Datuk Harris Mohd Salleh v Datuk Yong Teck Lee & Anor [2017] MLJU 1525

Case Review: Datuk Harris Mohd Salleh v Datuk Yong Teck Lee & Anor[2017] MLJU 1525

Court: Federal Court (Putrajaya)

Topic: Defence of Fair Comment

Facts 1.     The parties shall be referred to as they were in the High Court proceeding for reader’s convenience.

2.     As a matter of fact, the Second Defendant is a political party, while the Plaintiff and First Defendant are both former Chief Ministers of Sabah.

3.     The defamation suit was triggered by a speech of Tengku Razaleigh who had referred to an air crash in Kota Kinabalu that took place in 1976, which had killed everyone on board including the newly appointed Chief Minister, the late Tun Fuad Stephens and more than half of the cabinet ministers of Sabah.

4.     The relevant parts of Tengku Razaleigh’s speech that triggered the defamation suit are as follows:

“Kita semua sudah ‘strapped’ dah pakai tali pinggang kapal terbang. Saya duduk di belakang Allahyarham Tun Fuad Stephens, sebelah kanan saya Tun Rahman Yaakob, sebelah belakang saya Tengku Arif Bendahara Pahang. Tiba-tiba Datuk Harris yang pada masa itu menjadi Timbalan Ketua Menteri Sabah mengajak saya keluar dari kapal terbang, kerana dia kata elok kita ke Pulau Banggi melihat rancangan belaan sapi dari Australia di Pulau Banggi.”

5.     The First Defendant, an ex-Chief Minister of Sabah and head of the Second Defendant political party, latched onto the speech by Tengku Razaleigh, by causing to be published a news article under the caption ‘SABAH ACTION POLITICAL PARTY WANTS FILE ON TRIPLE SIX TRAGEDY PROBE REOPENED’ (“the first statement”) that called for a re-investigation of the air crash incident.

6.     After the publication of this statement, the Plaintiff who succeeded Tun Fuad as Chief Minister of Sabah and was mentioned in the speech by Tengku Razaleigh, issued a press release of his own disputing the accuracy of Tengku Razaleigh’s speech and providing his own account of the events leading up to the air crash incident.

7.     The Plaintiff also challenged the Defendants to repeat their remarks more specifically and openly.

8.     In response to this challenge, the First Defendant caused a publication of his second statement in the same newspaper captioned ‘BASIS TO REOPEN DUE TO NEW INFO: YONG’ (“the second statement”).

9.     In the second statement, the First Defendant again called for re-investigation into the air crash in the light of the new information that had surfaced.

10.   The Plaintiff then commenced a defamation suit against the Defendants.

11.  The Plaintiff contended that the statements in the two articles published by the Defendants could be understood to mean that he should be investigated because he had conspired with others to, inter alia, assassinate the late Tun Fuad so as to become the Chief Minister of Sabah.

12.  The Defendants contended that there had been no defamation on Plaintiff, while relying on defences of qualified privilege and fair comment.

13.   The High Court found that the statements referred to Plaintiff and also found that the First Defendant caused the statements to be published.

14.    However, the Court of Appeal reversed the decision of the High Court that lead to the following appeal to the Federal Court.

Issue 1.     Whether the said statements made by the First and Second Defendants were fair comments and made in good faith?
Ratios 1.      The Federal Court considered the defence of fair comment for the sake of completeness in order to bring the appeal to an end since the Defendants failed to establish it in the trial court.

2.     As for the defence of fair comment, Section 9 of the Defamation Act 1965 (“Act 286”) is relevant and provides as follows:

“In an action for libel or slander in respect of words consisting partly of allegations of fact and partly of expression of opinion, a defence of fair comment shall not fail by reason only that the truth of every allegation of fact is not proved if the expression of opinion is fair comment having regard to such of the facts alleged or referred to in the words complained are proved. [Emphasis Added]

3.     It was submitted by the trial judge that to sustain the defence of fair comment, the Defendants must prove the following:

(a)  the words complained of are comments;

(b)  the comments are based on facts;

(c)  the comments or opinion expressed are fair; and

(d)  the comments must be on matters of public interest.

4.     The Federal Court took into consideration the definition of comment through the learned authors of Gatley on Libel and Slander where it simply stated that comment is a statement of opinion on facts.

5.     In the cited case of Hasnul bin Abdul Hadi v Bulat bin Mohamed & Anor [1978] 1 MLJ 7, it was held by the Court that the comment must be based on facts and true for it to be fair.

6.     The Federal Court also nods in agreement in the cited case of London Artist Ltd v Littler [1969] 2 QBD 375 where Lord Denning spoke of ‘basic facts’ as follows:

“In order to be fair, the commentator must get his basic facts right. The basic facts are those which go to the pith and substance of the matter: see 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.”   [Emphasis Added]

7.     The Federal Court also referred to the ratios of the trial judge where in the context of basic fact, when Tengku Razaleigh revealed that the Plaintiff asked him to leave the aircraft minutes before the take-off, the same actually formed a basic fact from which the insinuation of criminal conduct was drawn by the First Defendant.

8.     The first step to establish the defence of fair comment is that the First Defendant must get this fact correct by verifying with Tengku Razaleigh on the accuracy of the new information before issuing the second statement.

9.     Since there were no attempts from the Defendants in doing so, the trial court found that he had purposely abstained from enquiring into the real facts and that his intention in issuing the second statement was to tell the public that the Plaintif’s version of the events are false.

10.  The Federal Court took into account the case of Juahir bin Sadikon v Perbadanan Kemajuan Ekonomi Negeri Johor [1996] 3 MLJ 627 in order to establish the defence of fair comment where the Court held that if a person alleges of something, then he must prove such allegation since the onus is on him to do so.

11.  It was decided by the trial judge which later agreed by the Federal Court that the Defendants must call Tengku Razaleigh to give evidence in order to prove the truth and accuracy of the revelation of the speech.

12.  Accordingly, the Federal Court held that the Defendants failed to discharge their burden to prove the truth and accuracy of the revelations of the speech.

13.  The Federal Court further decided that there was no reason to disturb the findings of the High Court in which malice has been proved against the First and Second Defendants.

Decision 1.     The said statements made by the First and Second Defendants were not fair comments and was not made in good faith.

2.     The defence of fair comments is disposed.

3.     The Plaintiff’s appeal is allowed with costs.

Key Take Away 1.     The defence of fair comment will succeed if the requirements have been fully satisfied.

2.     First, the defamatory statements must be comments which are purely an expression of opinion instead of statement of fact.

3.     Second, the comments must be proven to be substantially true based on facts.

4.     Third, the comments must be fair in which it must not be motivated by malice or ill will by the Defendant.

5.     Fourth, the comments must be on a matter of public interest where it involves a legitimate concern to the general public.

6.     It must be noted that the defence of fair comment will fail if it is proven by the court that the defamatory statements were published with malice.

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