Sei sulla pagina 1di 6

Datuk Seri Dr Mohamad Salleh bin Ismail & Anor v Mohd Rafizi bin Ramli & Anor

Parties to the case

The parties involved in the case are Datuk seri Dr Mohamad Salleh bin Ismail& anor as

plaintiffs and Mohd Rafizi bin Ramli & anor as defendants.

Fact of the case

The first plaintiff (‘P1’) was the chairman and director of the second plaintiff (‘P2’) which

had several agreements with the Malaysian government to implement a national feedlot

centre project. To facilitate the project’s implementation, the government had given P2 a

loan. The first defendant (‘D1’), who was a director in an opposition political party, called

a press conference to allege that part of the loan P2 had received was deposited with a

commercial bank (‘PBB’) and was used as security to obtain personal loans to buy

properties in the names of P1 and his family members. D1 claimed his allegations were

based on information contained in copies of certain bank documents he had received

from an anonymous party. Representatives of the second defendant (‘D2’) — which

operated an internet news website and television site — attended the press conference,

recorded the proceedings and later published an article about D1’s allegations on its

website and uploaded a video clip of the press conference. In the instant action by the

plaintiffs against the defendants for defamation, P1 contended that D1’s allegations were

untrue because although he and one of his sons had entered into sale and purchase

agreements to buy certain real estate, at the material time of the press conference PBB

had neither granted them a loan for that purpose nor was there any loan offer pending.

P1 claimed the defendants’ libel had tarnished his reputation whilst P2 claimed the libel
had caused it to suffer financial losses. D1 relied on the defences of fair comment and

qualified privilege whilst D2 claimed it was protected by qualified privilege and the related

defence of reportage.

First Issue of the case

Whether the statement was defamatory of the plaintiffs

Decision

The statement was defamatory of the plaintiffs

Ratio

The statement has the effect of lowering the estimation of the plaintiffs in the eyes of the

public because the statement of Rafizi alleged that public funds had been

misappropriated (diselewengkan). Learned counsel for the plaintiffs had translated

kaedah menyalahgunakan as ‘method of misappropriation’. Seleweng, in my view, is a

more serious allegation than salahguna. The latter may be the result of mere negligence

or lack of care, whereas seleweng, as mentioned earlier, implies an element of

dishonesty.A reasonable reader reading the statement would, in my view, conclude that

public funds had been dishonestly misappropriated by the plaintiffs and that these funds

were put at risk by the conduct of the plaintiffs. Bseide that, this is my view is also

defamatory of the plaintiffs as it suggested that public funds had been spent in the

purchase of properties in the private names of the directors of the second plaintiff.

Dibelanjakan in this sentence refers to dana awam, and not pinjaman peribadi. In other

words, a reasonable reader reading this paragraph would surmise that public funds has
been used as a guarantee or leverage to obtain personal loans and had been expended

to purchase real estate in the private names of the first plaintiff’s family members.

Stare Decisis

It is well established that a company may sue for defamation (see for example, Doree

Industries (M) Sdn Bhd & Ors v Sri Ram & Co (sued as a firm) & Ors [2001] 6 MLJ 532;

[2001] 3 AMR 3529; [2001] 4 CLJ 446; [2001] 2 MLRH 145). I find that the statements

made by En Rafizi were also defamatory of the second plaintiff, as they suggest that the

second plaintiff had misused the proceeds of the government loan by allowing its directors

to raise financing by leveraging on the deposit.

Second Issue

Whether the comments based on facts that En Rafizi established to be true

Decision

The comment are false

Ratio

There was nothing in the documents themselves that suggested that the deposit by the

second plaintiff had been used either as leverage or as security or collateral for the grant

of any loan.More importantly,in order to be able to avail himself of the defence of fair

comment, it would have been necessary for En Rafizi to establish the basic fact that no

loan would have been granted but for the fact of the deposit of the RM71.4m by the

second plaintiff. By his own admission, En Rafizi did not have any knowledge regarding

Datuk Seri Salleh’s other sources of income. Hence he was not able to say whether or
not the bank would have granted the loan solely on the credit standing of Datuk Seri

Salleh.In other words, the basic facts then available to En Rafizi do not in my view support

the inference that he had drawn from those facts. In this particular case the facts

established atrial have shown that some of the basic facts purported to have been

established by the documents were in fact wrong;for example, at the time of the

publication in question, the offer for the loan from Public Bank to Datuk Seri Salleh and

his son had already been withdrawn. As such, the recording of the properties in the bank’s

collateral system was inaccurate.

Stare Decisis

In the case of Joshua Benjamin Jeyaratnam v Goh Chok Tong, theJudicial Committee of

the Privy Council held:

It is of course well established that a writer may not suggest or invent facts and then

comment upon them, on the assumption that they are true. If the facts upon which the

comment purports to be made do not exist, the defence of fair comment must fail. The

commentator must get his basic facts right.

The basic facts are those which go the pith and substance of the matter Cunningham-

Howie v Dimbleby [1951] 1 KB 360, 364. They are the facts on which the comments are

based or from which the inferences are drawn — as distinct from the comments or

inferences themselves. The commentator need not set out in his original article all the

basic facts: see Kemsley v Foot [1952] AC 345 but he must get them right and be ready

to prove them to be true.

Third Issue
Whether reportage defence available to the second defendant

Decision

The reportage defence available to the second defendant

Ratio

The effect of the reporting by the second defendant, when viewed as whole and evaluated

objectively ,was to report the fact that the statements had been made at the press

conference convened by En Rafizi, rather than for the purposes of persuading the reader

and/or viewer of the truth of their contents. Beside ,the report had been done in a fair,

disinterested and neutral way. The second defendant is part of what may be termed as

the alternative media, where great currency is placed on the immediacy of reporting.

Given the circumstances, the decision by the second defendant to proceed to publish the

report and the accompanying video clip cannot be faulted.

Stare decisis

The case of Jaafar bin Shaari predates the advent of the Rules of Court 2012, and it

would appear to me that the better view would be that such documents would be

automatically admissible, with the only issue being the weight to be attached to the

document, in the light of O 34 r 2(2)(e) read together with s 58 of the Evidence Act 1950.

In any event, in the present case, those news reports in Bundle D2 were referred to by

counsel in his submissions, and as such would have satisfied the requirements laid down

by Peh Swee Chin FCJ in Jaafar bin Shaari.

Overall Decisis
En Rafizi is liable in damages to Datuk Seri Salleh in the amount of RM150,000 and liable

in damages to the second plaintiff in the amount of RM50,000. An injunction is granted in

favour against the plaintiffs against the defendants, their agents and representatives from

publishing or continuing the publication of any of the defamatory statements that have

been made the subject matter of this suit. Plaintiffs’ claims against D2 dismissed.

Potrebbero piacerti anche