KUALA LUMPUR (April 21): The Federal Court dismissed an appeal by the National Feedlot Corp Sdn Bhd (NFCorp) and its chairman Datuk Seri Mohamed Salleh Ismail in their defamation suit against PKR vice-president Rafizi Ramli. This is regarding Rafizi's statement in a 2012 press conference, which alleged that NFCorp and Salleh had used a RM250 million government loan as collateral to purchase commercial properties in KL Eco City.

On Thursday (April 21), a three-member bench of the apex court, led by Chief Judge of Malaya Tan Sri Azahar Mohamed, dismissed the appeal and ordered costs of RM70,000 to be awarded to Rafizi.

Azahar ruled that Rafizi had successfully established that the statement he made was a fair comment and added that Rafizi, therefore, could not be liable for damages for defamation.

"In all the above circumstances, this appeal must be dismissed. I agree with the order of the Court of Appeal, though on substantially different grounds. We award costs in the sum of RM70,000 to the respondent (Rafizi)," he said.

Azahar added that the decision was unanimous as he noted that Justices Datuk Zabariah Yusof and Puan Seri Zaleha Yusof, who joined him on the Federal Court bench, agreed with his judgement.

"Justices Zabariah and Zaleha have read my judgement in draft and have expressed their agreement with it, and have agreed to adopt the same as the judgement of this court," Azahar said.

In delivering his judgement, Azahar noted that the crux of the appeal regarded whether Rafizi could defend his statement on the grounds of fair comment.

"Going from arguments raised by both sides, the fundamental issue for our determination was whether the respondent could rely on the defence of fair comment to defeat the appellants' (NFCorp and Salleh) claim," he said.

The chief judge elaborated that for Rafizi to succeed in his defence of fair comment, he would have to establish four elements, 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.

Addressing whether the comment regarded a matter of public interest, Azahar said that he agreed that Rafizi's comment concerned a matter of public interest and noted that there was no disagreement on this as both parties did not address this issue to the court.

Subsequently, he said that based on the way Rafizi's statement was "expressed, the context it was set out, and the contents of the entire statement would regard them as the respondent's (Rafizi) 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," he added, noting that it was apparent that Rafizi made inferences of misappropriation of public funds derived upon modus operandi.

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

Hence, Azahar said that based on the sufficient substratum of facts indicated, Rafizi's conclusion that public funds had been misused as leverage for the Public Bank loan was an opinion and inference that a "fair-minded person would have honestly made in the circumstances".

"In light of the above, all the four elements of fair comment as laid down had been established. Therefore the respondent could not be liable for damages for defamation," he added.

NFCorp and Salleh filed the defamation suit against Rafizi following the former Pandan member of parliament's press conference in 2012, during which he alleged the company had used a RM250 million government loan as collateral to purchase commercial properties in KL Eco City.

In October 2016, the High Court found Rafizi guilty of defaming Salleh and NFCorp and ordered him to pay RM150,000 in damages to the first and RM50,000 to the latter.

However, a three-member Court of Appeal bench led by Justice Datuk Dr Hamid Sultan Abu Backer then ruled on May 13, 2019 that Rafizi's appeal had merits and ordered the damages and RM100,000 in costs paid by Rafizi to Salleh and NFCorp previously be returned. In addition, Rafizi was also awarded costs of RM110,000.

On Sept 24, 2020, the Federal Court granted leave to NFCorp and Salleh to appeal the Court of Appeal's decision to dismiss the defamation suit.