Abiramee A/P Ramalingan v 1. ) Nur Isabella Binti Abdullah (WA-23CY-9-02/2019)

SERI BINTI ISMAIL 20

SKIN MASTER VENTURES SDN BHD (No. Syarikat: - 1206174-X)

NASHAYINEE A/P PALANISAMY …DEFENDAN-DEFENDAN 25 JUDGMENT (Enclosure 1) 30 INTRODUCTION [1] The parties are as follows:

The plaintiff (P) is a qualified medical doctor practising in an aesthetic clinic as the sole proprietor of Posh Medispa.

The first defendant (D1) and the second defendant (D2) are 35 private individuals.

The third defendant (D3) is a Malaysian company with the fourth defendant (D4) as its director.

The fifth defendant (D5) is an individual working for D3. All defendants will be referred to as the Ds collectively. 40 WA-23CY-9-02/2019 2 [2] In this suit:

2.1 The P is seeking damages for libel, conspiracy to defame, aggravated damages, public apology, interest, and costs against the Ds grounded on several alleged publications of defamatory 45 statements by the Ds that had allegedly hurt and harmed the reputation of the P (t/a Posh Medispa) and her business in the aesthetic services in Cyberjaya, Selangor.

2.2 D1 denies:

The allegations in her statement of defence.

She also filed a counterclaim against the P for the botched Botox filler injection that had injured her face and needed medical treatment to address the infection.

P is alleged to have been negligent in carrying out the 55 procedure that had caused pain and suffering.

D1 is seeking special damages of RM4,774.00. Damages for pain and suffering are to be assessed, as well as aggravated damages, interest, and costs. 60 2.3 D3, D4 and D5:

Denies the P’s action.

They put the P on strict proof.

In their defence, D4 and D5 rely on s.8 of the Defamation Act 1957, that in the circumstances of the facts of this case, the 65 statements constitute fair comments. WA-23CY-9-02/2019 3 [3] On 03.10.2023: 70 In my judgment:

On the balance of probabilities, I find the P has failed to prove her case and that there are no merits in the P’s case.

I dismissed the present suit with costs to the Ds payable within 60 days.

D1’s counterclaim is allowed. [4] My orders are as follows:

4.1 Against D1: As a medical practitioner/professional, I find that the P owes a duty 80 of care. There is compelling evidence to conclude that P had breached that duty. Therefore, in the circumstances, I am allowing the counterclaim and order as follows:

Special damages of RM4,774.00

Damages for pain and suffering are to be assessed.

Interest of 5% from the action date until full realisation.

Costs to be paid within 60 days from the date hereof. The global cost of RM80,000.00 is to be paid within 60 days from the date of this order.

4.2 As against D2, taken from the CMS, after the filing of the affidavit of 90 service by the P on 19.09.2019 (enclosure 26), nothing further was done. Apart from this, grounded on my findings on the P’s action, the claim against D2 is similarly dismissed.

4.3 Against D3, D4, and D5, global costs of RM60,000.00 are to be paid within 60 days from the date of this order. 95 4.4 Aggrieved, the P filed this appeal against my decision, and my reasons are as follows: WA-23CY-9-02/2019 4 [5] The witnesses at the trial are as follows: -

Plaintiffs’ witnesses: PW1: Abiramee a/p Ramalingam (the P) 100 PW2: Lilian Sharmini A/P Kesavamani (P’s customer) PW3: Kautaman A/L Mani (P’s customer) PW4: Vicneswary A/P Batumalai (P’s customer) PW5: Kavin Mithra a/p Ravi (P’s customer) 105

Defendants’ witnesses: DW1: Nur Isabella Binti Abdullah @ Eileen Stone (D1) DW2: Dr. Lee Kim Siea (a medical practitioner) DW3: Dr Norain Binti Md Diah (a medical practitioner) DW4: Ravinpreet Kaur A/P Nerender Pal Singh (D4) 110 DW5: Nashayinee A/P Palanisamy (D5) BRIEF FACTS [6] Parties have filed agreed facts (encl.75), and in narrating the brief 115 facts, I will also refer to a series of correspondences and documents available before me.

6.1 The plaintiff (P) is a qualified medical doctor practising in an aesthetic clinic as the sole proprietor of Posh Medispa.

6.2 On 14.04.2018, at her aesthetic clinic at SA-18-06, Menara Paragon, Persiaran Bestari, Cyber 11, Cyberjaya, P gave an aesthetic treatment to D1/Bella by injecting Botox fillers in both of D1’s cheeks who had paid RM900.00 for the said treatment.

6.3 After the said treatment:

D1 suffered pain and swelling in the cheeks.

She informed P, who had advised her to put ice on the swollen area and to take painkillers.

D1 did not see P after the said treatment. WA-23CY-9-02/2019 5

6.4 As the infection got worse:

D1 sought treatment from a clinic in Kuantan (DW3/Dr Norain) for swelling and infection.

She went to a Penang clinic specialising in aesthetic medicine 135 (DW2/Dr Lee) to remove the fillers.

6.5 The P alleged that: 1st alleged defamation (D1 & D2).

D1 and D2 had (01.05.2018) allegedly conspired by maliciously 140 publishing in the Instagram account of D2 a picture of D1/Bella's face with the caption, "If you pay peanuts, you get monkey lah", cautioning the public against seeking aesthetic services with P: “...gambar seekor monyet yang sedang makan kacang tanah dengan tajuk ""If u pay peanut you get monkeylah..." serta amaran Defendan Kedua kepada 145 pengikut Defendan Kedua Be careful guys Bila Nak repair Muka inject Sana Cucuk sini dgn so called "Clinic Bertauliah" di media social ni.. Mmg dia charge Murah Gila konon Katanya Dia bukan tamak.. Tup tup Muka client jadi rosak Oleh sebab jarum yg Dia pakai tak Bersih.. Surat Dari doctor ada mengesahkannya... "Clinic Bertauliah ni sedang viral di insta.. tunggu next saya 150 keluarkan Gambar bukti Gambar sebelum Dan Selepas SERTA Surat Dari doctor.. This thing happen to my dearest friend.. saya Nak viral cos dia tak pro Lansung.. Siap blok. Kalau tak Salah Kenapa nak blok oii MS Doc @poshmedispa". 155

P supposedly uses unclean equipment (syringes).

(ii) Confirmed by another medical doctor.

(iii) The supposed defamatory statement is claimed to have hurt P's image and reputation by imputing adverse inferences on her qualifications and competency in running her supposedly unlicensed 160 aesthetic clinic. D1 and D2 refuse to take corrective action to address the alleged defamatory issue, though demanded by P. 165 2nd alleged defamation (D1 & D2).

D1 and D2 had (08.05.2018) allegedly conspired to defame P further by publishing on D2's Instagram account a picture of the WA-23CY-9-02/2019 6 swollen cheek of D1/Bella caused by being treated by P, who had marketed herself to offer cheap beauty treatment: 170 “gambar yang menunjukkan pipi Defendan Pertama yang meradang dengan menyatakan bahawa "Rentetan.. Kisah clinic kecantikan Murah VIRAL di instagram. Nak Murah.. lni yg kita dapat.. Yg bestnya Doc buat bagi Muka patient rosak..Dia pulak yang Nak buat report polis...Bengong... Hari Ni Cucuk di KL.. Esok balik... bengkak.. Siap clinic lain dah 175 confirmkan jangkitan Kuman jarum kotor.. so moral of the story... Jgn ambik pot lah sangat Bila Ada clinic kecantikan yg buat filler segala Dia bukan Jenis Doc yg pandang duit.. Dia yg Jenis Baik Hati... Nah.. Ambik Muka rosak.. Dia Senyap.. Sentap Lari blok Sana sini ...Duit abis terlebih repair Muka". 180 # fillermurahlahsangat # konondocxpandangduit # poshmedispa 185 The allegations in those postings are malicious lies intended to harm P's credibility, competency, and standing, which P had suffered. 3rd alleged defamation (D1 & D2).

D1 and D2 had (05.06.2018) allegedly conspired by publishing a photograph captioned with a threat that if P kept ignoring D1, the matter would be escalated to KPDNKK. A police report had been lodged against the P, and a medical doctor in Kuantan had allegedly confirmed that the cause of inflammation of the cheek 195 was caused by an infection brought about by the botched Botox filler injections: "Hai if you keep ignoring Bella we will proceed to kpdnkk and tribunal pengguna (as per advice from the police department). Pis take responsibility of your damaged to your customer. We have Doc that 200 willing to testify.."; “Aduan Polis oleh Defendan Pertama bahawa "Pada 14/04/2018 jam lebih kurang 1500HRS saya telah membuat rawatan kecantikan di Posh Medispa beralamat SA-18-06 Paragon Pan Gaea Persiaran Bestari 63000 205 Cyberjaya KL dan bayaran yang dicaj adalah sebanyak RM900//= Rawatan Kecantikan yang dilakukan oleh saya adalah bernama filler botox iaitu suntikan pada pipi untuk menghilangkan parut dan menegangkan WA-23CY-9-02/2019 7 muka selepas rawatan lebih kurang 2 jam saya mula rasa sakit di bahagian pipi dan saya bertanya dengan doctor yang merawat saya 210 dimana saya diarahkan untuk meletakkan ais batu di bahagian pipi serta makan panadol pada 15/04/2018 jam 0730HRS saya bangun dari tidur dapati pipi saya telah bengkak dan saya menghubungi doctor dan beliau minta saya meletakkan ais batu di pipi serta makan panadol kerana ia adalah symptom biasa selepas keadaan bertambah teruk dan saya 215 mendapatkan rawatan di sebuah klinik di Kuantan Pahang. Saya diberitahu oleh doctor yang merawat saya di Kuantan Pahang bahawa punca keiadian adalah iangkitan kuman dari suntikan filler botox dan sehingga ke hari ini saya telah mendapat 8 kali rawatan dengan caj rawatan sebanyak RM880//+ Tujuan saya membuat laporan 220 untuk tindakan Mahkamah dan untuk rujukan pihak berkenaan." "Hai LA doc Dah buat Salah ngaku je lah... Kau Cucuk filler basi kot ..pastu Siap suruh org call gertak mau Angkat Kalau viral #poshmedispa"; 225 “gambar menunjukkan pipi Defenden Pertama yang meradang “On behalf of my friend.. Would like to thanks #poshmedispa for the “EXCELLENT” job on her face after doing filler treatment from this place not only she’s getting scar, she get bonuses where she was block from wassup 230 and get phone call treathen her mau Angkat complain Banyak.. Viral.. Thanks for the excellent job Doc.. Very pleased with your moto ‘helping poor people cos u r poor too’ Hahahhahah lawak siot!” 4th alleged defamation (D1 & D2).

D1 and D2 had (05.06.2018) allegedly conspired by uploading and publishing a letter from Dr Norain Binti Mohd Diah (DW3) from Klinik Putra Medic Kuantan on the Facebook Account of D1 that had narrated the supposed botched Botox filler injections. P claimed that the contents of the said letter were defamatory of 240 her in imputing P’s incompetency in carrying out the procedure: "cco 58/mH. Rt cheek swelling + pain x1/52. h/o rt cheek injection for cosmetic x 2152 @ KL already on T Unasyn x 5 days. + aspirate 1 c.c. pus for 3 times 2214/18, 2314/18, 2414/18 but the swelling T size pt claim drug procedure injection to cosmetic there was broken 245 needle ? still inside the cheek o/b: rt cheek swelling 1cm x 1cm, fluctuate ime: rt cheek abscess? FB in abscess Kindly refer her to do full xray. Thanku 250 WA-23CY-9-02/2019 8 5th alleged defamation (D1 & D2).

D1 and D2 had (15.06.2018) allegedly conspired by publishing several photographs with defamatory remarks against P on the Instagram account. The pictures showed the alleged injury/infection from the botched Botox filler injections. The 255 photos were accompanied by allegedly derogatory and defamatory remarks against P, who had changed her practice name to Posh Organic Enterprise to avoid adverse publicity. The P claimed to have suffered consequently: Gambar INSTAGRAM Posh Organics Enterprise 260 Gambar pipi Defendan Pertama yang berdarah dengan komen Defendan Kedua Remember the clinic yang I post dulu Pasal rosakkan Muka client Dia see pic yag atas… Yg bawah tu nama baru pulakkk… Haaaa tukar nama lagi…Cos tuuuuutttt Tukar lah Apa yang patut… Should tukar your attitude 265 doc!! #poshmedispa. 6th alleged defamation (D1 & D2).

D1 and D2 had (15.06.2018) allegedly conspired by publishing 270 on D2's Instagram account a picture captioned that the P was not a qualified aesthetic medical practitioner, with several other defamatory remarks on the position of the P: "Beware. Next kita nak report tribunal. Doc in doc perubatan... Bukan aestethic jadi ni doc kecantikan x Bertauliah...dia base di kl..hq dia 275 kl...Kenapa nak private kalau bisness... Hsaaaa sebab dia tau org dok complain viral pasal dia buat taik "; Muatnaik gambar Posh Organics Enterprise post; muatnaik dan konqsi komen Awie Mas (suami Defendan Pertama} dalam muka bukanya: "Ni Dr abi buat procedure Kat org. Muka customer dia jdi sakit.. 280 Customer tu hbs duit byk kena repair. Ni org Dr a langsung tak perduli kat patient dia. Tak refund Biaq kat patient macm tu. Skg patient ada parut besaq. Muka dia da rosak hbs. (Angrey Face sign). Saya doa company nijdi muflis sebelum dia rosak kan org lain"; dan tag # poshmedicspa dengan komen; "kan org nak up kat fb... Account 285 biz di private.. I Smell fish... You pay peanut you get money.. U rosakkan muka org Pastu blok... What kind of doc r u.. Scammer eh". WA-23CY-9-02/2019 9 7th alleged defamation (D1 & D2).

D1 and D2 had (06.07.2018) allegedly conspired on 06.07.2018 290 to publish on D2's Facebook account a photo and defamatory remarks on the P: Muatnaik muka buku Posh Medispa's post yang telah mempunyai 2,469 pengikut dan 665 yang sedang mengikut post poshmedicspa pada masa tersebut; 295 "Please Share!!!!? .... saya pernah up post ni kat insta.. Dia block client kat insta dan wassup... Becarefull.. Jumpa pakar bertauliah... Dia guna taktik ckp murah sebab nak bantu... Police report.. Surat pengesahan doctor berkenaan jangkitan kuman kerana jarum 300 semua ada.. Gambar before and after pun ada..p/s share friends... Becarefull... Next kita nak report Tribunal.. Doc ni doc perubatan... Bukan aestethic jadi ni doc kecantikan x Bertauliah...dia base di kl.. lni one of the outlet... Doc tu nama DR ABI ....hq dia kl... Fb dia tutup.. Buat insta saja.. Siap privatekan... Kenapa nak private 305 kalau bisness... Hsaaaa sebab dia tau org dok complain viral pasal dia buat taik..." telah kongsi serta terbit dan menyiarkan comment Awie Mas dalam muka buku yang menerbitkan dan menyiarkan – 310 "Ni Dr abi buat procedure Kat org. Muka customer dia jdi sakit.. Customer tu hbs duit byk kena repair. Ni org Dr A langsung tak perduli kat patient dia. Tak refund... Biaq kat patient macm tu. Skg patient ada parut besaq. Muka dia da rosak hbs. (Angrey 315 Face sign). Saya doa company ni idi muflis sebelum dia rosak kan org lain" . 8th alleged defamation (D3).

On 15.05.2018, D3 (who is in the same aesthetic business), referring to the forgoing alleged defamatory publications on the P, had allegedly published on its Instagram account defamatory statements on the suspected low-quality and cheap apparatus reportedly used by the P as compared to D3 in giving aesthetic 325 treatment to patient/client. The P claimed to have suffered consequently thereof: WA-23CY-9-02/2019 10 So remember you guys!! Medical devices are not to be bought from LAZADA: 330 The next time you want to get a PRP done, demand the doctor/ aesthetician to show you the process/blood tube/the machine; After all, you are paying! You deserve to know what's being done is a genuine procedure; Many of you has asked us on why our Vampire facial @ PRP is more 335 pricey compared to other medispa??; Stay tuned to the next stories as we explain on the benefits of Prp and why it's important to choose a highly professional Vampire facial, and not just any regular Prp; Guys, if you see your doctor/beautician doing a vampire facial @ prp 340 using a machine bought from LAZADA, you can imagine the results that will be obtained; Anybody can 'learn' the basics of medical procedures just by even watching another person; Cheap doesn't mean it's good;We believe in quality! Trust us, it 345 matters;You do not want to ruin your face Cz it's 'cheap'; Vampire facial treatment is a procedure that requires us to withdraw one's blood and centrifuging it to separate the red blood cells and the plasma (which contains platelets and growth factors); 350 This separated plasma is then carefully withdrawn and injected/ microneedled onto one's face. The techniques on how it's done may vary, but the concept is to infiltrate your own plasma into the skin; It may sound simple, but every step is crucial, and ever device/ 355 apparatus used matters; dan So what does a PRP do !??. D3 then allegedly further published on its Instagram account a photograph of the PRP machine (skinmasterkl) purportedly used by P to compare it with the device used by D3 accompanied by 360 allegedly defamatory statements. The P claimed to have suffered consequently thereof: Prp kit that's used in SKIN MASTER Neogenesis PRP -- zero contamination, - tightly sealed - no manual withdrawal of the plasma from the tube - Our Centrifuging machine,the PRM matters (the 365 spinning speed) It provides the concentration of the plasma derived highter the concentration, better the result; Whyyyysooo cheap one ah???- Dr, I saw another medispa giving Prp only for RM3xx; Maybe I will go for the PRP there, Cz it's within my budge; After the 'affordable Prp.......l didn't see no difference dr! thought 370 PRP would fix my skin; Whyyyy??? Because the quality of the apparatus used matters. WA-23CY-9-02/2019 11 9th alleged defamation (D4).

On 16.07.2018 and 06.09.2018, D4 (who is in the same aesthetic business), referring to the forgoing defamatory 375 publications on the P, had published in her Instagram account a photograph and repeated the defamatory remarks on the P. The P claimed to have suffered consequently thereof: ..CHECK OUT@IRESAMS/ POST ON A CERTAIN MEDISPA THAT RUINED HER FRIEND’S FACE”; 380 “A wrong decision could cause you a lifetime scar”; sticker gambar “tomato merah” yang senyum dengan perkataan “Stay Posh”; “On behalf of my friend.. Would like to thanks #poshmedispa for the “EXCELLENT” job on her face after doing filler treatment from this place not only she’s getting scar, she get bonuses where she 385 was block from wassup and get phone call treathen her mau Angkat if complain Banyak.. Viral.. Thanks for the excellent job Doc.. Very pleased with your motto ‘helping poor people cos u r poor too’ Hahahhahah lawak siot!” 390 10th alleged defamation (D5).

On 16.07.2018, D5, allegedly referring to the defamatory publications on the P, had repeated and published photographs with defamatory remarks on her Instagram account. The P claimed to have suffered consequently thereof: 395 gambar seekor monyet yang sedang makan kacang tanah dengan tajuk ""If u pay peanut you get monkeylah. .." serta amaran Defendan Kedua kepada pengikut Defendan Kedua telah Be careful guys Bila Nak repair Muka inject SanaCucuk sini dgn so called "Clinic Bertauliah" di media social ni.. Mmg dia charge Murah Gila konon Katanya Dia bukan tamak.. Tup tup 400 Muka client jadi rosak Oleh sebab jarum yg Dia pakai tak Bersih.. Surat Dari doctor ada mengesahkannya... "Clinic Berlauliah ni sedang viral di insta.. tunggu next saya keluarkan Gambar bukti Gambar sebelum Dan Selepas SERTA Surat Dari doctor.. This thing happen to my dearest friend.. saya Nak viral cos dia tak pro Lansung.. Siap blok. 405 Kalau tak • Salah Kenapa nak blok oii MS Doc @poshmedispa". D5 then further published a photograph on her Instagram account accompanied by allegedly defamatory statements. The WA-23CY-9-02/2019 12 P claimed to have suffered consequently thereof: 410 " Don't want to spread hatred, but some ppl really need to mind their own f"ckin business" "See miss #notsoposh we aren't on the same league, so please kindly compete with ur own kind. You are waaayy out of our league" "I would have tagged her but I've been blocked. Hope your minions would 415 deliver the message to you. Good day!" P.s we know you f"cked up. Royally''. 11th alleged defamation (D4).

On 06.09.2018, D4 allegedly published photographs on her 420 Instagram account accompanied by defamatory remarks on the P. The P claimed to have suffered consequently thereof: "Hai if you keep ignoring Bella we will proceed to kpdnkk and tribunal pengguna (as per advice from the police department). Pls take responsibility of your damaged to your customer. We have Doc 425 that willing to testify"; turunmaut Aduan Polis yang telah diadu oleh Defendan Pertama bahawa "Pada 14/04/2018 jam lebih kurang 1500HRS saya telah membuat rawatan kecantikan di Posh Medispa beralamat SA-18-06 430 Paragon Pan Gaea Persiaran Bestari 63000 Cyberjaya KL; dan bayaran yang dicaj adalah sebanyak RM900/I= Rawatan Kecantikan yang dilakukan oleh saya adalah bernama filler botox iaitu suntikan pada pipi untuk menghilangkan parut dan menegangkan muka selepas rawatan lebih kurang 2 jam saya mula rasa sakit di 435 bahagian pipi dan saya bertanya dengan doctor yang merawat saya dimana saya diarahkan untuk meletakkan ais batu di bahagian pipi serta makan panadol pada 15/04/2018 jam 0730HRS saya bangun dari tidur dapati pipi saya telah bengkak dan saya menghubungi doctor dan beliau minta saya meletakkan ais batu 440 di pipi serta makan panadol kerana ia adalah symptom biasa selepas keadaan bertambah teruk dan saya mendapatkan rawatan di sebuah klinik di Kuantan Pahang. Saya diberitahu oleh doctor yang merawat saya di Kuantan Pahang bahawa punca kejadian adalah jangkitan kuman dari suntikan filler botox 445 dan sehingga ke hari ini saya telah mendapat 8 kali rawatan dengan caj rawatan sebanyak RM800/+- Tujuan saya membuat laporan untuk tindakan Mahkamah dan untuk rujukan pihak berkenaan." ; 450 WA-23CY-9-02/2019 13 "Hai LA doc Dah buat Salah ngakuje lah... Kau Cucuk filler basi kot ..pastu Siap suruh org call gertak mau Angkat Kalau viral #poshmedispa" ; gambar yang menunjukkan pipi Defendan Pertama yang 455 meradang "On behalf of my friend.. Would like to thanks #poshmedispa for the "EXCELLENT" job on her face after doing filler treatment from this place not only she's getting scar, she get bonuses where she was block from wassup and get phone call treathen her mau Angkat if complain Banyak.. Viral.. Thanks 460 for the excellent job Doc.. Very pleased with your motto 'helping poor people cos u r poor too' Hahahhahah lawak siot!”; "Rentetan.. Kisah clinic kecantikan Murah VIRAL di instagram. Nak Murah.. lni yg kita dapat.. Yg bestnya Doc buat bagi Muka 465 patient rosak..Dia pulak yang Nak buat report polis...Bengong... Hari Ni Cucuk di KL.. Esok balik... bengkak.. Siap clinic lain dah confirmkan jangkitan Kuman jarum kotor.. so moral of the story... Jgn ambik pot lah sangat Bila Ada clinic kecantikan yg buat filler segala Dia bukan Jenis Doc yg pandang duit.. Dia yg Jenis Baik 470 Hati... Nah.. Ambik Muka rosak.. Dia Senyap.. Sentap Lari blok Sana sini ...Duit abis terlebih repair Muka". # fillermurahlahsangat # konondocxpandangduit # poshmedispa 475 comment :allinafuad: oh my, terrible clinic (symbol marah) iresamsi@allinafuad : Sar I rasa Dia dah tukar nama..Tengok Permainan dia...Tak Salah Kalau pasal Nak takut kaaann 480 I know about this medispa. Located in cyber Jaya right?" Veetha_0309 "Yes it is" "My Friend went there for some treatment this lady dr took something look like water (she said it's like spray gun) and spray on the face and use good morning towel to wipe off the face from tap water, not 485 even serum ..this is so stupid.like the dr was using tap water Veetha_0309 And her place is like some house not proper medispa or clinic.. Oh my, this lady Dr dunno what's she doing lah. 490 The P claims that D4 had allegedly “hashtagged” the following accounts, inviting them to read the defamatory postings: WA-23CY-9-02/2019 14 #p;oshmedispa, #kkm, #aestheticmalaysia, #mmc, #malaysianmedicalcouncil, #fillers, #tomaglo, #cyberjaya, #kementerial kesihatanmalaysia, #majlisperubatanmalaysia, #sebarfaktabukandusta, 495 #carbonpeelaser, #breastfillers, #skin, #kl, #lipfillers, #carbonfillers, #dentalveneers, #breastfiller, #thread comment dari Radiantclinique : "Hi, we get this picture from this account 500 Jawapan dari Veetha_0309: "good Morning" "Thank you for responding" Setelah membawa kenyataan-kenyataan yang berunsur fitnah dan tidak benar ke atas Plaintif yang telah diterbitkan dalam akaun instagram "Veeta_0309", Radiantclinique telah menghantar semula gambar-gambar 505 serta kenyataan kenyataan yang tersebut kepada akaun instagram "Veetha_0309":

6.6 The 1st -11th alleged acts of defamation are set out in paragraphs 7 - 48 of the SoC (enclosure 2). 510 I had considered at the trial:

The Ds rightly pointed out that fundamental evidential materials on the defamatory allegations by P set out in paragraphs 7 - 48 of the SoC (enclosure 2) are listed in Part C documents (where the authenticity and 515 contents are disputed) under O.34 r.2 (2) (e) (ii) RC 2012.

(ii) While Part B documents (O.34 r.2(2)(e)(i) RC2012) do not require the maker to be called at the trial (Mohd Nazari bin Ab. Majid v Tan Ken Hock & Anor [1999] 1 CLJ 601, HC), nevertheless the contents has not been accepted where a witness with a direct knowledge of the contents is 520 required to establish its veracity. Part C documents, however, require the maker to be called and the primary documents produced to attest to its authenticity and accuracy (Sri Pandi Restaurant & Anor v Saraswathy a/p Kesavan & Anor [2019] 1 LNS 754, HC).

(iii) P’s documents in Part C are marked during the trial as IDP1-IDP4 and 525 IDP6-IDP18, while some documents related to the claim in Part C are not even marked.

(iv) The list of P’s documents in Part C has been appropriately captured in D1 submissions (enclosure 129, para 42-45).

It is irrefutable at the trial that P makes no effort to tender the original 530 documents with the maker's presence to offer evidence on the said documents (section 73A Evidence Act 1950) and to be cross-examined on the evidence. The impugned IDPs remained untested and unadmitted as exhibits. WA-23CY-9-02/2019 15

(vi) Without being formally tested and converted as exhibits at the trial, it 535 carries no probative value to support the P’s case and is without a lawful foundation. The Ds correctly cited Damansara Realty(Pahang) Sdn Bhd v Om Cahaya Asia Berhad [2020] MLJU 2515, CA, which had observed that Part C documents are disputed as to their authenticity, existence and contents. The original documents must be produced and marked as “ID” 540 and later converted to exhibits. The process requires the maker to be called to establish the authenticity and contents of the documents.

(vii) In the present case, this was evidently not done by the P to establish her claim. The P is duty-bound to prove her claim by doing whatever is legally necessary to achieve that goal. It is not for the Court to conduct the P’s 545 case. As a party fundamentally anchoring her claim on Part C Documents, the P must fulfil two conditions: (1) the maker of the document must be called as a witness, and (2) primary evidence of the document must be adduced in court to be tested at the trial: KTL Sdn Bhd v Leong Oow Lai [2014] AMEJ 1458; [2014] MLJU 1405 at [34]–[36], HC see also Sri 550 Paandi Restaurant & Anor v Saraswathy a/p Kesavan & Anor [2019] AMEJ 0540; [2019] 1 LNS 754, HC at para [23].

(viii) Failure to comply or observe the foregoing legal evidential requirements would, in the circumstances, effectively render the P’s claim without a valid foundation to stand on and remain unproven. Consequently, it must fail for 555 want of compelling evidence, justifying the dismissal of the whole action on this issue alone.

(ix) The P’s silence on this crucial issue is indefensible.

However, for completeness, I would also consider the merits of the parties’ arguments in their respective submissions.

6.7 P cited her compliance with O.78 r.3 RC 2012 on the obligations to give particulars in defamatory actions. In this regard, the law is trite:

In a suit for defamation, all required elements to prove the tort must be pleaded and established at the stage of the plaintiff’s 565 case. It is only upon the elements having been established and/or proved that the defendant’s obligation to demonstrate a viable defense will arise (see Dato’ Abd Halim Ali v Sun Media Corp Sdn Bhd [2015] 4 CLJ 928; Mak Khuin Weng v Melawangi Sdn Bhd [2016] 5 AMR 115; [2016] 5 MLJ 570 314; Abu Hassan bin Hasbullah v Zukeri bin Ibrahim [2017] AMEJ 1321; [2018] 6 MLJ 396, CA). WA-23CY-9-02/2019 16

Once the plaintiff has successfully established that the defendant has published words defamatory of the plaintiff to third parties, the burden of proving any of the defences shifts to 575 the defendant. The alleged defamatory words as uttered must be reproduced verbatim in the statement of claim, and a certified translation in the National Language must also be tendered. To merely describe the substance, purpose or effect of the words is not sufficient: 580 Lim Kit Siang v Datuk Dr Ling Liong Sik [1997] 5 MLJ 523, HC; see also Credit Guarantee Corp Malaysia Bhd v SSN Medical Products Sdn Bhd [2017] 1 AMR 481; [2017] 6 CLJ 129; [2016] 1 LNS 1502, CA; and Raub Australian Gold Mining Sdn Bhd (in creditors’ voluntary liquidation) v Hue 585 Shieh Lee [2019] 2 AMR 525; [2019] 3 MLJ 720, FC.

6.8 P claimed that despite repeated demands for the Ds to cease and remedy the alleged offences, the Ds failed to apologise and compensate P. Consequently, P seeks damages for conspiracy to 590 defame and exemplary damages, RM5M in compensation against the Ds individually, interest and costs.

6.9 Apart from denying the allegations by P, D1 filed a counterclaim against P for the botched Botox filler injection that had injured her 595 face, and she needed medical treatment to address the infection. P is alleged to have been negligent in carrying out the procedure that had caused pain and suffering. D1 is seeking special damages of RM4,774.00. Damages for pain and suffering are to be assessed, as are aggravated damages. Interest of 5% from the date of the action 600 until full realisation.

6.10 D3, D4 and D5 deny P’s action. The P's is put to strict proof thereof. In their defense, D4 and D5 rely on s.8 and s.9 of the Defamation Act 605 1957, that in the circumstances of the facts of this case, the statements constitute justification and fair comments.

11 As against D2, taken from the CMS, an affidavit of service was filed on 17.09.2019 (L.26), and nothing further was done by P. As I have 610 stated at para 4.2 above, the claim against D2 is similarly dismissed. [7] THE PLAINTIFF’S SUBMISSIONS I observed P in canvassing for her claim & defence in denying the counterclaim by D1 as follows:

1 P argued that she had been a registered medical doctor since 2010 and set up Posh Medispa in 2018:

D1 had requested on 14.04.2018 for the Botox filler injections in her cheeks.

D1 informed P that her face was swollen shortly after the 620 procedure. P advised her to apply an ice pack every four hours.

On 17.04.2018, ie 3 days later, D1 complained of throbbing pain in her right cheek.

P advised D1 to seek medical treatment at the nearby clinic where D1 was (Kuantan, Pahang) and monitored her condition 625 via WhatsApp chat.

P claimed that during this time, D1 was in contact with D2 and conspired to publish seven defamatory postings of P in the social media accounts of D2.

This was followed by D3, D4, and D5.

P’s case, that the Ds conspired to defame and hurt the reputation of P by the 1st-11th alleged defamation set out in the SoC. WA-23CY-9-02/2019 18

7.2 D1 Counterclaim

P argued that D1 did not file any civil suit against P for the alleged negligence at the time of the alleged botched Botox 635 injection procedure. D1 only made her claim in her Statement of Defence and Counterclaim over this alleged incident that took place a year before, claiming pain and suffering because of the filler injections in her right cheek. The condition that allegedly required medical intervention:

In her evidence at the trial, D1 admitted she tended to develop boils, although it is not caused by any aesthetic treatments. She would usually get antibiotics for treatment.

(ii) D1 also admitted that her right cheek appeared sunken and had a slight scar due to the occurrence of the boils, and that was why she 645 asked for the filler injections.

(iii) D1 had a fracture across her right cheek occasioned by domestic violence and had undergone reconstructive surgery in the early 90s, where a clip was inserted in her cheek.

(iv) D1 had undergone several Botox filler injections to fill up the hollow 650 part of her cheek.

DW3, who carried out a blood test of D1, confirmed no infection in her blood. Therefore, it was argued that there is no issue of negligence on the part of P as alleged. 655 I had duly considered the foregoing evidence:

I cannot find any plausible grounds in the foregoing evidence at the trial that could support P’s case and her defence.

(ii) Any purported attempt by P to use that evidence to support her argument in drawing away attention from the actual cause of the injury in the right cheek of D1 is unconvincing and irrelevant.

Even DW2/Dr Lee’s medical report (25.07.2019) tendered 665 through D1’s counsel is one year and three months after the incident, where the contents are an afterthought. At this juncture, I find that Dr Lee was merely relating what D1 complained to him and that he had treated D1 for the abscess WA-23CY-9-02/2019 19 on 07.05.2018 for incision, drainage, dressing and antibiotics.

P took issue with the date of the treatment while at the same time, on the same date, Dr Lee had issued an official receipt (RM2,800.00) for the treatment of Botulinum Toxin Type A, full face for D1, but did not issue the receipt for the treatment for the swelling and abscess above. P claimed that on the premise, the 675 claim for RM4,000.00 for Botulinum Toxin Type A is far-fetched. I had considered the evidence:

Regardless of the position taken by P, it cannot be denied from the evidence that P carried out the procedure, (1) at an unsanctioned premise. 680 Any aesthetic medical treatment must be done in a clinic duly registered under the Private Healthcare Acts and Regulations. There is no evidence adduced by P that the premise where she carried out the procedure on D1’s cheeks is registered, (2) evidentially P was not fully qualified at the time to carry out the procedure on D1, (3) she admitted to not having met the 685 conditions required in the Ministry of Health Guidelines for medical doctors wanting to practice in aesthetic medicine, and (4) the certificates of attendance to specific courses that she tendered are not the ones required under the Ministry of Health Guidelines for medical GPs wanting to practice aesthetic medicine.

(ii) The requirement to be fully competent would create a duty of care on P to ensure that she was fully qualified within the context of the MOH Guidelines before practicing aesthetic medicine on clients/patients such as D1.

(iii) Her Posh Medispa is not a sanctioned premise to carry out an aesthetic procedure that requires a registered clinic under the Act and Guidelines.

(iv) That, in my considered judgment, constitutes negligence and breach of duty of care on the part of P at the material time.

In the circumstances, I accept the evidence, that DW2/Dr Lee took a sample of the abscess for a culture test, which showed the presence of the bacteria called Pseudomonas Aeruginosa (exh. D34). The evidence of Dr 700 Lee is that it is a common bacteria found everywhere that is harmless to humans unless it is directly introduced into the body by, amongst others, contaminated injection, or a break in the skin.

(vi) There is no evidence by P before me to definitively say otherwise.

(vii) In the circumstances and on the totality of the evidence at the trial, I am 705 inclined to a finding of negligence by P for her conduct.

7.3 The 1st -11th alleged conspiracy and defamation.

P argues that since D1 is in communication with D2, who was in 710 the UK at the time, over the Botox filler treatment, it is postulated by her that this is evidence of a conspiracy between the two.

P further argued that the WhatsApp chats between her and D2 on 26.04.2018 asked P to remove the pictures of D1 from P’s 715 Instagram account with the remark “scary jarum patah” is evidence of a conspiracy between D1 and D2. It shows that they have been in communication even though D1, in her evidence, denied having knowledge and/or consented to D2’s impugned defamatory postings. 720 I observed the evidence: In making her arguments, P constantly referred to Part C documents to support her case but made no effort to have them converted to exhibits. For that fundamental failure at the trial, I am constrained to exclude the P’s Part C 725 documents. The law is trite that unadmitted documents, as in Part C, have no probative value, rendering her arguments unsupported. The duty is on the P to conduct her case appropriately.

P alleged that D1 was extorting money from her by sending P 730 details of D1’s banking details via a WhatsApp chat and asking for the cost of treatment because of the infection from the Botox filler injections estimated to be RM3,500.00 I considered the evidence:

D1 denied such an assertion.

(ii) D1 was merely asking for a refund of the cost (RM900.00) of the botched Botox filler injections. The same amount is reflected in the counterclaim.

(iii) I find no basis for the allegation of extortion by P and the evidence does not support the assertion.

(iv) I also observed at the trial, and as rightly pointed out by the Ds:

The foregoing (bare and speculative assertions) is the extent of her evidence to establish the tort of conspiracy to injure via the 1st-11th WA-23CY-9-02/2019 21 alleged defamatory postings.

It would hardly satisfy the legal requirements for the tort of conspiracy 745 to injure.

An allegation of conspiracy requires the strictest pleading and must be supported by full particulars. Allegation of such an act of conspiracy must be pleaded, and must not be disjointed.

Therefore, the bare allegation of conspiracy against the Ds is frivolous 750 and vexatious. A sweeping and general allegation of the alleged conspiracy without going into particulars is insufficient: Dato’ Shun Leong Kwang v Toh May Fook & Ors [2021] MLJU 2422; Santamil Selvi Alau Malay & Ors v. Dato’ Seri Mohd Najib Tun Abdul Razak & Ors [2015] 4 CU 1035.

The Court of Appeal made it clear in Cubic Electronic Sdn Bhd v MKC Corporate & Business Advisory Sdn Bhd and another appeal [2016] 3 MLJ 797, CA in observing four essential conditions to be met for conspiracy to injure:

An agreement between two or more individuals.

A shared intent to injure

With that intent, certain acts were carried out, and

Causing loss or damage to the claimant.

The evidence at the trial shows the foregoing conditions had not been established. What is before me is just speculative and suggestive 765 assertions of such a conspiracy. It is not good enough. Therefore, I believe that P failed to establish the tort of conspiracy as alleged.

I find no evidence from P other than a suggestion that D1 knew and/or consented to D2’s alleged 1st-7th impugned defamatory postings.

With P’s Part C documents concerning the 1st-11th impugned 770 defamatory statements not admitted as exhibits at the trial, P’s assertions have no foundation to stand on. Therefore, the claim against D1 and D2 is dismissed for want of evidence.

7.4 P has failed to make any effort to convert and admit the P’s Part C 775 documents (IDP1-IDP4 and IDP6-IDP18, while some documents directly related to the claim in Part C are not even marked) concerning the 1st-11th alleged defamation by the Ds as exhibits during the trial, which to mind is fatal to her claim. 780 WA-23CY-9-02/2019 22 In continuing her submissions, I observed that:

P references Part C documents to anchor her arguments on D4 (9th allegation of defamation) in paragraph 6.5(i) herein. 785 Considering her arguments:

I find no merit in it. D4 argued that the impugned publication does not expressly refer to P; therefore, by law, special facts or knowledge are required to make that connection. Those special facts and knowledge 790 must be pleaded explicitly in the pleadings. P’s failed to do so, and she is bound to her pleadings.

(ii) The allegation by P of D4’s purported republication of alleged defamatory material by sharing a hyperlink to D2’s Instagram account is not sustainable. D4 correctly cited Crookes v Wikimedia 795 Foundation Inc., 2008 BCSC 1424, SC Canada, which observed that the purpose of a hyperlink is to direct the reader to additional material from a different source. It provides immediate access to material published on another website but does not amount to the republication of the content on the originating site. This is especially 800 so that a reader may or may not follow the hyperlinks provided. I find that in the circumstances of the case, D4 in the alternative had succeeded in establishing the defence of justification under 805 section 8 of the Defamation Act 1957. I also hold that D4 is entitled to the defence of fair comment under section 9 of the same Act, where the defence will not fail only because the truth in every allegation has not been proven. The 810 contents of the alleged posting are true or substantially true and afford a complete defence.

P references Part C documents to anchor her arguments on D4 (11th allegation of defamation) in paragraph 6.5(k) herein. 815 WA-23CY-9-02/2019 23 Considering her arguments:

I find it was established at the trial that no convincing evidence was adduced by P to prove that D4 had published the impugned 820 publication.

(ii) This claim must be dismissed for want of compelling evidence. I agree with the position taken by D4 that a party’s case must be expressly put to his opponent’s material witness when they 825 are under cross-examination. A failure to do so may be treated as an abandonment of the pleaded case. Consequently, this claim by P is also dismissed.

P references Part C documents to anchor her arguments on 830 D5 (10th allegation of defamation) in paragraph 6.5(j) herein. Considering her arguments:

I agree with D5 that P (1) failed to sufficiently plead the meanings of the alleged impugned statements by D5, and (2) D5 has successfully proven justification and fair comments as a complete 835 defence.

(ii) The claim against D5 is evidently flawed when P did not ascribe the meaning to the alleged Impugned Statements complained of, thereby prejudicing D5.

(iii) It creates difficulty for D5 to ascertain the meaning P intended to 840 ascribe to it and deny them accordingly. That is a fatal flaw in the pleadings. I hold in the circumstances that D5 is entitled to the defence of justification, who had adopted and repeated the position taken on justification and fair comments (D4) as reflected in 845 paragraphs 9.6(d) and (e) below. Reliance is placed on Dato Seri Mohammad Nizar bin Jamaluddin v Sistem Televisyen Malaysia Bhd & Anor [2014] 4 MLJ 242, that justification affords a complete defence against defamation. D5 relies on the following facts: 850 WA-23CY-9-02/2019 24

On or about 14/04/2018, P performed a facial treatment known as Filler Injection Treatment on D1 on both cheeks.

(ii) As a result of the said facial treatment, D1 experienced pain, high fever and swelling on her right cheek because of infection, puss, and abscess at the location where P had injected D1’s right cheek.

(iii) D1 had to undergo medical treatment at other clinics to treat the said infection, puss, and abscess on her right cheek.

(iv) As a result of the said facial treatment, a scar was left on the right cheek of D1, and this caused damage and disfigurement to D1’s face and D1 had to undergo further medical treatment at another 860 clinic to repair the scar and damage on her right cheek. D5 also relied on the fact that the comments are based on facts, thereby the legal requirements in Tun Datuk Patinggi Haji Abdul Rahman Ya’Kub v Bre Sdn Bhd [1996] 1 MLJ 865 393, HC had been met:

D1 had indeed suffered from P’s facial treatment. As a result of infection, puss and abscess on her right cheek.

(ii) D1 had to undergo medical treatment at other clinics to treat the said infection, puss, and abscess.

(iii) D1 had a scar on her right cheek after undergoing facial treatment at P’s Medispa and had to seek further medical treatment to repair the damage caused on her right cheek.

P references Part C documents to anchor her arguments on D3 875 (8th allegation of defamation) in paragraph 6.5(h) herein. Considering her arguments: I agree with D3 that the impugned statement does not explicitly refer to P. The burden is on P to provide compelling evidence and not suggestive 880 assertions to connect the libel to her.

In the premise, P’s pleadings need to plead the special facts to establish that connection, failing which the claim must fail.

(ii) The pleading did not connect the dots, and the P is bound to her pleadings. Relying on customers' special knowledge or facts (PW2 885 and PW3) to link it will not do.

(iii) In its proper context, the impugned publication is critical of the machine and not P. The impugned publication is clearly on the machines' performances and does not purport to link and defame P. 890 WA-23CY-9-02/2019 25 I find the impugned statement by D3 constitutes a fair comment on the facts in comparing different machines' performances. There is no issue of defamation in the circumstances. In the circumstances, P prays for order in terms of her prayers in the 895 SoC. [8] THE FIRST DEFENDANT’S SUBMISSIONS I observed D1 canvassing for her defence & counterclaim as follows:

8.1 The P accused D1 of conspiring with D2 in publishing libelous remarks/statements on D2's social media accounts, as set out in the SoC, thereby defaming the P in allegedly seven defamatory postings (paragraphs 6.5 (a)-(g) herein) as seen in the SoC. In denying the 905 allegations and in her defence, D1 claims that:

She did not post or consent to any of those seven allegedly defamatory postings.

She did not conspire with D2 on posting the seven alleged libelous postings.

She has no control over the social media accounts of D2.

The seven alleged libelous postings do not carry any defamatory overtones or undertones as alleged. The postings are accurate in substance.

D1 merely shared or confided with D2 (a friend) on the quality of 915 her beauty treatment, which constitutes a fair comment.

D1 also relies on qualified privilege, and

P had failed to prove her claim as legally required. 920 WA-23CY-9-02/2019 26 I have considered the evidence:

It is proven that other than P's speculative assertions, no compelling evidence was produced to establish the tort of conspiracy by the Ds in the present suit.

(ii) With the exclusion of P’s Part C documents concerning the 1st-11th 925 allegations of defamation by the Ds, P’s case becomes speculative and unsupported, which warrants a dismissal for want of compelling evidence.

8.2 Conspiracy is an act of two or more persons to (1) carry out an unlawful act and (2) by unlawful means to injure another person 930 causing damage. In support, D1 cited, Wu Yang Construction Group Ltd v Zheijang Jinyi Group Co. Ltd & Ors [2006] 4 SLR 451, Lonrho plc v Fayed & Ors [1991] 3 All ER 303, Tiarasetia Sdn Bhd v Yayasan Selangor & Anor [2009] MLJU 1602, SCK Group Bhd & Anor v Sunny Liew Siew Pang & Anor [2011] 4 MLJ 935 393, and Deepak Jaikishan a/l Rewachand & Anor v Intrared Sdn Bhd & Anor [2013] 7 MLJ 437. In relying on the authorities, it was argued that:

The P’s action on conspiracy is grounded on simple conspiracy to injure without any pleadings on the unlawful aspect of it.

The predominant purpose must be to cause loss to the P for there to be a conspiracy.

If the predominant purpose is to protect the Ds, it is not unlawful, and there is no conspiracy, though the P may suffer incidental loss consequently.

An allegation of conspiracy requires the strictest pleading and must be supported by full particulars: Dato’ Shun Leong Kwang v Toh May Fook & Ors [2021] MLJU 2422; Santamil Selvi Alau Malay & Ors v. Dato’ Seri Mohd Najib Tun Abdul Razak & Ors [2015] 4 CU 1035: Allegation of such an act of conspiracy 950 must be pleaded and the overt acts must not be disjointed. Therefore, the bare allegation of conspiracy against the WA-23CY-9-02/2019 27 defendants is frivolous and vexatious. A sweeping and general allegation of the alleged conspiracy without going into particulars is insufficient.

There are no compelling materials adduced by the P that:

There is an agreement of a conspiracy to injure between D1 and D2.

(ii) That such an agreement, if it exists, had crystallized before the alleged act was carried out.

(iii) The injury suffered by the P.

(iv) The foregoing omissions are evident in the P’s SoC, and she is bound by her pleadings. I have considered the evidence:

The P had failed to go into the required particulars to establish the alleged 965 agreement to injure in her SoC. What is available is merely a sweeping and general statement on the alleged tort of conspiracy. As rightly pointed out, the P is bound by her pleadings.

(ii) In the circumstances, the allegation of conspiracy to injure the P between D1 and D2 had failed to be established as required by law.

(iii) There are no compelling evidential materials save for the P’s bare assertions which is simply unsustainable evidence in law.

(iv) The alleged conspiracy unproven, coupled with no evidential materials after the exclusion of Part C documents, would rightly cause the demise of the P’s claim on 7 alleged libelous postings in her SoC against the D1 and D2.

As I had observed in paragraphs 6.6(a) and (b) above, all required elements to prove the tort must be pleaded and established at the stage of the plaintiff’s case. Only upon the elements having been established and/or proved will the defendant’s obligation to demonstrate a viable defence arise, not before.

(vi) As a result of this failure by P to prove his case, the burden of proving any of the defences does not shift to the Ds.

8.3 D1 cited Chong Swee Huat & Anor v Lim Shian Ghee [2009] 3 MLJ 665, CA that observed in a defamatory suit, the Court would 985 only be concerned with the natural and ordinary meaning of the words claimed to be defamatory.

8.4 That is the meaning that an ordinary, reasonable person (without any special knowledge of that which is known to ordinary people 990 WA-23CY-9-02/2019 28 generally) would comprehend from the statement in its literal meaning. However, D1 argues:

There is no evidence before the Court of the alleged defamatory statements admitted into as evidence at the trial. Without the evidential materials, the claim by the P must necessarily fail.

The materials to support the alleged claim of defamation by the P are all listed in Part C of the Bundles of Documents (O.34 r.2(2)(e)(ii) RC 2012, which had been marked as “ID” only, while there are some that had not been marked. Formal proof of those documents is legally required before they can be converted into 1000 exhibits (section 73A Evidence Act 1950).

D1 cited Damansara Realty (Pahang) Sdn Bhd v Om Cahaya Asia Berhad [2020] MLJU 2515, CA, which had observed that Part C documents are disputed as to their authenticity, existence and contents and listed the impugned documents in Part C. 1005

Without evidential materials to support P’s claim, it must fail since the elements of defamation cannot be established at the trial against D1. Without these impugned documents, the element of publication cannot be proven in Court, especially when D1, in her evidence, vehemently denies making any 1010 request or consenting to any publication of the alleged seven libelous postings by D2 which is an essential element in the tort of defamation.

There is sufficient evidence that the P herself acknowledged that D1 is not responsible for such an alleged posting (BOD B, Part B 1015 pg.69, 73, 75, 90).

D1 cited Tan Keng Yong @ Tan Keng Hong & Anor v Tan Hwa Ling @ Tan Siew Leng & Ors [2022] 2MLJ 805 that the WA-23CY-9-02/2019 29 plaintiff bears the initial burden to prove the claim. The burden rests on the plaintiff throughout the proceeding. Only after the 1020 burden has been discharged is it moved to the defendant to disprove the plaintiff’s claim.

With P unable to prove or associate the alleged seven libelous postings by D2, the claim against D1 must fail. None of P’s witnesses (PW2, PW3, PW4 and PW5) provided evidence 1025 concerning the alleged seven libelous postings by D2. Consequently, P failed to prove her case and must be dismissed.

8.5 The P failed to provide compelling evidence of the damage she had suffered from the alleged defamatory postings. PW2-PW5 all gave 1030 evidence that they had gone to seek treatment from the P and continued to do so since 2018. PW2 and PW5 even went on to say that their perception and trust in P have not changed.

8.6 If the Court is not with her on the foregoing, D1, in her defence, 1035 claimed:

Justification under section 8 of the Defamation Act 1957, that in an action for libel or slander in respect of words containing two or more distinct charges against the plaintiff, a defence of justification shall not fail by reason only the truth of every charge 1040 is not proved if the words not proved to be true do not materially injure the plaintiff’s reputation having regard to the truth of the remaining charges. All that is needed to be proven is that the impugned defamatory statements are true or substantially true (see Dato Seri Mohammad Nizar bin Jamaluddin v Sistem 1045 Televisyen Malaysia Bhd & Anor [2014] 4 MLJ 242). Justification affords a complete defence against defamation. WA-23CY-9-02/2019 30 Sufficient contemporaneous documents had been adduced to establish the same.

D1 argued that the postings are essentially true or substantially 1050 true concerning the botched beauty treatment she received from P. The P could not prove at the trial that she had procured all the relevant certificates or had undergone all the required training under the Guidelines as of April 2018. She was not fully qualified at the time of conducting the procedure on D1’s face: 1055

Any aesthetic medical treatment must be done in a clinic duly registered under the Private Healthcare Acts and regulations. There is no evidence adduced by P that the premises where she carried out the procedure on D1’s cheeks are so registered.

(ii) The cheek of D1 suffered from abscess and infection caused by the 1060 procedure conducted by P. D1 suffered pain and swelling.

(iii) The P, knowing the condition faced by D1, took no steps to pursue D1 to treat or address the swelling and infection.

(iv) D1 did indeed suffer scarring on her cheek, consequently thereof. 1065

D1 also claims the defence of fair comment citing the elements required from Dato’ Sri Dr Mohamad Salleh bin Ismail & Anor v Mohd Rafizi bin Ramli [2022] 3 MLJ 75, HC:

The words complained of are comments.

(ii) The comments are on a matter of public interest or where it 1070 will affect the public so that they may be legitimately interested in it.

(iii) The comments are based on true facts, and

(iv) The comments are ones that a fair-minded person can honestly make based on the facts. 1075 In defence of fair comment, if the primary facts are true, in the absence of malice and/or falsehood, fair comment should succeed: Mohd Rafizi bin Ramli v Dato Sri Dr Mohamad Salleh bin Ismail & Anor [2019] 6 MLJ 587, CA. 1080 WA-23CY-9-02/2019 31

D1 also claimed qualified privilege as a defence, where the impugned statements were published pursuant to a discharge of legal, social, or moral duty with no ill will or malicious intent. The recipient of the statements had a corresponding interest in 1085 receiving them. The impugned statements constitute fair comments and are covered under qualified privilege. There is no evidence by P to show any malice on the part of D1.

8.7 Concerning her counterclaim against the P, D1 argued: 1090

P had been negligent and breached her duty of care in carrying out the beauty treatment, resulting in injury and pain to the right cheek of D1. D1 cited the Court of Appeal in Sri Inai (Pulau Pinang) Sdn Bhd v Yong Yit Swee & Ors [2003] 1 MLJ 273, CA, that ruled the law of tort imposes a duty of care on a 1095 defendant who assumes responsibility to perform professional or quasi-professional services to a plaintiff who relies on such services.

P had conducted a procedure which she was not qualified to perform. A medical practitioner owes a duty in tort to his patient 1100 regardless of any contract between them: Clerk & Lindsell on Torts, pg.302. The P cannot claim otherwise. P did not obtain all the necessary certificates and training before conducting the procedure on D1’s face. Without completing the relevant training and the issuance of all the relevant certificates of training, P will 1105 not be issued with the LCP issued by the Medical Practice Division. It is a mandatory requirement under the Guidelines to qualify as a general practitioner practising aesthetic medical treatments (Guidelines on Aesthetic Medical Practice for Registered Medical Practitioners, issued by the Ministry of 1110 WA-23CY-9-02/2019 32 Health, Bundle B, pp.121-167, enclosure 78). The P admitted that at the time, she did not have the relevant certificate of training as required under the Guidelines.

The aesthetic procedure:

That P conducted was beyond the scope of services 1115 permitted by Posh Medispa. A beauty spa and not a duly registered clinic as required under the statute, in breach of the Ministry of Health Guidelines on the practice of aesthetic medicine.

(ii) A premise not duly registered under the Private Healthcare 1120 Acts and Regulations.

(iii) It is not a clinic registered with the DG of Health of Malaysia under sections 4, 27 and 28 of the Act.

(iv) This default is admitted to by the P during trial.

P’s annual practising certificate for the year 2018 listed 1125 Poliklinik Damai, Jakel Square, Jalan Munshi Abdullah, 50100 WO and Poliklinik Damai 24 Jam, Jalan Kesuma, Bandar Tasik Kesuma, 43700 Selangor as the place of practice. Posh Medispa is not listed in P’s practising certificate. 1130

Because of the P’s breach of duty, D1 suffered infection and scarring on her right cheek, which the P failed to take the appropriate steps to diagnose and treat the injury, forcing D1 to seek medical intervention/treatment for the abscess and infection from a medical doctor: 1135

P did not exercise due care and skill in performing the Botox filler injections.

(ii) The P conducted the procedure at an unauthorized premise, contravening the Private Healthcare Act and regulations.

(iii) P was careless and negligent in discharging her duty to D1. She did 1140 not thoroughly examine the D1 before proceeding with the procedure on the third visit by D1.

(iv) The botched Botox filler injection caused pain and swelling on the face WA-23CY-9-02/2019 33 of D1.

(vi) She took no steps to diagnose and treat the injury. 1145

(vii) Injury seen in exhibits D19, D20, D27, D-39(A)-D39(I), D36, D37(A)- D37(B), D24.

(viii) Dr Norain’s (DW3) evidence on the infection, abscess and swelling in the right cheek of D1 can be seen in exhibits D22, D24, D26, D28, D30(a)-D30(e). Her medical report is on pg.83, Part C, enclosure 79, 1150 pp.16-24.

(ix) Dr Lee’s (DW2) evidence on draining the abscess in D1’s right cheek is found in NOP 18.4.2023, pg.776/PDF pg.12, enclosure 127. The medical report can be seen on pp.100-101, Part C, enclosure 79, exhibit D33, pg.106, Part C, exhibit D 34. 1155

After the abscess persisted in the right cheek of D1, though medically treated with antibiotics. A blood test showed no anomalies by DW3; D1 consulted DW2, who confirmed an infection in the right cheek. Dr Lee took a sample of the abscess for a culture test, and it showed the presence of the bacteria Pseudomonas Aeruginosa (exhibit D34). It is 1160 a common bacteria found everywhere that is harmless to humans unless it is directly introduced into the body by, amongst others, contaminated injection, or a break in the skin. After further treatment at a local clinic, the infection gradually cleared.

The abscess and infection caused her right cheek to appear 1165 lopsided and more sunken, needing a corrective procedure at another clinic.

DW2 injected fillers to fill the hollowed right cheek costing RM3,000.00 (exhibit D38).

D1 suffered mental distress, pain and suffering, and costs and 1170 expenses. She claims special damages (RM4,774.00), general damages for pain and suffering, and aggravated damages. In the circumstances, D1 prays that the suit by the P is dismissed with costs and her counterclaim is allowed with costs. WA-23CY-9-02/2019 34 [9] THE THIRD, FOURTH AND FIFTH DEFENDANTS’ SUBMISSIONS 1175 I had observed D3, D4 & D5 canvassing for their defence as follows:

9.1 D3, D4, & D5 cited Raub Australian Gold Mining Sdn Bhd v Hue Shieh Lee [2019] 3 MLJ 720, FC where it was observed that in defamation, three elements must be established: (1) the impugned 1180 statement has defamatory imputations, (2) the impugned defamatory statement refers to the plaintiff, and (3) the impugned statement have been published to third parties. A defamatory imputation in the impugned statement must tend to lower the plaintiff in the estimation of others, expose him to hatred, contempt, or ridicule, injure his 1185 reputation in his office, trade, or profession, or injure his financial standing/credit. An imputation need not have an actual adverse impact on a person’s reputation since the law looks to the tendency to it. 1190 9.2 D3, D4, & D5 cited section 8 of the Defamation Act 1957 that provides for justification as a complete defence in an action grounded in defamation. They cited Chong Swee Hust & Anor v Lim Shee Ghee (T/A L&G Consultants & Education Services) [2009] 3 MLJ 665 that when a defence of justification is to be upheld, it is not necessary 1195 to prove the truth of every word in the statement said to be defamatory. What is relevant is the truth of the imputation of the overall statement. It follows, therefore, that the identity of the maker of the statement is immaterial to the defence of justification. Section 8 says: 1200 In an action for libel or slander in respect of words containing two or more distinct charges against the plaintiff, a defence of justification shall not fall by reason only that the truth of every charge is not proved if the words not proved to be true do not materially injure the plaintiff's reputation having regard to the truth of the remaining charges. 1205

9.3 D3, D4, & D5 also cited section 9 of the Defamation Act 1957, which provides for the defence of fair comment. Section 9 says: In an action for libel or slander in respect of words consisting partly of allegations 1210 of fact and partly of expression of opinion, a defence of fair comment shall not fail by reason only that the truth of every allegation of fact is not proved if the expression of opinion is fair comment having regard to such of the facts alleged or referred to in the words complained of as are established. 1215 They cited in support Tun Datuk Patinggi Haji Abdul Rahman Ya’Kub v Bre Sdn Bhd [1996] 1 MLJ 393, HC that held for fair comment to succeed, (1) the words complained of are comments, though they may consist of or include inference of facts, (2) the comments are on a matter of public interest, and (3) the comments 1220 are based on facts, truly stated. They must also be fair, which a fair-minded person can honestly make on the facts proved.

9.4 D3, D4, & D5 shared a similar view of D1 that all alleged defamatory materials by P are in Part C documents marked as “ID” that had not 1225 been tested and converted as exhibits at the trial. The exclusion by the Court of Part C documents of P’s case, would collapse the entire claim in the present suit.

9.5 The 8th allegation of defamation in paragraph 6.5(h) herein is 1230 directed only to D3. P had not established at the trial that the alleged impugned statements (1) refer to her and (2) the impugned statements are defamatory. It has been proven at the trial that the impugned statements constitute fair comment: 1235

The impugned statement does not refer to P. Self-identification by the P cannot be a basis for defamation. They cited Wong WA-23CY-9-02/2019 36 Yoke Kong & Ors v Azmi M Anshar & Ors [2003] 4 MLJ that held that the alleged offensive sentence does not ex-facie refer to the plaintiff. Evidence must be given to connect the libel to the 1240 plaintiff. The onus is on the plaintiff; if he fails to discharge it, he has no cause of action.

Nothing in the impugned statement in the 8th allegation of defamation makes any reference to P. The pleading must plead the special facts to establish that nexus, failing which the claim 1245 must fail. There is none in the present case. They cited Gately on Libel and Slander (12th Edition), on the need for P to clarify in his pleadings the basis on which he claims to have been identified as the subject of the words complained. P must provide the connecting facts to establish the nexus, or the claim would 1250 be struck out.

The photograph of the machine allegedly used by P to connect the dots is insufficient, as no evidence has been tendered to establish that (1) the machine belongs to P, (2) it was at P’s clinic, (3) the photograph of the machine used was a cropped 1255 image taken from the P’s clinic. P was merely relying on the special facts or knowledge of her customers (PW2 and PW3) to link her to the impugned statements by D3. P failed to plead the special facts in her pleadings to provide the required nexus. Parties are bound to their pleadings (See Leong Chye @ Sze 1260 Leong Chye & Anor v United Overseas Bank Bhd and another appeal [2019] 1 MLJ 23, FC), and in the circumstances, the claim on the 8th alleged defamation against D3, must fail. P also failed to establish that the alleged impugned statements by D3 are objectively capable of bearing defamatory 1265 WA-23CY-9-02/2019 37 meanings as pleaded. The natural, ordinary meaning of alleged defamatory words is a question of law to be determined by the Court. If having decided that the words complained of can bear a defamatory meaning, the Court must ascertain whether the words are, in fact, defamatory: Chok Foo @ Chok Kee Lian v 1270 The China Press Bhd [1999] 1 MLJ 371, CA.

In its proper context, the impugned publication is critical of the machine and not P. The sting of the publication is that a generic PRP machine with fewer revolutions per minute (RPM) yields inferior results. D3 was merely promoting its own business by 1275 making comparisons of the PRP machine that has a higher RPM to yield better results. The impugned publication is clearly on the performances of the machines compared and does not purport to link and defame P (Raub Australian Gold Mining Sdn Bhd v Hue Shieh Lee [2019] 3 MLJ 720, FC). 1280

The impugned statement by D3 in the 8th alleged defamation constitutes fair comment, where it expresses an opinion on a matter of public interests: Tun Datuk Patinggi Haji Abdul Rahman Ya’Kub v Bre Sdn Bhd [1996] 1 MLJ 393, HC. D3 submitted that, as a matter of law, what is considered an issue of 1285 public interest is a category that is not closed. The courts have noted that what constitutes public interest could be anything that may interest the public or even a segment of the public interested in the publication's subject matter.

9.6 The 9th allegation of defamation in paragraph 6.5(i) herein is 1290 directed only to D4. D4 argues that P failed to establish that (1) the impugned publication refers to P and (2) that the impugned statements were published. D4 submitted that it is trite law that WA-23CY-9-02/2019 38 where the impugned publication does not expressly refer to the claiming party, special facts or knowledge is required to make that 1295 conclusion, then those special facts and knowledge must be specifically pleaded. It is here that the Plaintiff’s claim has failed:

The impugned publication does not explicitly refer to P.

The sticker “stay posh” on D4’s publication does not refer to P nor P’s Posh Medispa. The phrase “a certain Medispa” 1300 cannot be taken to refer to P. The general reader must be acquainted with special knowledge or facts to link it to P. P does not plead the special knowledge or facts in her claim against D4. Readers of the impugned publication cannot make the connection to P by only relying on the “stay posh 1305 stickers”.

There is no publication of any defamatory materials by republication of postings on @iresamsi’s Instagram account. D4 merely shared a hyperlink to D2’s Instagram account page. It does not direct anyone to the alleged impugned 1310 statements by D2. This position was acknowledged by P in her evidence in court. D4 cited Crookes v Wikimedia Foundation Inc., 2008 BCSC 1424, SC Canada, which observed that the purpose of a hyperlink is to direct the reader to additional material from a different source. It provides 1315 immediate access to material published on another website but does not amount to the republication of the content on the originating site. This is especially so that a reader may or may not follow the hyperlinks provided. WA-23CY-9-02/2019 39

In the event the Court finds the impugned publication by D4 1320 defamatory, reliance is placed on section 8 of the Defamation Act 1957 on justification. The statements are true or substantially true. D4 cited Dato Seri Mohammad Nizar bin Jamaluddin v Sistem Televisyen Malaysia Bhd & Anor [2014] 4 MLJ 242, that justification affords a complete 1325 defence against defamation. D4 relies on the following facts:

On or about 14/04/2018, P performed a facial treatment known as Filler Injection Treatment on D1 on both cheeks.

(ii) As a result of the said facial treatment, D1 experienced pain, high fever and swelling on her right cheek because of infection, puss, 1330 and abscess at the location where P had injected D1’s right cheek.

(iii) D1 had to undergo medical treatment at other clinics to treat the said infection, puss, and abscess on her right cheek.

(iv) As a result of the said facial treatment, a scar was left on the right cheek of D1, and this caused damage and disfigurement to D1’s 1335 face and

D1 had to undergo further medical treatment at another clinic to repair the scar and damage on her right cheek. In establishing justification, D4 submits the evidence of DW1, 1340 DW2, and DW3, which sufficiently corroborates the facts.

D4 also relies on the fair comment as a defence and cites section 9 of the Defamation Act 1957, which states that fair comment shall not fail by reason, only that the truth of every 1345 allegation of fact is not proved. In support, D4 cited Dato’ Sri Dr Mohamad Salleh bin Ismail & Anor v Mohd Rafizi bin Ramli [2022] 3 MLJ 758, that to raise fair comment as a defence, it must be established (1) a sufficient fact upon which the inference is drawn, and (2) those comments made, 1350 or inferences drawn are true so that readers may form their own opinion. WA-23CY-9-02/2019 40 The facts as they are stated must not be untruly stated sufficiently if the subject is of public importance and is sufficiently and not incorrectly or untruthfully stated. A 1355 comment based on untrue facts cannot be fairly made. D4 argued that the legal requirements in Tun Datuk Patinggi Haji Abdul Rahman Ya’Kub v Bre Sdn Bhd [1996] 1 MLJ 393, HC had been met:

D1 had indeed suffered from P’s facial treatment. As a result of 1360 infection, puss and abscess formed when.

(ii) D1 had to undergo medical treatment at other clinics to treat the said infection, puss, and abscess in her right cheek.

(iii) D1 had a scar on her right cheek after undergoing facial treatment at P’s Medispa and had to seek further medical treatment to repair 1365 the damage caused on her right cheek. The issues are of public interest. D4, who also owns Medispa, has a right to comment freely on the impugned issues. In her evidence, P admitted that the issue with the facial treatment of D1 had 1370 become a big issue even before the impugned publication by D4.

9.7 The 10th allegation of defamation in paragraph 6.5(j) herein is directed only to D5. It must fail because P (1) failed to sufficiently plead the meanings of the alleged impugned statements by D5, 1375 and (2) D5 has successfully proven justification and fair comments as a complete defence:

The claim against D5 is evidently flawed when P did not ascribe the meaning to the alleged Impugned Statements complained of, thereby prejudicing D5. It creates difficulty for 1380 D5 to ascertain the meaning that P intended to ascribe to it and to deny them accordingly. Gately on Libel and Slander WA-23CY-9-02/2019 41 (12th Edition), in paragraph 26.26, clarified the need for P to set out the basis on which he claims to have been defamed in his pleadings. 1385

That notwithstanding, D5 claims she is entitled to the defence of justification, adopts and repeats the position taken on justification and fair comments as reflected in paragraph 9.6(d) and (e) above. 1390 9.8 The 11th allegation of defamation in paragraph 6.5(j) herein is directed only to D4. It must also fail because P failed to prove that D4 published it:

No cogent evidence was adduced by P to show that D4 published the impugned statement. 1395

Since no evidence tendered to establish this allegation, it must be dismissed for want of compelling evidence.

D4 cited Small Medium Enterprise Development Bank Malaysia v Lim Woon Katt [2016] 5 MLJ 220, CA, where it referred to and followed Browne v Dunn 918930 6 R 67 that 1400 a party’s case must be expressly put to his opponent’s material witness when they are under cross-examination. A failure to do so may be treated as an abandonment of the pleaded case. 1405 9.9 D3, D4, & D5 argued that there is no reasonable cause of action based on conspiracy to defame P by the Ds. P had not met the legal requirements: WA-23CY-9-02/2019 42

They cited Cubic Electronic Sdn Bhd v MKC Corporate & Business Advisory Sdn Bhd and another appeal [2016] 3 1410 MLJ 797, CA that observed four essential conditions to be met for conspiracy to injure:

An agreement between two or more individuals.

(ii) A shared intent to injure

(iii) With that intent, certain acts were carried out, and 1415

(iv) Causing loss or damage to the claimant.

They also cited Gasing Heights Sdn Bhd v Alayah bt. Abd Rahman & Ors [1996] 3 MLJ 259, HC that held in a claim for the tort of conspiracy, the SoC must plead with great 1420 particularity all the elements that make up the alleged tortious wrong. A bare assertion on the allegation of the tort conspiracy will not do.

This position was restated by the Court of Appeal in Renault SA v Inokom Corp Sdn Bhd & Anor and other appeals 1425 [2010] 5 MLJ 394, CA when it said that there was no cause of action in the tort of conspiracy when the SoC failed to plead the agreement between the defendants to conspire and state precisely what was the purpose or what were the objects of the alleged conspiracy. It was also found that the SoC failed 1430 to accurately clarify the overt acts alleged to have been done by each of the alleged conspirators in pursuance and in furtherance of the conspiracy.

Nowhere in the SoC of P has this been done as the law 1435 requires. P failed to establish her claim herein. Procedural requirements in such matters require strict compliance with procedural law: Aik Ming (M) Sdn Bhd & Ors v Chang WA-23CY-9-02/2019 43 Ching Chuen Ors and another appeal [1995] 2 MLJ 770, CA. 1440 In the circumstances, D3, D4, & D5 pray that P’s claim in the SoC is dismissed with cost. THE LAW [10] A defamatory statement: 1445 10.1 Is a statement which tends to lower a person in the estimation of right-thinking members of society generally or cause him to be shunned or avoided or to expose him to hatred, contempt, or ridicule (see Ummi Hafilda Bte Ali v Ketua Setiausaha Parti Islam (PAS) [2006] 4 MLJ 761 at p.770 per Gill FCJ citing Sim v 1450 Stretch [1936] 2 All ER 1237).

10.2 Or to convey an imputation on him disparaging or injurious to him in his office, profession, calling, trade or business (see section 5- Defamation Act 1957).

10.3 What may lead to a tendency to lower a person’s reputation in the 1455 eye of the public depends largely on the facts and circumstances in each case.

10.4 Mere hurt feelings are insufficient for the award of damages under defamation. The interest to be protected by this tort is a person’s good name and reputation. The law on defamation in Malaysia is 1460 primarily anchored on the English common law principles except as far as it had been modified by the Act, which is in pari materia with the English Defamation Act 1952 (see Soh Chun Seng v CTOS-EMR Sdn Bhd [2004] 5 CLJ 46).

10.5 Defamation is committed when the defendant publishes words or 1465 matters containing untrue imputations against the plaintiff's reputation to a third person.

10.6 Liability for defamation is divided into two categories: libel and slander. If the publication is made in a permanent form, broadcast, or part of a theatrical performance, it is libel. It is slander if it is in 1470 some transient form or is conveyed by spoken words or gestures. [11] The civil law of defamation is primarily based on case law. Although the Act does not define defamatory matters, it has given some well-known common law principles statutory force. Libel or published 1475 defamation, for example, a newspaper article, television broadcast, pictures, and words, can be defamatory (see Civil Trial Guidebook by Marsden Law Book). [12] In Kian Lup Construction v Hongkong Bank Malaysia Berhad 1480 [2002] 7 CLJ 32 Ramly Ali J (at that time) said: “In a tort of defamation, the plaintiff must prove three elements, namely the statement must bear defamatory imputations, must refer to the plaintiff’s reputation and must have been published to a third person by the defendant”. 1485 (See also Ayob Saud v. TS Sambanthamurthi [1989] 1 CLJ 152) [13] In Tan Sri Dato Vincent Tan Chee Yioun v Haji Hasan Bin Hamzah & Ors (1995] 1 MLJ 39, it was held that it is a question of law for the court to decide whether the natural and ordinary meaning of the words 1490 used in the articles were capable of conveying a defamatory meaning of and concerning the plaintiff. Libel does not depend on the intention of the defamer. Still, on defamation, it was irrelevant to consider the meaning WA-23CY-9-02/2019 45 the writer and publisher intended to convey. The question is to be determined by an objective test. 1495 [14] Therefore, based on the above authorities, the plaintiff has to prove the following:

the statement was defamatory.

it referred to her and 1500

it was published, that is communicated to a third party Once proven, the onus then shifted to the defendants to prove any of the defences:

justification or, in other words, the truth of the utterance. 1505

fair comment on a matter of public interest or

that it was made on a privileged occasion. FINDINGS OF THIS COURT [15] I have examined all-cause papers, the evidence at the trial, and the 1510 parties' respective submissions. Considering the totality of the evidence and my observations in paragraph [6] 6.6, and the parties' respective arguments in paragraphs [7] 7.1-7.4, [8] 8.1-8.7, and [9] 9.1-9.9 hereof, and in addition, it is my considered determination that: 1515 15.1 In line with the principles stated by the Federal Court in Tan Sri Dato Vincent Tan Chee Yioun v Haji Hasan Bin Hamzah & Ors (1995] 1 MLJ 39, it is for the Court to determine the question of law whether the P’s 1st-11th allegation of defamation was capable of conveying a defamatory meaning within the context that it was published and 1520 understood within that context: Sivananthan v Abdullah Bin Dato Abdul Rahman [1984] 1 MLJ 62, HC. WA-23CY-9-02/2019 46

15.2 In Field v Davis [1955] CLY 1543, cited in Makresinis & Deakin’s Tort Law, 8th Edition (Oxford University Press, 2019, p.639), the 1525 Court held that when the defendant called a married woman a tramp, it was not defamatory, because it was uttered by the defendant in a fit of temper and were understood by those around as being mere vulgar abuse. 1530 15.3 The Court of Appeal in Abu Hassan Hasbullah v Zukeri Ibrahim [2018] 3 CLJ 726, CA reiterated the basic principles that (1) is the impugned statement defamatory in nature, (2) does the impugned statement refer to the plaintiff, and (3) has the statement been published to third parties. It must be in the affirmative on all three. 1535 In construing the impugned statement, it is necessary to consider the actual words used and the context in which it was issued, whether it was libelous premised on the foregoing factual matrix of this case. Looking at the background and complete facts of the present case, I am unconvinced by the suggestive evidence of P. 1540 She produced speculations that did not fit the claim during the trial.

15.4 P’s difficulty establishing her case gets compounded when crucial evidential materials on the 1st-11th allegation of defamation In Part C were not admitted and marked as exhibits during the trial (IDP1- 1545 IDP4 and IDP6-IDP18, while some documents related to the claim in Part C are not even marked). They are excluded as a consequence. The burden lies on the P to appropriately conduct its case and ensure that the tendered documents are admitted as exhibits; in the present case, this was not done. 1550

15.5 It is trite that Part C documents (relating to the alleged defamatory postings herein) require their existence, authenticity, and contents to be proven. The procedure required for the admission of such documents evidently had not been complied with (amongst others, 1555 the failure to call the maker and to tender the originals), rendering the impugned evidential materials worthless for consideration in the present case. Without the P’s Part C documents, her claim has no lawful foundation to rest on. The allegation becomes unproven. 1560 15.6 In clearly failing to prove its claim, I would like to borrow what was said by the Court of Appeal in Selvaduray v Chinniah [1939] 1 MLJ 253, 254, CA that where the plaintiff fails to prove his case, it will not avail him to turn around and say that the defendant has not established his. The defendant can say it is wholly immaterial 1565 whether I prove my case or not. You have not proved yours. I would also like to reiterate what was said in Johara Bi bt. Abdul Kadir Marican v. Lawrence Lam Kwok Fou & Anor [1981] 1 MLJ 139, that it was all a matter of proof and that until and unless the plaintiff has discharged the onus to prove his case on a balance of 1570 probabilities, the burden did not shift to the defendant, no matter how unbelievable the defence might be. The claim against the defendant must, in these circumstances, be dismissed. The legal burden lies on the plaintiff throughout the proceedings to prove its case, in which case the plaintiff herein had failed: Yui Chin Song & 1575 Ors v Lee Ming Chai & Ors [2019] 6 MLJ 417. It is not for the Ds to establish their defence in such a circumstance: Selvaduray v Chinniah [1939] 1 MLJ 253. 1580 WA-23CY-9-02/2019 48 [16] In light of the foregoing:

16.1 Against D1 & D2: I agree with the counsel for D1 that the P has not successfully established the allegation of conspiracy to injure (D1 and D2). Mere conjectures, bare assertions, and sweeping and general allegations 1585 cannot meet the legal requirements to prove conspiracy. There is no material particularity in the pleadings. I cannot find compelling materials to sustain the accusations by the P. The standard of proof required is high and must be commensurate with the severity of the charge. 1590

16.2 In failing to provide compelling evidence that D1 is complicit with D2 in the posting of alleged defamatory materials by D1, the claim by P is rendered unsustainable. 1595 16.3 In addition, I find she has substantially proven the alleged postings to be true, and therefore, justification applies, which is a complete defence for defamation. P fails to refute the arguments by D1 successfully. 1600 16.4 Similarly with D2, though she is absent from this proceeding, with the exclusion of the crucial P’s Part C documents, the case against D2 will have a similar fate to D1. It cannot be established for want of cogent evidence. In such circumstances, it would be in error to record judgment in default against her when P’s claim cannot be 1605 established.

16.5 Against D3, D4, and D5: 1610 Fundamentally, it is my considered judgment that with the exclusion of the Part C documents relating to the alleged defamatory postings for statutory and procedural incompliance, as explained in the foregoing, there is no foundation for P's action herein. It will have no leg to stand on, rendering the P's arguments mere conjectures. To 1615 reiterate what was said earlier, the procedure required for the admission of such documents evidently had not been complied with (amongst others, the failure to call the maker and to tender the originals), rendering the impugned evidential materials worthless for consideration in the present case. 1620

16.6 I would also like to reiterate what was said in Johara Bi bt. Abdul Kadir Marican v. Lawrence Lam Kwok Fou & Anor [1981] 1 MLJ 139, that it was all a matter of proof and that until and unless the plaintiff has discharged the onus to prove his case on a balance of 1625 probabilities, the burden did not shift to the defendant, no matter how unbelievable the defence might be. The claim against the defendant must, in these circumstances, be dismissed. Similarly, the legal burden lies on the plaintiff throughout the proceedings to prove its case, in which case the plaintiff herein had failed. It is not 1630 for the Ds to establish their defence in such a circumstance: Selvaduray v Chinniah [1939] 1 MLJ 253. CONCLUSION [17] After considering the facts, all evidence adduced at the trial and the 1635 lack of it, and the parties' respective arguments:

17.1 I found no merits in the P's suit against the Ds.

17.2 I dismissed it against all Ds with a global cost of RM60,000.00 payable to D3, D4, and D5 within 60 days from the date hereof.

17.3 D1's Counterclaim: 1640 It is my considered judgment that I find for D1. As a medical practitioner/professional, the P owes a duty of care. There is sufficient evidence to conclude that the P had breached that duty. Therefore, in the circumstances, I am allowing the counterclaim:

Special damages of RM4,774.00, proven as follows: 1645 -RM3000.00 fillers – exh 38, -RM900, refund from P, -receipt M Clinic RM500 – exh D26, -receipts/costs from other clinics RM374 – exh D5, D28, D29, D30(A-E) and D43. 1650

Damages for pain and suffering are to be assessed.

Interest of 5% from the date of the action until full realisation.

A global cost of RM80,000.00 is ordered against P to be paid within 60 days from the date hereof. 1655 Dated 01.12.2023. 1660 HAYATUL AKMAL ABDUL AZIZ JUDGE HIGH COURT OF MALAYA KUALA LUMPUR 1665 WA-23CY-9-02/2019 51 Counsels: Ms. M.Kamalam together with Ms. Selva Barathy Messrs. Kamalam & Associates 1670 Counsels for the plaintiff Ms. Goh Hui Ring together with Ms. Danielle Heng See Xin Messrs. Goh Partnership Counsels for the first defendant. 1675 Mr. Chetan Jethwani Messrs. Chetan Jethwani & Company Counsel for the third, fourth and fifth defendant 1680