----------------------- Page 1----------------------DALAM MAHKAMAH TINGGI MALAYA DI KUALA LUMPUR (BAHAGIAN SIVIL) [GUAMAN NO: S-23-50-2006] BETWEEN IRISH

INTERNATIONAL UNIVERSITY AND 1. 2. 3. NEW STRAITS TIMES PRESS (M) BERHAD KETUA PENYUNTING (NEW STRAITS TIMES PRESS (M) BERHAD) PENCETAK & PENERBIT (NEW STRAITS TIMES PRESS (M) BERHAD) JUDGMENT The published g for an Plaintiffs claim is for defamation arising out of an article in the New Straits Times on of damages 19 July 2005 and is claimin At the ... DEFENDANTS ... PLAINTIFF

unspecified

amount

against the Defend ants.

outset I must also mention that the Plaintiff has dropped its prayer for injunction maintains and for special damages in the sum of RM 82,000.00 but

its claim for aggravated, exemplary

and punitive damages,

interests and costs. 1 ----------------------- Page 2----------------------greed The by only the and the on 19 issue it is July raised to be tried simply 2005 by are the in this the and is case has words secon dly available. been publish whethe The D a

parties, ed by Defendants r any

whether defamatory Defendants

of the defences efendants

are pleading all the defences of justification, fair comment and qualified

privilege. Another legal entity

issue

raised the

is

whether suit against in the is

the

Plai ntiff the

is

and capable of bringing in this case. There are altogether the Plaintiff claims to be an 17, the 8

Defendants article in which Lampir

paragraphs which

said produced

defamatory

Agreed Bundle of Documents. The offending paragraphs in the said publication are as follows: Degrees from dubious universities under probe. (i) several hundred Malaysians may be questionable qualification from two unaccredited universities; ... Degrees from Cambridgeshire Irish International University are not recognised in the UK, US and Ireland; and into (iii) ... The Higher Education Ministry claims that the institutions are bogus, ...; (ii) holding

University accredited or

is now

looking

(iv) of classes versity, ansfer to (v) esearch unaccre dited

... she (Yap Yee Lan) alleged that after a year in MBA programme of the International Irish Uni she and her classmates were abruptly asked to tr the programme of Cambridge University; ... she (Yap Yee Lan) and discovered the universities and unrecognised here; 2 then were did some r

apparently

----------------------- Page 3----------------------ueries (vi) ... an Irish embassy staff member said many had been received about the International Irish Univers ity; (vii) with had t aken its concern to the Higher Education Ministry in the past; ... Ireland the staff member was without said the substance universitys and q

connectio

the embassy

fficer

(viii) ... Public Service Department accreditation Ross Rafizal Rosli also confirmed the two were its list of recognised universities and qualifications. The Unit Plaintiffs Kelayakan, letter Dr dated 13 first witness, the Ketua Awam

unit not

o on

Pengarah gave wrot Po

Pengiktirafan evidence that by a e to one Professor stgraduate Facilitator that Master

Jabatan December

Perkhidmatan 1999, Director Kuching the

department

Sandhu,

Executive Centre,

Internation al Sarawak stat ing

Management

of Business Administration and Doctor of Philosophy degrees from the Irish International raf oleh kerajaan is is dengan syarat University, memiliki Republic Ijazah Pertama of Ireland , yang Diikti Th

diiktiraf.

the only evidence of this witness. d mits Upon that bei ng cross-exa mined know who to on the said was On and the letter, unable is sue of he a t

he does not o give an y

the addressee the said letter.

details or background whether the

Irish International University is recognised by the government, he was unable to answer but confirm that the said universi ty is not listed in the list of approved khidmatan universities that the at page 52 maintained recognition of the Agreed by the Jabatan mentioned Bundle Per

Awam. He maintains said letter which cuments is produced is

in the o f Do

only a recognition for the purpose of admission to the Public Service. 3 ----------------------- Page 4----------------------To a question posed by the court, this witness stated that the Plaintiff is

not recognised by the government. d PW2, that the the Executive operation The in President the year was of the 2000 for Plaintiff of f in state campus the Rep

Plaintiff started and 2001 for in campus ublic

programme.

Plaintiff

incorporated

of Ireland as shown by the document at pages 48 and 49 of the Agreed Bundle of Documents. off campus programme Bundle and of proof page by the of its 52 registration dated 13 in Malaysia and 1999 He goes further as the on to he Its refers operation to pages 50 in Malaysia - 51 of the is f or Agr eed

Documents as refers to the

letter at letter of

December

recognition state that

Malaysian

Government.

the article published by the Defendants was maliciously fabricated and untrue, ibility resulting and in the Plaintiff being damaged in its cred

reputation as an international organisation. He cla ims the Plaintiff has suffered damages estimated in the sum of RM50 millions. r ed For for the a Defendants, NetAcademy of DW2 and the Irish abruptly then apparently parties and did testified NetAcademy International terminated some and research and that was she registe

course with er for the

the provi d Aft

degree on behalf er a year, her classes to another programme. ere d the universities She has written ents, were She were

University. transferre d and

discov

unaccredited having

unrec ognised. some do cum

to many she

obtained

then passed them on to DW1 who then wrote the impug ned article.

4 ----------------------- Page 5----------------------as The in evidence the of the she based after Defendants states on having that her in question the meeting a basis with staff upon DW2 from and answer the afte Irish havin ha of DW1, the journalist who w

employment no. 5 of her witness article statement was

wh ich and the and DW1

written were r receiving documents and Embassy. She g

interviewed to the supplied

has also received

written were

British to and

Council DW2.

documents which s also called the Public Service Division to check on ar spoke the status to 2

her by

Department of the of Mohd officers two

the Private She

Education in particul and R cours es

universities. Azman Mohd that

officers by oss Rafizal Rosli. Both of the two

the name these

Nowawi the

confirmed

universities were not accredited or recognised. r Page 89 from the of the Agreed Bundle Awam same states University Yang of Documents is dated a lett e 26 A

Jabatan pril Paragraph ernational University di

Perkhidmatan 2 005. 3 of the dan

Malaysia that:

Kelayakan tid ak oleh

Iri sh Int tersenarai Kerajaan

Cambridgeshire Kelayakan

adalah diiktiraf

dalam Senarai bagi maksud

lantikan ke dalam Perkhidmatan Awam. his Learned because counsel for the Plaintiff takes issue with t

in so far as that recognition is concerned it merel y says that it is not recognised for purposes ce. I agree of for entry into the publi c servi

with her submission that it is a partial recognition because it is only not recognised for purposes of entering into the public service. the Next, Agreed there is the report at pages 104 - 107 of

Bundle of Document titled Report On The So Called Irish International 5 ----------------------- Page 6----------------------University ph 8 of Europe and Cambridgeshire University. Paragra

10 of the said report state as follows: 8. like rovide programmes by open and/or e-learning. This mode of delivery is very vulnerable to exploitation, fraud and abuse by unscrupulous operators and disreputable providers w ho run diploma mills and accreditation factories churning o ut bogus degrees. Parents and students always check the auth en ticity of on-line or e-learning providers. der these institutions are bona fide educational providers that h legal authority to grant degrees and have clearly identif ied officials who are accountable for the services provided as we ll as the quality of the qualifications awarded and th at thes e qualifications have been independently quality assur ed by a reputable quality assurance or accreditation agency . Incorporation by itself does not provide legal auth ority to grant degrees. A legal business that calls itself a Co lle ge or University does not have legal Degree Granting ave 9. The Ministry both universities as of Higher Education will also established consi that The to emphasise Ministry that both of Higher Education universities would claim to p

so called

bogus.

It has not been

Auth ority unless such Authority is secured in the proper juri sdiction. 10. Even if a College or University is legally incorpo in another country it cannot offer courses in Malaysia unles s it has been legally incorporated and approved to conduct c ourses by LAN. If it grants degrees, it is considered fraud and i llegal and action can be taken against it. rated It ared and is to be noted however, that this report was prep

published after the impugned article by the Defenda nts were published on 19 July 2005. 6 ----------------------- Page 7----------------------and Having having considered exhibits, the the the evidence various court finds the of documents that Plaintiff. the the the witnesses which article Since a r in

perused the e all agreed

documents in this case, its totality are defamatory ion has and it and

no doubt refers to agreed by

publicat sh

been admitted all consider

the parties,

court now

whether any of the defences is available to the Def endants. It is the ccessfully raised has courts of finding that the In true. Defendants other Having words have what su

the defence been

justification. are

published by the facts and circumstances , the court agrees with the

the Defendants as well submissions complained

consid ered of the parties

as the evidence

of the learned of by

counsel for the Defendants the Plaintiff in th is art

that the words icle are true

based on the following facts established by the evi dence tendered:

(a) redited nd or

Degrees

awarded

by

the

Plaintiff

are

not

acc

recognised by the Department for Education a Skil ls in the United Kingdom, the government of the Republic of Ireland and any govern ment sanctioned b od y in the United States of America. The Embassy of the Republic of Ireland in Ma have communicated with Ministry of Higher Ed ucation in Malaysia to express their concerns about the Plaint iffs bona fides in offering courses in Malaysia under the name The Irish International University. laysia t (c) the time The Plaintiffs degree and/or diplomas are, as a acc (b)

redited (d) lodged

of the publication of the article, not or recognised by the Public Service Department in Mala ysia. DW2, a a student at NetAcademy Sdn Bhd

ha

p o l i c e re p o r t a ga i ns t N et Ac a d em y h d wh e r e s h e 7 ----------------------- Page 8----------------------d

S d n B

alleged that NetAcademy Sdn Bhd had offere a cours e Master in Business Administration from universities such as the Irish International University. as (e) Subsequently, DW2 was an MBA student of the Plaintiffs run by Cambridge University. asked to to another transfer MBA cour

se

(f) Upon realizing that the Plaintiff was not offe courses accredited and recognised by the Publi c Service Department Malaysia, the British Council, MACEE and the Embassy of Ireland, DW2 demanded a r efund of th e fees paid by her to NetAcademy Sdn Bhd. ring (g) Cons umer DW2 succeeded in her clai m before the

Clai ms Tribunal.

(h) at ntiff t the had

The

Ambassador of

the

Republic of

Ireland to

Malaysia Plai tha

the material time, had confirmed that the no ties with the Republic of Ireland and Iris h authorities were investigating the Plaintiff institution. Da t u k &

ul

In t h e c a s e of Tu n Ra h m a n

Pa t i ng g i Ha j i Ab d 3 0 4; [ 1

Y a k u b v . Br e Sd n B hd 9 96 ] 1 M L J

O r s [ 1 9 95 ] 1 L NS

3 9 3 Hi s Lor d s h i p R i c h a r d M al an j u m J ( a s he th e n wa s ) on t he i s s u e o f t he d e fen c e o f j u s ti f i ca t i on at p. 4 94 s a i d : a defamation action, the defence of justifica is a complete defence if it succeeds. And the question o f malice or bad faith does not arise. But in order to succeed i n the defence of justification a defendant must establish the trut h of all the material statement in the words complained of which may include defamatory comments made therein. And in or der to justif y s uch comments, it is necessar y to show that the comments are the correct i mputations or concl us ions to be drawn from the proved facts. However, the plea of justification does not fail by reason only that the truth of every charge is not ti on 8 ----------------------- Page 9----------------------proved if the words not proved to be true do ma terially injure the plaintiffs reputation having regard to be truth of the remaining charges r And Mahathir in Dato Seri Anwar b. Ibrahim v. Dato Seri not In

Mohamed [1999] 7 CLJ 32 it was held that: ... what is true could not be of public policy the exposure of u nt when compared to that of reputation. or malice if the matter published is found to be true. grounds defamatory. truth There must On be the paramo f

is no room

On i dered

the the

defence

of qualified

privilege,

having

cons

evidence in its totality, the fact and circumstance s, I am of the view that the defence of qualified privilege is also availabl e and applicable to the It is my in the 863 which finding case among of the the that the Defendants v. Times require and steps that the taken the ha Newsp the na to

facts of this case. ve satisfied the test as stated apers Ltd [1998] court consider ture of 3 WLR must the the

of Reynolds others

seriousness source the of

allegations the

information, the verify the information status of before the

information, of the

publication

informati on,

information and on the subject matter itself. It is my finding that being a and national social newspaper, the the Defendants At matter have the same of publ ic have the moral su

obligation to inform bject matter here an issue and

public. a The

time, the

being education, is certainly of public social interest.

importance and the moral

Defendants

obligation to publish the report. Any citizen who bona fide believes that wrong has been punish or done has a right and duty to remove,

reprimand the offender, or merely to inquire into t he subject matter of 9 ----------------------- Page 10----------------------the & complaint. Anor 31 a MLJ (See: Abdul 154). make it Where and Rahman Talib v. Seenivasagam made has a by a person corre sponding

[1965] having

a statement the recipient

legal duty to interest or

duty to receive n Lee & Anor v. Henry v. Ward [1917] AC 307). In Datuk Hj Adpal &

it, Wong

such Jan

communication Fook [1980]

is

privilege . 1 LNS

(See: Joh

190, Adam

Harris

Mohd

Salleh

v. Datuk

Mohd

Shafie

Ors [2009] 2 CLJ 682 at page

386, the court states:

In the instant case the defendants are news publishers. Their rights, privileges, immunities are quite different f rom any commercial organizations or private persons. Newspape rs are ordinarily expected to report contemporary events o f public interest or public concern which is often liberally construed by the courts. In this context, news is defined by The Concise Oxford Dictionary as information about important or interesting recent events. This is to say, in our context what the newsman sees or hears from the original source in relation to the publication. The truth per se is not material but t he fact that such things were said in appropriate occasions by the maker may give the news media the right to publish the sa me. See & also: Anor ( Tan CLJ Radio Seng 265, dan Hin Badrul Televisyen v. Editor Zaman of Sin Hua PS Malaysia Md & Daily Zakariah Ors & News v. Oth

[2009] 7 Jabatan Penyiaran er cases

[2009] 7 CLJ 285.) From the evidence given by DW1 and in particular Q and A no.

5 of her Witness Statement in respect of the status and source of the material and the steps taken by her to verify the information before its 10 ----------------------- Page 11----------------------publication, this court ated in the is satisfied that the test as formul

Reynolds s case has been met. In DW the said 1 has Q and A no. 5 of the that the Witness were made whi ch Statement, ava ilab started co the whe

listed out the various le to her in respect n DW2 of her

documents on

investigation

Plaintiff Claims

filed her complaint ncerning the Plaintiff. In coming Defendants newspaper, sh Embassy. she had

in the Consumer out also with

Tribunal article in from DW2

the impugned materials

obtained

the Iri who has

This is coupled with the fact of

materials given to her by

done quite an extensive research on the Plaintiffs status. ts, As to the I am in with the that Order 1980 78 rule 3 of the Rules of the High issue the of malice submissions on the of part of the the learned Defend an couns

agreement el for Defendants Court

has not been complied with. Order 78 rule 3(3) Rules of the High Court 1980 rea ds: Where in an action for libel or slander the plaint iff alleges that the defendant maliciously published the words or matters complained of, he need not in his statement of claim give particulars of the facts on which he relies in sup p ort of the allegation of malice, but if the defendant pleads that any of those words or matters are fair comment on a matte r of public interest or were published upon a privileged occasi on and the plaintiff intends to allege that the defendant was actuated by express malice, he must serve a reply giving partic ulars of the facts and matters from which the malice is to be in ferred. 11 ----------------------- Page 12-----------------------

that no the

In the present there was defence

proceeding, filed by

it the

is

pertinent Plaintiff

to

note

reply to the Plaintiff

and therefore

cannot plead malice by way of evidence. In H al i m M al ay s i a Bh d & Or s [2 0 0 1] 3] t ha t : out, 6 MLJ b i n A r s y at v . S is te m T e l e vi s y e n 35 3 , it wa s he l d at h e a dn o t e [

[3] Once this defence [qualified privilege] is made it could be defeated only by proof of express malice by vi rt ue of O. 78 r 3(3) of the Rules of the High Court 1980. Expres s malice must be pleaded in a reply and that particulars mu st be set out. Unfortunately, there was no reply filed by the plai ntif f nor were there allegations of express malice. In any cas e, n o evidence was even presented by the plaintiff on express mali ce. The reference in para 8 of the amended statement of cla im to the words that the defendants published the words fals ely and maliciously was not a plea of express malice. Su ch allegations were meant to make out the plaintiffs case. Thus , such words falsely and maliciously as pleaded, did not make out a plea of express malice to negate the defence of qualified privilege. 368 In M Prabhkaran headnote v. Salam Seran [2001] 6 MLJ

[5] it is stated: Where the plaintiff wished to rely on express mali the part of the defendant in order to defeat the ple a of qualified privilege, he would have to plead to this effect an d give particulars of facts and matters from which he alle ged the malice was to be inferred and this should have been done by way of reply and not in the statement of c laim. It was a mandatory requirement on the part of the pl aintiff to have ce on

served d matters which und er O. 3 ( 3 ) 0 ( t h e S

a reply giving particulars of the facts an from the malice was to be inferred as required 44 r. o f t h e S u b o r d i n a t e C o u r t R u l e s 1 9 8 C R ) . 12

----------------------- Page 13----------------------However, since the plaintiff had failed to serve a reply pleading express malice as required under O. 44 r. 3 of the Su bordinate Courts Rules, he could not be allowed to rely on expre ss malice without having served the reply to defeat the d efen ce of qualified privilege, as only the reply would have f orme d part of the pleadings in the civil suit. In Dato Bhd & d Anor (No at head 3) [2005] 5 MLJ 561, Abdul Malik Ishak J hel Seri S Samy Vellu v. Penerbitan Sahabat (M) S dn

note [4] that: [4] ... in a situation where the defendants plead ualified privilege, the law dictates that the plaintiff must delive r a reply to the defence pleading malice to negate the d efenc e of qualified privilege. There was no reply to the defence and the plaintiff could not plead malice by way of an affid avit. Therefore, the plaintiff has not complied with O. 7 8 r. 3(3) of the RHC. His Lordship went further and at page 583 opined: In a nutshell, all these authorities point to this . That the plaintiffs failure to comply with O. 78 r. 3(3) of the RHC must mean that the defendants plead qualified priv ile ge stood unassailed. The plaintiff was not in a position to submit that the defendants plea of qualified privilege was bound t o fail. hean The Sun onus is on the Plaintiff to prove malice. In Hoe T q

& Anor v. Lim Tee Keng [1999] 1 CLJ 187, the court held: lse When words are published which are both and defa mator y t he law presu mes mal ice on the part of t he person 13 ----------------------- Page 14----------------------who t akes place the presumption of malice is rebutted by privilege and the Plaintiff has to prove express or actual malice on the part o f t he person responsible for the publication to defeat the privi lege. The onus lies on the Plaintiff to prove malice and n the Defendant to prove his bona fide or absence of malice. When the occasion is privileged, the bona fide s of the defend ant is always presumed. In the present case, there was no doub t that in law the Defendant published the defamatory state ments on a privileged occasion. ot It was therefore to be assumed that he published it honestly believing his statements to be true unless there wa s some evidence to the contrary. In Kian Bh d Hup Construction v. Hong Kong Bank Malaysia publishes under them. However, which create when the publication pr ivilege, fa

circumstances

qualified

[2002] 7 CLJ 32, the court held: It is a question of law as to whether an occasion is a privileged, as the plea is raised in defence. The question wheth er the occasion on which the statement was made was a pri v ileged one is a question for the judge and the defendant b ears the burden of establishing the facts and circumstances nece ssar y to create the privilege. If t he judge rules that th e occa sion is privileged, then the plaintiff must, in order to su cceed in t he action, prove that the defe ndant was not using the oc casion honestl y for the purpose for which the law gave it to hi m, but was actuated b y malice.

In ivilege

the

absence and

of the

malice, Defendants

the

defence are

of

qualified

pr to

therefore applies rely on the defence.

certainly entitled

14 ----------------------- Page 15----------------------that On it the issue is only of recognition by is the not of the university that PW1 What I says prompted for find in the

upon being no uncertain terms that the court to ask ties

questioned university was

court

recognised. both

this question has not

because

counsel

the par

been able to get from this witness as to the exact status of it but when I pin point to this witness says that the course other evidence e documents this very university pertinent is not the question, recognised. evidence of unhesita tingly There DW2 are of and th

in particular

referred by him to indicate that there is something dubious about the status of the Irish tend to agree with s from the International title of under the University. impugned There In article are th at respect, I Degree facts t

which says sufficient

dubious universities o support that opinion.

probe.

In this respect, the court has done an analysis of the documents referred to by r at n page 12. both PW1 and the Agreed PW2. The Bundle first document being of Document the lette in Lampira

52 of This

letter is dated 13 December 1999 and the Plaintiff contends that this is a letter of recognition by the government. Next, I will

refer

to the at page 26 This 89 of letter her the same is from that the Bundle the which Jabatan Plaintiff i s is a l Perkhid ma not in

document etter dated April tan 2005. Awam

addressed to DW2 the list of

informing

universities recognised by the government for purpo se of admission to the public service. Plaintiff was incorporated as a foreign on 29 PW2 March in his evidence 2000 and states was that the

registered

compan y under s. 332(1) of the Companies Act 1965 on 14 January 15 ----------------------- Page 16----------------------2002. The documents n pages 48 referred to by PW2 are containe d i

51 of the Agreed Bundle of Documents. In cannot my be view the letter dated 13 December 1999

construed as a letter of recognition by the governm ent. The Plaintiff was incorporated in the year 2000, that is 29 March 2000 to be exact and any was on only 14 2002. even registered On 13 in this country December 1999 the said Director, Kuching as the letter a foreign Plaintiff was comp wa

January s not

incorporated ed to one, Professor ostgraduate

yet. Furthermore Sandhu, Executive Centre,

a ddress P He

International Sarawak.

Facilitator Management is not the

Plaintiff and neither was it shown what the relatio nship between him and to the atus the Plaintiff show that Plaintiff remains is. There a is more than sufficient and evidence it s st

is not

recognised

university

dubious. a

The evidence of being

PW2

however establishes that the as a business

Plaintiff is entity under

legal entity s. 332(1) of

registered

the Companies Act 1965. ot I also find really a what has been stated of that in the the the article the from is n su the questi public and

comment but rather bject matter and thus the Plaintiffs expression

a presentation of opinion and of the public

facts on degrees were It both is a oral

university were onable is a fair comment on ation of some facts which documentary are a

dubious matter supported

qualifications interest.

by evidence,

which is indeed the truth. 16 ----------------------- Page 17----------------------In have successfully ivilege in respect claim put up a defence of justification and qualified The costs pr conclusion, the court finds that the Defendants

of the article published is hereby

on 19 July 2005. dismissed with

Plaintiffs in the

against the Defendants sum of RM20,000.00.

sgd BALIA YUSOF WAHI Hakim, Mahkamah Tinggi Kuala Lumpur Dated: 22 FEBRUARY 2011 Parties: For the plaintiff - Paramjit Kaur; M/s Mann & Associates For the defendants - N Segaran & Soo Siew Mei; M/s Shearn Delamore & Co 17