Kalung Makmur Sdn Bhd v Lo Yen Nyuk [2018] 2 MLJ 428

Court of Appeal

Interlocutory application — Defamation — Absolute privilege

1. The Appellant, Kalung Makmur Sdn Bhd, was a property management company managing Village Grove Condominium. The Respondent, Lo Yen Nyuk, was a registered owner of a condominium unit.
2. On 22 July 2015, the Respondent lodged a police report alleging that three cheques she had handed over to the Appellant cannot be located. The report included statements suggesting that failure to pay on time would result in losses and possible legal action by the contractor.
3. The Appellant contended that the statements in the police report were defamatory, as they implied that the company was dishonest, careless, and untrustworthy in its professional duties. The Appellant further alleged that the Respondent had acted with malice, particularly because she subsequently circulated the police report to residents of the condominium by posting it on notice boards at two blocks of the complex.
4. The Respondent applied to strike out the Appellant’s statement of claim under Order 18 rule 19(1) of the Rules of Court 2012 on grounds that the claim disclosed no reasonable cause of action and was frivolous and vexatious. The High Court allowed the application, holding that the police report and the subsequent publication were protected by absolute privilege. The Appellant appealed to the Court of Appeal (“COA”).

1. Whether statements made in a police report are protected by absolute privilege.
2. Whether subsequent publication of the police report to members of the public also attracts absolute privilege.
3. Whether the High Court erred in striking out the statement of claim without considering the affidavits filed by the parties.

(1)  Whether statements in a police report are protected by absolute privilege

(a) The COA held that statements made in a police report under section 107 of the Criminal Procedure Code [Act 593] are absolutely privileged. This position aligns with the Federal Court decision in Lee Yoke Yam v Chin Keat Seng [2013] 1 MLJ 145, where it was held that such statements, even if made maliciously, are immune from defamation proceedings. The rationale is rooted in public policy. The public must be encouraged to report crimes without fear of civil liability, as such reports are essential to initiate criminal investigations.

(b) The COA observed that even if a report is made with malice, the appropriate remedy lies under the Penal Code [Act 574], specifically sections 177, 182, or 203, which penalise false reporting. The COA reasoned that extending absolute privilege in this context ensures that law enforcement processes are not undermined by threats of civil suits.

(c)  In contrast, Hamid Sultan JCA (the dissenting judge) agreed that the lodging of a police report is absolutely privileged but emphasized that this privilege is confined strictly to the act of reporting.

(d)  Hamid Sultan JCA referred to English case such as Westcott v Westcott [2008] EWCA Civ 818, highlighting that absolute privilege applies only to communications necessary for the administration of justice. He warned that an overly broad interpretation could create a “license to defame,” allowing malicious complainants to escape accountability by publishing defamatory material under the guise of a police report.

(2)  Whether subsequent publication of a police report attracts absolute privilege

(a) The COA accepted the Respondent’s argument that the entire conduct related to the police report including its communication to others fell within the sphere of absolute privilege. The COA reasoned that since the alleged defamatory material originated from a document absolutely protected by law, any related dissemination remained within that shield. The COA also emphasised that the Appellant’s claim of malice was irrelevant, as absolute privilege negates the need to consider the motive or intent of the maker.

(b) Nevertheless, Hamid Sultan JCA held that the privilege does not extend to subsequent publication to third parties. His Lordship stated that once the police report was posted on condominium notice boards, the act ceased to be part of the law enforcement process and instead became a separate publication. In such circumstances, the proper defence available to the Respondent would be qualified privilege, not absolute privilege.

(c)  Hamid Sultan JCA argued that public policy does not justify shielding malicious repetition of defamatory content. His Lordship explained that the rationale behind absolute privilege is to protect honest participation in judicial, not to permit republication for non-legal purposes. His Lordship drew upon section 11 and section 12 of the Defamation Act 1957 [Act 286] to demonstrate that even judicial reports, which enjoy statutory absolute privilege, lose that protection when republished publicly especially if such republication is done maliciously.

(d) This reasoning reflects a narrower and more balanced approach protecting honest reporting to the authorities while preserving remedies for victims of unnecessary or malicious republication.

(3)  Whether the High Court erred in striking out the claim without considering affidavits

(a) The COA noted that the High Court initially refused to consider the affidavits filed by both parties, reasoning that the application was anchored primarily on Order 18 rule 19(1)(a) of the Rules of Court 2012. However, since the application also relied on paragraphs (b), (c), and (d), the COA found this refusal inappropriate. As such, the COA treated the appeal as a rehearing and considered all affidavits in its deliberation.

(b) After reviewing the affidavits, the COA concluded that even if the allegations of malice were true, the Appellant’s claim remained untenable in law due to the absolute privilege accorded to police reports. Accordingly, the COA held that the statement of claim disclosed no reasonable cause of action and was rightly struck out.

(c)  However, Hamid Sultan JCA found that the presence of triable issues particularly regarding the subsequent publication warranted a full trial. His Lordship opined that striking out is a drastic remedy and should not be exercised where factual disputes exist, especially concerning whether the publication to the public fell within the scope of privilege.

The COA dismissed the appeal, holding that statements in a police report are protected by absolute privilege and cannot found a defamation claim, even if made maliciously. The proper remedy for false reporting lies under the Penal Code [Act 574]. Hamid Sultan JCA dissented, finding that the subsequent publication of the report was not privileged, but the majority decision prevailed.

1. Statements made in a police report are protected by absolute privilege, shielding the maker from defamation suits.
2. The law prioritizes public interest in encouraging individuals to report suspected crimes without fear of civil liability.
3. Unlike qualified privilege, malice does not remove the protection of absolute privilege in the context of police reports.