Ansari Abdullah v Shalmon Sanangan

[2016] 10 MLJ (Ravinthran J) 39

A
Ansari Abdullah v Shalmon Sanangan

HIGH COURT (KOTA KINABALU) — CIVIL SUIT NO BKI-22–50/4

B
OF 2013
RAVINTHRAN J
7 MARCH 2016

C Tort — Defamation — Libel — Postings on Facebook — Whether postings

referred to plaintiff — Whether postings published to third parties — Whether
postings defamatory of plaintiff — Whether defence of justification proven
— Whether defence of fair comment proven — Whether there was malice on part
of defendant — Whether plaintiff entitled to claim aggravated and/or exemplary
D
damages

This was a libel action brought by the plaintiff against the defendant in relation
to three postings by the defendant via the social networking service known as
E
‘Facebook’. Publication 1 was in respect of defendant’s posting on the Facebook
page of one Albert Polinoh. The posting was prefaced by a photograph of the
plaintiff and the caption ‘Ketua Cabang PKR P170 Tuaran’. Publication 2 was
in respect of the posting of the statutory declaration by one Charles Masuil on
the Facebook wall of the defendant. In the statutory declaration, the plaintiff
F was alleged to have received a bag filled with cash from the brother of the Chief
Minister of Sabah. Publication 3 was in respect of the same statutory
declaration which was posted by the defendant on the wall of a Facebook group
by the name of ‘TUARAN Sembang2’. The defendant had not denied being
responsible for all the postings in question but had raised the defences of
G justification and fair comment. The issues for determination were: (a) whether
the Facebook postings referred to the plaintiff; (b) whether the said postings
were defamatory of the plaintiff; (c) whether the defence of justification had
been proven; and (d) whether the defence of fair comment had been proven.

H Held, allowing the claim with costs of RM15,000:

(1) Publication 1 referred to a ‘tn hj’ which was an abbreviation of ‘Tuan
Haji’. It was not disputed that the plaintiff was referred as ‘Tuan Haji
Ansari’ and the posting was prefaced by a photograph of the plaintiff.
With regard to Publication 2 and Publication 3, the plaintiff was
I mentioned by name in the statutory declaration. Thus, there was no
doubt that the said Facebook postings referred to the plaintiff. Further, in
the trial, the defendant also admitted that the said postings referred to the
plaintiff. The Facebook postings constituted publication to third parties
as other individuals had read the statutory declaration and had made
40 Malayan Law Journal [2016] 10 MLJ

comments. Thus, the fact of publication and the fact that the postings A
referred to the plaintiff had been proven (see paras 17–18).
(2) The plaintiff was a senior lawyer and political leader at the material time,
thus, to say that he had done a bad thing and that he had hidden agenda
as stated in Publication 1 was clearly defamatory of him. With regard to B
Publication 2 and Publication 3, the central theme of the statutory
declaration was that the plaintiff had stealthily received a bag filled with
cash from the brother of the Chief Minister who was his political rival
and that of his party. In the premises, the statutory declaration if read as
whole, unmistakably insinuated that the plaintiff was corrupt and had C
betrayed his own party for monetary gain. Thus the statutory declaration
was highly defamatory of the plaintiff (see paras 20–21 & 25–26).
(3) The statutory declaration and the belief of the defendant that it was truly
affirmed were irrelevant to the defence of justification. Even if a D
handwriting expert had been called to prove that Charles Masuil affirmed
the statutory declaration, the defendant was not relieved of the obligation
to prove that the plaintiff had indeed received the bag of money from
Datuk Ayob Aman. In this case, the defendant completely failed to prove
such libelous allegation against the plaintiff. Further, the deponent of the E
statutory declaration, Charles Masuil also took the witness stand on
behalf of the plaintiff and repudiated the contents of the statutory
declaration. Thus the defence of justification collapsed in relation to all
the publications (see paras 27–28).
F
(4) The defence of fair comment in relation to Publication 2 and Publication
3 failed because the publication was neither ‘fair’ in the sense that belief
in it could be honestly held by the defendant nor was it a ‘comment’ as it
was a pure allegation of fact and no more. The defence of fair comment
could not apply to Publication 1 as well because the defendant failed to G
prove the fact that the plaintiff received a bag filled with cash from the
brother of his political adversary (see paras 36–37).
(5) Even if the defence of fair comment succeeded, the defendant could not
avail it because of the presence of actual or express malice. In this case, the
defendant had attempted to sensationalise the publication of the H
statutory declaration by posting the remark ‘BERITA HANGAT
PILIHANRAYA ABAD INI!!’ in bold. Further, the plaintiff was the
Tuaran Parti Keadilan Rakyat (‘PKR’) Division Chief at the material time
and was a potential candidate for the General Election. The national
I
leaders of PKR were also in town on the eve of Publication 1. Therefore,
a reasonable inference could be drawn that apart from being utterly
reckless, the defendant had dishonest motive to attack the reputation of
the plaintiff at a crucial time (see paras 38–39).
 Ansari Abdullah v Shalmon Sanangan
[2016] 10 MLJ (Ravinthran J) 41

A (6) It is trite law that once libel is proven, there is no requirement for the
plaintiff to prove resulting damage for such damage is presumed. In this
case, the court dismissed the claim for exemplary damages as it did not
come within the principles set out in the case of Rookes v Barnard & Ors
[1964] AC 1129. However the court found that the claim for aggravated
B damages has merit as the defendant had pleaded the defence of
justification and had failed to prove it. Thus the court awarded the sum of
RM70,000 as general and aggravated damages. The court refused to
grant injunction as there was no evidence that the defendant had
continued to publish similar publications (see paras 41–43).
C
[Bahasa Malaysia summary
Ini adalah tindakan libel yang dimulakan oleh plaintif terhadap defendan
berkaitan tiga kiriman oleh defendan melalui perkhidmatan rangkaian sosial
dikenali sebagai Facebook. Penerbitan 1 adalah berkenaan kiriman deefndan di
D halaman Facebook tentang Albert Polinoh. Kiriman itu didahului dengan
gambar foto plaintif dan kapsyen ‘Ketua Cabang PKR P170 Tuaran’.
Penerbitan 2 adalah berkenaan kiriman tentang deklarasi statutori oleh Charles
Masuil pada Facebook defendan. Dalam deklarasi statutori itu, plaintif
dikatakan telah menerima beg yang penuh dengan wang tunai daripada abang
E Ketua Menteri Sabah. Penerbitan 3 adalah berkenaan deklarasi statutori sama
yang telah dikirimkan oleh defendan pada dinding kumpulan Facebook
dengan nama ‘TUARAN Sembang2’. Defendan tidak menafikan
bertanggungjawab untuk semua kiriman yang dipersoalkan tetapi telah
menimbulkan pembelaan-pembelaan justifiksi dan komen adil. Isu-isu untuk
F ditentukan adalah: (a) sama ada kiriman Facebook merujuk kepada plaintif;
(b) sama ada kiriman tersebut berunsur fitnah terhadap plaintif; (c) sama ada
pembelaan justifikasi telah dibuktikan; dan (d) sama ada pembelaan komen
adil telah dibuktikan.
G Diputuskan, membenarkan tuntutan dengan kos sebanyak RM15,000:
(1) Penerbitan 1 merujuk kepada seorang ‘tn hj’ yang merupakan singkatan
untuk ‘Tuan Haji’. Ia tidak dipertikaikan bahawa plaintif dirujuk sebagai
‘Tuan Haji Ansari’ dan kiriman itu didahului dengan gambar foto
H plaintif. Berkenaan Penerbitan 2 dan Penerbitan 3, plaintif disebut
dengan nama dalam deklatasi statutori itu. Oleh itu, tidak diragui
bahawa kiriman Facebook tersebut merujuk kepada plaintif.
Selanjutnya, dalam perbicaraan, defendan juga mengakui bahawa
kiriman tersebut merujuk kepada plaintif. Kiriman Facebook merupakan
I penerbitan kepada pihak ketiga kerana individu lain telah membaca
deklarasi statutori itu dan telah membuat komen. Oleh itu, fakta tentang
penerbitan dan fakta tentang kiriman yang merujuk kepada plaintif itu
telah dibuktikan (lihat perenggan 17–18).
(2) Plaintif merupakan peguam kanan dan pemimpin politik pada masa
42 Malayan Law Journal [2016] 10 MLJ

matan, oleh itu, untuk mengatakan dia telah melakukan suatu yang A
buruk dan bahawa dia mempunyai agenda tersembunyi sepertimana
dinyatakan dalam Penerbitan 1 jelas berunsur fitnah tentangnya.
Berkenaan Penerbitan 2 dan Penerbitan 3, tema utama deklarasi statutori
adalah bahawa plaintif telah menerima senyap-senyap beg yang penuh
dengan wang tunai daripada abang Ketua Menteri Sabah yang B
merupakan seteru politiknya dan partinya. Dalam premis itu, deklarasi
statutori jika dibaca secara keseluruhan, tanpa apa-apa keraguan
menegaskan bahawa plaintif adalah seorang korup dan telah
mengkhianati parti sendiri untuk keuntungan kewangan. Oleh itu
C
deklarasi statutori itu berunsur fitnah tentang plaintif (lihat perenggan
20–21 & 25–26).
(3) Deklarasi statutori dan kepercayaan defendan bahawa ia disahkan
sebenarnya tidak relevan kepada pembelaan justifikasi. Jikapun pakar
tulisan tangan telah dipanggil untuk membuktikan bahawa Charles D
Masuil mengesahkan deklarasi statutori itu, defendan tidak terlepas
daripada obligasi untuk membuktikan bahawa plaintif sememangnya
telah menerima beg berisi wang daripada Datuk Ayob Aman. Dalam kes
ini, defendan telah gagal membuktikan dakwaan berunsur fitnah bertulis
terhadap plaintif. Selanjutnya, deponen deklarasi statutori itu, Charles E
Masuil juga menjadi saksi bagi pihak plaintif dan telah membatalkan
kandungan deklarasi statutori itu. Oleh itu pembelaan justifikasi gagal
berkaitan semua penerbitan itu (lihat perenggan 27–28).
(4) Pembelaan komen adil berkenaan Penerbitan 2 dan Penerbitan 3 gagal F
kerana penerbitan itu tidak ‘fair’ dalam erti kata bahawa kepercayaan
dalamnya boleh secara jujur dipegang oleh defendan ataupun ia adalah
suatu ‘comment’ kerana ia adalah dakwaan tulen tentang fakta dan tidak
lebih daripada itu. Pembelaan komen adil tidak boleh terpakai kepada
Penerbitan 1 juga kerana defendan gagal membuktikan fakta bahawa G
plaintif telah menerima beg berisi wang tunai itu daripada abang seteru
politiknya (lihat perenggan 36–37).
(5) Jikapun pembelaan komen adil berjaya, defendan tidak boleh
menggunanya kerana kewujudan niat jahat sebenar atau nyata. Dalam
kes ini, defendan telah cuba untuk mensensasikan penerbitan deklarasi H
statutori itu dengan mengirim kenyataan ‘BERITA HANGAT
PILIHANRAYA ABAD INI!!’ dalam huruf tebal. Selanjutnya, plaintif
merupakan Ketua Bahagian Parti Keadilan Rakyat Tuaran (‘PKR’) pada
masa matan dan merupakan calon berpotensi untuk Pilihanraya Umum.
Pemimpin negara PKR juga berada di situ sebelum Penerbitan 1. Oleh I
itu, inferens munasabah boleh dibuat bahawa selain daripada
benar-benar bersikap semberono, defendan mempunyai motif tidak
jujur untuk menjejas reputasi plaintif pada masa penting itu (lihat
perenggan 38–39).
 Ansari Abdullah v Shalmon Sanangan
[2016] 10 MLJ (Ravinthran J) 43

A (6) Ia adalah undang-undang lapuk bahawa setelah libel dibuktikan, tiada

keperluan bagi plaintif membuktikan kerosakan yang diakibatkan kerana
kerosakan sedemikian adalah dianggapkan. Dalam kes ini, mahkamah
menolak tuntutan untuk ganti rugi teladan kerana ia tidak terangkum
dalam prinsip yang dinyatakan dalam kes Rookes v Barnard & Ors [1964]
B AC 1129. Walau bagaimanapun mahkamah mendapati bahawa tuntutan
untuk ganti rugi tambahan mempunyai merit kerana defendan telah
mempli pembelaan justifikasi dan telah gagal membuktikannya. Oleh itu
mahkamah telah mengawardkan sejumlah RM70,000 sebagai ganti rugi
am dan ganti rugi tambahan. Mahkamah enggan memberikan injunksi
C kerana tiada keterangan yang defendan telah meneruskan memberikan
penerbitan yang sama (lihat perenggan 41–43).]

Notes
For cases on libel, see 7(2) Mallal’s Digest (5th Ed, 2015) paras 575–793.
D
Cases referred to
Abdul Rahman Talib v Seenivasagam & Anor [1965] 1 MLJ 142b (refd)
Belt v Lawes (1882) 51 LJQB 359 (refd)
Dato Seri Mohammad Nizar bin Jamaluddin v Sistem Televisyen Malaysia Bhd &
E
Anor [2014] 4 MLJ 242; [2014] 3 CLJ 560, CA (refd)
Hoe Thean Sun & Anor v Lim Tee Keng [1999] 3 MLJ 138, HC (refd)
JB Jeyaretnam v Goh Chok Tong [1985] 1 MLJ 334 (refd)
Joshua Benjamin Jeyaretnam v Goh Chok Tong [1989] 3 MLJ 1, PC (refd)
Lewis and another v Daily Telegraph Ltd; Same v Associated Newspapers
F
Ltd [1963] 2 All ER 151, HL (refd)
Ratcliffe v Evans [1892] 2 QB 524, CA (refd)
Reynolds v Times Newspapers Ltd and others [2001] 2 AC 127, HL (refd)
Rookes v Barnard & Ors [1964] AC 1129, HL (refd)
S Pakianathan v Jenni Ibrahim [1988] 2 MLJ 173, SC (refd)
G
Syed Husin Ali v Sharikat Pencetakan Utusan Melayu Bhd & Another [1973] 2
MLJ 56 (refd)
YB Hj Khalid bin Abdul Samad v Datuk Aziz bin Isham & Anor [2012] 7 MLJ
301, HC (refd)
H Ridwan Borhan (Yusri & Rizwan) for the plaintiff.
Henry Gudid (FT Ahmad & Co) for the defendant.

Ravinthran J:
I INTRODUCTION

[1] This is a libel action brought by a senior lawyer and a former politician
in Sabah. He alleged that the defendant defamed him via the popular social
networking service known as Facebook. The defendant has not denied being
44 Malayan Law Journal [2016] 10 MLJ

responsible for the Facebook postings or publications in question but has raised A
the defences of justification and fair comment.

CASE FOR THE PLAINTIFF

[2] The plaintiff is a prominent lawyer in Sabah. He served as First Class B

Magistrate between 1978 and 1979. Thereafter, he was admitted to the Roll of
Advocates of the High Court of Sabah and Sarawak in Sabah in 1979. Since
1982, he practised on his own as advocate under the style of Messrs Ansari and
Co. He was awarded the Ahli Seri Darjah Kinabalu in 1995 and was appointed
C
a Justice of Peace in 1997 by the Head of State of Sabah. Apart from practising
as a lawyer, the plaintiff had also launched a parallel political career. In the
1980’s he joined the USNO and BERJAYA political parties. He was a youth
leader in both parties. More recently, he had been active in Parti Keadilan
Rakyat (‘PKR’) which is an opposition party at the Federal and State level. He D
held the party position of Division Chief of Tuaran from 2004 until his
suspension in May of 2013. The plaintiff was also the State Chief for the PKR
in 2007 and 2008. The 12th General Election was held in 2008. The plaintiff
was also the PKR candidate for the Sulaman State seat and Tuaran
Parliamentary seat in the 2004 and 2008 General Election. All the above E
undisputed facts point to the active role that the plaintiff played in the affairs of
PKR in Sabah and in Tuaran District prior to his retirement from politics. The
claim of the plaintiff relates to three Facebook postings made by the defendant
which allegedly defamed him. For sake of convenience, I shall refer to the said
Facebook postings as Publication 1, Publication 2 and Publication 3. F

[3] Publication 1 is pleaded at paras 4(a) and (b) of the statement of claim.
The posting in question was made on the Facebook page of one Albert Polinoh
who passed away before the trial commenced. The Facebook account of the
G
defendant was used to make the posting. It is dated 16 September 2012. It
reads as follows:
(a) buat pengetahuan kamu rangtahun 1998 saya di semenanjung …
mungkin pada ketika itu tn hj sedang merebut jawatan dalam UMNO …
pada 2008 … kalaulah kamu tahu cerita disebalik hotel le meridian … H
tingkat satu … bilik VVIP … Tuhan saja yang tahu. …
(b) sememangnya perkara yang tidak baik … kita mesti berhati-hati dengan
udang disebalik batu.

I
[4] The said posting was prefaced by a photograph of the plaintiff and the
caption ‘Ketua Cabang PKR P170 Tuaran’. The defendant also posted the
following words later:
... perkara ini tidak berkaitan dengan mana-mana individu …
 Ansari Abdullah v Shalmon Sanangan
[2016] 10 MLJ (Ravinthran J) 45

A [5] The plaintiff was the ‘Ketua Cabang PKR P170 Tuaran’ at the material
time and therefore it can be inferred that the remarks in the posting necessarily
referred to him and no other.

[6] Publication 2 is in respect of a statutory declaration published on the

B Facebook wall of the defendant on 25 February 2013. As is well known, a
Facebook ‘wall’ is an area where comments can be posted or uploaded by other
Facebook users. The statutory declaration was purportedly made by one
Charles Masuil on 24 June 2011. The statutory declaration claims that the
plaintiff met one Datuk Ayob Aman in the VIP room of the Le Meridien Hotel
C
before the 12th General Election in 2008 and received a bag filled with cash
from him. It is not disputed by the defendant that Datuk Ayob Aman is the
elder brother of the Chief Minister of Sabah. Datuk Ayob Aman then allegedly
wished the plaintiff success in whatever that he undertook in the future. The
D plaintiff also allegedly told Charles Masuil not to reveal the incident to anyone.
The statutory declaration was purportedly attested by Dato Chong Ket Sui @
David Chong who is a Justice of Peace. The defendant did not deny uploading
the statutory declaration in question on his Facebook wall. Following the
uploading of the statutory declaration on defendant’s facebook ‘wall’, many
E Facebook users posted their comments on his wall in relation to the said
statutory declaration.

[7] Publication 3 occurred on 25 February 2013 when the defendant

published the same statutory declaration on the wall of a Facebook group called
F ‘TUARAN Sembang2’. A Facebook group is a Facebook account created for
small group communication and for people to share their common interest and
express their thoughts and opinion (see www.facebook.com/notes/facebook/
facebook-tips-whats-the-differencebetween-a-facebook-page-and-group). The
defendant again did not deny posting the statutory declaration on the wall of
G
the said Facebook group page.

[8] The plaintiff gave evidence on his own behalf and called three witnesses,
namely Charles Masuil, Regina Lim and Gazali bin Suhaili. The witness
H statement of Charles Masuil was brief. In February of 2013, he was told by a
friend that a statutory declaration purportedly made by him was published on
Facebook. Charles Masuil logged into his Facebook account and read the said
statutory declaration. He said that he never made the statutory declaration in
question. Charles Masuil also denied meeting Dato Chong Ket Vui. He said
I the contents of the statutory declaration were all untrue as he never ever
witnessed the plaintiff receiving a bag filled with cash from Datuk Ayub Aman.
He also denied telling the defendant that he related the incident to one Datuk
James Ghani who is a lawyer. In the Statement of Defence, the defendant had
pleaded that Charles Masuil had related the incident to the said Datuk James
46 Malayan Law Journal [2016] 10 MLJ

Ghani. Charles Masuil also denied filling up a complaint form about the A
incident in question at the Complaints Secretariat of PKR.

[9] The plaintiff testified that since 2010, he had been continuously
attacked by the defendant and his politician friends in an attempt to unseat
him as PKR’s Tuaran Division Chief. They wanted to replace him with one B
Edward Linggu. The attacks were based on his ethnic background and the fact
that he is not from Tuaran District. Subsequently, the honesty and integrity of
the plaintiff was questioned by other Facebook users who commented on the
Facebook postings in question, ie Publication 1, Publication 2 and Publication C
3. He said Publication 1 was made on a crucial date, ie on 16 September 2012
when PKR national leaders and other opposition leaders had converged in
Tuaran District for National Malaysia Day Celebrations. He learned about
Publication 2, ie the statutory declaration that was uploaded on the Facebook
page of the defendant from his brother in law. The plaintiff said that the D
bottom of the statutory declaration in the Facebook page of the defendant was
captioned ‘BERITA HANGAT PILIHANRAYA ABAD INI!!’ and was
accompanied by his photograph. At the same time, the plaintiff discovered that
the statutory declaration was also published on the Facebook wall of the
‘TUARAN Sembang2’ Facebook group which is open to the public. It has 810 E
members. The plaintiff said that he was shocked, distressed and humiliated by
the contents of the said Facebook postings. He said he was defamed and
brought to public ridicule, odium and contempt. Furthermore, his reputation
as a senior lawyer and politician was tarnished. The plaintiff denied the
allegation that he took a bag filled with cash from Datuk Ayob Aman. He also F
denied receiving legal fees from Datuk Ayob Aman as he never acted for him in
his capacity as a lawyer. He said the suggestion that he took money from Datuk
Ayob Aman meant that he had sold out to Barisan Nasional before the 12th
General Election and that he is a dishonest and an untrustworthy person. At
the material time the plaintiff was the PKR Tuaran Division Chief of PKR G
which is an opposition party at the State level. He said the defendant also made
the following statements in the comment section of the ‘TUARAN Sembang2’
Facebook group page where the statutory declaration was posted:
Apakah ini benar? … ahli PKR di Tuaran perlukan penjelasan … diharap tuan hj H
ansari boleh jelaskan … kebenaran harus dicari … Ini bukan perkara kecil!!!!!
Bankrupt is another thing regi … We the voters want to know the truth … if the SD
contain is not true … then hj ansari should 10 summon the culprit to clear his name
…
I
Benarkah hj ansari ada bertemu ayup aman? … kita mau kebenaran … tunjukkan
kebenaran … bukannya mengugut tindakan atau saman … kalau perkara ini tidak
benar … kita mau hj ansari mengambil tindakan k.
 Ansari Abdullah v Shalmon Sanangan
[2016] 10 MLJ (Ravinthran J) 47

A [10] At the material time, the plaintiff was not only the PKR Tuaran
Division Chief but he was also the Chairman of PKR West Coast (North)
Election zone consisting of Kudat, Kota Marudu, Tuaran, Kota Belud, Ranau,
Sepanggar and Putatan Parlimentary Constituencies. The plaintiff believed
that the defendant and his friends did not want him to be renominated to be
B the PKR candidate for the Tuaran Parliamentary Constituency in the General
Election. He said the defendant and his friends succeeded in their mission. The
plaintiff contacted Charles Masuil and asked him about the statutory
declaration but he denied making it. The plaintiff then lodged a police report.
C
[11] The third witness for the plaintiff, Regina Lim is an active PKR member
at the Tuaran Division. She read the postings in question on Facebook and
warned the defendant about facing the consequences. She said the postings put
the plaintiff in a bad light at the time when he was touted as a PKR candidate
D for Tuaran Parliamentary Constituency in the coming elections. She said the
postings and comments made by the defendant was a hot political topic in
Tuaran at that time.

[12] The final witness for the plaintiff was Gazali bin Suhaili. He is a former
E teacher. He became an active member of PKR in February of 2012. However,
he left PKR after the 2013 General Election. He is now a member of another
political party, ie UPKO. He said he read the statutory declaration in question
that was posted on the ‘TUARAN Sembang2’ Facebook group page. He said
he was shocked to read the postings and his confidence in the leadership of the
F plaintiff whom he admired was shaken.

CASE FOR THE DEFENCE

[13] The first witness for the plaintiff was James Stephen Dionysius. He is an
G ordinary member of PKR now. He said two weeks before the 25 or 26 June
2011, he was called to the law office of Datuk James Ghani. He said he met a
man who was introduced as Charles Masuil. He said the said Charles Masuil
claimed that the plaintiff met Datuk Ayob Aman before the 2008 General
Election in a private room at the Le Meridien Hotel in Kota Kinabalu. He said
H Charles Masuil wanted to report the matter to the President of PKR whose visit
to Sabah was then imminent. He said Charles Masuil then signed a statutory
declaration and a complaint form.

[14] The second witness was the defendant himself. He admitted uploading
I a photograph of the plaintiff together with the statutory declaration in
question on 25 February 2013 on the wall of his Facebook. He obtained the
statutory declaration of Charles Masuil from James Stephen Dionysius. At that
time, he believed in the contents of the statutory declaration made by Charles
Masuil. However, he agreed that he was not personally acquainted with Charles
48 Malayan Law Journal [2016] 10 MLJ

Masuil. He also posted comments in the ‘TUARAN Sembang2’ Facebook A

page group in relation to the statutory declaration because of his right as a voter
and a member of PKR in Sulaman and Tuaran. He admitted making the
following comments on the Facebook page of Albert Polinoh:
buat pengetahuan kamurang tahun 1998 saya di semenanjung … mungkin pada B
ketika itu tn hj sedang merebut jawatan dalam UMNO … pada 2008 … kalaulah
kamu tahu cerita disebalik hotel le meridian … tingkat satu … bilik VVIP … Tuhan
saja yang tahu …’ dan juga ‘sememangnya perkara yang tidak baik … kita mesti
berhati-hati dengan udang disebalik batu.

C
[15] He said his comment was based on what Albert Polinoh told him. He
also made the following comment in a later posting:
… perkara ini tidak berkaitan dengan mana-mana individu …

[16] During cross-examination, he agreed that he did not check the veracity D
of the statutory declaration because he was not acquainted with Charles Masuil
and did not know how to contact him. He also agreed that he knew about the
Le Meridian Hotel incident before the statutory declaration was given to him
because he heard about it from Albert Polinoh. However, he could not call him
as a witness as he died recently. E

The third and last witness for the defendant was Dato Chong Ket Sui JP. He
recognised his signature and his Justice of Peace stamp on the statutory
declaration in question. However, he could not remember Charles Masuil as he
F
signs documents for members of the public every day. He said he would have
checked the identity card of Charles Masuil before attesting the statutory
declaration.

ISSUES
G

[17] In the instant case, the plaintiff ’s case is anchored on three alleged
libellous Facebook postings. The defendant’s Facebook account appears to have
been used for the three postings which I have referred to as Publication 1,
Publication 2 and Publication 3. As stated in the evidence that I summarised H
above, the defendant has not denied being responsible for the Facebook
postings in question. In the premises, the fact of publication by the defendant
is undisputed. However, in the statement of defence, the defendant had raised
the defences of justification and fair comment. Therefore, the only issues that
require determination in this trial are as follows: I
(a) whether the Facebook postings refer to the plaintiff?
(b) whether they are defamatory of the plaintiff?
(c) whether the defence of justification has been proven?
 Ansari Abdullah v Shalmon Sanangan
[2016] 10 MLJ (Ravinthran J) 49

A (d) whether the defence of fair comment has been proven?

Whether the Facebook postings refer to the plaintiff?

[18] Before I discuss the above mentioned issues, I shall also, for sake of
B completeness, briefly consider the issues that are not in dispute. In the
statement of defence, the defendant did not deny that the Facebook postings in
question referred to the plaintiff. Publication 1 is in respect of the posting on
the Facebook page of Albert Polinoh by the defendant. It referred to a ‘tn hj’
which is an abbreviation of ‘Tuan Haji’. There is no dispute that the plaintiff is
C
referred to as ‘Tuan Haji Ansari’. In fact during cross-examination, the
defendant also referred to the plaintiff as ‘Tuan Haji Ansari’. The posting was
prefaced by a photograph of the plaintiff. In the premises, the latter posting by
the defendant that the posting about the Hotel Le Meridien incident was not
D in respect of any particular individual is meaningless as the plaintiff was clearly
identified as the target of it. Publication 2 is in respect of the posting of the
statutory declaration in question on the Facebook wall of the defendant. The
plaintiff is mentioned by name in the statutory declaration. He is alleged to
have received a bag filled with cash from the brother of the Chief Minister.
E Publication 3 refers to the posting of the same statutory declaration on the wall
of a Facebook group by the name of ‘TUARAN Sembang2’. In the premises,
there is no doubt whatever that the Facebook postings in question referred to
the plaintiff. Furthermore, during the trial, defendant also admitted that the
posting on the Facebook page of Albert Polinoh and the statutory declaration
F that was reproduced on the Facebook walls of the defendant and ‘TUARAN
Sembang2’ Facebook group referred to the plaintiff. There is also no denial that
the Facebook postings in question constituted publication to third parties. The
plaintiff testified that the ‘TUARAN Sembang2’ Facebook group is an ‘open’
group which means that anyone can access it. In the comment section of the
G Facebook group page, several individuals had made comments on the postings
in question. The printout of the Facebook page of Albert Polinoh and the
defendant also shows that other individuals had read the statutory declaration
and had made comments. As the fact of publication and the fact that the
postings referred to the plaintiff has been proven, I shall now move to consider
H whether the postings in question are defamatory. The burden to establish that
the postings are defamatory lies on the plaintiff.

Whether defamatory?

I [19] The test to be employed to determine whether the published words in

question bear a defamatory meaning has been discussed in numerous cases.
The thread that runs through these cases is that the published words in
question are deemed to be defamatory if they have the tendency to lower the
reputation of the plaintiff in the mind of the hypothetical reasonable man (see
50 Malayan Law Journal [2016] 10 MLJ

Lewis and another v Daily Telegraph Ltd; Same v Associated Newspapers Ltd A
[1963] 2 All ER 151). It does not matter if the plaintiff ’s reputation is not
actually lowered or that he otherwise does not suffer any damage from the
publication of the libel. The test is objective and thus it is sufficient if the
published words have the tendency to lower the reputation of the plaintiff.
Whether the words are defamatory or not is essentially a question of law. In JB B
Jeyaretnam v Goh Chok Tong [1985] 1 MLJ 334, LP Thean J asked the
following question to determine if the words complained of were defamatory:
The crucial point in this issue is this: did the words complained of in their natural
and ordinary meaning impute to the plaintiff any dishonourable or discreditable C
conduct or motives or a lack of integrity on his part? If they did, then inescapably
they were defamatory of the plaintiff.

[20] In Syed Husin Ali v Sharikat Pencetakan Utusan Melayu Bhd &
Another [1973] 2 MLJ 56, Mohd Azmi J formulated the test as follows: D
Thus, the test of defamatory nature of a statement is its tendency to excite against
the plaintiff the adverse opinion of others, although no one believes the statement
to be true. Another test is: would the words tend to lower the plaintiff in the
estimation of right-thinking members of society generally? The typical type of
defamation is an attack upon the moral character of the plaintiff attributing crime, E
dishonesty, untruthfulness, ingratitude or cruelty.

[21] As stated in the summary of the evidence, the plaintiff has pleaded that
he was defamed by three postings on Facebook. Publication 1 refers to the F
comment made by the defendant on the Facebook page of Albert Polinoh
which I had reproduced earlier. The defendant stated that only God knows
what the plaintiff had done in a hotel room in 2008 which means that the
plaintiff had good reason to hide whatever he did from becoming public
knowledge. It further says explicitly that what the plaintiff did was a bad thing G
(perkara tidak baik) and that what he did had a hidden meaning or agenda
(udang di sebalik batu). As stated earlier, the plaintiff is a senior lawyer and
political leader at the material time. Thus to say that he had done a bad thing
(which only God knows) and that he had hidden agenda is clearly defamatory
of him. It also portended the intention of the defendant’s to publish further H
defamatory material about the plaintiff. This happened when the statutory
declaration purportedly deposed by Charles Masuil was uploaded on
Facebook. I shall now refer to the said statutory declaration.
I
[22] Publication 2 and Publication 3 are in respect of the statutory
declaration that was posted to the Facebook walls of the defendant and the
‘TUARAN Sembang2’ group. The plaintiff has pleaded that the defamatory
sting of the statutory declaration is found in paras (4), (5) and (6):
 Ansari Abdullah v Shalmon Sanangan
[2016] 10 MLJ (Ravinthran J) 51

A 4. Kami berada di bilik tersebut hanya untuk seketika sahaja dimana AYUB AMAN
telah memberikan sebuah bag yang penuh duit kepada Haji Ansari Abdullah dan
mengucapkan ‘selamat berjaya? dalam apa sahaja yang dia buat.
5. Semasa di dalam kereta dalam perjalanan balik, Haji Ansari Abdullah
mengesahkan bahawa dia telah menerima bag yang berisi duit dan mengingatkan
B saya untuk tidak beritahu kepada sesiapa pun mengenai perkar atersebut.
6. Haji Ansari Abdullah telah mengatakan ‘ANGGAPLAH SAJA INI YURAN
GUAMAN SEKIRANYA PRESIDEN INGIN MENYOAL SAYA SECARA
PERSONAL, SAYA TELAH BERSEDIA UNTUK BERJUMPA PRESIDEN
C ATAU KETUA UMUM’.

[23] The plaintiff is relying on the ordinary and natural meaning of the
pleaded words to prove his claim. In para 7, he pleaded that the literal and
ordinary meaning of the words conveyed the following imputation:
D
(a) The Plaintiff had received a bag of money from Datuk Ayub Aman before
the 12th General Election;
(b) The Plaintiff had committed corruption by surreptitiously receiving a bag
of money from Datuk Ayub Aman, the elder brother of the Chief Minister
E of Sabah Datuk Musa Aman who was also the Chairman of Sabah Barisan
Nasional, Liason Chief of Sabah UMNO and Supreme Council Member
of UMNO before the 12th General Election held in March, 2008;
(c) That the Plaintiff who was the State Chief for Parti Keadilan Rakyat
(PKR) in 2007–2008 had sold out to the Barisan Nasional;
F
(d) That the Plaintiff had conspired with Datuk Ayub Aman and or Datuk
Musa Aman to ensure that PKR will lose in all seats it contested in Sabah
during the 12th General Elections;
(e) That the Plaintiff is a dishonest and untrustworthy person; and
G
(f) That the Plaintiff had committed offences under section 10 and 11 of the
Anti Corruption Act, 1997 and the Election Offences Act.

[24] The defendant pleaded that the words of the statutory declaration do
H not bear a defamatory meaning. In para 5 of the statement of defence, the
defendant pleaded that the statutory declaration only bore the following
meaning to the ordinary reader:
(1) The plaintiff is a senior practising lawyer;
I (2) Datuk Ayob Aman had retained the plaintiff as his lawyer;
(3) That the money was meant to be plaintiff ’s legal fees;
(4) That to avoid being misconstrued the plaintiff would explain to Datuk
Anwar Ibrahim on the retainer.
52 Malayan Law Journal [2016] 10 MLJ

[25] The suggestion in the statement of defence that the bag filled with cash A
was legal fees and therefore the defamatory sting had been removed from the
statutory declaration is without merit. It is stated in para 2 of the statutory
declaration that the incident at the Le Meridien Hotel occurred just before
2008 General Election. It is not disputed that the plaintiff was the State Chief
for PKR which is an opposition party at the state level at the material time. He B
was also the Tuaran Division Head of PKR. It is also not disputed that Datuk
Ayob Aman is the brother of the Chief Minister who is the head of the ruling
party at the State level at the material time. The statutory declaration says that
the plaintiff and Datuk Ayob Aman had whispered quietly in the room. The
C
plaintiff then told Charles Masuil not to tell anyone about the incident.
Furthermore, it is alleged in the statutory declaration that the plaintiff declared
to Charles Masuil that he would say that the payment is legal fee only if he is
questioned by the leaders of his party. There is no mention in the statutory
declaration that the plaintiff had accepted a retainer to act for Datuk Ayob D
Aman. The payment was made in a hotel room at night. It was not made via
cheque but cash. Thus, the central theme of the statutory declaration is that the
plaintiff had stealthily received a bag filled with cash from the brother of the
Chief Minister who is his political rival and that of his party. In the premises,
the statutory declaration if read as a whole, unmistakably insinuates that the E
plaintiff is corrupt and had betrayed his own party for monetary gain. I
therefore find that statutory declaration that is the subject of Publication 2 and
Publication 3 is highly defamatory of the plaintiff.

Justification F

[26] A justification plea means that the published words and the imputation
it conveys are true. It is an absolute defence if proven successfully because even
the presence of malice which is presumed in defamation cases cannot defeat it.
G
[27] In other words, what is truly stated, however vile and venomous it may
appear to be the ordinary reader, cannot be defamatory. The defendant pleaded
justification as a defence in para 7 of the statement of defence. The basis for the
plea of justification can be summarised as follows:
H
(a) one James Stephen Dionysius, the Executive Secretary of PKR had
confirmed to him that Charles Masuil had talked about the incident
referred to in the statutory declaration;
(b) the statutory declaration was affirmed before a Justice of Peace;
I
(c) that Charles Masuil had filed the statutory declaration together with a
complaint form at the Complaint Secretariat of PKR; and
(d) that the defendant posted the entire statutory declaration in its original
form.
 Ansari Abdullah v Shalmon Sanangan
[2016] 10 MLJ (Ravinthran J) 53

A [28] The burden to prove the defence of justification lies upon the defendant
as the law presumes that defamatory words are false (see Belt v Lawes (1882) 51
LJQB 359). The burden must be discharged on a balance of probabilities. In
my opinion, the defendant has completely failed to prove the defence of
justification. My reasons are as follows. The defence of justification is only
B based on the statutory declaration of Charles Masuil and the belief of the
defendant that it was true. I agree with counsel for the plaintiff that the
statutory declaration and the belief of the defendant that it was truly affirmed
are irrelevant to the defence of justification. The sting of the defamation in
relation to Publication 2 and Publication 3 is that the plaintiff received a bag
C filled with cash from Datuk Ayob Aman at the Le Meridien Hotel just before
2008 General Election. Thus it is incumbent on the defendant to prove that the
plaintiff had received a bag filled with cash as alleged in the statutory
declaration. Thus, it would not be sufficient to prove that Charles Masuil made
the statutory declaration in question or that the defendant believed it to be
D true. Therefore, even if a handwriting expert had been called to prove that the
Charles Masuil affirmed the statutory declaration in question which he
recanted at the trial, defendant is not relieved of the obligation to prove that the
plaintiff had indeed received the bag of money from Datuk Ayob Aman. Thus
the pivotal issue is not whether Charles Masuil signed the statutory declaration
E in question but it is whether the plaintiff had received the bag filled with cash
from Datuk Ayob Aman. The following passage from the case of Abdul
Rahman Talib v Seenivasagam & Anor [1965] 1 MLJ 142b gives an idea of the
onerous burden on the defendant who attempts to rely on the defence of
justification:
F
To establish a plea of justification, the defence must prove that the defamatory
imputation is true. It is not enough for him to prove that he believed that the
imputation was true, even though it was published as belief only. If A says of B that
A believes B committed murder A cannot justify by saying and proving that A did
believe it. A can only justify by proving the fact of murder. Similarly, if the
G defendant has written that A said that B, the plaintiff, had been convicted of theft
it will be no defence for the defendant to prove that A did tell him so, that he
honestly believed what A said, and only repeated it. He must prove as a fact that B
was convicted of theft. If A repeats a rumour A cannot say that it is true by proving
that the rumour in fact existed. A must prove that the subject-matter of the rumour
H is true.

[29] This point was repeated in the more recent Court of Appeal case of Dato
Seri Mohammad Nizar bin Jamaluddin v Sistem Televisyen Malaysia Bhd &
Anor [2014] 4 MLJ 242; [2014] 3 CLJ 560 where Abang Iskandar JCA
I cautioned as follows:
In relying on the defence of justification the burden of proof is on the defendant to
prove that the allegations made are true or are substantially true. The defendant
must prove it on the balance of probabilities, that is, the allegation is more likely
than not to be true. For example, an allegation published by repeating a rumour
54 Malayan Law Journal [2016] 10 MLJ

cannot be justified by proving that there was such a rumour. A defendant is required A
to prove the substance of the allegation. Since the burden of proving the truth of an
allegation is on the defendant, claimants enjoy a distinct advantage in defamation
claims. Justification has to be used with great care. It can often be difficult to obtain
sufficient admissible evidence to persuade the judge that the statement is true.
B
[30] In the instant case, the defendant completely failed to prove the
libellous allegation that the plaintiff had received a bag filled with cash from the
brother of a political rival. In any event, Charles Masuil, the deponent of the
statutory declaration, did not testify on the defendant’s behalf to verify the
allegations in the statutory declaration. On the contrary, Charles Masuil took C
the witness stand on behalf of the plaintiff and repudiated the contents of the
statutory declaration. He denied going to the Le Meridien Hotel with the
plaintiff on the night in question. The defendant did not procure any other
witness or other evidence to prove the sting of the defamatory allegation in
D
question. Thus, the defence of justification collapsed hopelessly like a house of
cards in relation to Publication 2 and Publication 3. In relation to Publication
1, the defendant had said that the plaintiff had done something bad and that
what he did had a hidden agenda. I found that Publication 1 is defamatory in
its ordinary and natural meaning. During the trial, the defendant attempted to E
prove the plaintiff had committed ‘the bad thing’ (perkara yang tidak baik)
referred to in Publication 1 which is the allegation that the plaintiff received a
bag filled with cash from the brother of a political adversary. As I said earlier, the
defendant failed to prove the said allegation and therefore the defence of
justification fails in respect of Publication 1 as well. F

Fair comment

[31] In para 8 of the statement of defence, the defendant pleaded fair

comment on a matter of public interest as a defence. Paragraph 8 reads as G
follows:
8. Further or alternatively, the comments and publication made by the Defendants
under paragraphs 4, 5 and 6 of the Statement if Claim are fair comment upon a
matter of public interest namely as to whether the plaintiff should be a candidate for H
Parti Keadilan Rakyat in the 13th General Election. The Defendant will rely on the
statutory declaration affirmed by the said Charles masuil for the particular of facts
and matters on which the comment was made.

[32] In Joshua Benjamin Jeyaretnam v Goh Chok Tong [1989] 3 MLJ 1, the I
Privy Council referred to four crucial elements in relation to the defence of fair
comment. They are as follows:
(a) the words complained of are comment, although they may consist or
include inferences of fact;
 Ansari Abdullah v Shalmon Sanangan
[2016] 10 MLJ (Ravinthran J) 55

A (b) the comment is on a matter of public interest;

(c) the comment is based on facts; and
(d) the comment is one which a fair-minded person can honestly make on
the facts proved.
B
[33] I shall first consider whether the defamatory words in question are
comments. An oft-quoted elucidation of the distinction between a comment
and an allegation of fact is found at p 697 of Gatley on Libel and Slander (8th
Ed). It reads as follows:
C
Comment is a statement of opinion on facts. It is comment to say that a certain act
which a man has done is disgraceful or dishonourable; it is an allegation of fact to say
he did the act so criticized … while a comment is usually a statement of opinion as
to merits or demerits of conduct, an inference of fact may also be a comment. There
are, in the cases, no clear definitions of what is comment. If the statement appears
D to be one of opinion or conclusion, it is capable of being comment.

[34] As I said earlier, the defamatory words in relation to Publication 2 and

Publication 3 are that the plaintiff took a bag filled with cash from the brother
of his political adversary. This is the sting of the defamation. Assuming that the
E
fact that the plaintiff took a bag filled with cash from Datuk Ayob Aman had
been proven and the defendant had proceeded to make a statement that it was
a dishonourable thing to do, it would amount to a comment. However, the
defendant merely repeated the unfounded allegation that the plaintiff took a
bag filled with cash. Therefore, it is an allegation of fact and not a comment. I
F
am mindful that the defendant said that he is a registered voter in Tuaran and
that it is his right to join the political discussion on Facebook with other voters.
However, the crucial point that escaped the defendant is that the plaintiff has
not taken issue with any of the comments he made in the course of the political
discussion. The basis of the instant defamation action has to do with the
G
posting of the statutory declaration that alleged that the plaintiff received a bag
filled with cash from the brother of a political rival. The defendant told the
court that he merely posted the original statutory declaration on Facebook and
was not responsible for its contents. However, under defamation law, repeating
a libellous allegation made by someone else constitutes defamation unless the
H
defendant is able to prove it. In Gatley on Libel and Slander (8th Ed), the
following quote appears at p 117 (cited in YB Hj Khalid bin Abdul Samad
v Datuk Aziz bin Isham & Anor [2012] 7 MLJ 301):
Every republication of a libel is a new libel and each publisher is answerable for his
I act to the same extent as if the calumny originated with him.

[35] Thus the defendant cannot rely on the argument that he ‘merely’ posted
the statutory declaration in question for discussion. Coming back to the
defence of fair comment, the defendant failed to prove that the posting in
56 Malayan Law Journal [2016] 10 MLJ

question is a comment and even if it was a comment, he failed to prove that it A

had a factual basis. I shall now move to consider whether the publication of it
was in the public interest. As the plaintiff was a public figure and at the material
time was a potential candidate for the General Election, I find that it was in the
public interest if it had factual basis. But as I said earlier, it had no factual basis.
The defendant also failed to prove that the so-called comment was ‘fair’. In the B
case of Reynolds v Times Newspapers Ltd and others [2001] 2 AC 127, Lord
Nicholls of Birkenhead who wrote the leading judgment at the House of Lords
said ‘fair’ in ‘fair comment’ means ‘honest’. His Lordship said as follows:
Traditionally one of the ingredients of this defence is that the comment must be fair, C
fairness being judged by the objective standard of whether any fair-minded person
could honestly express the opinion in question. Judges have emphasised the latitude
to be applied in interpreting this standard. So much so, that the time has come to
recognise that in this context the epithet ‘fair’ is now meaningless and misleading.
Comment must be relevant to the facts to which it is addressed. It cannot be used as D
a cloak for mere invective. But the basis of our public life is that the crank, the
enthusiast, may say what he honestly thinks as much as the reasonable person who
sits on a jury. The true test is whether the opinion, however exaggerated, obstinate
or prejudiced, was honestly held by the person expressing it: see Diplock J in Silkin
v Beaverbrook Newspapers Ltd [1958] 2 All ER 516 at p 518,; [1958] 1 WLR 743
at p 747. E

[36] In the instant case, I see no ground to hold that the defendant held an
honest belief in the truth of the libellous allegation as he did not bother to
verify its truth either from the maker (Charles Masuil) or from the plaintiff or F
from Datuk Ayob Aman before posting it to Facebook and thereby making it
available for the world at large. As suggested by counsel for the plaintiff during
cross-examination, the defendant could even have lodged a police report or
reported the matter to the Malaysian Anti-Corruption Commission to be
investigated but he did not do so. Thus, the defence of ‘fair comment’ in G
relation to Publication 2 and Publication 3 fails because the publication was
neither ‘fair’ in the sense that belief in it could be honestly held by the
defendant nor was it a ‘comment’ by any stretch of imagination as it was a pure
allegation of fact and no more.
H
[37] In respect of Publication 1, ie the insinuation posted by the defendant
on the Facebook of Albert Polinoh that the plaintiff had done something bad
with a hidden motive and that only God knows what had happened, it cannot
be construed as a comment in the first place because there was no factual basis
for the so-called comment in the first place. The factual foundation that the I
defendant attempted to establish was that the plaintiff received a bag filled with
cash from the brother of his political adversary. However, I found that the
defendant failed to prove that fact. Thus the defence of fair comment cannot
apply to Publication 1 as well.
 Ansari Abdullah v Shalmon Sanangan
[2016] 10 MLJ (Ravinthran J) 57

A Malice

[38] In the instant case, I found that the defendant failed to prove the
defence of fair comment. However, even if the defence of fair comment
succeeded, I find that the defendant cannot avail it because of the presence of
B actual or express malice. The defence of fair comment is not absolute as it can
be defeated by presence of actual or express malice as opposed to presumed
malice. The burden to prove actual malice lies on the plaintiff (see Hoe Thean
Sun & Anor v Lim Tee Keng [1999] 3 MLJ 138). I shall now give my finding on
the issue of malice for sake of completeness. Malice in defamation law has been
C
defined to include dishonest motives or making use of an occasion for some
indirect purpose. It does not necessarily mean ill will or personal spite (see
Abdul Rahman Talib v Seenivasagam & Anor [1965] 1 MLJ 142b. Furthermore,
the defendant had attempted to sensationalise the publication of the statutory
D declaration by posting the remark ‘BERITA HANGAT PILIHANRAYA
ABAD INI!!’ in bold. I am mindful that the defendant denied posting the said
caption but in my opinion, the denial beggars belief as the statutory declaration
was admittedly uploaded from his Facebook account. It was undisputed that
the plaintiff was the Tuaran PKR Division Chief at the material time and was
E a potential candidate for the General Election. It was also undisputed that the
national leaders of PKR were in town on the eve of Publication 1. Therefore, a
reasonable inference can be drawn that apart from being utterly reckless, the
defendant had a dishonest motive to attack the reputation of the plaintiff at a
crucial time. Furthermore, as I said earlier the defendant had been reckless and
F therefore he must be treated as if he knew that the sting of the defamation
found in the statutory declaration was false. In the case of S Pakianathan v Jenni
Ibrahim [1988] 2 MLJ 173, Wan Hamzah SCJ said as follows on the
consequence of recklessness in making a defamatory statement:
G The mere proof that the words are false is not evidence of malice, but proof that the
defendant knew that the statement was false or that he had no genuine belief in its
truth when he made it would usually be conclusive evidence of malice. If the
defendant publishes untrue defamatory matter recklessly without considering whether it
be true or not, he is treated as if he knew it to be false. (Emphasis added.)
H
[39] Thus, in this case as the defendant was utterly reckless and there is
evidence to draw an inference that he had indirect motive to attack the
plaintiff, he cannot avail the defence of fair comment in any event.

I [40] In the premises, I find that the plaintiff has succeeded in proving on a
balance of probabilities that he was defamed by the defendant. I shall now
assess the damages that should be awarded to the plaintiff.

Damages
58 Malayan Law Journal [2016] 10 MLJ

[41] It is trite law that once libel is proven, there is no requirement for the A
plaintiff to prove resulting damage for such damage is presumed. In Ratcliffe
v Evans [1892] 2 QB 524 at p 528, Bowen LJ made the following classic
statement:
The law presumes that some damage will flow in the ordinary course of things from B
the mere invasion of his absolute right to reputation.

[42] In the statement of claim, the plaintiff prayed for general damages of
RM10m and further RM10m for aggravated and exemplary damages.
Theclaim for exemplary damages must be dismissed as it does come within the C
principles set out in the case of Rookes v Barnard & Ors [1964] AC 1129.
However, the claim for aggravated damages has merit as the defendant had
pleaded the defence of justification and had failed to prove it. Furthermore,
despite the failure of defendant to procure any evidence to support the defence
of justification, he insisted in maintaining the said defence. An award for D
aggravated damages can be included in the general award of compensatory
damages. The normal factors the court would consider in assessing damages
would be the nature of the defamation, the social standing of the victim and the
extent of the circulation of the defamatory statement. It cannot be disputed
that the plaintiff has high social standing. He is one of most senior and E
prominent lawyers in Sabah. He has been active in politics for a long time and
had even been appointed a Justice of Peace by the Head of State of Sabah. The
libellous allegation is serious as it indirectly alleged criminality on the part of
the plaintiff, ie he had corruptly sold out his party for financial reward. It also
had a tendency to damage the professional reputation of the plaintiff as an F
advocate. In respect of the extent of the circulation, it can be fairly said that a
good number of voters or local political activists had viewed the postings. Some
of them posted their own comments on the comment section of the Facebook
of Albert Polinoh, the Facebook of the defendant and the Facebook of the
‘TUARAN Sembang2’ Facebook group. Furthermore, the ‘TUARAN G
Sembang2’ Facebook group is an open Facebook group and has 810 members.
However, in my view, a very high award is not justified in the instant case as the
plaintiff did not hold high political office is therefore not known nationally or
internationally unlike the victim in the cases cited by the counsel for the
plaintiff. Having considered all the circumstances of the case, I shall award the H
plaintiff the sum of RM70,000 as general and aggravated damages.

[43] However, I find it unnecessary to grant an injunction against the

defendant to stop further similar publications as there is no evidence that the
defendant had continued to do so. In respect of costs, the counsel for the I
plaintiff has suggested RM15,000 whereas counsel for defendant suggested
costs of RM10,000. In my view, given the fact that it was a trial in the High
Court, the costs of RM15,000 claimed by the plaintiff is very reasonable. I shall
therefore order the defendant to pay costs of RM15,000 to the plaintiff.
 Ansari Abdullah v Shalmon Sanangan
[2016] 10 MLJ (Ravinthran J) 59

A Claim allowed with costs of RM15,000.

Reported by Dzulqarnain Ab Fatar