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The parties involved in the case are Datuk seri Dr Mohamad Salleh bin Ismail& anor as
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
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.
Decision
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
more serious allegation than salahguna. The latter may be the result of mere negligence
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
Second Issue
Decision
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
Stare Decisis
In the case of Joshua Benjamin Jeyaratnam v Goh Chok Tong, theJudicial Committee of
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
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
Third Issue
Whether reportage defence available to the second defendant
Decision
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
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
Overall Decisis
En Rafizi is liable in damages to Datuk Seri Salleh in the amount of RM150,000 and liable
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.