Federal Court dismisses NFCorp executive chairman’s appeal in defamation suit against Rafizi

KUALA LUMPUR, April 21 ― The Federal Court today ruled in favour of former Pandan MP Rafizi Ramli in the defamation suit brought by the National Feedlot Corporation (NFCorp) and its executive chairman Datuk Seri Mohamad Salleh Ismail over the former’s remark on the alleged misuse of government funds.

Both Mohamad Salleh and NFCorp were seeking to reinstate the decision of the High Court which had previously ordered Mohd Rafizi to pay RM200,000 in damages after allowing their defamation suit against him (Mohd Rafizi), which had been overturned by the Appellate Court in an earlier verdict.

A three-member bench led by Chief Judge of Malaya Tan Sri Azahar Mohamed today said the conclusion on appellents having failed to prove malice on the part of the respondent (Rafizi) was found undisturbed in the Court of Appeal’s findings and that all the elements of fair comment have thus been established.

“In this regard, it must be emphasised that the High Court made an expressed finding that the respondent (Rafizi) was not motivated by malice in making the defamatory statement.

“In doing so, the High Court explained that, to quote ‘although the respondent did not care for the effect of his statement may have had on the appellant, he nevertheless had an honest belief, firstly, that his allegations were true and secondly, he was performing a public duty in advocating for greater accountability of public fund’,” Azahar said.

In this regard, Azahar further noted that it is trite law that the proof of malice defeats the defence of fair comment since a comment made maliciously is not fair comment.

“In all the above circumstances, the appeal must be dismissed. I agree with the order of the Court of Appeal though on substantially different grounds.

“My learned sisters, Justice (Puan Sri) Zaleha Yusof and (Datuk) Zabariah Mohd Yusof have read my judgment in draft and have expressed the agreement with it and have agreed to adopt the same as the judgment of this court,” he said in delivering the court’s decision through video conferencing.

Lawyers Ranjit Singh and Razlan Hadri Zulkifli appeared for Rafizi while Tan Sri Muhammad Shafee Abdullah represented Mohamad Salleh and NFCorp in today’s hearing.

The court also awarded Rafizi RM70,000 in cost.

In today’s ruling, Azahar said Rafizi needed to successfully establish four elements in his defence of fair comment, namely that his statement was a comment, the comment was on a matter of public interest, the comment was based on facts, and the comment was one a fair-minded person could make on the facts proved.

Azahar said he agreed that Rafizi's comment was a matter of public interest.

He noted that both parties did not address this in court, and so it was not an issue of contention.

“In my view, an ordinary or reasonable man upon reading the impugned statement and the way it was expressed, the context in which it was set out and the content of the entire statement would regard them as the respondent’s comments and inferences made from the facts.

“A key point to note is that the impugned statement did not single out an action nor independently alleging particular conduct of the appellants per se," Azahar added.

Rafizi’s allegation that public funds were abused as leverage for getting the loan would also be an honest opinion and inference a fair-minded person would have come to in the present circumstances.

This was because the facts referred to in the statement — NFCorp and Salleh's fixed deposits and bank loans — were not disputed, with Azahar adding they constituted a "sufficient substratum of facts" to which Rafizi made the conclusions in his statement.

The defamation suit filed by Mohamad Salleh and NFCorp in 2013 against Mohd Rafizi was in relation to his (Rafizi) statement made on March 7, 2012 at a media conference at the PKR office on the purchase of KL Eco City Properties which was published by Malaysiakini.

The former PKR vice president alleged that Mohamad Salleh and NFCorp had used a RM71 million government loan as collateral to purchase properties in KL Eco City.

In 2016, the High Court ordered Rafizi to pay RM150,000 in damages, after holding him liable for defaming Mohamad Salleh.

The Court of Appeal in May 2019, however, agreed with Rafizi’s appeal and set aside the lower court’s ruling. It ordered the RM150,000 that was paid by Rafizi to Mohamad Salleh to be refunded and also awarded costs of RM110,000 to Rafizi.