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 Lawyer's Corner v2, One-stop centre for any legal queries

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Ray78
post Jul 20 2012, 10:00 AM

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From: Space-Monkey From Uranus
Dear Mr.Dario,

Need your valuable insight on this:

Defamation lawsuit
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A and B are male siblings.A is older and B younger.A and B live separately and independently.

A for some unknown reason or reason only known to him gave false information (via telephone tip-off) as a public-informer to police authority that B is a drug addict and/or involved in drugs.

Pursuant to that, B was arrested (handcuffed) by Narcotics raiding team in B's home and taken for urine analysis but released as urine test was negative and no other evidence found.

Now B is filing a defamation lawsuit against A

B through his lawyer sent a legal notice to A demanding apology and damage claim but is ignored by A.

Now the case is filed in court.

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I would like to know what would be the possible outcome? I would like to know how the court proceeds with this type of civil litigation,etc?

Also,will A be protected by OSA(under protection of informers) eventhough A clearly gave false information to defame B?

Thank you in advance.

This post has been edited by Ray78: Jul 20 2012, 11:27 AM
Ray78
post Aug 13 2012, 11:46 AM

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QUOTE(dariofoo @ Jul 20 2012, 12:15 PM)
Defamation is not easy to prove. Firstly, what was the words spoken by A to the police that was defamatory to B? B has to find out and plead (state) in his Statement of Claim in the civil suit as to what the exact words were.

Secondly, how did he know that A was the one who tipped off the police? Any concrete evidence?
Hi Mr.Dario.I apologize for the delay.

There isn't any 'concrete evidence' as identity of anyone who tips-off police is classified.

Now,B wants to know since identity of A is priviledged,will the legal action backfire on B? But then it is clear that A gave false information to the police.

QUOTE
This scenario does not come under OSA.
Correct me if I am wrong,isn't OSA Act 88 Section 24 state this:

24.Protection of informers

(1) Except as hereinafter provided, no complaint as to an
offence under this Act shall be admitted in evidence in any civil
or criminal proceedings whatsoever, and no witness shall be obliged
or permitted to disclose the name or address of any informer, or
state any matter which might lead to his discovery.

(2) If any documents which are in evidence or liable to inspection
in any civil or criminal proceedings whatsoever contain any entry
Official Secrets 25
in which any informer is named or described or which might lead
to his discovery, the court before which the proceeding is had shall
cause all such passages to be concealed from view or to be obliterated
so far as is necessary to protect the informer from discovery, but
no further.

(3) If in any proceeding relating to any offence under this Act
or any prescribed offence the court, after full inquiry into the case,
is of the opinion that the informer wilfully made in his complaint
a material statement which he knew or believed to be false or did
not believe to be true, or is of the opinion that justice cannot be
fully done between the parties thereto without the discovery of the
informer, the court may require the production of the original
complaint, if in writing, and permit inquiry and require full disclosure
concerning the informer.



QUOTE
I'm wondering how B found out that A was the one who informed the police. Hope you can shed some light. Otherwise I can advise on the merits of the case.
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B know that A is the one through a very reliable source.So B is confident that A is the one who did it.
(FYI,A had made verbal threats in the past wanting to harm/defame B somehow.)

Thanks.

This post has been edited by Ray78: Aug 13 2012, 02:35 PM
Ray78
post Aug 13 2012, 08:41 PM

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QUOTE(dariofoo @ Aug 13 2012, 06:12 PM)
Don't just look at Sec 24(3). Start with Section 24(1) - protection of informers under this Act. This Act refers to Official Secrets.

Look at the definition of Official Secret:
“official secret” means any document specified in the Schedule and any information and material relating thereto and includes any
other official document, information and material as may be classified as “Top Secret”, “Secret”, “Confidential” or “Restricted”, as the
case may be, by a Minister, the Menteri Besar or Chief Minister of a State or such public officer appointed under section 2B.

The Schedule further defines the documents as:
"Cabinet documents, records of decisions and deliberations including those of cabinet committees; State Executive Council documents, records of decisions and deliberations including
those of State Executive Council committees; Documents concerning national security, defence and international relations.

I strongly doubt that a police tip off regarding a drug user would fall under the definition of Official Secret.

That is my opinion.
Thanks for clarifying.

QUOTE
Reliable source? That's all? A can easily deny.
Reliable source here is a police officer in the unit.He/She stated that they received tip-off via several phone-calls that day from A.The police officer revealed A's full identity to B.

So you imply anyone can give false information to the police with the intention to defame and easily get away with a denial?

Won't the court use its power to force the police to release A's or whomever identity that gave the tip-off?

Please advise.Thank You.



Ray78
post Aug 13 2012, 11:35 PM

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QUOTE(dariofoo @ Aug 13 2012, 10:47 PM)
1. I'm not implying anything. I'm trying to explain to you that in law, the burden of proof is upon who alleges. Now B alleges that A defamed him by making a false tip off. The defamatory statement could be that B is a drug user. So B files a civil suit against A.

Now, under the law, it is B who has to lead evidence of the defamation, and that A was the who defamed B. it is not for B turn around and ask A to prove that he did NOT defame B. B has to call the police officers who personally heard A tip off/complain against B, uttering the defamatory words in the process. Of course, the exact words sopken must be proved and the words must be defamatory in nature.

Once that is proven, then the tables are turned and the burden of proof shifts to A to show a defence as to why he uttered those defamatory words. I A fails to discharge the burden of proof, then judgment will be given to B and damages will be awarded to B which A has to pay.

2. The Court can grant a mandatory injunction, but B must first show some form of evidence against the police officers. If there is nothing in writing, what is stopping the police officers from turning up in Court and deny having heard anything from A? You force them via a Court order and they in turn offer no assistance. If it was a police report then there might be a chance. If it was a verbal tip off then it's going to be an uphill battle to gather evidence as oral evidence is easily denied and offers little evidenciary value.
*
Thank you so much for the great insight.

Just some final questions;

Is it possible for A to counter sue B for threatening him with a lawsuit without evidence? Is there such a risk? And if B were take legal action against the police instead,will B have a better chance then?
Ray78
post Aug 14 2012, 12:42 PM

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QUOTE(dariofoo @ Aug 13 2012, 10:47 PM)
2. The Court can grant a mandatory injunction, but B must first show some form of evidence against the police officers. If there is nothing in writing, what is stopping the police officers from turning up in Court and deny having heard anything from A? You force them via a Court order and they in turn offer no assistance. If it was a police report then there might be a chance. If it was a verbal tip off then it's going to be an uphill battle to gather evidence as oral evidence is easily denied and offers little evidenciary value.
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Hi Dario

Can you please elaborate further on what you meant by 'B must show some form of evidence against the police officers'?

and;

B was told just recently that the police do record every word in writing,from the any complainant giving tip-off but for safety reason the identity of the complainant is highly confidential.


So in B's case,if the poilice has written record and they do know that the complainant was giving false information,do you think they(the police) would still deny and offer no assistance even through court injunction?

Thanks.


Added on August 14, 2012, 12:58 pm
QUOTE(dariofoo @ Aug 14 2012, 12:35 PM)
Take legal action via a civil suit? Under what grounds?
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You mean to say there is no basis for legal action? Can the police go into anyone's house and arrest him/her based on suspicion alone following a tip-off without a shred of evidence? Does Malaysian drug law allow this?

This post has been edited by Ray78: Aug 14 2012, 01:04 PM
Ray78
post Aug 14 2012, 02:19 PM

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QUOTE(dariofoo @ Aug 14 2012, 01:49 PM)
To get an injunction is not easy. B cannot merely state that 'he believes' or 'he thinks' that A is the one who defamed him to the police. Right now, B only hears it from third parties, am I right? How was this communicated to B by those third parties? Verbally? Tough if like that. If SMS or email, then probably that can be printed out an annexed in the application for an injunction.

Now you state that "B was told just recently that the police do record every word in writing". So, who is this person who told B about this? Can this person affirm an affidavit to support B's application? Would the parties who told B that it was A who tipped off the police be ready to step in as witnesses on behalf of B? If the answer is no to those questions, how is B going to even establish a prima facie case against A? Without a prima facie case, an injunction will not be given.
I asked you on what grounds you want to take legal action. I didn't say that there is no basis for one.
The police has powers to arrest and detain without warrant for offences under the Dangerous Drugs Act. The requirement is that there must be reasonable suspicion.. Many have tried to sue the police for unlawful arrest, detention, and malicious prosecution but has failed as the test of reasonable suspicion is easily established by the police and the burden is upon the plaintiff to then proof the existence of malice. Malice is not easy to proof as the police would have no other ulterior motive to detain the plaintiff as it is their duty to do so.

Without a shred of evidence? Of course evidence is only gathered upon arrest. Without arrest, search, inspection and interrogation - how would you expect the police to gather evidence?
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I see.Thanks for the explanation.

So in a nutshell,given all the circumstances,B will most likely fail in his legal pursuit? As a lawyer what would you think would be the best for B to do now? To withdraw?

FYI,B also made a grave mistake by lodging a police report against A soon after the arrest incident.Content of the report says B is suspicious that A defamed him,etc.So is it possible that if A gets hold of this report,A might sue B for reporting A without evidence?

This post has been edited by Ray78: Aug 14 2012, 02:38 PM
Ray78
post Aug 14 2012, 07:22 PM

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QUOTE(dariofoo @ Aug 14 2012, 06:27 PM)
1. How would I know when I have not even seen a copy of the statement of claim filed by B. If he had appointed lawyers and they had filed the claim, surely there would be some basis for it which either you are not aware or or which you have not stated here in the thread. I am in no position to comment on the chances of the civil suit. Hope you understand that.
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I could try to send you the "Statement Of Claim/Pernyataan Tuntutan" if you want to have a look at it.


Added on August 14, 2012, 7:59 pm
QUOTE(dariofoo @ Aug 14 2012, 06:27 PM)
2. A cannot sue B for "reporting A without evidence". There is no such cause of action. If B lodges a report based on reasonable suspicion (he should mention the previous incidents of threats and harassment by A to justify his suspicion) then there is nothing to worry.
*
B's report against A says nothing about A's harrasment and threats.Unfortunately,at that time B completely forget to include that in his report.B only mentioned that he suspects A is the person who defamed him,and therefore B is going to take legal action.

Still B has nothing to worry about?

This post has been edited by Ray78: Aug 14 2012, 11:32 PM
Ray78
post Aug 15 2012, 12:49 PM

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QUOTE(dariofoo @ Aug 15 2012, 11:25 AM)
Advice given is within the scope of this thread so that everyone can benefit from an answer. You have appointed a lawyer to act for you. It's best for you to just trust your lawyer and let him do his best for you.

Can't advise much without looking at the report itself. As long as B words it in neutral language, it should be alright. Do note that defamation via a police report is so longer a cause of action as the person who lodged it is protected under the defence of absolute privilege, pursuant to a decision of the Court of Appeal in Abdul Manaf Ahmad's case reported in 2009. That is the law as it stands.
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Thank you.I am sure everyone will benefit from your answers.

In the worst scenario which is;assuming B fails to get police cooperation/gather evidence to establish a prima facie case,will the court simply dismiss the case? Is the any penalty/punishment for B? You did mention earlier that 'For a civil claim, A can only seek for costs.'
If B also fails to comply to whatever A's demand,what will happen then to B?

Thank you.

This post has been edited by Ray78: Aug 15 2012, 01:17 PM
Ray78
post Aug 15 2012, 02:56 PM

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QUOTE(dariofoo @ Aug 15 2012, 02:51 PM)
It would be dismissed with costs, as I said. For civil cases there's no such things as penalty/punishment if you lose a civil case. You just have to pay costs to the other side.
What demand are you referring to now?
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Demand just refers to cost.
So who decides how much B should pay? The court? Or A/A's lawyer? Suppose B unable/refuses to pay,what then?

This post has been edited by Ray78: Aug 15 2012, 03:09 PM

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