Nor Aziz bin Mat Isa v Sun Teoh Tia (SAC) (Pengerusi Lembaga Tatatertib Polis Diraja Malaysia Bukit Aman) & Ors [2021] MLJU 11

Federal Court (Putrajaya)

Application of absolute privileges to defamatory statements

1. The Appellant had served as a police officer in the Royal Malaysia Police (RMP) for 27 years until his dismissal on 18 August 2015. On 12 September 2013, he received a show-cause letter from the Second Respondent, notifying him that disciplinary proceedings would be initiated under regulation 37 of the Public Officers (Conduct and Discipline) Regulations 1993, with possible penalties including dismissal or demotion.
2. A total of twelve charges were brought against him. The first nine charges concerned his failure to report in person to his battalion chief. The tenth charge related to a police report he lodged on 27 August 2012, in which he allegedly made insulting remarks about the Inspector General of Police (IGP). The eleventh charge involved statements suggesting that the IGP maintained a close relationship with the Bridge Commander and that any complaints against him would be ineffective. The twelfth charge alleged that his conduct had tarnished the image of the public service.
3. The Appellant responded to the show-cause letter on 31 December 2013. After reviewing his explanation, the Second Respondent found him not guilty of the first nine charges but guilty of the tenth to twelfth charges. As a result, his service was terminated for the tenth charge, while he received warnings for the eleventh and twelfth charges. The decision was communicated to him through a letter dated 21 August 2015.
4. Dissatisfied, the Appellant sought judicial review of the disciplinary board’s decision, but the High Court dismissed his application. His subsequent appeal to the Court of Appeal was also rejected. The key issue in the Federal Court appeal centred on the police report he had lodged identified as Report No. Sg. Siput (U) 002450/12 which formed the basis of the tenth charge leading to his dismissal.
5. The police report lodged by the Appellant contained remarks that insulted and ridiculed the then IGP, describing him as incompetent, cowardly, and unfit to hold office. These statements were considered defamatory and disrespectful to the IGP, forming the basis of the 10th disciplinary charge that ultimately led to the appellant’s dismissal from service.

Issue

Whether absolute privilege ought to extend to defamatory statements made in a police report filed by a police officer under Section 107 of the Criminal Procedure Code (“CPC”) for the purpose of disciplinary proceedings against him.

Whether absolute privilege applies to defamatory statements made in a police report lodged under section 107 of the Criminal Procedure Code for use in disciplinary proceedings against a police officer.

1. In Nor Aziz bin Mat Isa v Sun Teoh Tia (SAC) (Pengerusi Lembaga Tatatertib Polis Diraja Malaysia Bukit Aman) & Ors [2021] MLJU 11, the Federal Court was asked to determine whether the defence of absolute privilege should extend to defamatory statements made by a police officer in a police report lodged under section 107 of CPC, which later became the basis of disciplinary proceedings under the Public Officers (Conduct and Discipline) Regulations 1993.
2. The Court reaffirmed the established principle from Lee Yoke Yam v Chin Keat Seng & Anor [2013] 1 MLJ 145 and Dato’ Dr Low Bin Tick v Datuk Chong Tho Chin & Ors [2017] 8 CLJ 369, that absolute privilege attaches to police reports made in good faith as the first step in a criminal investigation, to encourage public reporting of offences without fear of defamation suits. However, following Noor Azman bin Adnan v Dato’ Seri Dr Mohamad Khir bin Toyo & Ors [2016] 4 MLJ 674, the Court emphasized that this privilege does not extend to reports made for purposes unrelated to criminal investigation or to subsequent publications of such reports.
3. Referring to English authorities including Westcott v Westcott [2009] 2 WLR 838 and Buckley v Dalziel [2007] 1 WLR 2933, the Court explained that absolute privilege exists only where statements form part of the criminal justice process or the investigation of an alleged crime. Any expansion of this doctrine must be strictly confined to situations necessary for the administration of justice, as cautioned in Darker v Chief Constable of the West Midlands Police [2001] 1 AC 435 and Mann v O’Neill (1997) 145 ALR 682.
4. Applying these principles, the Federal Court held that the Appellant’s police report containing defamatory remarks against the IGP was not protected by absolute privilege, as it was not made to report a crime but rather to publicly insult and discredit his superior. The report had no connection to any criminal investigation and was instead an act of personal malice and professional misconduct.
5. Accordingly, the Federal Court ruled that absolute privilege cannot be invoked to shield a police officer from disciplinary action for lodging a defamatory report against a superior officer. The defence was deemed inapplicable, and the Court found that extending it to such circumstances would be contrary to public policy and unnecessary for the administration of justice.