Raub Australian Gold Mining lawsuit (re defamation by villagers, Malaysia)

 

Snapshot:

In September 2013, Australian mining company Raub Australian Gold Mining (RAGM) filed a defamation lawsuit in front of the High Court against Hue Shieh Lee, a resident of Bukit Koman and Vice-President of Ban Cyanide Action Group, a Malaysian activist group. The company alleges that some of Hue Shieh Lee’s statements were defamatory because they suggested that the company had allowed cyanide spills from its facility and was therefore directly responsible for causing health problems to the community. In February 2019, the Federal Court of Appeal unanimously dismissed the appeal filed by RAGM. The court ruled that the company could have corrected through a press release any inaccuracy in the view expressed by the defendant. The company was ordered to pay RM60,000 (US$14,365) in legal costs.                                                                                                                                         

Pour la version française de ce profil, cliquez ici.

In September 2013, Raub Australian Gold Mining Sdn Bhd (RAGM), a mining company operating in Bukit Koman, Malaysia, filed three defamation suits against three members of the Ban Cyanide Action Group, a local activist group. The company withdrew its suit against two of the three activists after they apologised in court for their allegations about the company’s operations. The only claim that went to trial was that against Hue Shieh Lee, a resident of Bukit Koman and Vice-President of Ban Cyanide Action Group, about statements made in two articles published in 2013 by Malaysiakini and Free Malaysia Today. In September 2012, the company initiated a separate defamation lawsuit against these two online news portals, which was dismissed. The lawsuit alleged that some of Hue Shieh Lee’s statements were defamatory because they suggested that the company had allowed cyanide spills from its facility and was therefore directly responsible for causing health problems to the Bukit Koman community. The second article contained allegedly defamatory statements about the limited number of community members employed at the company’s facility. 

On 17 May 2016, the Kuala Lumpur High Court dismissed the suit, ruling that the mere announcement of the survey results did not amount to defamation of RAGM and that the company failed to prove that the statements contained in the second article were words exactly uttered by Hue Shieh Lee. RAGM appealed the decision and on 21 October 2016. The Court of Appeal dismissed the appeal noting that by expressing her concerns for local health conditions, Hue Shieh Lee was “exercising her rights as an activist” and that freedom of speech is a notion that must be construed in light of the fact that “we now live in a much more liberal society where the concept of transparency and accountability are very much part and parcel of our lives.” The Court endorsed the lower court’s reasoning and conclusions also on the second contested press article.

On 16 October 2017, RAGM obtained leave to appeal before the Federal Court of Appeal, Malaysia’s highest jurisdiction. In February 2019, the Federal Court of Appeal unanimously dismissed the appeal filed by RAGM and agreed with the Court of Appeal that “the respondent was protecting the welfare of the residents” and that the company could have corrected through a press release any inaccuracy in the view expressed by the defendant. The company was ordered to pay RM60,000 (US$14,365) in legal costs.

RAGM is no longer operating in Bukit Koman and is under liquidation. Local activists are now demanding that the government orders RAGM to clean up the operation zone and to rehabilitate the old mine. 

News Items

A Victory and the Long Road to Justice in Malaysia, Environmental Law Alliance Worldwide (ELAW), ELAW Bulletin, 27 Mar 2019

Malaysian court rules in favor of activist accused of defamation by transnational mining company, Real World Radio (Malaysia), 21 Mar 2019

Federal Court dismisses Raub Australian Gold Mining’s appeal in defamation suit, Malaymail, 13 Feb 2019

[video] Interview with the attorney for the community, Gurdial Singh Nijar, KiniTV, 12 Feb 2019

Raub Australian Gold Mining defamation suit to go to Federal Court, The Star online (Malaysia), 16 Oct 2017

Bukit Koman villager wins in gold mine's defamation suit, Malaysiakini, 16 May 2016 

Gold mining company withdraws suit after activist apologises, The Star online (Malaysia), 9 Dec 2014

Legal documents

[PDF] Raub Australian Gold Mining Sdn Bhd v. Hue Shieh Lee (2019.02.13), Federal Court of Malaysia (Judgment), 13 Feb 2019

[PDF] Raub Australian Gold Mining Sdn. BHD v. Hue Shieh Lee, Malaysia Court of Appeal (Judgment), 21 Oct 2016

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All components of this story

Article
29 March 2019

A Victory and the Long Road to Justice in Malaysia

Author: Maggie Keenan, ELAW

ELAW has worked for years with partners in Malaysia to protect the community of Bukit Koman from a polluting gold mining operation. Villagers conducted environmental surveys to identify contaminants. When Shirly Hue, Vice Chairperson of the Bukit Koman Anti Cyanide Committee, announced the survey results at a press conference, Raub Australian Gold Mining company sued for defamation.
 
Last month, the defamation suit was thrown out...
 
On hearing the ruling, ELAW partner Theivanai Amarthalingam from Friends of the Earth Malaysia wrote:
 
"Sherly Hue is one of the youths of this community who never gave up and continued to fight to the end, knowing well that if she lost, she would have had to pay hundreds of thousands in Malaysian Ringgit in damages and costs. But she had the support of the community all the way and the community shares her victory."
 
The Federal Court recognized the rights of activists to bring issues affecting communities to the attention of authorities, stating:
 
"We must not lose sight of the fact that the existence of activist groups is very much part of today's society, so much so that it is undeniable that they have contributed much to the general well-being of the society at large... We now live in a much more liberal society where the concept of transparency and accountability are very much part and parcel of our lives. Hence the freedom of speech entrenched in our Constitution must be construed in that context."
 

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Article
21 March 2019

Malaysian court rules in favor of activist accused of defamation by transnational mining company

Author: Real World Radio (Malaysia)

The Federal Court, the highest court of Malaysia, unanimously dismissed an appeal filed by Raub Australian Gold Mining (RAGM), a gold mining company that had sued activist Sherly Hue for defamation. Hue is part of the resistance against the company´s operations in Bukit Koman, Pahang State.

The Court´s decision issued in mid-February, which puts an end to the suit that started in 2013, agreed with the previous decisions of the High Court and the Court of Appeal of Malaysia. Sherly is the Vice Chairperson of Bukit Koman Ban Cyanide Committee, created in 2006 to resist the factory that eventually began operations in 2009...

The activist had been accused by the company for allegedly defaming them in two press statements where, according to the company, Sherly had linked the operations of the factory with health effects on the local population. The Federal Court ruled that in one of the cases, the words of the defendant to the press were not defamatory and in the second case the company could not even prove that Sherly had made that statement in the first place. This is what lawyer Jessica Binwani, one of the legal advisers of the case, said to Real World Radio in an interview conducted by our colleague Theiva Lingam, of Friends of the Earth Asia Pacific...

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Article
13 February 2019

Federal Court dismisses Raub Australian Gold Mining’s appeal in defamation suit

Author: Malaymail

A five-man bench of the Federal Court today dismissed the appeal by Raub Australian Gold Mining Sdn Bhd (RAGM) in its lawsuit against a Bukit Koman resident in Pahang for defamation in respect of two articles.

Federal Court judge Tan Sri Ramly Ali, who presided the bench, said the appellate court had applied correctly the test in determining the impugned words and in concluding that the words in the first article did not expose RAGM to hatred, contempt or ridicule...

He also said the court agreed with the High Court and Court of Appeal that the words complained of by RAGM in the second article were not the actual words uttered or published by Hue Shieh Lee but the words were in fact a report or statements by a reporter.

Justice Ramly said RAGM had failed to call the reporter as a witness during the trial, to prove that she had interviewed Hue and Hue had actually uttered those words...

He said RAGM’s claim for malicious falsehood based on the two articles must also fall as RAGM failed to show that it suffered any special damage as a result of publication of the articles.

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Item
13 February 2019

Raub Australian Gold Mining Sdn Bhd v. Hue Shieh Lee [2019.02.13]

Author: Federal Court of Malaysia

[full text of the judgment]

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Article
12 February 2019

Video: Interview with the attorney for the community, Gurdial Singh Nijar

Author: KiniTV

A five-member Federal Court bench today unanimously dismissed the appeal by Raub Australian Gold Mine (RAGM) against Bukit Koman resident and activist Shirley Hue Shieh Lee over two articles published regarding residents' comments over fears of their safety.

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Article
16 October 2017

Raub Australian Gold Mining defamation suit to go to Federal Court

Author: Qishin Tariq, The Star Online

The Raub Australian Gold Mining (RAGM) defamation suit against activist Hue Shieh Lee continues as the Federal Court has agreed to hear the case...Chief Justice Md Raus Sharif granted RAGM leave to appeal against the earlier courts' findings on Monday (Oct 16), ruling there was merit to its application.  

The panel that included Chief Judge of Malaya Ahmad Maarop and Justice Balia Yusof Wahi also unanimously allowed the company's four questions of law. Lawyers Tan Sri Cecil Abraham, Sunil Abraham and Daniel Chua represented the company, while Gurdial Singh Nijar acted for Hue. 

RAGM had initiated the defamation case against Hue, who was then the vice-chairperson of Ban Cyanide Action Group, over statements made against the company's gold mine near her village in Bukit Koman, Pahang.

 

 
 

 

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Item
21 October 2016

Raub Australian Gold Mining Sdn. BHD v. Hue Shieh Lee

Author: Malaysia Court of Appeal

[full text of the judgment]

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Article
17 May 2016

Bukit Koman villager wins in gold mine's defamation suit

Author: Malaysiakini

A Bukit Koman villager has won her case against the defamation suit filed by Raub Australian Gold Mining (RAGM) against the Ban Cyanide Action Group (BCAC).

The High Court in Kuala Lumpur ruled today that RAGM failed to prove that BCAC vice-chairperson Hue Shieh Lee's statement against the gold mine was of malicious falsehood.

In handing out the 45-page judgment, High Court judge Yeoh Wee Siam also ordered the plaintiff to pay RM20,000 in costs to Shieh Lee, subject to payment of an allocatur fee of four percent of the costs.

The plaintiff must establish three elements to prove malicious falsehood in this case, namely:

  1. That the defendant has published about the plaintiff words which are false;
  2. That they were published maliciously; and
  3. That special damage has followed as the direct and natural result of their publication.

"... the plaintiff did not prove that the survey results read out by the defendant are false because the plaintiff failed to call any, or all of the 383 residents, to prove that they did not suffer from any health problems as a result of the plaintiff's use of cyanide in its operation of the gold mine.

"... the plaintiff did not call the reporter, who purportedly interviewed the defendant, as a witness to prove that the defendant had uttered or published those words.

"It follows that the issue whether the words are false does not arise," read the judgment...

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Article
9 December 2014

Gold mining company withdraws suit after activist apologises

Author: The Star Online

Raub Australian Gold Mining Sdn Bhd has withdrawn its defamation suit against activist Hue Fui How after the latter apologised in court for his allegations against the former’s gold mining operations in Raub.

Hue, 68, was the secretary for the Pahang Raub Ban Cyanide in Gold Mining Action Committee (BCAC)...

Raub Australian’s counsel Sunil Abraham read out the statement of apology before High Court Judge Yeoh Wee Siam, where Hue apologised for his remarks made during a radio interview and in an article carried by an online portal.

Hue admitted he was not aware of any justifications to statements he made in an article, Bukit Koman Mining: Why the mystery?, published on Free Malaysia Today on July 4, 2012, and in an Aug 17, 2012 interview on BFM89.9 radio’s current affairs programme.

According to the statement of apology, Raub Australian was operating a carbon-in-leach gold recovery plant at Bukit Koman under Mining Certificate 483, now known as Mining Lease 1669.

The company said the defamatory statements had arisen when concerns raised by the residents of Kampung Bukit Koman through BCAC were published in various media.

Apart from Hue, Raub Australian Gold Mining had earlier filed suits against other activists – namely BCAC chairman Wong Kim Hoon and vice-chairman Shirley Hue Shieh Lee, as well as Malaysiakini and Free Malaysia Today...

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