Mirror, Mirror On The Wall, Is This Comment Fair At All?

• Published date: 13 October 2022
• Subject Matter: Finance and Banking, Litigation, Mediation & Arbitration, Financial Services, Trials & Appeals & Compensation
• Law Firm: Zul Rafique & Partners
• Author: Idza Hajar Ahmad Idzam, Bailey Leong Pui Yee and Nurul Syafinas Ibrahim

INTRODUCTION

In Dato' Sri Dr Mohamad Salleh bin Ismail & Anor v Mohd Rafizi bin Ramli [2022] 3 MLJ 758, the Federal Court discussed on whether the Respondent (i.e. the Defendant in the trial court) could rely on the defence of fair comment in a defamation claim commenced by the Appellants (i.e the Plaintiffs in the lower court). In deciding so, the four elements in established in Joshua Benjamin Jeyaretnam v Goh Chok Tong [1989] 3 MLJ 1 was scrutinised in detail. For convenience, parties will be referred to as they were in the High Court.

BACKGROUND FACTS

Some time in November 2007, National Feedlot Corporation Sdn Bhd ("2nd Plaintiff") entered into an Implementation Agreement and a Loan Facility Agreement with the Government of Malaysia ("the Government"), whereby the 2nd Plaintiff was appointed to implement the National Meat Policy in 2006. The Project, which was funded by the Government, was intended to reduce the nation's dependency on imported meat. Under the Loan Facility Agreement, the Government provided the 2nd Plaintiff a loan facility of RM250 million to fund the Project. It is pertinent to note that a covenant to this agreement was that the sole purpose of the money disbursed was only to be used for the Project.

However, a sum of RM71 million out of the RM250 million was drawn down and deposited in a fixed deposit account held by the 2nd Plaintiff. The 2nd Plaintiff was then subjected to audit by the Auditor General. In November 2011, a published audit report shed light onto the failings of the Project.

During a press conference on 7th March 2012, the Defendant made a number of allegations against the Plaintiff. Summarily, the sum of RM71 million that had been deposited with Public Bank was used as a leverage for personal loans that were used for the purchase of eight (8) units of commercial offices in KL Eco City, an office block under development in Kuala Lumpur ("Eight Units"). The Defendant relied on certain documents that he received anonymously in making the statement. Following this, the Plaintiffs commenced a defamation action, wherein the Plaintiffs claimed that statement made by the Defendant ordinarily suggest the following imputations:-

1. the Plaintiffs misused public funds for their own personal gain contrary to public interest, in particular the government loan given to the second appellant for the project;
2. the 1st Plaintiff had abused his position as the chairman and director of the 2nd Plaintiff to misappropriate the said...