Lee Yoke Yam v Chin Keat Seng [2013] 1 MLJ 145

Case Review: Lee Yoke Yam v Chin Keat Seng [2013] 1 MLJ 145

Court: Federal Court (Putrajaya)

Judges: Arffin Zakaria CJ, Abdul Hamid Embong, Zainun Ali, Sulong Matjeraie FCJJ

Date of Judgement: 28 November 2012

Topic: Defence of Absolute Privilege

Facts 1.     This is an appeal case against the decision of the Court of Appeal which dismissed the Appellant’s appeal against the decision of the High Court.  The Appellant is the Plaintiff in the suit who was aggrieved with the previous decision.

2.     Both Plaintiff and Defendant were the shareholders and members of the boards of director of the Billion Group of Companies (hereinafter referred as Billion).

3.     Following the resignation of Billion’s managing director, the Defendant unilaterally appointed himself as the company’s chairman and managing director.

4.     The Defendant then, fully assumed control over Billion and the related companies to the exclusion of the Plaintiff and other shareholders.

5.     The Defendant also employed his own son as the head of the internal audit and his friend Lim Kea Aung as financial controller of Billion.

6.     The Defendant applied an injunction against the Plaintiff and the other shareholders in the High Court to restrain them from replacing him as the managing director, since there was a board meeting resolution voted him out of his position in Billion.

7.     The High Court allowed the Defendant’s application and reinstated his position as managing director.  However, the High Court set aside the ex-parte injunction after hearing submissions from both parties and the Defendant consequently ceased his position.

8.     While in the course of various applications made by both parties, the Defendant had lodged a police report claiming that Plaintiff misappropriated a sum of money from Billion.

9.     In response, the Plaintiff brought this lawsuit against the Defendant, seeking damages for the Defendant’s libellous and injurious police report as well as defamation (libel) relief.

10.    The Defendant then submitted an application to dismiss the Plaintiff’s lawsuit.

11.     The High Court held that the defence of absolute privilege provides protection for the defamatory remarks in the police report due to public policy considerations.  In consequence, the High Court dismissed the Plaintiff’s claim and allowed the Defendant’s application.

12.     The Plaintiff appealed to the Court of Appeal and the claim was also dismissed.

13.    Aggrieved with the decision, the Plaintiff proceed with the present appeal to Federal Court after obtaining the leave of Court.

Issue 1.     Whether the statements in police report under Section 107 of Criminal Procedure Code (“CPC”) were protected by the defence of absolute privilege?
Ratios 1.     The Federal Court found that the High Courts in several cases before 2008 consistently held that defamatory statement made in a police report is only protected by a qualified privilege as opposed to absolute privilege.

2.     In the case of Abdul Manaf Ahmad v. Mohd Kamil Datuk Hj Mohd Kassim [2011] 4 MLJ 346, which was heard by the Court of Appeal in 2008, it was decided that the absolute privilege defence should be extended to statements made in a police report under Section 107 of CPC for reasons of public policy.

3.     The Federal Court took the judgement delivered by Gopal Sri Ram JCA in the above case into consideration in which was stated as follows:

“When this appeal was called on, the attention of counsel on both sides was drawn to the decision of the Court of Appeal of the Federated Malay States in Martin Rheinus v Sher Singh [1949] 1 MLJ 201, where it was held that a statement made by a person to a police officer in the course of police investigation is absolutely privileged. In the course of his judgment, Willan CJ referred, without any criticism, to the observation of the trial judge in that case as follows:

He (the trial judge) held, however, that the statement was absolutely privileged, and, after citing several Indian cases, decided ‘that no distinction can be drawn between the privilege which must be accorded to an information given to a police officer under Section 107 of CPC and to a statement recorded by a police officer under Section 112 of CPC.

It is implicit from Martin Rheinus v Sher Singh that both statements made in first information reports under Section 107 of the Criminal Procedure Code and in police statements made under Section 112 thereof are absolutely privileged for the purpose of the law of defamation. I consider this to be good law. And I find support for the view I take of the matter from the decision of several Indian cases including Bapala & Co v Krishnaswami Aiyar AIR 1941. That was a case in which a letter of complaint to the police by the defendant alleging that the plaintiff had committed a crime was held to be absolutely privileged and therefore not actionable.”   [Emphasis Added]

4.     After being urged by the counsel of the Appellant to restore the long-standing position that such statement is only protected by qualified privilege, the Federal Court took the opportunity to consider the statement by Willan CJ in Martin Rheinus v Sher Singh [1949] 1 MLJ 201 stated as follows:

“The main issue in the court below was whether this statement by the respondent was made under s 107 or under s 112 of the Criminal Procedure Code (Cap 6). If made under the latter section the respondent claimed it to be absolutely privileged. Although the learned trial judge found that a police investigation had already commenced before the statement was made, he did not come to a decisive finding that this statement had been made under s 112 of the Criminal Procedure Code. He held, however, that the statement was absolutely privileged, and, after citing several Indian cases, decided ‘that no distinction can be drawn between the privilege which must be accorded to an information given to a police officer under s 107 of the Criminal Procedure Code and to a statement recorded by a police officer under section 112’.   [Emphasis Added]

5.     It is clear to the Federal Court from the trial judge’s observation in Martin’s case that there is no difference between the privilege that must be granted to information given to a police officer under Section 107 of CPC and a statement recorded by a police officer under Section 112 of the CPC.

6.     The Federal Court determined that the police report under Section 107 of the CPC is typically the statement of information given to police relating to the conduct of an offence where it initiates the application of criminal law and to gather early information about an alleged crime.

7.     Whilst Section 112 of CPC, it records the statements of witnesses by the police during investigation in which any statements made by the person after being questioned, the said person legally bound to state the truth and this is the reason why the statement under this provision enjoys absolute privilege.

8.     The Federal Court also made a finding that Indian law has always granted absolute privilege to statements contains in a police report.  One of the cases is in Bapalal &Co v AR Krishnaswami Aiyar AIR 1941 Mad 26, which King J held-

“I am accordingly of opinion that the weight of authority is in favour of the view that a complaint to a police officer from its very nature as a statement which the complainant is prepared later, if called upon to do so, to substantiate upon oath is absolutely privileged.  [Emphasis Added]

9.     The English position also held the same.  The Federal Court cited the case of Taylor v Director of the Serious Fraud Office [1999] 2 AC 177, where the House of Lords held-

“In the first place, I cannot accept the proposition that persons who take part in the administration of justice are sufficiently protected by qualified privilege. This would be contrary to a long line of authority. It is the policy of law to protect such persons against baseless allegations of malice, and this requires nothing less than absolute immunity from suit.”  [Emphasis Added]

10.  The Federal Court finally held that the absolute privilege should be extended to statement contained in the police report under Section 107 of CPC on the ground of public policy consideration.

11.  It was premised on the reason that that a member of public should be encouraged to make a police report regardless what they state in the police report with regard to the offence or crime that comes to their notice.

Decision 1.     The statements in police report under Section 107 of CPC are protected by the defence of absolute privilege.

2.     The Federal Court affirmed the decision of the Court of Appeal and the appeal is dismissed with costs.

Key Take Away 1.     It is trite law that a statement made by a person in the examination of witnesses by police under Section 112 of CPC or during the questioning of witnesses in judicial proceedings enjoy absolute privilege.

2.     It is because a person is bound to tell the truth to the authority in charge in regards to the offence or crime that they witnessed.

3.     As such, the privilege should also be granted to the statements made in a police report, because it will lead to judicial proceedings.  This is based on public policy consideration where the member of public should feel encouraged to report the crime instead of being threatened by the defamation lawsuit.

4.     However, if the statements made in the police report are proven to be false, then the maker of statement is liable to be prosecuted for making such false report.

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