LICENCE TO DEFAME?

Kwan Will Sen explains a landmark case on defamatory statements in a police report

In Malaysia, absolute privilege as a defence to defamation claims has generally been available only for statements made in two categories of proceedings – parliamentary proceedings and judicial proceedings.

On 28 November 2012, by virtue of the landmark Federal Court case of Lee Yoke Yam v Chin Keat Seng [2013] 1 MLJ 145, another category has been included - statements made in a police report, commonly known as the first information report, pursuant to Section 107 of the Criminal Procedure Code (“CPC”).


BRIEF FACTS

The dispute between the parties arose out of a police report made by the Respondent against the Appellant on 19 June 2008. In the police report, the Respondent alleged that the Appellant had misappropriated a sum of RM200,000.00 from a company in which the Appellant and Respondent were both shareholders and directors at the material time.


THE HIGH COURT SUIT

Arising from the statements made by the Respondent in the police report, the Appellant filed a suit against the Respondent, claiming that the Respondent had defamed him. The Appellant contended that the police report was made with malice and intended to coerce the Appellant into settling a separate suit involving both the Appellant and Respondent. In that other suit, the Appellant and Respondent were involved in a boardroom tussle in relation to the company where the alleged misappropriation had taken place.

The Respondent filed his defence, stating in essence that he was justified in making the police report. Thereafter, the Respondent filed an application to strike out the Appellant’s writ and statement of claim, amongst others, on the basis that the Appellant’s claim disclosed no reasonable cause of action. The Respondent supported his application by relying on a decision of the Court of Appeal in Abdul Manaf Ahmad v Mohd Kamil Datuk Hj Kassim [2011] 4 MLJ 346 (“Abdul Manaf”).

In Abdul Manaf, Gopal Sri Ram JCA (as he then was), following the decision of the Court of Appeal of the Federated Malay States in Martin Rheinus v Sher Singh [1949] 1 MLJ 201 (“Martin Rheinus”), held that it is implicit that statements made in first information reports under Section 107 CPC are absolutely privileged for the law of defamation.

Further, in Abdul Manaf, the Court of Appeal was of the view that statements made in a police report must attract the defence of absolute privilege for reasons of public policy. The Court of Appeal held –

If actions can be brought against complainants who lodge police reports, then it would discourage the reporting of crimes to the police thereby placing the detection and punishment of crime at serious risk. The criminal law readily provides for a remedy against persons who make false police reports.”

Abdul Manaf departed from the long standing legal position that statements made in a police report merely attract qualified privilege. This is illustrated in various decisions of the High Court, such as Hoe Thean Sun & Anor v Lim Tee Keng [1999] 3 MLJ 138, Abdul Aziz bin Jelani & Anor v Peter Chua Swee Lai [2000] 2 MLJ 462 and Henry Ong Keng Sem v Patrick Ong King Kok [2008] 7 MLJ 569.

The High Court, being bound by Abdul Manaf, struck out the Appellant’s writ and statement of claim.


DECISION OF THE COURT OF APPEAL

The Appellant, being dissatisfied with the High Court’s decision, appealed to the Court of Appeal. The Court of Appeal agreed with the High Court and the statement of law by Gopal Sri Ram JCA in Abdul Manaf. Jeffrey Tan Kok Wha JCA (as he then was), held –

“The impugned statements were contained in a police report … police reports must attract absolute privilege as a matter of public policy … We agree that the action could not succeed. The action was rightly struck out.”


DECISION OF THE FEDERAL COURT

The Appellant obtained leave from the Federal Court to appeal on the following question of law –

Whether statements in a police report are protected by the defence of absolute privilege and therefore no party can file a defamation suit against the maker of the police report in the Malaysian context?”

In essence, the Appellant submitted that Abdul Manaf, which formed the basis of the High Court and Court of Appeal’s decisions, was wrongly decided and urged the Federal Court to restore the long standing position that statements in a police report are only protected by qualified privilege.

In deciding the question of law, the Federal Court considered, amongst others, the following matters –

(i)     Whether absolute privilege under Section 112 CPC can be extended to Section 107 CPC; and

(ii)    Whether there will be an abuse of process (such as the lodgment of a false police report) if absolute privilege is accorded.  

Sections 107 and 112 CPC

The Federal Court considered Section 107 CPC (statements made in a first information report) and Section 112 CPC (statements recorded by the police from witnesses in the course of investigation).

The Federal Court observed that it is trite law that statements made under Section 112 CPC attract absolute privilege as it forms, or could form, part of judicial proceedings. For example, a witness could be examined during the trial on the statements made by him pursuant to Section 112 CPC.

In considering whether absolute privilege for statements made under Section 112 CPC should be similarly accorded to statements made under Section 107 CPC, the Federal Court analysed Abdul Manaf and Martin Rheinus. In particular, the Court had held in Martin Rheinus that there was no distinction with regard to privilege under Section 107 CPC and Section 112 CPC.

The Federal Court then considered the legal position in India and England as regards the privilege to be accorded to a police report.

The Federal Court referred to several Indian case authorities, including Bapalal & Co v AR Krishnaswami Aiyar AIR 1941 Mad 26, where King J held that “a complaint to a Police Officer from its very nature as a statement, which the complainant is prepared later, if called upon to do so, to substantiate upon oath, is absolutely privileged.”

The Federal Court examined the position under English law and referred to the Court of Appeal case of Westcott v Westcott [2008] EWCA Civ 818, where Ward LJ held –

“In order to have confidence that protection will be afforded, the potential complainant must know in advance of making an approach to the police that her complaint will be immune from a direct or a flank attack … In my judgment, immunity must be given from the earliest moment that the criminal justice system becomes involved.”

Having considered those cases, the Federal Court agreed with the decision in Abdul Manaf that on a public policy consideration, absolute privilege should be extended to a statement contained in a police report made under Section 107 CPC. According to Tun Arifin b Zakaria CJ –

“The underlying reason behind this is the overriding public interest that a member of the public should be encouraged to make (a) police report with regard to any crime that comes to his or her notice. Such a report is important to set the criminal investigation in motion. With such (a) report, the alleged crime may be investigated and the perpetrator be brought to justice.”

License to Defame?

As regards the concern that the conferring of absolute privilege to statements contained in a police report could be abused, Tun Arifin b Zakaria CJ had this to say –

“It is without doubt that public interest should override the countervailing consideration that this may sometime lead to an abuse by a malicious informant.

However, His Lordship was of the view that the existing laws, particularly as provided for under Section 177 (furnishing false evidence), Section 182 (providing false information with intent to cause a public servant to exercise, or omit to exercise, his power) and Section 203 (giving false information in respect of an offence committed) of the Penal Code provide sufficient safeguard against any person making a false report.

An offence under Sections 177 and 203 is punishable with imprisonment for up to two years, or with a fine, or with both whereas under Section 182, the offence is punishable with imprisonment of up to six months, or with a fine of up to RM2,000.00, or with both.


CONCLUSION

The decision of the Federal Court in Lee Yoke Yamv Chin Keat Seng has changed the legal landscape in respect of the law of defamation vis-à-vis statements made in a police report. It however remains to be seen if absolute privilege can be extended to other forms of complaints, such as complaints to professional bodies (e.g. the Advocates and Solicitors Disciplinary Board and a Disciplinary Committee appointed by the Board of Architects Malaysia) or regulatory bodies (e.g. Securities Commission and Bursa Malaysia). 

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