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Shearn Delamore x KPUM e-Moot Competition 2022

THE FEDERAL COURT OF MALAYSIA IN PUTRAJAYA

BETWEEN

CHONG YAN FEI … APPELLANT

AND

1. DATO’AHMAD KAMAL
2. KELANTAN STATE GOVERNMENT … RESPONDENTS

“RESPONDENTS’ WRITTEN
SUBMISSION”
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TABLE OF CONTENTS

TABLE OF AUTHORITIES.....................................................................................................3
LEAD COUNSEL EXECUTIVE SUMMARY.........................................................................4
CO-COUNSEL EXECUTIVE SUMMARY.............................................................................5
LEAD COUNSEL MAIN SUBMISSIONS...............................................................................6
CO-COUNSEL MAIN SUBMISSIONS.................................................................................12
PRAYER FOR RELIEF...........................................................................................................17
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TABLE OF AUTHORITIES

Cases
Charman v Orion Publishing Group Ltd and others [2008] 1 All ER 750
Chong Chieng Jen v Government of State of Sarawak & Anor [2019] 3 MLJ 300.
City Team Media Sdn Bhd & Ors v Tan Sri Datuk Nadraja a/l Ratnam [2022] MLJU 105
Dato' Seri Anwar bin Ibrahim v The New Straits Times Press (M) Sdn Bhd & Anor [2010] 2
MLJ 492
Derbyshire County Council v Times Newspaper Ltd & Ors [1993] AC 534
Lim Guan Eng v Ruslan bin Kassim and another appeal [2021] MLJU 226
Ling Wah Press (M) Sdn Bhd & Ors v Tan Sri Dato Vincent Tan Chee Yioun [2000] 4 MLJ
77
Mkini Dotcom Sdn Bhd & Ors v Raub Australian Gold Mining Sdn Bhd [2021] 5 MLJ 79
Reynolds v Times Newspapers Ltd and others [2001] 2 AC 127
Utusan Melayu (Malaysia) Bhd v Dato' Sri’ DiRaja Hj Adnan Hj Yaakob [2016] 5 MLJ 56

Legislation Referred

Article 10(1)(a) of the Federal Constitution

Article 10(2)(a) of the Federal Constitution

Section 3 of the Government Proceedings Act 1956

Section 2(2) of the Government Proceedings Act 1956

Article
General Publication, Public Interest and Common Law Qualified Privilege: Where is the law
heading? [1999] 2 MLJ clxiii

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LEAD COUNSEL EXECUTIVE SUMMARY

First Ground of Appeal

A. Dato’ Ahmad Kamal (the 1st respondent) as a public official has a locus standi to
initiate and maintain his action for alleged defamation.
1. The principle in the case of Lim Guan Eng v Ruslan bin Kassim and another
appeal1 allow protection for individual reputations whether official or personal if
defamatory words target specific individuals rather than a broad critique of
government policy.
i) The 1st respondent's name was cited repetitively without his official title
within the open letter and the First Article.
ii) Denying the protection will leave public officials defenceless against media
attacks and give others the upper hand.

Second Ground of Appeal

B. The application of English common law by using the Derbyshire principle is

inoperative due to the existence of written law.

1. Section 3 of the Government Proceedings Act 1956 (GPA) provides statutory

right for the government to sue.
i) Section 3 of the GPA has permitted the ground for an action between the
2nd respondent and Appellant since the defamation suit is still within the
purview of a civil action.

2. Article 10 of the Federal Constitution (FC) does allows the government official
to be criticised but the right is not absolute since there are limitations.
i) Article 10(2)(a) of the FC has imposed restrictions by authorising
Parliament to enact laws it deems necessary to provide for defamation, or
incitement to any offence.
ii) An absolute exercise of the rights will permit the Appellant to defame and
deny a government’s good administration.

1
[2021] MLJU 226

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CO-COUNSEL EXECUTIVE SUMMARY

First Ground of Appeal

A. The First Article is not protected by the defence of Reynolds’ privilege.

1. Two requirements in the defence of Reynold’s privilege which has been laid down
in Reynolds v Times Newspapers Ltd and others [“Reynolds”]2 is not fulfilled.
i) Firstly, the publication is not made in serving public interest but instead of
personal political interest.
ii) Secondly, emphasis has to be given to the four relevant factors which are
the seriousness of the allegation, step taken to verify the information,
source of the information and whether comment was sought from the
plaintiff.
iii) Since Appellant regularly garners considerable influence on his posts, we
submit that he had cooperated with KSB to publish false allegations to
damage PS’s reputation.

Second Ground of Appeal

B. The Second Article is not protected by the defence of reportage.

1. The general principle of reportage as being laid down in Mkini Dotcom Sdn Bhd
& Ors v Raub Australian Gold Mining Sdn Bhd [“Mkini”]3, is not sucessfully
fulfilled.
i) Appellant made an elaboration of his own when he had attached a self-
recorded video and mention of his ‘open letter’ which he personally wrote.
ii) Appellant failed to report the story in a fair, disinterested and neutral way
by not mentioning 1st respondent’s response to the issue and he also failed
to seek a response from the The Department of Environment (JAS) about
the pollution.

2
[2001] 2 AC 127
3
[2021] 5 MLJ 79

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iii) Appellant indirectly subscribes to a belief in the truth of the allegation of

the pollution, since he personally wrote the second article and the open
letter.

LEAD COUNSEL’S MAIN SUBMISSIONS

FIRST GROUND OF APPEAL:

A. Dato’ Ahmad Kamal (the 1st respondent) as a public official has a locus standi to initiate
and maintain his action for alleged defamation.

1. In the case of Utusan Melayu (Malaysia) Bhd v Dato' Sri’ DiRaja Hj Adnan Hj
Yaakob4 (“Adnan Yaakob”), the Court of Appeal adopted the principle in
Derbyshire County Council v Times Newspaper Ltd & Ors 5 (“Derbyshire''). It was
held that by virtue of the plaintiff’s public office as “Menteri Besar” and as elected
representative, he should be open to public criticism and ought to be precluded from
suing for defamation.

2. However, the Federal Court in the case of Lim Guan Eng v Ruslan bin Kassim and
another appeal6 has distinguished the decision of the Court of Appeal in Adnan
Yaakob’s case due to the error in interpreting the Derbyshire principle. The principle
will not totally deny public officials the capacity to sue. The exception under the
principle provides the right of an individual holding public office from bringing a
defamation suit in his personal capacity, where his individual reputation may have
been wrongly impaired.

3. In the case of Lim Guan Eng v Ruslan bin Kassim and another appeal 7 the court
held that individual reputations, whether official or personal, deserve protection. If the
alleged defamatory publications target specific individuals rather than a broad critique
of government policy or behaviour, such individuals have the right to take personal

4
[2016] 5 MLJ 56
5
[1993] AC 534
6
[2021] MLJU 226
7
[2021] MLJU 226

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action if their reputations are harmed. A public officer is not to be distinguished

between defamation in his official and personal capacities.

4. To apply, the article that was posted by the Appellant involved a serious accusation of
the 1st respondent over his integrity. There was no mention of 1st respondent Exco
position within the open letter and the First Article. Although the Appellant
mentioned him as a candidate for a public official position, candidate is not
synonymous with “public official”. Hence, it shows that Yan Fei directed the
defamatory statements to attack the 1st respondent’s personal reputation.

5. The position of the 1st respondent as public officer should not be distinguished if the
attack was directed in his individual capacity. The defamatory words are capable of
being read as referring to his official reputation as well and not merely a broader
critique of the government. The article went on with a headline stating “Alleged bribe
offers from Ahmad Kamal to betray the voters’ mandate”. Headlines are what forms
the first impression of the readers and that will affect their contextual analysis of the
whole article.

6. The court also stated that it would be discriminatory to target public officials'
reputations in circumstances impacting their official activities. The Federal
Constitution guarantees equal rights to all and should not justify inequitable treatment.
Denying the protection will leave public officials defenceless against media attacks
and give others the upper hand because defamation law is limited to them. Since the
Federal Constitutions support the idea of equal rights, the 1st respondent as a public
officer should not be discriminated against. Denying the protection would inflict more
harm than good. It will reduce the protection of public officials but not the right of
private citizens to criticise because they already have those rights under Article 10(1)
of the Federal Constitution (FC) and are already protected by the fact that they are not
accountable for their defamatory actions concerning public officials.

7. In conclusion, we submit that the respondent should be allowed to maintain his action
for the alleged defamation and claim of RM100,000 in damages for the 1st
respondent’s reputation shall be awarded.

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SECOND GROUND OF APPEAL

A. The application of English common law by using the Derbyshire principle is inoperative
due to the existence of written law.

1. In Malaysia the right of the federal government and the government of the states to
sue is a statutory right. It is specifically provided by Section 3 of the Government
Proceedings Act 1956 (GPA). The act provides a right for proceedings by and against
the federal government and the government of the states.

Right of the Government to sue

“Subject to this Act and of any written law where the Government has a claim
against any person which would, if such claim had arisen between subject and
subject, afford ground of civil proceedings, the claim may be enforced by
proceedings taken by or on behalf of the Government for that purpose in accordance
with this Act.”

2. The Federal Court case of Chong Chieng Jen v Government of State of Sarawak &
Anor8, held that the term written law under Section 3 of the GPA does not include
common law. The interpretation was given by referring to Section 3 of Interpretation
Acts 1948 and 1967 which stated that written laws are the Federal Constitution, States
Constitution, Acts of Parliament and subsidiary legislation made under. To apply, the
2nd respondent by virtue of has the capacity to sue since it was already conferred
under the act. The principle under the common law based on the case of Derbyshire
County Council v Times Newspapers Ltd and others 9 will not be applicable since it
does not fall within the definition of written law.

3. Notwithstanding that, even though the application of the common law principle is
relevant, it would be deemed to be inconsistent with Section 3 of the Civil Law Act

8
[2019] 3 MLJ 300
9
[1993] AC 534

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1956 which does not allow the principle of common law to be used if the legislation
in Malaysia has clearly provided for it.

4. The term civil proceedings under Section 3 of the GPA was also explained in Chong
Chieng Jen v Government of State of Sarawak & Anor 10 which stated that under
Section 2(2) of the GPA, “Government” is defined to include the federal government
and the government of the states. Thus, it will not prevent the government from
pursuing civil action for defamation.

5. The wide definition of ‘civil proceedings’ under Section 3 of the GPA also permit the
claim for an action in defamation. Section 2(2) of the GPA clearly mentioned
about “any proceeding whatsoever of a civil nature before a court” and the operative
words in Section 3 are “a claim against any person which would, if such claim had
arisen between subject and subject, afford ground for civil proceedings”.

6. It means that if a claim provides ground for civil proceedings between private
individuals, it should also provide ground for civil proceedings between the
government and private individuals. Defamation is recognized as a form of civil
action that also provides grounds for an action between private individuals, thus by
virtue of Section 3 of the GPA it will also afford ground for an action in defamation
between the government and private individuals. To apply, Section 3 of the GPA has
permitted the ground for an action between the 2nd respondent and Appellant since
the defamation suit is still within the purview a civil action and the definition of
government provided under Section 2(2) of the GPA does not preclude them.

B. Even though the freedom of expression conferred under Article 10 of the Federal
Constitution (FC) allows the government official to be criticised, the right is not absolute
since there are limitations.

1. In the context of criticism against the government, for so long it has been the right for
every citizen to ensure that the smooth performance and governance is maintained. It
is clear that while the right of the freedom of speech is guaranteed under art 10(1)(a)
of the Federal Constitution, Article 10(2)(a) of the FC has imposed restrictions by
10
[2019] 3 MLJ 300

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authorising Parliament to enact laws it deems necessary to provide for defamation, or

incitement to any offence.

2. In the case of Ling Wah Press (M) Sdn Bhd & Ors v Tan Sri Dato Vincent Tan
Chee Yioun11,the court held that freedom of speech is not a licence to defame others
and it is subject to legal restrictions. An absolute or unrestricted right to free speech
would result in persons recklessly maligning others with impunity, and the exercise of
such right would do the public more harm than good. Every person has a right to
reputation and that right ought to be protected.

3. In this present case, to allow absolute freedom to defame the 2nd respondent in the
name of freedom of speech and expression will only justify a lawless action. The
exercise of the rights will go against nature which is to uphold public interest since it
can do more harm if any person is allowed to deliberately defame and deny a
government’s good administration.

4. The court in Chong Chieng Jen v Government of State of Sarawak & Anor 12 also
stated that behind every government there is a political party or a coalition of political
parties. A defamatory attack on the government, especially by members of a rival
political party will be taken as an attack on the political party or parties behind the
government. By allowing unrestrained defamatory statements against the government
using freedom of speech and expression as the shield is a dangerous political
movement that can initiate negative consequences and violent political reactions that
may be out of control.

5. To apply, the criticism in the second article was indeed under the responsibility of the
2nd respondent to address. However, the State Government status previously and
currently was under the governance of PS is a relevant fact to be considered, since the
“Second Article” which targeted the state government was published by his political
rival; the Appellant from PBK. Here, it should not be concluded as an attack within
the management of the state government only but also an attack towards the political
11
[2000] 4 MLJ 77

12
[2019] 3 MLJ 300

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parties behind the government due to the reason that the open letter had expressly
instituted the hashtag “kerajaan gagal” in it.

6. The criticism against the day to day management should be acceptable but, in this
scenario, members of rival political parties will use their freedom of expression to
hide their attack and direct it towards the government to avoid any lawsuit. This will
cause imbalance in the rights of expressing valid criticism and also trigger negative
political reactions. In our current context, words could be destructive and be used as a
weapon to topple undesired competitors.

7. In conclusion, we submitted that the respondent should be allowed to maintain his

action for alleged defamation and claim of RM100,000 in damages for the 2nd
respondent’s reputation shall be awarded.

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CO-COUNSEL MAIN SUBMISSIONS

FIRST GROUND OF APPEAL:

A. The First Article was not protected by the defence of Reynolds’ privilege.

1. In the federal court case of Mkini, the court referred to the principle laid down by the
House of Lords in Reynolds; To succeed in establishing the Reynolds defence of
responsible journalism or qualified privilege, two requirements must be met: (a) the
publication must be on a matter of public interest; and b) the steps taken to gather,
verify and publish the information must be responsible and fair. Lord Hobhouse in
Reynolds stated that the public cannot have an interest in receiving misinformation
which is destructive of the democratic society.

2. For the first element, even if the “party hopping bribery” is concerned with corruption
which is a matter of public interest, the appellant and his allies have consistently used
lies and insinuations to discredit 1st respondent and damage his reputation as the
candidate for Chief Minister of Kelantan in order to advance their political interests in
the state election. This is evident from the fact that the appellant asked the PBK
leadership what to do before publishing the article and was told that the appellant
should bring this to the public's attention as soon as possible. Also, the appellant
realised that if he was going to have any chance of toppling PS, he needed to make
sure that the voters in Kelantan were aware of Faizal and Johari's allegations against
PS, even if it turned out to be untrue. Thus, the publication is not made in serving
public interest but instead of personal political interest.

3. To determine the second element, Lord Nicholls in Reynolds set out a list of ten non-
exhaustive and merely illustrative circumstances to determine if the publisher has
exercised responsible journalism although the defence is not confined to the press. We
will be only be submitting on the relevant factors that require the most attention.

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4. Firstly, the seriousness of the allegation. Here, the bribery allegations are serious as
1st respondent is the candidate for the Chief Minister of Kelantan hence his reputation
could be harmed and he would be known as an untrustworthy person because the
public is misinformed of the article.

5. Secondly, the steps taken to verify the information. In Dato' Seri Anwar bin Ibrahim
v The New Straits Times Press (M) Sdn Bhd & Anor, (HC) [“Anwar”]13 the learned
Judge stated in paragraph 69 that if seeking a response from the plaintiff who was in
prison at that time was impracticable, she could have contacted his solicitors or his
family members or taken any other measures to at least bring to the attention of the
plaintiff that the said article was going to be published and to ascertain if he had any
response to it. He further stated that if you are going to print something serious and
discreditable about someone, it is elementary fairness that you seek a response.
Thirdly, the source of the information. Some informants have no direct knowledge of
the events. Some have their own axes to grind, or are being paid for their stories.

6. Here we combine the second and third elements where since Faizal and Johari are
political opponents of 1st respondent, hence it is fair to assume that they had axes to
grind. The sole source of information was unreliable which signifies that the appellant
did not take the proper steps to verify the information. The appellant wrote the article
by taking whatever that has been claimed by Johari and Faizal without verifying the
accuracy of the allegation. The appellant did not contact 1st respondent’s solicitors
nor did he take any other sufficient measures to bring the article to 1st respondent’s
attention that it was going to be published. It was not impracticable nor unnecessary
for the appellant to do so because the only thing he did was to contact him by
Facebook and email, in which a politician like 1st respondent may not be actively
checking.

7. Fourthly, whether comment was sought from the plaintiff. It cannot be the philosophy
behind Reynolds that if the claimant refuses to comment on the story, the journalist is
thus given a free pass to publish the material in a way that is defamatory of the

13
[2010] 2 MLJ 492

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claimant. Although 1st respondent did not give any comments with regards to the
allegation, it does not mean that the appellant has a free pass to publish the article
without getting the 1st respondent’s side of the story.

8. In City Team Media Sdn Bhd & Ors v Tan Sri Datuk Nadraja a/l Ratnam [“City
Team Media”]14, the Court of Appeal, held in paragraph 48 that once the defence of
qualified privilege is established, it could be defeated only by proof of express malice
on the part of the news media. In paragraph 55, the Court further held that malice will
arise in situations where the appellants are motivated by feelings of resentment, spite
or ill will towards the respondent.

9. In a legal article entitled General Publication, Public Interest and Common Law
Qualified Privilege: Where is the law heading? 15, it was propounded that express
malice is proven when first, if the defendant does not believe in the truth of the
information. This is because ‘no sense of duty or desire to protect his own legitimate
interest can justify a man in telling deliberate and injurious falsehoods about another'.
Secondly, the defendant should have an ‘honest belief' or a ‘positive belief in the truth
of what he published'. This belief is absent if the defendant published the information
recklessly; that is, he published it ‘without considering or caring whether it be true or
not'.

10. Here, the appellant had been motivated by feelings of spite. The appellant wanted to
topple PS and was willing to cooperate with KSB. Seeing as he regularly garners
considerable influence on his posts, we submit that the appellant had cooperated with
KSB to publish false allegations to damage 1st respondent’s reputation. It was also
eventually exposed by MACC that this was all a part of an elaborate political
campaign scheme.

11. Thus, we submit that the defence of Reynold’s privilege cannot be successfully
pleaded and the claim of RM100,000 in damages for 1st respondent’s reputation
should be maintained.

14
[2022] MLJU 105
15
[1999] 2 MLJ clxiii

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SECOND GROUND OF APPEAL:

B. The Second Article is not protected by the defence of reportage.

1. In Mkini, the court laid down the general principle of reportage which is that the
defence of reportage will not protect a journalist who i) adopts the report and makes it
his own; or ii) if he fails to report the story in a fair, disinterested and neutral way.
Neutral reporting is the single most important element in reportage.

2. To apply the first limb, the appellant made an elaboration of his own when he had
attached a self-recorded video that showed the waste pipe which is seen to flow from
a building project owned by the state government. Furthermore, proof of his
embellishment can be seen through his mention of his ‘open letter’ which he
personally wrote and which contains strong accusatory language. Hence, the appellant
has adopted the second article as his own.

3. To apply the second limb, the appellant failed to report the story in a fair,
disinterested and neutral way due to several reasons. Firstly, the appellant did not
mention 1st respondent’s response to the issue that they will investigate the source of
the pollution before the appellant sent the open letter to the government. Secondly, the
appellant also failed to seek a response from the The Department of Environment
(JAS) about the pollution although JAS had made a statement on their website on 8th
December, which effectively makes the story unfair and visibly biassed against the
2nd respondent.

4. In Mkini, in paragraph 70, the court referred to Ward LJ’s dicta in Charman v Orion
Publishing Group Ltd and others [“Charman”]16, the issue being whether or not,
looking at the article as a whole, the author made the allegations his own. This
question is intimately bound up with other facets or other ways of looking at the same
fundamental question in the same inquiry. For example, having regard to material
additions to and omissions from the source material, can the resultant piece of

16
[2008] 1 All ER 750

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journalism still fairly be said simply to be a report of the source material or has the
author taken it over and transformed it?

5. To apply, the appellant has omitted 1st respondent’s response in which 1st respondent
stated “Kami akan mengkaji punca pencemaran ini”. This omission is material
because upon reading the second article, it seems as if the 2nd respondent has
completely ignored the plight of their citizens. Hence, the appellant has transformed
the actual story and has presented the story in a way that is painting the 2nd
respondent as negligible.

6. In Mkini, the majority judgement held that the respondents had failed to show that in
the ongoing dispute, the allegations made against the appellant were being reported in
a fair, disinterested and neutral manner without the respondents embracing, garnishing
and embellishing the allegations. In fact, in comparison to the other articles reported
on the same matter in other newspapers or media, the reporting by the respondents
assert something more sinister on the part of the appellant. As such, the respondents
impugned publications were slanted towards bias against the appellant.

7. We submit that because the appellant is the one who wrote the second article and also
the open letter, thus, the appellant indirectly subscribes to a belief in the truth of the
allegation of the pollution, although it may not be obvious at first glance. However,
when analysing the whole article, it is asserting something more sinister, that the
pollution came from the government project. This is evident because of the
juxtaposition of the video attachment with allegations of the pollution immediately
after and before the video.

8. Hence, we submit that the defence of reportage has not been successfully pleaded and
the claim of RM100,000 in damages for 2nd respondent’s reputation should be
maintained.

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PRAYER FOR RELIEF

For the foregoing reasons, the Respondent respectfully requests this Honourable Court to
find, adjudge, and declare that:

I. The 1st respondent suing in his offcial capacity to not be prohibited from bringing an
action for damages for defamation and to not be precluded in the public interest in the
matters affecting his individual official reputations.
II. The 2nd respondent right to sue and maintain an action for damages for defamation
against the defendant is affirmed according to the provisions conferred under Section
3 of Government Proceedings Act 1956.
III. The 1st respondent claim of RM100,000 be maintained for damages of reputation
since the appellant failed to establish defence of reynold’s privilege for the first
article.
IV. The 2nd respondent claim of RM100,000 be maintained for damages of reputation
since the appellant failed to establish defence of reportage for the second article.

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