed damages for slander in respect of a verbal

statement made by the 1st defendant, and for libel in respect of written
statements made by the 1st and 2nd defendants, alleging corrupt practices by
the plaintiff.

c) The alleged slander was contained in a statement made by the 1st defendant
at a meeting at the Chinese Assembly Hall, Kuala Lumpur, referring to and
repeating what he had already said as a member of Parliament in the House
of Representatives, and the alleged libels were contained in
i. A written statement handed over by the 2nd defendant to persons
present at that meeting and
ii. A written statement handed over by the 1st defendant to a press
representative at that meeting.

d) The 1st defendant in his defence pleaded qualified privilege, fair comment
and justification. The second defendant pleaded justification. The trial judge
held that the defence of qualified privilege failed but that the defendant's
defence of justification succeeded.

2) HELD

a) The learned trial judge had drawn the proper inferences from proved facts in
holding as he did that the plaintiff had received favours but not money and in
coming to the conclusion that, although the defendants had failed to prove
the truth of the charge relating to money, the imputation in that respect did
not materially injure the plaintiffs reputation having regard to the truth of the
rest of the charges.

b) Taking the evidence in the case as a whole and on the balance of probabilities,
the defence of justification must succeed. Per Thomson LP:In the
circumstances of this case, very considerable weight must be given to the
views of the trial judge on the relative credibility of the witnesses
 WORKERS’ PARTY V TAY BOON TOO : WORKERS’ PARTY V
ATTORNEY GENERAL ( 1975 ) 1 MLJ 47

1) FACTS

a) The plaintiff sued the defendants for damages for slander. In Suit No 1913 of
1972, it was alleged that the defendant uttered defamatory words in Hokkien
in a speech at an election rally.
b) In Suit No 1207 of 1973, it was alleged that a Radio Singapore broadcast
published those words in English. The plaintiff did not set out in the
statement of claim the defamatory words in Hokkien.
c) In the statement of claim, the plaintiffs set out the broadcast version of the
words. In evidence, the plaintiff proved only a reporter’s version of the
words. The other facts are set out in the judgment.

2) HELD

a) If slander alleged is in a language other than English it must be set out in the
statement of claim in the foreign language precisely as spoken and followed
by a literal translation. It is not enough to set out a translation withoout
setting out the original or vice versa. While the absence of a translation in the
pleadings may not be fatal to the plaintiff’s case, the absence of original
words in the foreign language in question is;
b) After the plaintiff has proved the actual words published he must also prove
that the translation given in the statement of claim is correct. The plaintiff in
this case has not proved publication;
c) The general rule is that no action will lie for slander unless the plaintiff can
prove that he has suffered damage, except in the four classes of imputations
which are described as slanders actionable per se;
d) Untruth alone does not render an imputtion defamatory. An imputation to be
defamatory must tend to lower the plaintiff in the estimation of right thinking
members of the society generally;
e) Special damage must be the natural and reasonable result of the defendant’s
words;
f) To establish a plea of justification, the defendant must
i. prove that the defamatory imputation is true,
ii. justify the precise imputation complained, and
iii. Prove the truth of all material statements in the libel. There must be
substantial justification of the whole libel. However, it is not
necessary to prove the truth of every word of the libel

g) It is clear the words were broadcast on privileged occasion and there is no

evidence of malice on the part of the defendant in Suit No 1207 of 1973.
 S PAKIANATHAN V DR JENNI IBRAHIM ( 1988 ) 2 MLJ 173

1) FACTS

a) In this case, the respondent had sued the appellant for damages for libel. The
respondent alleged that the appellant had falsely written and published
defamatory words of her and of her in the way of her occupation as a director
of the Pusat Pertolongan Bhd, a company limited by guarantee, and in
relation to her conduct therein to certain persons in three letters dated 7
September 1981, 1 October 1981 and 2 October 1981 respectively, and in
another letter dated 13 October 1981 with a list of proposed resolutions
attached to it.
b) Ajaib Singh J gave judgment for the respondent and awarded damages in the
sum of [dollar]30,000. The appellant appealed.

2) HELD

a) Dismissing the appeal

b) The letter of 7 September 1981 contained nothing which could be understood
as alleging that the respondent had converted any money for her own use or
had committed criminal breach of trust or any other criminal offence. All the
letter conveyed was information about certain irregularities in the keeping of
accounts and a request to investigate. It was addressed to the Chief Police
Officer and the complaint or information given for the purpose of
investigation and discovery of the offender was privileged;
c) The letter of 1 October 1981 also contained nothing which could be
understood as alleging that the respondent had converted the money for her
own use or committed criminal breach of trust or any other criminal offence;
d) The third letter of 2October 1981 was defamatory but there was no allegation
that it was published to anyone other than the respondent;
e) There was a defamatory accusation in the resolution attached to the fourth
letter of 13 October 1981. The appellant pleaded justification but at the trial,
he did not make a serious attempt to prove it. The plea of justification failed;
f) In regard to the plea of qualified privilege, the appellant would have an
interest and duty to send to the members any complaint of breach of trust of
money belonging to the Pusat and they also had an interest and duty to
receive it for the purpose of discussing it at their meeting. Even the
publication to the Director of Social Welfare would be similarly protected
because he was also sometimes required to take part in the deliberations of
the board. However, it was not shown that the Director of Companies had
any interest or duty to receive the proposed resolution and therefore the
publication to the Director of Companies was libellous.
g) The appellants claim of privilege in respect of the publication contained in
the proposed resolution was defeated by proof of his malice. The learned trial
judge had found that the appellant was vindictive and malicious
h) As it was shown that there was libel on one occasion only, the amount of
damages should be reduced to [dollar]15,000.
 KHASHOGGI V IPC MAGAZINE LTD & ANOR ( 1986 ) ALL ERR 577

1) FACTS

a) The plaintiff sought to restrain the publication of an article. The defendants

asserted that they would justify what they said at trial by reference to a Polly
Peck defence, as to which: ‘I cannot see why the Bonnard v Perryman
principle should not be applied. Quite apart from any question of public
interest in the freedom of the press, there is a much wider principle which
covers it, and that is this.

b) The injunctive powers of the court can only be invoked in support of a right
or in defence of an interest. If the Polly Peck defence were to succeed the
plaintiff would have no right. She therefore cannot expect to have it defended.
That does not of course answer the question which arises as to how likely she
is to succeed.

c) That is a problem which always arises in libel and elsewhere.

2) HELD

a) The point is that Bonnard v Perryman, apart from its reference to freedom of
speech, is based on the fact that courts should not step in to defend a cause of
action in defamation if they think that this is a case in which the plea of
justification might, not would, succeed.’
 DATO’ SERI ANWAR IBRAHIM V DATO’ SERI DR. MAHATHIR
MOHAMAD ( 2007 ) 5 MLJ 406

1) FACTS

a) The plaintiff who was a former deputy prime minister claimed against the
defendant, a former prime minister various damages for defamation arising
out of the words uttered by the defendant on 22 September 1998 that ‘I
cannot have a sodomiser in my cabinet’; ‘Imagine a gay PM … nobody will
be safe’ which the plaintiff alleged were defamatory of him. On 19
September 1998 Dr Munawar Ahmad Anes (‘Munawar’) and Sukma
Darmawan Saasmitaat Madja (‘Sukma’) were charged and convicted for
allowing the plaintiff to sodomise them.

b) The plaintiff pleaded that the offending words in their natural and ordinary
meaning were understood to mean inter alia that the plaintiff was a
homosexual.

c) The defendant applied to strike out the plaintiff’s claim under O 18 r 19 (b)
or (d) of the Rules of High Court 1980 on the ground that the action was an
abuse of the process of the court such that it should be struck out for all or
any of the following reasons:
i. There had been a judicial decision in previous proceedings between
the same parties (the 1999 defamation action) such that issue
estoppel applied
ii. There was an unreversed judicial finding in criminal proceedings
against the plaintiff that he had taken part in homosexual acts
iii. Another man still stands convicted of taking part with the plaintiff in
homosexual acts
iv. This action was otherwise an abuse of the process of the court
v. The publication complained of was true.

d) The plaintiff argued inter alia that for estoppel to apply, the issues in the
1999 defamation action would have to be ‘litigated and decided’ and the
judgment should not just be on preliminary issue. Learned counsel also relied
on the fact that the conviction of Sukma had since been set aside, and that the
confession of Munawar could not bind the plaintiff as the plaintiff was not a
party to that confession.

e) Further it was submitted for the plaintiff that the court could not at a
preliminary stage say that the defences were available to the defendant
without the defences being proven at a trial.

2) HELD

a) Allowing the defendant’s application with costs:

b) It could be said that the 1999 defamation action was not litigated and decided
or that it was decided just on preliminary issue as contended by learned
counsel for the plaintiff. The whole of the plaintiff’s case was considered
 albeit by affidavit evidence whereby the court concluded that it was
obviously unsustainable. Since the publication of the offending words in the
present suit and in the 1999 defamation action took place on different dates,
it technically gave rise to a different cause of action (see para 10).

c) Nevertheless the court was of the view that bearing in mind similar facts,
issues and defences that had already been decided in the 1999 defamation
action, issue estoppel would apply in the present case and the plaintiff’s
present action was clearly an abuse of the process of the court. It did not
matter that the judgment in the 1999 defamation action was given on O 18 r
19 application for what matters was that the 1999 defamation action had
‘necessarily and with precision’ determined the issues between the plaintiff
and the defendant (see para 10); Tong Lee Hwa & Anor v Lee Yoke San
[1979] 1 MLJ 24 followed.

d) Quite apart from issue estoppel, the court was of the view that having regard
to the judgments of the High Court, the Court of Appeal and the Federal
Court in the 1999 defamation action, the defences of justification and
qualified privilege were similarly available to the defendant here. Although
the conviction of Sukma had since been set aside, there was in existence a
judicial finding that the plaintiff had indeed taken part in homosexual acts.
Although the plaintiff’s appeal was allowed by a majority of the Federal
Court, there was a specific finding by the majority that ‘….we find evidence
to confirm that the appellants were involved in homosexual activities and we
are more inclined to believe that the alleged incident at Tivoli Villa did
happen, sometimes…’.

e) Thus when the defendant uttered the offending words on 9 September 2005,
he would be sheltered by the defence of justification given the finding of the
majority of the Federal Court and the convictions of Munawar and Sukma
which still stand, Sukma’s conviction being quashed by the Court of Appeal
only on 14 June 2006.
 DP VIJANDRAN V KARPAL SINGH & ORS ( 2000 ) 3 MLJ 22

1) FACTS

a) The plaintiff had sued the first defendant on another matter, lost and was
ordered to pay the first defendant taxed costs of RM9,414.38 (‘the sum’).
The plaintiff had himself been charged for a criminal offence and as a result
the Bar Council had refused to issue him a Sijil Annual to enable him to
practise. As a result, the plaintiff was compelled to close his law office and
let his staff go.
b) The plaintiff had operated two clients’ accounts — one with Bank Buruh
(‘the Bank’) and the other with Bank of Commerce. The plaintiff had closed
the account with Bank Buruh and had transferred all funds to the account
with the Bank of Commerce.
c) On 9 February 1996, the plaintiff having decided to settle the sum with the
first defendant quietly, posted a cheque for the said sum drawn on the Bank
Buruh account to the first defendant’s firm. According to the plaintiff, when
his staff was with him, he did not write cheques. Therefore when he had to
write the cheque for the first defendant, he used a cheque book lying on top
of a bunch of cheque books and with the words ‘Clients’ Account’. As the
words ‘Account Closed’ were not endorsed on the said cheque book, he
thought it was all right to issue the cheque from the Bank Buruh account.On
16 February 1996, the plaintiff received a phone call from the Bank
informing him that the cheque had been issue from a closed account.
d) He was on the same day informed by one Mr Indran, an accountant with the
first defendant’s firm that there was a problem with the cheque. On the same
day, the plaintiff made out a replacement cheque for the same amount,
addressed a letter to the said Mr Indran and indicated in the letter that the
earlier ‘cheque was issued from the wrong account due to a clerical error’.
e) The letter was faxed through to the first defendant’s firm the same day and
the said Mr Indran agreed to the plaintiff’s proposal that he could post the
cheque notwithstanding the fact that a long stretch of holidays was imminent.
On 28 February 1996, the plaintiff posted the letter dated 16 February 1996
and the replacement cheque to the first defendant whose firm received the
same on 1 March 1996.'...'

2) HELD

a) Allowing the plaintiff's claim:

b) The court would accept the explanation as to why the plaintiff had issued the
cheque from the closed Bank Buruh clients' account. His explanation
disclosed a genuine mistake with no ill-intention to mislead or deceive the
first defendant. With regard to whether the plaintiff ought to have dealt with
Mr Indran since Mr Indran was not a lawyer, it had to be assumed, in the
absence of Mr Indran testifying, that he (Mr Indran) had the authority to
communicate with parties issuing cheques and who were in a similar
situation as the plaintiff was. Further as the plaintiff was suspended and not
in practice, the plaintiff was then not a lawyer and it was in order for the
plaintiff to have dealt with Mr Indran.
c) The words published in both the Sunday Star, and New Straits Times in their
natural and ordinary meaning meant that the plaintiff had committed the
criminal offence of cheating under s420 of the Penal Code. It also meant that
the plaintiff was not a fit and proper person to act as a solicitor and that the
Bar Council ought to, on the basis that the plaintiff had committed such a
criminal offence, strike the plaintiff off the rolls as an advocate and solicitor.
By calling the plaintiff a cheat as having committed an offence under s
420 of the Penal Code, the defendants had clearly imputed that plaintiff was
a criminal who was unfit to hold the profession of an advocate and solicitor.
The statements as published would tend to lower the plaintiff in the
estimation of right-thinking members of society generally or to cause him to
be shunned or avoided or to expose him to hatred, contempt or ridicule. It
was beyond doubt that the words were in fact defamatory.
d) The plaintiff's explanation relating to the bona fide error was not challenged
in cross-examination by the defendants and neither was it put to the plaintiff
that he acted dishonestly. The law presumed the falsity of the words stated
and the onus was on the defendants to rebut the falsity of the words stated.
The onus was on the defendants to rebut the said presumption and they had
not done so. The allegations made against the plaintiff of cheating and of
dishonourable conduct were therefore absolutely false.
e) There was actual malice on the part of the first defendant. The plaintiff's
evidence that Mr Indran had informed him that he had informed the first
defendant that the replacement cheque had already been received prior to the
press statement was unrebutted. It stood unchallenged therefore that the first
defendant was well aware that when he made the press statement he knew
that there was a genuine error on the part of the plaintiff. In his complaint to
the Disciplinary Board, the first defendant had omitted to enclose
correspondences which would show the genuineness of the plaintiff's error.
Even in his police report, the first defendant had failed to mention many
material facts. The first defendant further suppressed material facts when he
made the press statement .
f) The sting of the libel as stated in the press statement was contained in both
the publications. There was no doubt that the newspaper articles carried the
actual words of the first defendant and in some areas repeated the first
defendant's words in the form of indirect speech. There was no requirement
that every word of the first defendant had to be reported in the publications.
The first defendant did not allege that any significant part of his statement
had been left out nor did he allege that the part left out would vary the
meaning of the part the plaintiff contended was defamatory of him. The
plaintiff is not required to prove that what is alleged in the statement of claim
is exactly what the defendant said. It is sufficient if the plaintiff proves that
the words said by the defendant are substantially the same as those pleaded in
the statement of claim.
g) If a defendant gives a press statement for publication, or in the expectation
that it would be published, he becomes responsible for the republished
version even if it is an edited version. On the facts, the first defendant was
liable as the publisher of the libel inthe two newspapers since he requested,
procured or authorized the publication. On the basis of the law relating to
republication, the first defendant was responsible for the newspaper reports
as fully as if he himself had published the said reports.
h) The first defendant failed to see the distinction between the requirement of a
literal translation and a certified translation. In the instant case, the plaintiff
had indeed provided a literal translation in Bahasa Malaysia and if such a
literal translation as provided by the plaintiff was in dispute, it was for the
first defendant to provide the court with his alternate version, which he failed
to do.
i) The first defendant went beyond what was required of him and of the Legal
Profession (Practice & Etiquette) Rules 1978 ('the Rules'). Though the first
defendant was right in referring to the Bar Council, the explanation of the
plaintiff would have justified not having to refer the matter to the Bar
Council as a bona fide error by an advocate and solicitor can never be the
basis for disciplinary action against him. In the instant case, not only did the
first defendant refer the plaintiff to the Bar Council but he accused the
plaintiff of committing a criminal offence of cheating under s 420 of the
Penal Code. Further the Rules did not authorize the plaintiff to give a press
statement. The press statement made in the first defendant's capacity as a
politician reflected a conflict of interest and was tantamount to using political
mileage to gain an unfair advantage over the plaintiff. The making of the
press statement and calling of its publication showed the extent of the
malicious and vituperative intention of the first defendant .
j) The first defendant's submission on drawing an adverse inference against the
plaintiff was unacceptable. The plaintiff had testified that it was Mr Indran
who first telephoned him and had confirmed his conversation with Mr Indran
in writing, which document was in the bundle of documents. The plaintiff
was never cross-examined on the matters relating to Mr Indran. Thus the
plaintiff having proved the matters relating to Mr Indran, the onus shifted to
the first defendant to call Mr Indran, if he intended to dispute any of the
evidence.
k) Although the second defendant had scrupulously avoided the use of the word
'cheat', that was a matter of semantics. The words published of the plaintiff
by the second defendant when given their ordinary meaning implied that the
plaintiff had indeed committed the criminal offence of cheating under s
420 of the Penal Code and that for this reason he was not a fit and proper
person to act as a lawyer and that based on this fact the Bar Council ought to
cause the plaintiff to be struck off the rolls as an advocate and solicitor. To
compound the libel, the second defendant had used the word 'bounced' –– a
commonly used term usually denigrating the issuer of a cheque as one devoid
of any financial integrity .
l) The second defendant was not entitled to raise the defence of qualified
privilege as the press statement of the first defendant did not fall into any of
the categories referred to in Part 1 of the Schedule to the Defamation Act
1957. The element of public interest which is a quintessential aspect of the
defence of qualified privilege was completely non existent in the instant case.
The second defendant had failed to appreciate the real and very important
distinction between 'that which the public is interested in' and 'that which is
in the public interest'. The first category pandered to the draw of the public
and for which the courts would not lend their protection, whereas the second
category catered for the benefit of the public and for which the courts would
certainly extend their protection.
m) A defendant in a defamation suit need not necessarily give a meaning to the
words complained of. However if the defendant pleads justification, he must
show in his defence either as a specific averment, or in the particulars relied
on, the meanings he seeks to justify. On the facts, since the third defendant
did not even seek leave to amend its defence, it was certainly taking the
plaintiff by surprise to ascribe to the words complained of, a different
meaning and to thus depart radically from its pleaded defence. Where a
defendant sets up a defamatory meaning different from that contended by the
plaintiff, and seeks to justify such different meaning, he must clearly and
unequivocally state the meaning he seeks to justify.
n) The first defendant's attack on the plaintiff's character was based on his
alleged conviction of a most serious offence. Nowhere in his pleadings did
the first defendant aver that he sought to mitigate damages on the ground that
the plaintiff was an actor in a pornographic video. However even though the
plaintiff was acquitted of the most serious offence, the first defendant failed
to amend his pleadings. In the absence of any amendment, it was not just and
proper for the court to consider the earlier finding of the Court of Appeal that
the plaintiff was a male actor in a pornographic video. If the defendants had
intended to pursue the finding of the Court of Appeal that the plaintiff was
the actor in the pornographic video, even if no amendments had been applied
for, the defendants should have with leave of court applied to cross-examine
the plaintiff on the allegation, indicating to the court that the purpose of the
cross-examination would be to mitigate damages.
o) The first defendant sought to admit a certain passage from the judgment of
the Court of Appeal as evidence in the instant case. However the existence of
the judgment was not a fact in issue in the instant case. The production of a
previous judgment merely establishes the existence of a prior decision and
there is no presumption that a prior judgment is the correct decision on the
matter. There is nothing in the Evidence Act to warrant the conclusion that
the statements or findings of fact in another case can be used as evidence in a
subsequent case to decide the points which are in issue in the subsequent case
p) Any evidence as to the character of the plaintiff must be confined to the
particular area of his life or character that has been libelled. On the facts, it
could not be said that the alleged libel had any connection with the finding of
fact by the Court of Appeal in respect of the plaintiff's performance as a
pornographic actor in a video.
q) In assessing compensatory damages in the instant case, the High Court
considered the following factors:
(i) Personal distress and hurt suffered by the plaintiff and his pregnant
wife;
(ii) That the plaintiff's professional standing had been affected
(iii) The first defendant's complaint to the Bar Council and the
Disciplinary Board.
(iv) The first defendant's police report
(v) The social standing of the parties; and
(vi) The second and third defendants abject failure to verify before
publication. Having regard to all the factors, the plaintiff should be
awarded a sum of RM250,000 as compensatory damages against the first
defendant. As against the second and third defendants, the plaintiff
should be awarded a sum of RM100,000 against each of them.
r) In assessing aggravated damages, the court had to consider the following
factors:
(i) The conduct of the first defendant;
(ii) The suppression of material facts by the first defendant;
(iii) The repetition of the libel by the first defendant;
(iv) he plaintiff's standing as a lawyer had been affected;
(v) The first defendant had not shown any remorse or tendered any
apology
(vi) The second and third defendants' failure to verify before publishing
(vii) The second and third defendants' blatant refusal to give a copy of
the first defendant's press statement to the plaintiff despite repeated
requests
(viii) The second and third defendants' failure to publish an apology.
Having considered all the factors, the plaintiff should be awarded a sum
of RM250,000 as against the first defendant and as against each of the
second and third defendants a sum of RM100,000 each.
s) The plaintiff's claim for exemplary damages against the defendants failed.
The second and third defendants had to be liable for their own conduct.
Accordingly their claims for indemnity also failed.
 GOLDSMITHS V SPERRINGS ( 1977 ) 1 WLR 478

1) FACTS
a) The plaintiff commenced proceedings for damages for libel and an injunction
against the publishers, the editors and the main distributors of Private Eye. In
addition, he issued writs against a large number of other wholesale and retail
distributors of the paper for the same relief.
b) Some of the distributors applied for an order that the actions against them
should be stayed or dismissed as an abuse of process of the court on the
ground that the plaintiff’s purpose in pursuing the actions against them was
not to protect his reputation but for the collateral purpose of destroying the
paper by cutting off its retail outlets.

2) HELD
a) Held: (Lord Denning MR dissenting)
b) A court may prevent an abuse of process when that process is predominantly
being used as a means of obtaining an advantage for which the proceedings
were not intended.
c) ‘In a civilised society, legal process is the machinery for keeping and doing
justice. It can be used properly or it can be abused. It is used properly when it
is invoked for the vindication of men’s rights or the enforcement of just
claims. It is abused when it is diverted from its true course so as to serve
extortion or oppression: or to exert pressure so as to achieve an improper
end.
d) ‘A criminal libel is so serious that the offender should be punished for it by
the state itself. He should either be sent to prison or made to pay a fine to the
state itself. Whereas a civil libel does not come up to that degree of
enormity.’
e) The distributors of newspapers and periodicals are nothing more than conduit
pipes in the channel of distribution. They have nothing whatever to do with
the contents. They do not read them – there is no time to do so. Common
sense and fairness require that no subordinate distributor – from top to
bottom – should be held liable for a libel contained in it unless he knew or
ought to have known that the newspaper or periodical contained a libel on the
plaintiff himself: that is to say, that it contained a libel on the plaintiff which
could not be justified or excused: and I should have thought that it was for
the plaintiff to prove this.
f) Scarman LJ said: ‘to pass judgment on the respondent’s purpose upon a
preliminary application, [to] prevent him bringing to trial actions in each of
which . . he is pleading a cause of action recognised by the law. It is right,
therefore, that to obtain before trial the summary arrest of a plaintiff’s
proceedings as an abuse of the process of the court, the task of satisfying the
court that a stay should be imposed is, and should be seen to be, a heavy one.
g) Unless the court is satisfied, a stay is a denial of justice by the court – a
situation totally intolerable . . the defendants have to show that the plaintiff
seeks a collateral advantage for himself beyond what the law offers. In a
phrase, the plaintiff’s purpose has to be shown to be not that which the law
by granting a remedy offers to fulfil, but one which the law does not
recognise as a legitimate use of the remedy sought, see In re Marjory.’
 DAKHYL V LABOUCHERE ( 1908 ) 2 KB 325

1) FACTS

a) THIS was an appeal from a decision of the Court of Appeal, setting aside a
verdict and judgment for 1000l. in favour of the appellant (the plaintiff in the
action) and ordering a new trial.

b) The appellant was a doctor of medicine, a bachelor of science, and a bachelor

of arts in the University of Paris; and he had since August, 1902, practised as
a doctor in Kensington, specializing in the treatment of diseases of the ear,
nose, and throat.

c) The respondent was the editor and proprietor of the newspaper called Truth.
In the issue of that paper dated April 2, 1903, he had published the following
paragraph relating to the appellant:-

d) "Sundry inquiries have reached me during the last week or two respecting
one Dr. H. N. Dakhyl, of 178, Holland Road, Kensington, who appends to
his name the symbols 'B.Sc., B.A., M.D. Paris, &c.,' and describes himself as
'a specialist for the treatment of deafness, ear, nose, and throat diseases.'
Possibly this gentleman may possess all the talents which his alleged foreign
degrees denote, but, of course, he is not a qualified medical practitioner, and
he happens to be the late 'physician' to the notorious Drouet Institute for the
Deaf. In other words, he is a quack of the rankest species. I presume that he
has left the Drouet gang in order to carry on a 'practice' of the same class on
his own account, and probably he is well qualified to succeed in that peculiar
line."

e) The appellant (the plaintiff) then brought this action claiming damages for
libel. The respondent, in his defence, pleaded justification and fair comment.
The action was tried before the Lord Chief Justice and a special jury, and
resulted, as above stated, in a verdict and judgment for the appellant. On the
motion of the respondent, the Court of Appeal (Collins M.R. and Stirling and
Mathew L.JJ.) on July 28, 1904, set aside the verdict and judgment and
ordered a new trial, on the grounds that the jury might not have sufficiently
apprehended from the summing up of the Lord Chief Justice
i. That it was for them to decide whether the words complained of
were defamatory of the appellant
ii. The nature and extent of the defence of fair comment.

2) HELD

a) LORD LOREBURN L.C. My Lords, in this case, which was one of libel, the
Court of Appeal has ordered a new trial, and I am driven to the conclusion
that no other order is possible. The pith of the libel is that the defendant
wrote of plaintiff as a "quack of the rankest species" in connection with his
service on the staff of the Drouet Institute.
b) The defendant denounced the Drouet Institute, on what he claimed to be
public grounds, as an organized system for dishonestly obtaining money
from persons suffering from deafness in hope of a cure. The defendant
pleaded that his accusation against the plaintiff was true, and also that it was
protected as a fair comment upon a matter of public interest. The jury found a
verdict for the plaintiff for 1000l.

c) I rest my opinion that the verdict cannot stand upon two grounds. In the first
place, the defendant was entitled to have the jury's decision, on his plea of
justification, whether the words used were true in the plain meaning which
the jury might attach to them. Unfortunately the learned judge told the jury
more than once that the term "quack" meant a pretender to skill which the
pretender did not possess.

d) If that were a sound direction, and really it was put as a direction, there could
not be a verdict on this point against the plaintiff, for admittedly he possessed
skill. But there are other meanings of the word "quack," such as a person who,
however skilled, lends himself to a medical imposture. The jury were the
persons to affix the true meaning to the words and to say whether or not it
fitted the plaintiff. But they had not the chance if they followed the judge's
direction.

e) In the second place, the defendant was, in my opinion, entitled to have the
jury's decision, as to the plea of fair comment, whether or not, in all the
circumstances proved, the libel went beyond a fair comment on the plaintiff
and on the system of medical enterprise with which he associated himself, as
a matter of public interest treated by the defendant honestly and without
malice.

f) The plea of fair comment does not arise if the plea of justification is made
good, nor can it arise unless there is an imputation on a plaintiff. It is
precisely where the criticism would otherwise be actionable as a libel that the
defence of fair comment comes in. But the learned judge put aside that
defence, and told the jury that unless a justification was proved they were
bound to find a verdict for the plaintiff, and that, unless justified, the libel is
not fair comment and cannot come within the region of fair comment.

g) I agree in what Sir Edward Clarke said to us of the evil which may flow from
an order for a new trial in this case. In all cases it is a most deplorable result,
not to be entertained upon any but the most solid grounds, as the only means
of redressing a clear miscarriage.

h) In the present case I regret it all the more, because the amount of the verdict
seems to indicate that the jury took the plaintiff's view of the facts.

i) But I cannot reconcile myself to allowing a verdict to stand when I am

convinced that the opinion of the jury was not really taken on two vital points
on which the defendant was in law entitled to insist and did insist.
 KEMSLEY V FOOT ( 1952 ) AC 345

1) FACTS
a) The plaintiff alleged that the headline to an article written by the defendant
which criticised the behaviour of the Beaverbrook Press, and which read
‘Lower than Hemsley’ was defamatory. The defendant pleaded fair comment.

2) HELD
a) The article could be construed to infer that the Kemsley Press was of a low
and undesirable quality and that Lord Kemsley was responsible for its tone.
That was an inference which could be drawn from the three words ‘Lower
than Kemsley’.
b) The facts relied upon by the defendants in their pleading to support that brief
comment consisted of ‘excerpts from the plaintiff’s newspapers and
allegations of certain respects in which they were inaccurate or untruthful
together with complaints of their tone and the impropriety of their methods
of dealing with the news in them, even when it was accurate’. The defendant
was entitled to rely upon such material.
c) Lord Porter said: ‘The question, therefore, in all cases is whether there is a
sufficient substratum of fact stated or indicated in the words which are the
subject-matter of the action, and I find my view well expressed in the
remarks contained in Odgers on Libel and Slander (6th ed, 1929), at p.166.
‘Sometimes, however,’ he says, ‘it is difficult to distinguish an allegation of
fact from an expression of an opinion. It often depends on what is stated in
the rest of the article.
d) If the defendant accurately states what some public man has really done, and
then asserts that ‘such conduct is disgraceful,’ this is merely the expression
of his opinion, his comment on the plaintiff’s conduct. So, if without setting
it out, he identifies the conduct on which he comments by a clear reference.
In either case, the defendant enables his readers to judge for themselves how
far his opinion is well founded; and, therefore, what would otherwise have
been an allegation of fact becomes merely a comment.
e) But if he asserts that the plaintiff has been guilty of disgraceful conduct, and
does not state what that conduct was, this is an allegation of fact for which
there is no defence but privilege or truth. The same considerations apply
where a defendant has drawn from certain facts an inference derogatory to
the plaintiff.
f) If he states the bare inference without the facts on which it is based, such
inference will be treated as an allegation of fact. But if he sets out the facts
correctly, and then gives his inference, stating it as his inference from those
facts, such inference will, as a rule, be deemed a comment. But even in this
case the writer must be careful to state the inference as an inference, and not
to assert it as a new and independent fact; otherwise, his inference will
become something more than a comment, and he may be driven to justify it
as an allegation of fact’.‘if an author writes a play or a book or a composer
composes a musical work, he is submitting that work to the public and
thereby inviting comment.’
 JB JEYARETNAM v GOH CHOK TONG [1985] 1 MLJ 334

1) FACTS
a) The plaintiff, the secretary-general of the Workers’ Party in Singapore, was
invited as the only guest speaker on 21 September 1981 at the inauguration
of the Singapore Democratic Party. After his speech, he left the meeting and
at that time or immediately following his departure a large section of the
audience also left.
b) The Parliamentary by-election for the constituency of Anson was to be held
on 31 October 1981. The defendant, the Minister for Defence and Second
Minister for Health in the Singapore Government, was the first organizing
secretary of the Peoples’ Action Party and was therefore most concerned at
securing the return of the PAP’s candidate at the by-election.
c) On 26 October 1981, the defendant held a press conference at which
representatives of the media were present. He said: ‘SDP had their inaugural
(sic) earlier this month. Mr Jeyaretnam attended. After Mr Jeyaretnam had
spoken, he left the hall, and when he left the hall, 200 participants left with
him.
d) I believe the exodus was engineered. I don’t think it was a spontaneous
exodus. If it was, it did not speak well for SDP. It shows that the crowd, the
limited crowd still look towards Mr Jeyaretnam, for the time being, as a
leader of the opposition. But I am inclined to believe that the exodus was
contrived by the leader of the Workers’ Party to show who is boss at this
stage.
e) And surely Mr Chiam cannot take that trick lightly.’ The plaintiff complained
that these words were defamatory of him and he sued the defendant claiming
damages and an injunction. The plaintiff also relied on s 5 of the Defamation
Act (Cap 32, 1970 Ed), claiming that the words were calculated to disparage
him in his office as a leader of political party and in aspiring to be a Member
of Parliament.
f) The defendant denied that the words in their natural and ordinary meaning
were calculated to disparage the plaintiff in his office as the secretary-general
of the Workers’ Party. The defendant also raised the defences of fair
comment and qualified privilege.
2) HELD
a) Dismissing the claim:
i. The words spoken by the defendant were capable of a defamatory
meaning and were defamatory of the plaintiff. The words imputed to the
plaintiff dishonourable or discreditable conduct or motive or a lack of
integrity and such an imputation was a defamation of the plaintiff.
However, the words though defamatory of the plaintiff were not
calculated to disparage him in his office as the secretary-general of the
Workers Party. They did not impute any want of integrity or corrupt or
dishonest conduct or any other misconduct in the discharge of that office.
On this issue, the plaintiff failed
ii. The defendant had succeeded in establishing the four elements necessary
to find his defence of fair comment
iii. The plaintiff has failed to discharge his burden of proving that the
defendant was actuated by malice when he uttered the words complained
of. The action was accordingly dismissed with costs.
 CAMPBELL V SPOTTISWOODE ( 1863 ) 3 B & S 769

1) FACTS

a) The plaintiff, a dissenting Protestant minister, sought to advance Christianity

in China by promoting a newspaper with letters emphasising its importance.

b) The defendant attacked him in a rival newspaper, saying his motive was not
to take the gospel to the Chinese but to profit from the newspaper sales. He
then alleged that the subscribers listed were fictitious. The defendant was
clear that this was only an inference but one of fact.

2) HELD

a) It was a defence to defamation, that the words were a comment on a matter of

public interest. The court distinguished between attacking the scheme and
attacking the character of its proponent.

b) Crompton J said: ‘it is the right of all the Queen’s subjects to discuss public
matters, but no person can have a right on that ground to publish what is
defamatory merely because he believes it to be true. If this were so, a public
man might have base motives imputed to him without having an opportunity
of righting himself’.

c) A bona fide belief that he is publishing what is true would not provide a
defendant with an answer to an action for libel, where he has attributed ‘base
and sordid motives which are not warranted by the facts’ and ‘Nothing is
more important than that fair and full latitude of discussion should be
allowed to writers upon any public matter, whether it be the conduct of
public men, the proceedings in courts of justice or in Parliament, or the
publication of a scheme or of a literary work. But it is always to be left to a
jury to say whether the publication has gone beyond the limits of a fair
comment on the subject-matter discussed.
d) A writer is not entitled to overstep those limits and impute base and sordid
motives which are not warranted by the facts, and I cannot for a moment
think that, because he has a bona fide belief that he is publishing what is true,
that is any answer to an action for libel. With respect to the publication of the
plaintiff’s scheme, the defendant might ridicule it and point out the
improbability of its success; but that was all he had a right to do.’
e) Cockburn CJ said: ‘I think the fair position in which the law may be settled is
this: that where the public conduct of a public man is open to animadversion,
and the writer who is commenting upon it makes imputations on his motives
which arise fairly and legitimately out of his conduct so that a jury shall say
that the criticism was not only honest, but also well founded, an action is not
maintainable’.
f) But it is not because a public writer fancies that the conduct of a public man
is open to the suspicion of dishonesty, he is therefore justified in assailing his
character as dishonest.’
 RAJAGOPAL V RAJAN ( 1972 ) 1 MLJ 45

1) FACTS

a) This was an appeal from a judgment of the High Court. The learned trial
judge had found that a letter with enclosures sent by the appellant was per se
of a defamatory character.

b) He rejected the defence of qualified privilege on the ground that the appellant
had exceeded his duty as secretary of the branch of the Malayan Indian
Congress by sending copies of the resolution to persons he was not required
to send and he had been responsible for forwarding the letter which made
allegations containing defamatory imputations.

c) He found evidence of express malice and rejected the evidence of fair

comment.

2) HELD

a) Dismissing the appeal:

b) There was no reason for disagreeing with the learned trial judge’s finding
that the forwarding letter was per se defamatory

c) There was evidence to warrant the conclusion that the appellant had been
actuated by malice and that the defence of qualified privilege was not
available to the appellant.

d) As there was malice, the defence of fair comment could not succeed.
 LONDON ARTIST V LITTLER ( 1962 ) 2 QB 375

1) FACTS

a) The defendant, an impresario, wrote and published at a press conference a

letter suggesting that the plaintiffs, organisers in the entertainment industry,
had taken part in what appeared to be a plot to force the end of the run of a
successful play which he was producing by arranging for four leading players
in the cast simultaneously to give identical notices to leave. Such a
coincidence of players' notices was almost unprecedented in the theatre
world, and was likely to stop the play.

b) The letter, a copy of one sent to the players, was written after the defendant
had been informed of the theatre owners' wish to transfer another play to the
theatre which he was renting and after he had received the players' notices
which were in accordance with their contracts.

c) In actions against the defendant for libel he pleaded justification, fair

comment on a matter of public interest, namely the fate of the play, and
publication on occasions of qualified privilege. At the close of the plaintiffs'
evidence the plea of justification was withdrawn. The judge held, inter alia,
that the plea of fair comment failed because the matter was not one of public
interest and that the publication to the press was not privileged. Damages was
the only issue left to the jury who awarded modest sums.

d) On the defendant's appeal on the ground that the judge was wrong in shutting
out the defence of fair comment from the Jury

2) HELD
a) The defence of fair comment on matters of public interest is not to be defined
too closely. Lord Denning MR said: ‘Whenever a matter is such as to affect
people at large, so that they may be legitimately interested in, or concerned at,
what is going on; or what may happen to them or others; then it is a matter of
public interest on which everyone is entitled to make fair comment.’

b) The comment must be based on facts which are true or protected by

privilege.
 LIM WAH PRESS SB V TAN SRI DATO’ VINCENT TAN ( 2000 ) 4 MLJ 77

1) FACTS

a) In a libel action brought against the appellants, the High Court awarded
RM2m against the first appellant as general and aggravated damages; RM3m
as general damages against the second appellant, and RM2m as general
damages against the third appellant
b) The Court of Appeal had upheld the awards made by the High Court
c) The appellants appealed. They argued that the awards were excessive and
ought to be reduced.

2) HELD

a) Dismissing the appeal:

b) The court found that the awards made by the judge and affirmed by the Court
of Appeal were reasonable in the circumstances and were based on
established principles of law. The appellants had failed to show that the trial
judge had acted on a wrong principle of law or had misapprehended the facts
or had made a wholly erroneous estimate of the damage suffered. Therefore
the awards were not erroneous or excessive to warrant any interference by
the court.
c) Awards of damages in defamation cases cannot be equated with awards of
damages in personal injury cases. In personal injury cases, there is no
intention to cause harm or damage to the plaintiff. In defamation cases, the
defendant intentionally publishes the injurious false statement to cause
humiliation and anguish to the plaintiff and to injure his reputation. The
award of damages given to the plaintiff in a defamation case serves as a
vindication of the plaintiff to the public and as a consolation to him for a
wrong done
d) While an apology may be taken into consideration in assessing an award, in
this case counsel for the appellants had by cross-examining the plaintiff at
the trial had further aggravated the libel by insisting the truth of the
defamatory publication. Further, no apology, retraction or withdrawal can
ever be guaranteed completely to undo the harm the libel has done or the hurt
it has caused
e) Freedom of speech is not an absolute right and is not a licence to defame
people. It is subject to legal restrictions. Every person has a right to
reputation and that right ought to be protected by law
 NGOI THIAM WHO V CTOS SDN BHD ( 2001 ) 4 MLJ 512

1) FACTS

a) The plaintiff was a businessman and the sole distributor of a wide range of
health and skin care products. He was also formerly a member of Parliament
and a state assemblyman.

b) The first defendant (‘CTOS’) was a computer database information company

which collated information from newspapers, government gazettes, the
registries of businesses and companies and stored them into its electronic
archive for the information of its customers which included banks.

c) The second defendant (‘The Star’), was the publisher of a popular daily
newspaper and the third defendant was the printer of the second defendant.

d) The plaintiff had, in May this year, filed a suit against the defendants seeking
damages for defamation and for injunctive reliefs. In this application, the
plaintiff sought for an interlocutory injunction pending the disposal of the
suit to restrain the defendants, from, inter alia, publishing and
communicating a proclamation of sale (‘the proclamation’).

e) The defendants had raised two preliminary objections to this application.

Firstly, it was submitted that the affidavit in support did not offer any
undertaking for damages. Secondly, it was submitted that there had been a
long delay of 40 months in seeking this injunctive relief, a delay for which
there was no plausible explanation.

f) The primary issue for determination was whether the court may grant an
interim injunction in a defamation action.

2) HELD

a) Held, dismissing the application:

b) The court should be slow in granting an interim injunction in a defamation

action. The court may only grant interlocutory injunctions of this species if
the following factors are satisfied:
(i) That the statement is unarguably defamatory;
(ii) There are no grounds for concluding that the statement may be true;
(iii) There is no other defence which might succeed; and
(iv) There is evidence of an intention to repeat or publish the defamatory
statement. The burden of proof falls upon the plaintiff, and not on the
defendants. In the instant application, the plaintiff had failed to satisfy the
court all of the first three factors stated.

c) The proclamation complained of was, on the face of it, a usual advertisement

published on The Star, pursuant to its normal day to day transaction. The
plaintiff had not satisfied the court that the proclamation was published out
of malice. The plea of qualified privilege by the second and the third
 defendants should therefore be considered by this court as prima facie bona
fide defence in refusing the grant of an interim injunction.

d) Form 58 of the Rules of the High Court 1980 ('the RHC'), ie the Form for an
order for interim injunction shows that the court, in its discretion, may order
that the plaintiff gives an undertaking as to damages. This order on an
undertaking may be made by the court if it is of the opinion, after enquiring
into the matter, that a defendant would sustain some damages as a result of
the injunction granted. Clearly then, this order on the undertaking is left to
the court's discretion. The omission to provide for an undertaking for
damages in the plaintiff's affidavit or his application is thus not fatal, and that
under the RHC, it is a non-mandatory requisite although the general practice,
with some exceptions is for the court to require that such an undertaking be
given. Being a discretionary remedy and one founded on equity, the court
must have regard to the essential justice of the case.

e) The complaint here was a most grave and pressing matter, as was impressed
upon this court by the plaintiff in his own application, and surely, one that
required immediate attention and compelling action. The plaintiff need not
have waited until after the writ was filed to seek this interlocutory relief. He
should have acted promptly upon the proclamation coming to his knowledge.
Discretionary remedies being exceptional in nature, should not be made
available to those who sleep on their rights. In the instant case, the plaintiff's
prolonged slumber of some 40 months was certainly inexcusable.

f) The application before this court was defective and one wanting in procedure.
There was no machinery to enable the plaintiff to apply for an interlocutory
injunction by a motion to a judge in open court. An application that failed to
comply with a mandatory procedural requirement is was and could not stand.
A fundamental breach of an expressed requirement had occurred and one not
curable under O 2 of the RHC. It was unfortunate that this matter was not
earlier brought to the court's attention for, if it had been, a summary striking
out of this motion would not have been inappropriate in the circumstance