1. ) Siti Farhana Binti Mohd Pakeh v Siti Nur Ainien Sofieya Binti Mohd Zuki (BA-23CY-5-02/2023)

SITI FARHANA BINTI MOHD PAKEH

AHMAD FIRDAUS BIN MUHAMMAD NGADI (NO. K/P: 841118-14-5835) PLAINTIF-PLAINTIF DAN SITI NUR AINIEN SOFIEYA BINTI MOHD ZUKI (NO. K/P: 920903-03-6306) EFENDAN GROUNDS OF JUDGMENT Introduction [1] The Plaintiffs and Defendant all identify as in the Shaklee business, with the 1st Plaintiff being a direct the Defendant. The 2nd Plaintiff is the 1st Shaklee runs on an MLM business model. The Plaintiffs have sued the Defendant for defamation because of 4 publications attributed to the Defendant. In each of the 4 publications, the Plaintiffs are not identified by name. Publications and Pleading [2] The 4 publications are lengthy and for the purposes of this Judgment, they are identified as follows ( ):

Publication A Facebook post by Aya Zuki about a leader involved in a flood relief program

Publication B 8 Instagram stories containing brief comments/questions and answers by Master Aya Zuki about bad practices by Shaklee leaders

Publication C - Instagram post by ayazuki22 about different business motivations or focus practiced by Shaklee leaders

Publication D a long article on www.ayazuki.com [3] In the Statement of Claim, the Publications are annexed in full ized account of what they say in the body of the pleading. Save for Publication B, which are short exchanges, the pleading does not identify any specific part of the Publications as the allegedly defamatory statements. A series of 18 different defamatory imputations are then pleaded, also without identifying which imputation relates to which Publication. They are: Natural and ordinary meaning Innuendo meaning [4] The Defendant does not dispute that the Publications were authored and published by her on her social media accounts with reach to her followers. In her defence, the Defendant argues that:

the impugned statements are not discernible from the pleading in respect of Publication D

none of the Publications refer to the Plaintiffs

none of the Publications are capable of bearing the pleaded defamatory imputations

if the Publications are capable of bearing the pleaded defamatory imputations, Publication A is justified and Publications A to C are fair comments on matters of public interest. Analysis and findings [5] The following issues were considered:

Whether the plea that Publication D is defamatory should be dismissed on grounds of defective pleading

Whether Publications A to D referred to the Plaintiffs

If so, whether Publications A to D are defamatory

If so, whether the Defendant proved her substantive defences

If Publications A to D are defamatory and are not justified nor fair comments on a matter of public interest, what damages are the Plaintiffs entitled to. Defective Pleading [6] I deal first with Publication D because it is a pleading point. The Court of Appeal in Credit Guarantee Corporation Malaysia Bhd v SSN Medical Products Sdn Bhd [2017] 6 CLJ 129 held that: [45] complained of, whether stated orally or published, are the facts on which the action is grounded. In other words, these are material facts which must be pleaded so that the defendant knows the precise charge against him and is then able to defend himself against it. It is insufficient to merely describe their substance, purpose or effect. It is essential to set out the actual words used so that the court can then decide, as a matter of law, whether the said words whether oral or published give rise to the defamatory imputations alleged (see Harris v. Warre [1879] 4 CPD 125; Abu Samah bin Omar v. Zainal bin Montel [2003] CLJU 501; [2003] 1 LNS 501; [2004] 5 MLJ 377; Lim Kit Siang v. Datuk Dr Lim Liong Sik & Ors [1996] CLJU 106; [1996] 1 LNS 106; [1997] 5 MLJ 523 and Dato' V Kanagalingam v. David Samuels & Ors [2006] 3 CLJ 909; [2006] 6 MLJ 521). [46] The other aspect of pleading in an action in defamation is that where the plaintiff complains of an article, he must specify the offending sections rather than merely pleading the whole article. As Lord Denning MR pointed out in DDSA Pharmaceuticals Ltd v. Times Newpapers Ltd [1972] 3 All ER 417, a pleading is defective if it throws on to the defendant a long article without picking out the parts said to be defamatory. [Emphasis added] [7] Publication D in this case is pleaded as follows: www.ayazuki.com ada oleh umum pada masa yang material. Ianya adalah suatu penulisan panjang dan terperinci yang bersifat membongkarkan attaching the admittedly long 8-page article. [8] This Court is unable to assess the alleged defamation in Publication D because it is not properly pleaded in that the Plaintiffs have not specified the offending sections of Publication D. Accordingly, the plea that Publication D is defamatory of the Plaintiffs is dismissed on grounds of defective pleading. Identification [9] The Plaintiffs are not identified by name, photograph or any of the other usual forms of identification in any of Publications A to D. In such circumstances, the test to prove that a defamatory statement refers to the plaintiff is explained in Knupffer v London Express Newspaper Limited [1944] 1 All E.R. 495 ( ) as a two-stage inquiry: can the article having regard to its language, be regarded as capable of referring to the appellant? The second question is a question of fact, namely, does the article, in fact, lead reasonable people, who know the appellant, to the conclusion that it does refer to him? Unless the first question can be answered in favour of the (see Penerbit Sabahat (M) Sdn Bhd & Anor v Kalairasi a/p Arumugam [2016] 1 MLJ 330 and Kesatuan Kebangsaan Pekerja-Pekerja Bank & Ors v The New Straits Times Press (M) Bhd & Ors and another suit [2013] 8 MLJ 199). [10] In Le Mercier's Fine Furnishings Pte Ltd & Anor v Italcomm (Malaysia) Sdn Bhd [1996] MLJU 365, the Court described the test in this way:- still be considered to be referred to the plaintiffs if, the ordinary sensible readers with knowledge of special facts could and did understand them to be referred to the plaintiffs. For this, there must be some extrinsic facts so known to some readers who knew the plaintiffs would understand that it was the plaintiffs being referred to - see E Hultons & Co v. Jones (1910) AC 20. On this, again the test to be applied must be based on whether the reasonable sensible man, knowing these facts, could have reasonably believed that the plaintiffs were being referred to - see the case of AJA Peter v. Ni [11] In support of the allegation that the Publications in A to D all referred to the Plaintiffs, the Plaintiffs pleaded the following special facts:

The 1st Plaintiff was instrumental in assisting the hierarchy;

The 1st Plaintiff and the Defendant were close;

The 1st ctims

The Plaintiffs are a husband and wife leadership team. [12] In this regard, the Plaintiffs offered 2 witnesses PW3 and PW4 who were also Shaklee distributors, for their testimony as to their subjective understanding of the meaning of the Publications and witness list, their witness statements were tendered at the last minute and objected to. [13] This Court disregarded all opinion evidence as to their subjective understanding of the meaning of the Publications as irrelevant but allowed the witnesses to testify to facts offered why people who know the Plaintiffs like they do, could identify the Plaintiffs from the Publications. [14] Per the test for identification, the Court must consider whether the Publications do in fact, lead reasonable people who know the Plaintiffs based on certain special facts, to the conclusion that the Publications refer to them. This is still an objective test of the reasonable person, not the subjective views of PW3 and PW4 if they do not accord with that of the reasonable person. [15] In essence, PW3 and PW4 merely corroborated the Plaintiffs case that they are leaders who memberikan bimbingan dan tunjuk ajar kepada Defendan dan ahli-ahli lain dalam kumpulan kami. It remains for the Court to determine whether, armed with that special knowledge, references in the Publications to leaders could be objectively understood as references to the Plaintiffs. [16] The Defendant maintained the argument in post-trial submissions that the identification evidence adduced by PW3 and PW4 should be inadmissible, because they related to facts not pleaded. On this ground, this Court is of the view that there is a sufficient plea of the role and relationship between the 1st Plaintiff and the Defendant to allow the identification evidence of PW3 and PW4. [17] The pleaded case is that the 1st Plaintiff is a Shaklee leader and coach to the Defendant, instrumental in her promotion to the level of The evidence of PW3 and PW4 serves to corroborate that fact as an identifier. Without yet commenting on whether it is materially consequential, this Court finds that this evidence relates to pleaded facts and is therefore admissible. [18] Considering the evidence however, this Court is of the view that Publications A to D lack sufficient identifiers to link the general in the Shaklee business to the Plaintiffs as leaders based on the following i.e. as pleaded by the Plaintiffs - leaders who teach bad practices to their downlines, are close to the Defendant or who are husband and wife teams. These are the reasons:

Each Shaklee distributor has multiple leaders, including multiple leaders who benefit directly from their sales revenues;

It is a function of leaders to coach their downlines to achieve better sales;

On an objective interpretation of Publications A to D, the Defendant was not referencing her own experiences as a downline vis-à-vis her leader;

The Defendant was herself an active coach whom others consulted, as apparent from Publication B;

Even if the Defendant was speaking of her own experience with her own leader in the Publications, the Defendant also had multiple leaders; and

Numerous married couples who are featured together as in the Shaklee organization [19] Furthermore, the factors for identification that the Plaintiffs rely upon (i.e. they are leaders who coach downlines and are close to the Defendant as a direct downline) are not objective identifiers in the circumstances of this case, and are contradicted by the presumed falsity of the alleged defamatory content to which they relate. This is because it must al reasonable people who know them would not have associated them with negative statements made by a close downline about certain Shaklee leaders when there are many possible candidates. [20] That said, this Court does agree that the Plaintiffs are right about Publication A. There is another identifier in Publication A that is objective i.e. people who know the 1st Plaintiff would know that the 1st Plaintiff ber 2021 to assist flood victims. Publication A is a criticism of a self-interested Shaklee leader who suggested a donation drive of Shaklee products to flood victims. This is capable of referring to the 1st Plaintiff and does lead reasonable people, who know that the 1st Plaintiff introduced the flood donation drive, to the conclusion that Publication A refers to her. [21] However, there is no reference to the 2nd Plaintiff. It is not pleaded nor in evidence that the 2nd Plaintiff publicized or participated in any way in the donation drive. Defamatory Meaning of Publication A [22] In the light of the earlier findings, this Court only moved forward with the other inquiries for Publication A vis-à-vis the 1st Plaintiff. [23] The test involved in determining whether or not the words complained of are defamatory is also a two-stage process. Firstly, it must be considered what meaning the words would convey to an ordinary person; and secondly, it must be considered whether under the circumstances in which the words were published, a reasonable man would be likely to understand it in a defamatory way (Raub Australian Gold Mining Sdn Bhd v Hue Shieh Lee [2019] 3 CLJ 729; Chok Foo Choo v The China Press Bhd [1999] 1 CLJ 461). This is a question of law that turns upon the construction of the words published. [24] According to the authoritative judgment in Tun Datuk Patinggi [1996] 1 MLJ 393 on this area of the law: construction of the words complained of is to consider the meaning such words would convey to ordinary reasonable persons using their general knowledge and common sense; it is not confined to strict literal meaning of the words but extends to any reference or implication from which persons can reasonably draw (see Jones v Skelton [1963] 3 All ER 952; Kemsley v Foot [1952] 1 All ER 501; Rajagopal v Rajan [1972] 1 MLJ 45 ). It is irrelevant what the publisher intended the words complained of to mean (see Capital & Counties Bank v Henty (1882) 7 App Cas 741; Grubb v Bristol United Press Ltd [1963] 1 QB 309; AJA Peter v OG Nio & Ors [1980] 1 MLJ 226). It is also irrelevant what the readers understood the words complained of to mean for the purpose of deciding their ordinary and natural meaning. (See JB Jeyaretnam v Goh Chok Tong [1985] 1 MLJ 334 ). There is also no necessity for a plaintiff to prove falsity of the words complained of once they are found to be defamatory of him (see Abdul Rahman Talib v Seenivasagam & Anor [1965] MLJ 142. [25] As to who the ordinary reasonable person is, this has been explained by the Federal Court in Lim Guan Eng v Ruslan Kassim & Another Appeal [2021] 4 CLJ 155: [29] The ordinary person has been held to be one of fair average intelligence (see Slayter v. Daily Telegraph Newspaper Co Ltd [1908] 6 CLR 1), who is not avid for scandal (see Lewis v. Daily Telegraph Ltd [1964] AC 234) but who may engage in some degree of loose thinking (see Morgan v. Odhams Press Ltd [1971] 2 All ER 1156) and reading between the lines (see Farquhar v. Bottom [1980] 2 NSWLR 374), but who, at the same time, should not be unduly suspicious (see Keogh v. Incorporated Dental Hospital of Ireland [1910] 2 Ir R 577) . [26] There is no definition of what is considered defamatory, only various formulations of the test. The textbook formulation is any to lower the plaintiff in the estimation of right-thinking members of society generally', 'to cut him off from society' or 'to expose him to hatred, contempt or ridicule', is defamatory of him. An imputation may be defamatory whether or not it is believed by those to whom it is published (Syed Husin Ali v Sharikat Penchetakan Utusan Melayu Bhd & Anor [1973] 2 MLJ 56; Raub Australian Gold Mining Sdn Bhd v Hue Shieh Lee [2019] 3 CLJ 729, both citing Gatley on Libel and Slander). [27] Publication A is reproduced in full in the Appendix to the Statement of Claim and presumably, the 1st Plaintiff means to prove that every part of the Publication when read together, can be understood by the ordinary reasonable reader to mean one or more of the 18 pleaded defamatory imputations. [28] Publication A is reproduced below for reference: [29] This Court considered that the above passage when read by the ordinary reasonable person, is capable of bearing these pleaded imputations about the 1st [30] The sting of the defamatory imputations is that the 1st Plaintiff is opportunistic and would do anything, including using the pretext of helping flood victims to make a profit from the donation of Shaklee products which downlines would have to purchase to donate. There was no alternative non-defamatory imputation pleaded, nor were the words used in the context of Publication A read as a whole, capable of bearing a different, non-defamatory imputation. [31] There is no mistaking the reference to the 1st actions as self-interested and performative. They are surely an indictment of her character as the imputations mean that the 1st Plaintiff is exploitative, self-serving and lacks genuine compassion. These imputations can be understood in a defamatory way, in the sense that it would subject the 1st Plaintiff to contempt and ridicule. The substantive defences Justification [32] The law presumes the defamatory imputations to be false. The Defendant argued that they are true because the 1st Plaintiff did introduce the donation drive for her team downline to contribute Shaklee products and will therefore profit from it as an upliner. [33] As a matter of law, the defence of justification requires the Defendant to prove that the sting of the defamation as pleaded, is substantially true, which means that the Defendant must prove the derogatory self-serving intent behind the 1st to be true i.e. taking advantage of the misfortune of others, willing to do anything to make profit, pretending to help flood victims when the true motive is to make profit. [34] The evidence in this case, which was not credibly challenged, is that the donation drive was for Shaklee vitamins and supplements to aid flood victims, it was a well-received, widely lauded and supported charitable cause. There was no compulsion for members who did not share the same sentiments to make donations. It was not, as also suggested by Publication A, that the 1st Plaintiff initiated a useless donation drive for her own benefit because of the cynical reference to the fact that flood victims do not need [35] On a balance of probabilities therefore, the Defendant did not successfully justify the impression she created or conveyed to the ordinary reasonable person. The defamatory sting of the imputed meanings of Publication A were not proven to be true in substance. Fair comment [36] Dealing briefly with the defence of fair comment, it is intended to allow a person to express herself freely about a matter of public interest. To succeed in a defence of fair comment, the Defendant must establish that Publication A:

are comments on a matter of public interest;

are based on facts; and

are such that a fair-minded person can honestly make based on the facts proved Sri Dr Mohamad Salleh bin Ismail & Anor v Mohd Rafizi bin Ramli [2022] 4 MLRA 718). Additionally, there must be absence of malice. [37] In this case, Publication A did contain words consisting opinion and inferences about the character of the Shaklee leader who ber 2021 to assist flood victims. However, there was no public interest element in her statements. In any case, this Court is of the view that the cannot be said to be fair based on facts proved as set out in paragraph [34] above. Remedies [38] In Dato Harris Mohd Salleh v Datuk Yong Teck Lee [2018] 1 CLJ 145, the Federal Court cited Defamation Law, Procedure & Practice by Price & Duodu (3rd edition, para 20-04 at p. 208) on the several factors that a court must take into account in assessing compensatory damages: and injury to reputation and feelings depends on a number of factors:

The gravity of the allegation.

The size and influence of the circulation.

The effect of the publication.

The extent and nature of the claimant's reputation.

The behaviour of the defendant.

The behaviour of the claimant. This list is most helpful. But it must be borne in mind that this is not by any means exhaustive of the matters which the court [39] Facebook page but considering that the defamatory nature of Publication A affects the 1st on respect, trust and goodwill, this Court awarded general damages in favour of the 1st Plaintiff in the sum of RM30,000.00. Conclusions [40] The Plaintiffs claim is allowed in part in that only Publication A identifies the 1st Plaintiff and that particular publication is capable of being understood in defamatory way based on the imputations pleaded. The defence of justification and fair comment did not pass muster. The 1st Plaintiff is entitled to recover damages in the sum RM30,000.00 and costs in the sum of RM25,000.00. Bertarikh : 9 Julai 2025 SGD ELAINE YAP CHIN GAIK PESURUHJAYA KEHAKIMAN MAHKAMAH TINGGI MALAYA SHAH ALAM Peguam Untuk Plaintif-Plaintif: Abd Hakeem Aiman Mohd Affandi (bersama Hazim Nasruddin and Ros Syamimi Roslan) Tetuan Wan Shahrizal, Hari & Co. Untuk Defendan: Azhar Arman Ali (bersama