Licence to Defame – a Stretch Too Far?
30 April 2019
Oommen Koshy and Kwan Will Sen examine the Federal Court’s decision on the republication of contents of a police report.
The Federal Court in Lee Yoke Yam v Chin Keat Seng  1 MLJ 145 (“Lee Yoke Yam”) had, in November 2012, held that statements made in a police report pursuant to Section 107 of the Criminal Procedure Code attract absolute privilege as a defence to defamation claims. This was a landmark decision, which introduced a new category of absolute privilege to the existing ones, namely that of parliamentary proceedings and judicial proceedings.
Thereafter, in August 2017, the Federal Court in Dato’ Dr Low Bin Tick v Datuk Chong Tho Chin and other appeals  5 MLJ 413 (“Low Bin Tick”) extended the principles in Lee Yoke Yam. The Court held that absolute privilege also applies to statements in reports or letters of complaints made to the Registrar of Societies (“ROS”), Anti-Corruption Agency (now the Malaysian Anti-Corruption Commission) (“MACC”) and the Commercial Crime Division (“CCD”) of the police force.
Most recently, in January 2019, the Federal Court in Noor Azman bin Azemi v Zahida binti Mohamed Rafik  3 CLJ 295 (“Noor Azman”) had the occasion to consider the following question of law:
“Whether the publication of the contents of a police report by its maker to the public at large is protected by absolute privilege having regard to the decisions in Lee Yoke Yam v Chin Keat Seng  1 MLJ 145, Taylor v Serious Fraud Office  4 All ER 801 and Darker v Chief Constable of the West Midlands Police  4 All ER 193?”
This article discusses the Noor Azman decision, where the Federal Court curtailed a further extension of the principles in Lee Yoke Yam to a republication of contents of a police report by its maker to the public at large. The Court held that this is not protected by absolute privilege.
The case concerns a police report lodged by the Defendant/Respondent (an actress) against the Plaintiff/Appellant (a former driver of the Defendant). In the police report, the Defendant alleged that the Plaintiff had run off with the Defendant’s money amounting to RM200,000. These words were plainly defamatory of the Plaintiff, and the literal and ordinary meaning of which, meant that the Plaintiff is a criminal and untrustworthy.
After making the police report, the Defendant was approached by reporters who were waiting for her outside the police station. The Defendant informed them that she had lodged a police report against the Plaintiff, where she repeated the contents of the report to the reporters.
This then led to an article in Harian Metro, entitled ‘Zahidah Rafik Terkedu’ (i.e. ‘Zahidah Rafik Speechless’) on 3 March 2012, the subject matter of the defamation suit, which the Plaintiff contended, contains defamatory statements against him. The Plaintiff sued the Defendant.
The High Court Decision
The High Court allowed the Plaintiff’s claim for defamation. The High Court found that the natural and ordinary meaning of the impugned words, in their natural and ordinary meaning meant or were understood to mean that the Plaintiff is “someone who is not honest; is a thief; is someone who cannot be trusted; is a criminal; is someone who is dishonest; is someone who does not have a good reputation; is someone who has no moral.” The High Court held, amongst others, that the impugned words are not covered by absolute privilege.
The Court of Appeal Decision
The Court of Appeal overturned the High Court’s decision. In doing so, the Court of Appeal held that the impugned words in the article were in fact nothing more than a regurgitation of the words in the police report. The police report was republished in the impugned article.
The Court of Appeal was of the view that the High Court had erred in holding that the defence of absolute privilege was not available to the Defendant. The publication of the alleged defamatory contents of the police report in Harian Metro attracts the same privilege in an ancillary manner and thus would enjoy the protection of absolute privilege.
NO ABSOLUTE PRIVILEGE FOR SUBSEQUENT PUBLICATION
The Federal Court answered the question of law set out above in the negative for the reasons elaborated below.
As a general rule, the Court observed that the defence of absolute privilege is in principle inconsistent with the rule of law. Any such protection should not be given any wider meaning than is absolutely necessary in the interests of the administration of justice. In this regard, the general rule is that the extension of absolute privilege is viewed with the most jealous suspicion and resisted unless its necessity is demonstrated.
No Authorities to Support Contention of Ancillary Privilege
The Defendant argued that the republication of the contents of a police report by its maker to the public at large is protected by ancillary privilege, extended from the absolute privilege of the police report. The Defendant relied on Lee Yoke Yam, Low Bin Tick, Tan Sri Dato’ Seri Hj Hassan v Dato’ Seri Anwar Ibrahim  8 CLJ 239 (“Dato’ Seri Hj Hassan”), and Sharifuddin Mohamed & Anor v Dato’ Anas Khatib Jaafar & Another Appeal  3 CLJ 574 (“Sharifuddin”).
First, the Federal Court noted that the decision in Lee Yoke Yam did not deal with the subsequent publication of defamatory statements contained in a police report by its maker to the public at large. Further, it held that the Court of Appeal should not have relied on Dato’ Seri Hj Hassan and Sharifuddin. The Federal Court took the view that the Court of Appeal in Sharifuddin “fell into serious error when it erroneously relied on [Lee Yoke Yam and Dato’ Seri Hj Hassan] to hold that the subsequent publication of the … report, is an absolutely privileged document, which would enjoy the same protection of ancillary absolute privilege”.
As for Dato’ Seri Hj Hassan, the Federal Court observed that “upon closer reading, there is nothing … which is capable of being read or support the proposition … that a subsequent publication of it also enjoys the protection of absolute privilege in an ancillary manner”.
Nevertheless, the Federal Court referred to the English case of Taylor v Serious Fraud Office  4 All ER 801 and held that absolute privilege is accorded to subsequent publication or the use of the contents of a police report in judicial or quasi-judicial proceedings – these are the only two exceptions to republication.
The learned judge, Azahar bin Mohamed, FCJ then considered the question of law put to it from the public policy aspect.
His Lordship was of the view that there is no valid reason of public policy as to why the maker of a police report should be free from accountability by way of defamation action to publish the defamatory words contained in the police report to the world at large. The right of the maker of the police report to speak and write freely to the public at large cannot override an individual’s interest in protecting his reputation. Absolute privilege, must at some point, give way to protection against reputational damage. The Court had to strike an appropriate balance between freedom of expression and the protection of reputation.
In this regard, the Court chose not to extend the ambit of absolute privilege unnecessarily, particularly where to “hold otherwise would result in persons irresponsibly slandering others with impunity.”
It follows that subsequent publication of a police report by its maker to the public at large is not protected by absolute privilege, save where the contents of the police report were made in or in connection with judicial or quasi-judicial proceedings.
Although the Federal Court set limits on the right of the maker of a police report to republish the report to the public at large, it declined to interfere with the Court of Appeal’s decision as the Plaintiff had failed to show that a serious miscarriage of justice had occurred to warrant intervention by the apex court.
The Federal Court’s decision is welcomed, as it sets clear parameters on absolute privilege vis-à-vis statements made in police reports.
Although the Federal Court’s decision relates to ancillary privilege or republication vis-à-vis a police report, it is likely that the republication by the maker of reports or complaints made to other enforcement agencies (such as the ROS, MACC and CCD) as in the case of Low Bin Tick, would likewise not be protected by ancillary absolute privilege.
You may view the full issue of Skrine’s Legal Insights Issue 1/2019 here