COURT OF APPEAL (KUALA LUMPUR)
— CIVIL APPEAL NOS W–02–221–94, W–02–222–94 AND W–02–223–94
LAMIN PCA, GOPAL SRI RAM JCA AND ABU MANSOR JCA
 2 MLJ 493
22 MAY 1995
Tort — Defamation — Libel in magazine — Apology — Whether sufficient and unqualified apology — Whether merely conditional apology
Tort — Damages — Defamation — Apportionment of damages — Defendants severally liable — Whether damages may be awarded separately against each defendant — Defamation Act 1957 s 18
Evidence — Conspiracy — Whether must be proved only by direct evidence — Whether circumstantial evidence sufficient
The respondent, a well-known and successful businessman in Malaysia and internationally, brought an action against the appellants and other persons claiming damages for defamation and for conspiracy to defame. His complaint was in respect of a series of articles (‘the articles’) appearing in a magazine called Malaysian Industry(‘the magazine’). At all material times, the third appellant was its editor-in-chief, while the first appellant authored one of the articles complained of. The second and fourth appellants were the printer and publisher, respectively, of the magazine in question. Prior to the commencement of the action, the third and fourth appellants published an apology, without first sending a draft thereof to the respondent’s solicitors for approval, in a later issue of the magazine which, inter alia, stated that ‘we further apologize if the said articles tarnished the reputation of the [respondent]’. The writ in these proceedings was served on 28 February 1994. Amongst the appellants, only the second delivered a defence to the action. The court then made an order on 22 August 1994, pursuant to a summons for directions, setting the action down for trial which commenced on 10 October 1994. The trial then went on from day to day, even exceeding the period originally assigned to it, until its conclusion. After reserving judgment for a few days, the High Court judge found the appellants and the other defendants liable and awarded separate sums of general damages against them. [See  1 MLJ 39 .] The appellants then appealed to the Court of Appeal. At the appeal, counsel for the first and second appellants argued that: (a) the trial had proceeded with undue haste; (b) the damages claimed had not been proved; and (c) the award made by the trial judge was too high and out of line with the usual trend of awards for plaintiffs in defamation actions. Counsel for the third and fourth appellants contended that: (a) the trial judge was wrong in finding the third and fourth appellants liable; (b) the award made was too high; (c) the trial judge failed to take into account the apology published by the third and fourth appellants which should have reduced the award made against them; and (d) the trial judge erred in making separate awards against each app ellant.
Held, dismissing the appeals:
(1) (Per Lamin PCA) Where a person’s character was being assailed and the facts were so fresh in everyone’s mind, justice could not have been better served than with the judge making an immediate assessment of the evidence and delivering his findings without delay.
(2) (Per Gopal Sri Ram JCA) A judge who had scheduled a case for a limited number of days was entitled to proceed beyond the period to complete the trial. Indeed, it was desirable that such a course be adopted in all cases. To avoid problems, inter alia, of recalling the evidence and exhibits, it was best that trials be proceeded with to their conclusion instead of being adjourned midstream.(3) (Per Gopal Sri Ram JCA) The grant or refusal of an adjournment was a matter within the discretion of a judge and an appellate court ought not to interfere with such a decision unless it could be demonstrated that the refusal resulted in the deprivation of essential justice from an appellant. The only legitimate expectation which a plaintiff or a defendant had was that he would obtain justice according to law. Applying this principle, it was clear that the trial judge had acted correctly in directing the trial to proceed to completion, in handing down an early decision and in making available his written reasons shortly thereafter.
(4) (Per Gopal Sri Ram JCA) The contention that the trial judge was wrong in finding the third and fourth appellants liable was baseless considering that they had not delivered a defence. It was well-settled practice that a defendant who elected not to plead to a statement of claim in a libel action was confined only to challenging the measure of damages which the plaintiff ought to receive.
(5) (Per Gopal Sri Ram JCA) Libel is a tort actionable per se, ie without proof of actual harm. The law presumes that when a man’s reputation is assailed, some damage must result. While a claim for special damages must be specifically pleaded and proved, the claim by the respondent was only for general damages which need not be so pleaded and proved. Although the respondent was the only witness called to prove his case ,when considering the quality of evidence, each case depended upon its own facts. In the present case, the venom with which the respondent was attacked by the first appellant in his article coupled with the respondent’s status in society were sufficient indicia of the extent of harm suffered. The trial judge had correctly accepted the respondent’s evidence. Thus the argument that the damages claimed had not been proved could not succeed.
(6) (Per Gopal Sri Ram JCA) There are certainly no comparables as regards quantum of damages in libel actions in Malaysia unlike those which exist in personal injury cases. Thus it could not be argued that the award in the present case was out of line with the trend of damages usually awarded in libel actions.
(7) (Per Gopal Sri Ram JCA) In assessing damages, there is no basis for any judicial policy that is directed at awarding very low damages for defamation. Injury to a person’s reputation may occasion him at least as much, if not greater, harm than may injury to his or her physical self.
(8) (Per Gopal Sri Ram JCA) In appropriate cases, the profession or standing of a defendant in society is a relevant factor to take into account when a court considers what damages to award against a defendant. In the absence of any special or exceptional circumstances, it will be proper for a court to award substantial damages against a journalist who has, without any or any sufficient basis, taken a plea of justification. Further, the wider his readership or popularity, the greater should be the award.
(9) (Per Gopal Sri Ram JCA) A court is entitled and should have regard to the conduct of a defendant in a libel action. Such conduct will have a bearing on the making of an award for exemplary damages.
(10) (Per Gopal Sri Ram JCA) The second appellant expressly placed a plea of justification on record with no material in support. The first appellant, while he did not deliver a defence, conducted a cross-examination of the respondent on the footing that the facts appearing in his article were true. As damages multiplied when justification failed, and having regard to the facts of the case, the trial judge’s awards against the first and second appellants were neither excessive nor exorbitant. The Court of Appeal should not interfere with the exercise of the trial judge’s discretion upon a matter where opinions could, and did, vary quite widely. Similarly, the awards against the third and fourth appellants were not too high and should not be interfered with.
(11) (Per Gopal Sri Ram JCA) An apology, although not exonerating a defendant, has the effect of reducing the quantum of damages, in some cases substantially so. In the present case, the apology published by the third and fourth appellants was conditional and was not a full and frank withdrawal of the libel contained in the articles and neither was it a complete and unqualified apology or a fair retraction. Thus it could not be argued that the apology should have reduced the awards made against the third and fourth appellants.
(12) (Per Gopal Sri Ram JCA) The appellants together with the other defendants were sued and found liable as several and not as joint tortfeasors. Thus the trial judge could make separate awards against each appellant.
(1) (Per Gopal Sri Ram JCA) A plaintiff in a libel action was not bound by O 19 r 7 of the Rules of the High Court 1980 to enter default judgment following the failure of a defendant to serve a defence. He was entitled to proceed and set the action down for hearing for the purpose of vindicating his reputation and to have damages assessed.
(2) (Per Gopal Sri Ram JCA) Conspiracy is a tort that is not always capable of proof by direct evidence. An agreement to do an unlawful act or a lawful act by unlawful means may be established by evidence of circumstances from which such an agreement may be inferred. However, there must be proof and not mere conjecture.
(3) (Per Gopal Sri Ram JCA) While it is settled law and practice in libel actions tried with a jury that a judge does not give any direction or guidelines as to assessment of quantum of damages, actions for defamation in Malaysia are tried by a judge alone who is obliged to provide reasons for every decision which he hands down. Thus there is warrant to rely on guidelines for assessment of damages appearing in non-jury jurisdictions such as India and Singapore, although this is a matter upon which our courts must evolve their own criteria based upon our own values and conditions that prevail here.
(4) (Per Abu Mansor JCA) It is trite law that no special damage need be pleaded and proved if the defamatory matter speaks of a plaintiff in the way of his profession, office or calling and the plaintiff only claims general and not special damages.
(5) (Per Abu Mansor JCA) I think the court has to take a stand and deliver the message to all journalists and the media alike that they must act responsibly. They ought to know that they have a large following and that the reading public holds them in high esteem and has the tendency to accept what is written as gospel truth. They should, therefore, act with responsibility.
1. Karpal Singh (Karpal Singh & Co) for the appellant in Civil Appeal No W–02–221–94.
2. Karpal Singh (J Ramdhari with him) (KC Yap, Kamaludin & Partners) for the appellant in Civil Appeal No W–02–222–94.
3. Shamsul-Baharain (Chan Chong Choon with him) (Skrine & Co) for the appellant in Civil Appeal No W–02–223–94.
4. VK Lingam (W Satchithanadhan, V Sivaparanjothi and Adam Bachek with him) (Adam Bachek & Associates) for the respondent.
Read Gopal Sri Ram's full judgment here