1. ) Enapak Marketing Sdn. Bhd. v 1. ) Guardian Health and Beauty Sdn. Bhd. (PA-22NCvC-232-12/2020)

1.

NG WUOI UOI …. PLAINTIF-PLAINTIF DAN 1. GUARDIAN HEALTH AND BEAUTY SDN BHD

2.

DATO’ SERI DR. NOOR HISHAM BIN ABDULLAH (DISAMAN SEBAGAI INDIVIDU DAN KETUA PENGARAH KESIHATAN

DATO’ SRI DR. ADHAM BIN BABA (DISAMAN SEBAGAI INDIVIDU DAN MENTERI KESIHATAN

DR. LEE BOON CHYE (DISAMAN SEBAGAI INDIVIDU DAN MANTAN TIMBALAN MENTERI KESIHATAN KEMENTERIAN KESIHATAN MALAYSIA) 13/10/2025 19:37:18

6.

KERAJAAN MALAYSIA … DEFENDAN-DEFENDAN

A.

The Plaintiffs claim that the 1st Defendant (“D1”) has breached and/or wrongfully terminated the Agreement entered into between the parties. As a result of such breach and/or wrongful termination, the Plaintiffs allege that they have suffered substantial financial losses.

Consequently, the Plaintiffs seek, inter alia, the following reliefs: [a] General and specific damages; [b] Damages for breach and/or wrongful termination of the Agreement; [c] Damages for economic sabotage and loss of goodwill; and [d] Damages for consequential losses and/or loss of profits which the Plaintiffs would have earned had the Agreement not been breached and/or wrongfully terminated.

On 26 September 2017, the Plaintiffs and the 1st Defendant (“D1”) entered into a Trading Term Agreement and Terms and Conditions of Supply (hereinafter collectively referred to as “the Said Agreement”) in respect of three products marketed under the brand name Thymos, namely: [a] Thymos Anti-HFMD/Flu Spray; [b] Thymos Anti-Sinus; and [c] Thymos Anti-Athlete Foot.

4.

Under the Said Agreement, the Plaintiffs duly made all required payments to D1, including listing fees, advertising, and promotional fees.

On 8 August 2018, the 3rd Defendant (“D3”), being a prominent public figure and described as the “visible face of Malaysia,” particularly during the Covid-19 pandemic period, published an article (“the Said Article”) containing statements which, according to the Plaintiffs, were meant and were understood to mean that the Thymos Anti-HFMD/Flu Spray product sold and/or distributed by the Plaintiffs was ineffective, unreliable, and a sham.

The Said Article also included a clear image of the Thymos Anti-HFMD/Flu Spray product.

Following the publication of the Said Article, a meeting was convened at the office of D3 between the Plaintiffs and representatives of the 6th Defendant (“D6”), including one Dr. Chong Chee Keong.

During the said meeting, the Plaintiffs drew attention to the Microlab Report, which formed the basis and scientific support for the claims made in relation to the Thymos products.

At the meeting, the Plaintiffs were informed that the Thymos products, including the Thymos Anti-HFMD/Flu Spray, were not regulated by the Ministry of Health (“D6”), but instead fell under the purview of the Ministry of Domestic Trade and Consumer Affairs (“KPDNHEP”), now known as the Ministry of Domestic Trade and Cost of Living (“KPDN”).

The Plaintiffs were further advised to consider repackaging the Thymos Anti-HFMD/Flu Spray and renaming it as “Thymos Shield.”

Notwithstanding the above, as a result of the Said Article published by D3–D7, D1, relying heavily upon the contents and implications of the Said Article, proceeded to remove the Thymos Anti-HFMD/Flu Spray from its retail shelves.

D1 contended that it had no choice but to take such action as the publication by D3–D7 served as a warning and/or directive which justified its conduct.

By removing the Thymos Anti-HFMD/Flu Spray from its outlets, D1 had, according to the Plaintiffs, committed a breach of the Said Agreement, which in turn caused the Plaintiffs to suffer substantial financial losses.

The Plaintiffs contend that D1 had breached the Agreement by removing the Anti-HFMD/Flu Spray product (“the Thymos Product”) from its shelves in response to an article published on 8 August 2018 by the 3rd to 7th Defendants (“D3–D7”). The Plaintiffs further allege that subsequently wrongfully terminated the Agreement by failing to continue listing and selling the Thymos Product in its outlets.

As against D3–D7, the Plaintiffs claim, inter alia, for a Declaratory Order that the publication of the said article was intended, and was reasonably understood, to convey that the Thymos Product sold and/or distributed by the Plaintiffs was ineffective, unreliable, and/or unsafe. The Plaintiffs assert that the publication has directly and/or indirectly caused or contributed to D1’s breach and/or wrongful termination of the Agreement.

In consequence, the Plaintiffs further claim for damages arising from the alleged negligence, mala fide conduct, and/or acts amounting to economic sabotage on the part of D3–D7. The Plaintiffs also seek a Declaratory Order that the Thymos Anti-HFMD/Flu Spray products are safe for public use, and that their marketing and distribution by the Plaintiffs have never been prohibited or restrained by any competent regulatory authority. C.

The Plaintiffs submit that the 1st Defendant (“D1”) had acted wrongly and unreasonably in removing the Thymos Anti-HFMD/Flu Spray (“the Product”) from its outlets following the publication of the article dated 8 August 2018 by the 3rd Defendant (“D3”).

In her Witness Statement, Anna Hull the Managing Director of Guardian Indonesia (DW1) did not deny that D1 had indeed removed the Product after the Said Article was published. DW1 further testified that D1 “had no choice” but to do so. It is undisputed that D1’s decision to remove the Product was made solely on the basis of the purported “warning” contained in the Said Article, on which D1 had placed heavy reliance.

Under cross-examination by both the Plaintiffs’ counsel and counsel for D3–D7, DW-1 expressly admitted that there was no directive or instruction issued by D3–D7 requiring D1 to remove the Product from its outlets. DW-1 also conceded that D1 had made no attempt whatsoever to verify the accuracy of the Said Article with D3–D7 prior to its decision.

Despite D1’s reliance on the Said Article as a “warning”, DW-1 admitted that she did not personally verify the contents of the Said Article, nor was she aware if any member of her team had done so before the Product was removed from D1’s shelves.

In the absence of any directive, instruction, or verification from D3–D7, it is submitted that D1 ought not to have removed the Product from its outlets. The removal, being premised on unverified and unsubstantiated information, was unreasonable and without proper basis.

Further, the Plaintiffs highlight that even within the Said Article itself, it was clearly and expressly stated by D3–D7 that the Thymos Anti-HFMD/Flu Spray did not fall under their control or regulatory authority. The relevant extract from the Said Article reads as follows: Buat masa ini, pihak syarikat didapati membuat tuntutan anti HFMD yang tidak berasa kerana tiada bukti yang kukuh menunjukkan tuntutan tersebut Adalah berkesan seperti dilabelkan. Namun begitu, memandangkan produk ini tidak digunakan secara langsung pada manusia, maka produk ini bukanlah di bawah kawalan KKM dan tiada keperluan untuk pendaftaran di bawah agensi berkaitan di bawah KKM.

In view of the foregoing, D1 cannot rely on the Said Article as justification for its actions. There was no legal or factual basis for D1 to treat the Said Article as a directive or prohibition warranting the removal of the Product. On The Listing Of “Thymos Shield”

The Plaintiffs further submit that D1 was not entitled to require the Plaintiffs to obtain confirmation and/or verification from D3–D7 before relisting the Thymos Shield product in its outlets. It was clearly stated that the Thymos Anti-HFMD/Flu Spray product was not under the control of D3–D7 as it did not fall within the definition of “medicine”, and that the product was not intended for application on human skin.

The Plaintiffs contend that Thymos Shield is identical in composition and purpose to the Thymos Anti-HFMD/Flu Spray, and as such, is properly categorised as a household product which does not require registration or approval from any department under D3–D7. Failure To Call Material Witness 27. DW-1, during cross-examination, testified that any product to be listed in D1’s stores ought to be registered through the appropriate authorities, namely the Ministry of Health. However, DW-1 subsequently conceded that, in her capacity as Commercial Director, she had no personal knowledge as to whether Thymos Shield required such registration or approval, as she was not involved in the day-to-day regulatory dealings.

It is significant to note that Ms. Sophia Hong, who was identified by DW-1 as the person capable of answering that question, was not called as a witness by D1. Counsel for D1 informed the Court that she would not be called as her testimony would be “the same” as DW-1’s.

The Plaintiffs submit that such omission attracts the adverse inference under section 114(g) of the Evidence Act 1950, which allows the Court to presume that the evidence withheld would have been unfavourable to D1. Breach Of The Agreement 30. The Plaintiffs submit that D1, by unreasonably and wrongfully removing the Thymos Anti-HFMD/Flu Spray from its stores, had breached the Said Agreement entered into between the Plaintiffs and D1. It is uncontroverted that D3–D7 did not issue any directive, instruction, or notice to D1 to remove the Product.

D1’s conduct, therefore, amounts to a clear and unjustified breach of contract. The publication of the Said Article did not warrant the removal, nor did it constitute a lawful basis for termination or suspension of the listing. The Plaintiffs submit that D1 had no reasonable ground to remove the Product from its shelves, and such act directly resulted in substantial loss and damage to the Plaintiffs AS AGAINST THE 3rd DEFENDANT to 7th DEFENDANT (D3–

The Plaintiffs submit that the statements made and published by the 3rd to 7th Defendants (“D3–D7”) in the article dated 8 August 2018 (“the Said Article”), whether taken individually or in their entirety, are defamatory of the Plaintiffs. The Said Article expressly stated that the claims made in relation to the Thymos Anti-HFMD/Flu Spray were unreasonable and unsupported by evidence as to their efficacy.

In their natural and ordinary meaning, the statements in the Said Article were understood to mean and to be taken by reasonable readers as implying that the Thymos Anti-HFMD/Flu Spray products sold and/or distributed by the Plaintiffs were ineffective, unreliable, and a sham. The Plaintiffs submit that these allegations are false and baseless.

Contrary to the assertions made in the Said Article, the Plaintiffs had, at all material times, relied upon and produced scientific test results and reports from various laboratories and organisations—both local and international—attesting to the effectiveness of the Thymos products. In particular, the Microlab Report was presented to D3–D7 as well as to D1 as proof of the products’ efficacy.

D3–D7, upon examining the said reports, themselves acknowledged that the Thymos products were intended for use on hard surfaces and not directly on human skin, and therefore ought properly to be categorised as household products. Consequently, the Thymos Anti-HFMD/Flu Spray fell outside the regulatory control of the Bahagian Regulatori Farmasi Negara (NPRA) and the Pihak Berkuasa Peranti Perubatan (PBPP). The Plaintiffs therefore contend that the statements in the Said Article alleging that the products lacked evidential support were untrue, inaccurate, and made without reasonable foundation. Defamation And Negligence 36. The Plaintiffs submit that D3–D7, being public authorities whose statements are ordinarily relied upon by the general public, owed a duty of care to ensure the accuracy of their statements before publication. The Said Article, containing unverified and untrue assertions, was published negligently and without due regard to the foreseeable consequences.

D1, as a result, heavily relied upon the Said Article and treated it as a warning and/or directive from the competent authorities. Acting on that reliance, D1 removed the Thymos Anti-HFMD/Flu Spray products from its outlets, thereby causing the Plaintiffs to suffer substantial financial losses.

The Plaintiffs therefore submit that D3–D7’s wrongful publication constituted not only defamation but also actionable negligence and/or economic sabotage, having directly or indirectly induced D1’s breach of the Said Agreement. Lack Of Authority And Bad Faith 39. The Plaintiffs further submit that D3 had no legal, moral, or social obligation to make any public announcement or advisory statement regarding the Thymos Anti-HFMD/Flu Spray, as the product did not fall under the control or regulatory jurisdiction of D3–D7. Indeed, D3–D7 expressly admitted—both in their pleadings and within the Said Article itself—that the Thymos Anti-HFMD/Flu Spray product was not under their control or authority, and need not be registered under NPRA or PBPP to be lawfully marketed.

In the absence of any statutory mandate or regulatory basis, the publication of the Said Article was negligent, unwarranted, and made without legal justification. DW-2, during cross-examination, also failed to point to any provision of law, regulation, or official directive authorising such announcement.

Accordingly, the Plaintiffs submit that the publication was not made in good faith (bona fide) and that the common law defence of qualified privilege is inapplicable and cannot be relied upon by D3–D7. On The Defences Raised 42. The Plaintiffs further submit that the doctrines of ex turpi causa non oritur actio and volenti non fit injuria raised by D3–D7 are wholly inapplicable. The Plaintiffs have not, at any material time, committed any illegal or immoral act.

The contention by D3–D7 that the Plaintiffs misled the public through the labelling or description of the Thymos Anti-HFMD/Flu Spray product is baseless and unsupported by evidence. It is undisputed that the said product has never been seized, prohibited, or confiscated by any authority, including the Ministry of Domestic Trade and Consumer Affairs (KPDNHEP), which has jurisdiction over household products. Causation And Loss 44. The Plaintiffs submit that D3–D7’s negligent and defamatory publication of the Said Article directly resulted in D1’s wrongful removal of the Plaintiffs’ products from its outlets, which in turn constituted a breach of the Said Agreement between the Plaintiffs and D1.

The misstatements by D3–D7, being made without authority and in bad faith, triggered a chain of causation leading to the Plaintiffs’ substantial financial and reputational losses. Accordingly, D3–D7 are jointly and severally liable to the Plaintiffs for the damages suffered. D.

The 1st Defendant (“D1”) submits that there was no directive whatsoever from D3–D7 instructing D1 to remove the Plaintiffs’ Anti-HFMD/Flu Spray product (“the Product”) from its outlets. The Plaintiffs’ contention that D1 required such a directive before acting is misconceived. There is no contractual or legal basis — whether pleaded or proven — to support the proposition that D1 could only remove the Product upon instruction or verification from D3–D7.

It is incumbent upon the Plaintiffs to identify the contractual or legal provision imposing an obligation on D1 to verify the contents of the Article with D3–D7 prior to the removal of the Product. The Plaintiffs have failed to do so. The mere absence of verification does not give rise to a cause of action for breach of contract. The burden of proof lies squarely with the Plaintiffs, and they have not established that such verification formed part of the contractual obligations between the parties.

There was likewise no obligation on D1 to consult or confirm with D3–D7 prior to removing the Product. The removal of the Product on 9 August 2018 was done with the Plaintiffs’ consent and was an act undertaken in good faith to safeguard public health and avoid reputational risk to D1. Such action was consistent with D1’s rights under the Terms and Conditions of Supply, as well as in line with the Sale of Goods Act 1957 and the Trade Descriptions Act 1957.

D1 further submits that it had no legal duty to continue listing the Product, nor to list any related product such as “Thymos Shield.” As a retailer, D1 was fully entitled to impose reasonable conditions precedent before agreeing to list any product. Whether the Product fell under the jurisdiction of D3–D7 is irrelevant. Moreover, the Plaintiffs’ own witness, PW1, admitted that some of the claims on the Thymos Shield packaging — identical to those on the Thymos Anti-HFMD/Flu Spray — were false. Listing the Thymos Shield product would therefore have placed D1 in breach of Sections 5 and 7 of the Trade Descriptions Act 1972, which prohibit false trade descriptions.

The Plaintiffs’ assertion that D1 was required to obtain confirmation from D3–D7 before listing the Thymos Shield product is similarly incorrect. No such requirement existed under the Agreement or in law.

The Plaintiffs’ contention that an adverse inference should be drawn against D1 for not calling one “Sophia” as a witness is also without merit. The Plaintiffs have failed to specify the nature of the inference sought. Sophia was a D1 employee, not an employee of D6. Her testimony would not have been material to the issue of whether the Product required registration with D6 or whether its claims were accurate. The evidence shows that D1 did not deliberately withhold her testimony. In fact, D1 applied for a subpoena (Enclosure 42) to secure Sophia’s attendance. However, due to her unavailability during trial, the Court advised that DW1 be called first. Upon completion of DW1’s testimony, it became apparent that Sophia’s evidence would be redundant. Accordingly, D1 closed its case. In these circumstances, no adverse inference ought to be drawn against D1.

D1 maintains that its decision to remove the Product was taken in good faith. This is evidenced by the deliberations of D1’s top management prior to removal, and the fact that subsequently reinstated the Product on its shelves following the Plaintiffs’ press conference. D1 derived no benefit or advantage from the temporary removal of the Product.

It is therefore submitted that acted responsibly, reasonably, and within its contractual and legal rights in the circumstances. The Plaintiffs have failed to establish any breach of contract, bad faith, or malice on D1’s part.

Furthermore, there is no evidence — whether pleaded or adduced — to support any claim of high-handed, oppressive, insulting, or contumelious conduct on the part of D1, nor any evidence that the Plaintiffs suffered mental distress aggravated by D1’s conduct. The Plaintiffs’ claim for aggravated or exemplary damages is thus wholly unsustainable E. THE THIRD TO SEVENTH DEFENDANTS’ (D3 to D7)

D3–D7, in their Statement of Defence, pleaded the defence of justification in respect of the announcement made, contending that the statements published in the said Article were wholly and/or substantially justified and/or true.

Alternatively, D3–D7 pleaded that the statements in the said Article were made on an occasion of qualified privilege. D3 further asserted that he bore a moral and social obligation to publish information concerning the Thymos Anti-HFMD/Flu Spray product. It was further pleaded that the Article was published to promote a legitimate common interest, namely the public’s right to be informed on matters concerning public health.

As the Article was published bona fide, D3–D7 submitted that common law qualified privilege is applicable. D3–D7 also pleaded that the losses allegedly suffered by the Plaintiffs were not caused by any act of D3–D7, as there was no breach of duty, negligence, or wrongful conduct on their part. Any alleged losses were too remote to be linked to the justified actions of D3–D7 (which are in any event denied).

D3–D7 further pleaded that the principles of ex turpi causa non oritur actio and/or volenti non fit injuria are applicable against the Plaintiffs.

No reference was made to the Plaintiffs in the said Article. Therefore, the Plaintiffs were not defamed in any way whatsoever. On this ground alone, the claim against D3 ought to be dismissed. Further and alternatively, if the Court does not accept D3’s primary submission above, D3 denies that the Article is defamatory, as it conveys truthful information. In an action for defamation, justification is a complete defence. D3 therefore relies on the defence of justification.

There are two (2) main product claims in issue — namely that the product can clinically kill 99.99% of two types of viruses, namely Hand, Foot and Mouth Disease (HFMD) and Influenza A (H1N1) viruses. D3 submits that these claims are misleading, as they concern two distinct viral diseases. The Plaintiffs have not proven the accuracy of these claims. No documentary evidence was adduced in Court to substantiate the assertions. Although the Plaintiffs attempted to rely on the Microbac Laboratory Report (ID1) from the United States, it was only marked as an ID document and is therefore inadmissible as evidence in support of the Plaintiffs’ claims. Accordingly, the claim that the product can kill 99.99% of HFMD viruses is entirely inaccurate, as no test was conducted on the coxsackie virus, the main causative agent of

At the material time, the country was experiencing an outbreak of HFMD. As a public health authority, D3 had a duty to act promptly and to ensure that the public received accurate and truthful information. D3 was also required to take necessary steps to control the spread of disease, especially where misleading product claims could cause the public to rely on ineffective preventive measures. If the public were to rely on this product, they might neglect established hygiene practices, which could lead to further and uncontrolled spread of HFMD and H1N1.

D3 bears a moral, social, and legal duty to correct misleading information and to ensure the public is not deceived by irresponsible product claims. The Article was therefore published in fulfilment of this duty. The Article contained factual and evidence-based content derived from expert studies and deliberations. Specifically, the Article stated that:

the product’s claim that it can instantly kill 99.99% of HFMD and Influenza A viruses is inaccurate; and

the anti-HFMD claim is baseless, as there is no reliable scientific evidence proving its effectiveness.

D3 never ordered the product to be withdrawn from the market. D3 merely advised the Plaintiffs to make the necessary amendments to the product label to avoid misleading the public. Therefore, the Article cannot be deemed defamatory. It was a true and justified statement made in the public interest, and D3 should not be held liable for taking a reasonable and responsible step in the discharge of its public duty.

D3 never instructed any party to remove the product from the market or to cease its sale from any outlet. The advice was only for the label claims to be corrected and replaced with more general and accurate statements. Accordingly, D3 should not be held liable for the Plaintiffs’ alleged losses. In fact, the Plaintiffs did not suffer any actual loss following D3’s announcement on 22 8.8.2018. The Plaintiffs’ own witness, SP2, admitted that sales for August and September 2018 were better than those in June 2018.

D3 acknowledges that the product was not regulated by the Ministry of Health (MOH). However, as the product made medical claims such as “Anti-HFMD / Flu Spray” and “boosting antibodies” — which are clearly medicinal in nature — MOH had to intervene as the competent health authority to clarify the facts.

MOH bears a greater responsibility to the public concerning products making unverified or exaggerated medical claims. The Plaintiffs’ claim that their product could “control HFMD” could mislead the public into neglecting preventive measures. D3, therefore, had both a legal duty and a moral responsibility to alert the public.

D3 acted fairly and reasonably in the discharge of its public health duties. Its actions were proactive and taken for the benefit of the people. D3 should not be penalised for fulfilling its statutory and moral obligations.

The facts clearly show that the Plaintiffs were the party making false and exaggerated medical claims, whereas D3 was correcting misinformation and safeguarding public health. It is therefore unreasonable for the Plaintiffs to blame D3 or to seek compensation for losses arising from their own wrongdoing. The principle of ex turpi causa non oritur actio applies — a party cannot profit from its own wrongful act. The Plaintiffs’ conduct was commercially dishonest, seeking to exploit a public health crisis for profit by misleading the public with false claims. The Court should not be seen to endorse or reward such conduct. Profits derived from unlawful or immoral means must not be protected, and the Plaintiffs’ claim for damages against D3 ought therefore to be dismissed.

The Plaintiffs’ subsequent compliance with D3’s directions demonstrates that they acknowledged their product had made misleading and exaggerated claims requiring correction. The Plaintiffs also voluntarily withdrew the product from D1’s outlets to rebrand it as “Thymos Shield.” Accordingly, the doctrine of volenti non fit injuria applies — one who consents to an act cannot later complain of it.

This claim is, in essence, an action against a public authority tasked with safeguarding public health. The Plaintiffs have failed to prove that D3 or any of the Defendants acted unjustly, unfairly, or beyond their lawful duty, especially in the context of a national health crisis. The Plaintiffs’ action should therefore be dismissed with costs. F.

Having heard the submissions by the parties and the evidences before me, I am of the view that the issues are: [a] Whether the 1st Defendant (D1), by removing the Anti-HFMD/Flu Spray product and discontinuing the Thymos product as a result of the Article, has breached the Trading Term Agreement and the Terms and Conditions of Supply dated 26.09.2017 [b] Whether the Article published by the 3rd to 7th Defendants (D3 to D7) was made in good faith and is wholly and/or substantially justified and true, without malice or mala fide intent. [c] Whether the 3rd to 7th Defendants (D3 to D7) breached their duty of care and were negligent in making the statements published in the Article, thereby causing the Plaintiffs to suffer substantial loss and damage. [d] Whether the Plaintiffs are entitled to the reliefs and damages. G.

The Plaintiffs and the 1st Defendant (“D1”) entered into a Trading Term Agreement dated 26 September 2017 (“the Agreement”) for the marketing and distribution of products, namely Anti-HFMD/Flu Spray, Anti-Sinus, and Anti-Athlete Foot (collectively referred to as “Thymos Products”) at all outlets and stores operated by D1 throughout Malaysia.

In its Statement of Defence, D1 pleaded that pursuant to the Agreement, it is entitled to recall the products if, in good faith, it considers such recall necessary in the interest of its customers or for the purpose of preserving its goodwill and reputation. Accordingly, D1 contends that the publication of the Article — being an official statement issued by D3, the Director-General of Health — entitled D1 to rely on its contents in assessing the status of the products and in deciding whether to withdraw them from the market, in the interest of its customers and for the protection of its goodwill and public image.

D1 further pleads that it is entitled to terminate the Agreement in the event the Plaintiffs are in breach of any of their warranties, including but not limited to the warranty that the Plaintiffs had obtained all requisite consents, licences, and regulatory approvals to market and supply the products. Notwithstanding the foregoing, D1 asserts that there was no formal termination of the Agreement. Instead, the products Anti-Sinus and Anti-Athlete Foot were merely discontinued. As for Thymos Shield (formerly marketed as Anti-HFMD/Flu Spray), D1 avers that it was not listed in D1’s stores due to the Plaintiffs’ failure to provide formal confirmation that the said product did not require regulatory registration.

As for D3 to D7, they pleaded the defence of justification, asserting that the statements published in the Article were not defamatory but were wholly and/or substantially true. Alternatively, D3 to D7 pleaded that the statements were made on an occasion of qualified privilege. In particular, D3 contends that he bore a moral and social duty to disclose information in his possession concerning the Anti-HFMD/Flu Spray product. It is further averred by D3 to D7 that the publication of the Article served a legitimate common interest, namely the public’s right to receive information relating to public health matters.

D3 to D7 further assert that the Article was issued in good faith (bona fide), and that common law privilege accordingly applies in favour of D3. D3 to D7 also deny any breach of duty, obligation, or negligence, and contend that any loss or damage alleged to have been suffered by the Plaintiffs is not attributable to them. In any event, they aver that the alleged losses are too remote to be causally linked to the publication of the Article, which they maintain was a justified act. D3 to D7 further plead that the doctrines of ex turpi causa non oritur actio (no action arises from a dishonourable cause) and/or volenti non fit injuria (to one who volunteers, no harm is done) are applicable and operate to bar the Plaintiffs’ claims. Whether the 1st Defendant (D1), by removing the Anti-HFMD/Flu Spray and discontinuing the Thymos product as a result of the Article, has breached the Trading Term Agreement and the Terms and Conditions of Supply dated 26.09.2017 77. It is not in dispute that D1 did, in fact, remove the Anti-HFMD/Flu Spray and discontinue the Thymos Products following the issuance of the Article. Pursuant to the publication of the Article, a meeting was convened on 9 August 2018, during which D1 resolved to remove the Anti-HFMD/Flu Spray from all its outlets nationwide. However, following a subsequent meeting held on 14 August 2018, D1 reversed its earlier decision and reinstated the product on its store shelves on 17 August 2018.

Arising from the removal of the Anti-HFMD/Flu Spray and the discontinuance of the Thymos Products, the Plaintiffs instituted a claim for breach of contract against the 1st Defendant (D1). The Plaintiffs contend that acted wrongfully, unreasonably, and in breach of the Agreement by delisting the products solely on the basis of the Article dated 8 August 2018. The Plaintiffs further assert that D1 failed to take any reasonable steps to verify the accuracy, intent, or implications of the said Article with D3 to D7 prior to making its unilateral decision to remove the products. The Plaintiffs maintain that D1’s conduct was premature, unwarranted, and contrary to the duty of good faith and fair dealing, whether expressly stipulated or implied under the terms of the Agreement.

The Plaintiffs further contend that D1 ought not to have removed the Thymos Products from its outlets in the absence of any directive or formal notice from the relevant authorities. It is not disputed that D1 was never directly instructed by D3 to D7 to remove the products from its stores. No directive, instruction, or formal notice was ever issued by D3 to D7 mandating such removal. Conversely, did not seek any confirmation, clarification, or formal approval from D3 to D7 prior to unilaterally delisting the products.

According to DW1, the removal and discontinuance of the products were based on the following reasons:

the contents of the Article raised concerns regarding the safety and potential health risks of the Anti-HFMD/Flu Spray to the public;

the continued listing and sale of the Thymos Products might have adversely affected D1’s reputation, particularly in light of the public caution issued by the Director-General of Health concerning the product; and

the Plaintiffs’ failure to provide formal confirmation that the said product did not require registration with the relevant regulatory authorities. 29 81.

Further, in justifying its actions, D1 relies on Clauses 12.1.2,

1.3, 12.1.4, and 12.1.5 of the Agreement (“the Product Recall Clauses”), which D1 contends confer upon it the contractual right to recall the Thymos Products if, in good faith, it considers such action necessary in the interest of its customers or for the preservation of its goodwill and reputation. The relevant clauses are reproduced below:

PRODUCT RECALL 1 Product Recall: If:

12.1.1 Compulsory Recall: any Product is subject to a compulsory Product recall issued by any competent authority in accordance with applicable legislation; or 12.1.2 Good Faith Recall: the Purchaser in good faith considers that a Product should be recalled in the interests of the Purchaser's customers or in order to preserve the goodwill and reputation of the Purchaser, the Supplier will at its owncost:

12.1.3 Co-operate: co-operate with the relevant authority and the Purchaser in co-ordinating and effecting the recall of the Products;

12.1.4 Pick up: (at the Purchaser‟s option) pick up the Products from the Purchaser‟s stores or other premises; and 12.1.5 Replace: (at the Purchaser's option) replace the Products or refund the Price of the Products which are subject to the Product recall. 30 12.2 Recall Indemnity: The Supplier agrees to indemnify the Purchaser against all direct costs, loss, damage and/or liability suffered or incurred by the Purchaser as a result of any product recall (including a component for the storage, freight and loss of profit as determined by the Purchaser) the costs of withdrawal from sale, the costs of destruction and/or the costs incurred by Purchaser in complying with any legislation or requirements of any regulatory authority.

The evidence reveals that the 1st Plaintiff (P1) subsequently consented to the official discontinuation of the Anti-HFMD/Flu Spray product to facilitate a rebranding exercise, whereby the product was renamed Thymos Shield. Despite the rebranding, D1 declined to relist the Thymos Shield product for sale at its outlets. Notwithstanding this, the other two products — namely Anti-Sinus and Anti-Athlete Foot — continued to be sold until sometime in 2019. The Thymos Products were thereafter officially discontinued by D1 via its letter dated 23 August 2019 addressed to the Plaintiffs.

Quite apart from the fact that D1 had resumed the sale of the said product, the evidence indicates that the Plaintiffs had consented to its removal on both occasions when it was withdrawn from D1’s outlets. On the first occasion, as earlier noted, the removal was undertaken to safeguard public health and to mitigate potential reputational risks to D1. This rationale was expressly accepted by the 2nd Plaintiff (P2). Thereafter, the Plaintiffs agreed to the official discontinuance of the Thymos Anti-HFMD/Flu Spray product, as the 1st Plaintiff (P1) intended to repackage and rebrand the said product in light of the Article. The discontinuance was expressly confirmed by P2 via his email dated 14 February 2019. Subsequently, on 23 August 2019, D1 issued a letter to the Plaintiffs indicating its intention to discontinue the Thymos Anti-HFMD/Flu Spray product for several reasons. No response was forthcoming from the Plaintiffs. In the context of a commercial relationship, the absence of any objection or reply, in my view, reasonably gives rise to the inference that the Plaintiffs had acquiesced to the cessation of the product’s sale.

Having perused the Article in question, I am of the view that it constitutes an official statement issued by the Director-General of Health, Malaysia. In the circumstances, I find that it was reasonable and justifiable for D1 to regard the Article as a public health advisory warranting immediate and precautionary action. D1’s decision to temporarily remove the Thymos Anti-HFMD/Flu Spray from its outlets—prompted by concerns over customer safety as well as the preservation of its corporate goodwill and reputation—was, in my view, both prudent and commercially justified. This episode further demonstrates that D1, at all material times, remained attentive to and compliant with the directives and advisories of the Ministry of Health, which exist to safeguard public health and consumer safety. Overall, D1’s conduct reflects a responsible balancing of public health considerations with sound commercial judgment.

In light of the Director-General’s official capacity, and considering that D3 to D7 are the competent authorities on matters of public health and safety, D1 was not obliged to seek further confirmation. Moreover, there was no contractual obligation on D1 to list the Plaintiffs’ new product, namely Thymos Shield. D1 was entitled to rely on the contents of the Article in determining whether to continue offering the Thymos Products for sale.

Based on the foregoing, I am of the considered view that the removal of the Thymos Products was undertaken in good faith, in response to the concerns raised in the Article, and pursuant to the relevant clauses of the Agreement. The evidence establishes that the 1st Defendant (D1) acted bona fide in removing the Anti-HFMD/Flu Spray from its outlets. There is no evidence of fraud, collusion, or deceit on the part of D1. Given that the Article was issued by the Ministry of Health Malaysia, D1 was entitled to treat its contents as reliable and to take precautionary measures accordingly. In the circumstances, D1’s conduct cannot be regarded as wrongful or unreasonable. I therefore find that there was no breach of the Agreement arising from the removal of the Thymos Products from D1’s outlets. Consequently, there was no termination of the Agreement as claimed by the Plaintiffs. Instead, D1 had rightfully exercised its contractual right to recall the Thymos Products pursuant to Clause 12 of the Agreement. Furthermore, there was no agreement or obligation for D1 to list the Thymos Shield product, and D1 was entitled to decide whether or not the new product should be listed. The Plaintiffs’ claim against the 1st Defendant (D1) is accordingly dismissed with costs. Whether the Article published by the 3rd to 7th Defendants (D3 to D7) was made in good faith and is wholly and/or substantially justified and true, without malice or mala fide intent. Whether the 3rd to 7th Defendants (D3 to D7) breached their duty of care and were negligent in making the statements published in the Article, thereby causing the Plaintiffs to suffer substantial loss and damage.

The Plaintiffs alleged that D3 to D7, being public authorities, made untrue statements and misrepresentations in the Article, and were therefore negligent in issuing such statements. It is pertinent to note that the Plaintiffs did not plead a cause of action in defamation in respect of the alleged impugned Article. It is, of course, trite law that a Plaintiff is bound by its own pleadings (see Giga Engineering & Constructions Sdn Bhd v. Yip Chee Seng & Sons Sdn Bhd & Anor [2015] 9 CLJ 537, Federal Court). Accordingly, this Court’s consideration is strictly confined to the pleaded claim in negligence. The issues of defamation raised in the Defendants’ submissions are therefore not relevant for determination in these proceedings.

The Plaintiffs alleged that D3 to D7, being public authorities, made untrue statements and misrepresentations in the Article, and were therefore negligent in issuing such statements. The key question for determination is whether D3 to D7 owed a duty of care to the Plaintiffs in the publication of the Article. It is trite law that, to succeed in a claim for negligence, a plaintiff must establish the following elements:

That the Defendant owed a duty of care to the Plaintiff;

That the Defendant breached that duty;

That the Plaintiff suffered damage as a result of the breach; and

That the damage was not too remote, i.e., that it was a reasonably foreseeable consequence of the breach.

In the present case, it is first necessary to determine whether D3 to D7, as public authorities acting within their official capacities in issuing the Article, owed a duty of care to the Plaintiffs. It is equally important to assess whether any such duty was breached, and whether the Plaintiffs suffered damage directly resulting from that breach.

The Plaintiffs’ assertion that their product is capable of eliminating 99.99% of HFMD viruses is, in any event, wholly inaccurate, as the product was never tested against the Coxsackie virus, which is the primary causative agent of HFMD. Accordingly, the Plaintiffs’ claim that the product is effective against HFMD is unfounded, lacking any credible or scientific evidence to substantiate the representations on the product label, and there is no proof that the product has been tested on humans. The microbiological laboratory report relied upon by the Plaintiffs was generated during the course of these proceedings and was not formally adduced into evidence, having been marked for identification only (ID). The documents which have been marked as ID are strictly no before the Court. They must be ignored (see So Thian Wan v Tan Soon Teik [2021] MLJU 1491; Joseph Thambirajah v Bank Buruh (M) Bhd (now known as BSN Commercial Bank (M) Bhd [2008] 2 MLJ 773 and Soo Hong & Leong Kew Moi v UMBC [1997] 1 MLJ 690)

Notably, the Plaintiffs’ own decision to revise the product label from Anti-HFMD/Flu Spray and rebrand it under a more general and appropriate name, namely Thymos Shield, further reinforces the inference that the product was ineffective as originally labelled. The Plaintiffs’ voluntary rebranding of the product was plainly undertaken to facilitate its re-entry into the local market and to enable its continued sale through the 1st Defendant’s (D1) retail outlets. Such conduct amounts to a tacit admission of the product’s initial misrepresentation. In these circumstances, the Plaintiffs cannot now sustain a claim against the 3rd Defendant (D3), having themselves recognised and acted upon the deficiencies in their earlier product representation. The legal maxim volenti non fit injuria—that one who voluntarily accepts the risk cannot later complain of the consequences— applies squarely in this instance.

D3, as a public authority, bears a duty of care encompassing moral, social, and legal obligations to address the situation by disseminating accurate and truthful information, so as to ensure that the public is not misled by irresponsible or unverified product claims. Similarly, the Ministry of Health (MOH) bears a clear moral and social responsibility to communicate accurate and reliable information concerning any product that purports to possess medical or disease-preventing properties. Beyond its statutory mandate, the MOH also carries a legal duty to safeguard public health by ensuring that the general public is provided with correct, evidence-based information, particularly in matters relating to public health and safety.

It is a well-established principle that courts should exercise caution in imposing duties of care on public authorities where such imposition may interfere with the discharge of statutory or regulatory functions. In Majlis Perbandaran Ampang Jaya v Steven Phoa Cheng Loon [2006] 2 CLJ 1, the Federal Court recognised that public authorities may owe a duty of care where a sufficient nexus exists between their conduct and the harm suffered. However, in that case, the authority’s direct involvement in approving and regulating the development that caused physical damage created such a nexus.

In contrast, the present case concerns the issuance of a public health advisory, which is qualitatively different and more remote in effect. D3 to D7 were acting well within the ambit of their public roles, particularly in issuing health-related advisories under the mandate of the Ministry of Health. I am satisfied that D3 acted fairly and within the proper scope of his public duty. The proactive steps taken were in furtherance of public health objectives, and D3 ought not to be penalised for fulfilling his statutory mandate in such circumstances. This is especially pertinent considering that, at the material time, the country was facing an outbreak of Hand, Foot and Mouth Disease (HFMD), followed closely by the H1N1 influenza. In such a public health context, the legal maxim ex turpi causa non oritur actio—that no cause of action may arise from a dishonourable or unlawful act— applies and precludes the Court from granting any relief in favour of the Plaintiffs. In light of the foregoing, I am of the considered view that D3 to D7 did not owe a duty of care to the Plaintiffs in the issuance of the Article. The actions taken by D3 to D7 were in discharge of their public health functions and were not directed at the Plaintiffs in a manner that would establish the requisite legal proximity. Moreover, it would not be fair, just, or reasonable to impose such a duty in the context of public health regulation. Accordingly, the Plaintiffs’ claim in negligence against D3 to D7 must fail.

Where mala fide is alleged, particularly in actions challenging governmental decisions or the acts of public functionaries, the standard of proof required is high. It is well-settled that allegations of mala fide and economic sabotage must be specifically pleaded and strictly proved. Such allegations cannot rest on bare assertions or speculative inferences; they must be supported by clear, cogent, and credible evidence. The Court cannot be invited to draw conclusions of mala fide based on vague, unsubstantiated, or ill-defined material. The allegations must be clearly and convincingly established so that the Court can arrive at an unequivocal finding. It is trite law that the burden of proving mala fide lies squarely on the party asserting it—and that burden is a heavy one. In the present case, there is no evidence before this Court to support any allegation of mala fide conduct or economic sabotage on the part of D3 to D7 towards the Plaintiffs.

The Plaintiffs’ claim against the 3rd to 7th Defendants (D3 to D7) is hereby dismissed with costs. The Plaintiffs are not entitled to any of the reliefs sought. Conclusion 97. Having considered the pleadings, evidence, and submissions of the parties, the Court on the balance of probabilities finds as follows: [a] The Plaintiffs’ claim against the 1st Defendant (D1) for breach of contract in relation to the removal and discontinuance of the Thymos Products is dismissed. D1 acted in good faith, pursuant to Clause 12 of the Agreement, and in response to public health concerns raised in the Article. There was no wrongful or unreasonable conduct, no termination of the Agreement, and no obligation to list the rebranded Thymos Shield product. D1 is entitled to its costs. [b] The Plaintiffs’ claim against the 3rd to 7th Defendants (D3 to D7) in negligence is likewise dismissed. The issuance of the Article was within the scope of their public health functions, was in good faith, and did not establish a duty of care to the Plaintiffs. The Plaintiffs failed to adduce credible evidence of mala fide conduct, economic sabotage, or proximate harm, and the doctrines of volenti non fit injuria and ex turpi causa non oritur actio further preclude liability. D3 to D7 are entitled to their costs. [c] Accordingly, all claims brought by the Plaintiffs against all Defendants are dismissed with costs. Bertarikh 13 Oktober 2025 SGD (Rozana binti Ali Yusoff) Hakim Mahkamah Tinggi Pulau Pinang Kompleks Mahkamah Pulau Pinang Pulau Pinang Peguam bagi pihak Plaintif : John Khoo Boo Lai Martin Khoo Nurul Alia Afina Mohd Zaidi Tetuan Ismail Khoo & Associates Peguam bagi pihak Defendan Pertama: SY Liew Yiew De Quan Tetuan Shearn Delamore & Co. Peguam bagi pihak Defendan Ketiga hingga Ketujuh: Nordiyanasari binti Omar Pejabat Penasihat Undang-Undang Negeri Pulau Pinang