PUTRAJAYA (Jan 13): Tan Sri Muhammad Shafee Abdullah said PKR vice-president Rafizi Ramli was “careless” and “reckless” when he alleged in 2012 that National Feedlot Corp Sdn Bhd (NFCorp) and its chairman Datuk Seri Mohamad Salleh Ismail had used a RM250 million government loan as collateral to purchase commercial properties in KL Eco City.

During an online hearing Thursday at the Federal Court in NFCorp’s appeal against the dismissal of its defamation suit against Rafizi by the Court of Appeal, Shafee said Rafizi had not, before making the statements, bothered to verify the information with Salleh before going to the press.

“There is not just carelessness, but also recklessness. He (Rafizi) did not verify with the plaintiff (Salleh) if he had indeed used the loans (as collateral). Salleh would have told him there is no loan,” the defence counsel told the country’s apex court.

The hearing was presided over by a bench of three judges led by Tan Sri Azahar Mohamed, the Chief Justice of Malaya. The other two Federal Court judges on the bench were: Datuk Zabariah Yusof and Puan Seri Zaleha Yusof.

Azahar said the court will only be addressing two questions of law in this appeal, namely:

Rafizi’s counsel Razlan Hadri Zulkifli, however, argued that the trial judge in the High Court had found no malice in Rafizi’s statements.

"The respondent’s defence of qualified privilege was not defeated due to finding of malice. To the contrary, the trial judge made a finding that there was no malice, a finding of fact which should not be disturbed by appellate courts, and was not disturbed by the Court of Appeal," he said.

Hence, Razlan submitted that the first question was founded on a wrong assumption and should not be answered by the apex court. 

He also pointed out that the same test applied for malice is also applicable for the defences of qualified privilege and fair comment.

"Further, with regard to the second question, it is clear from the line of authorities submitted by the parties that the same test for malice applies to both the defences of qualified privilege and fair comment. The trial judge used the same test and found that there was no malice, a finding which was concurred by the Court of Appeal," he added.

Razlan argued that Salleh and his family had never come forth to show proof that they had the ability or income to purchase the KL Eco City properties.

Previously, Salleh, his wife former minister Datuk Seri Shahrizat Abdul Jalil and their three children, who had sat on the board of NFCorp, had said the purchase was a “private investment” by its directors and the properties were not bought using company funds.

“Without any proof from the 1st Appellant (Salleh) or his family showing their ability to purchase the eight office units in KL Eco City office, and the 1st Appellant’s justification of the earlier purchases of real property using the NFCorp funds as investments, it is natural for the respondent (Rafizi) to deduce, based on the information he had, that the KL Eco City purchase is a repetition of misuse of public funds for purposes not related to the NFCorp project,” Razlan said.

Razlan also said that comments which Rafizi made were that of a “fair-minded person” as the actions of Salleh in securing the loan for the purchase of the properties led Rafizi to conclude that the purchases were made with public funds.

However, Shafee said Rafizi did not have evidence to prove this, and that his allegations could not amount to fair comment.

“There was no iota of evidence to prove that the defamatory statements were true or a fair comment on a matter of public interest. Hence, the respondent (Rafizi) has failed to prove his defence of fair comment,” Shafee said.

After hearing the arguments from both parties, Azahar deferred the court's ruling to an unspecified date, saying the court needed time to go through the questions of law.

The High Court in October 2016 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 14, 2020, that Rafizi's appeal had merits and ordered the damages and RM100,000 in costs paid by Rafizi to Salleh and NFCorp previously to be returned. In addition, the former lawmaker was also awarded costs of RM110,000.