Datin Seri Tan Bee Geok v Dato Seri Thai Kim Sim (WA-23NCvC-31-04/2022)

This is an application by the Defendant pursuant to section 15 (1) and 15 (2) of the Courts of Judicature Act 1964 (Act 91) Order 34 Rule 1 (1) (b), Order 34 Rule 7, Order 38 Rule 1 Rules of Court 2012 and/or Order 92 Rule 4 Rules of Court 2012 and/or this Court’s inherent jurisdiction for the following Orders: 07/11/2025 18:31:49

There shall be no publication or reporting of any details in the media and/or social media relating to the proceedings, identities of the parties, details of the parties, identities of the witnesses and/or details of the witnesses without leave of Court.

The proceedings of this action be heard in camera to the exclusion of any member of the media, member of the public, journalist and/or any individual who is not directly taking part in the proceedings.

The recordings of the proceedings in camera shall only be transcribed by a transcriber who is subject to a strict non-disclosure and confidentiality agreement to not disclose any of the information pertaining to the proceedings to any individual unless with leave of this Court.

The transcript and the recording of the proceedings be treated as confidential information and only be given to the parties in the proceedings and/or their solicitors.

Save and except for the parties and their solicitors, all cause papers, affidavits and supporting documents filed in these proceedings shall be sealed and be made inaccessible to any third party save with leave of this Court.

Save where directed otherwise by this Court, all documents and/or papers in these proceedings shall be kept confidential and shall not be disclosed to, be accessible to and/or be made available to any person apart from this Court, the parties, the witnesses and/or parties’ solicitors who are directly taking part in these proceedings.

Costs of this application be made costs in the cause.

Nothing in the Order made shall affect any communication between parties and their solicitors.

Form 83 of the Rules of Court 2012 (the Penal Notice) be endorsed on the Order to be granted herein pursuant to Order 45 Rule 7 (4) of the Rules of Court 2012.

Parties be at liberty to apply. Grounds of this Application

The grounds in support of this Notice of Application (Encl. 176) as reflected in the Defendant’s Affidavits in Support affirmed by Dato’ Seri Thai Kim Sim filed are as follows:

The issues to be adjudicated vide these proceedings revolve around sensitive and private issues related to the familial and marital relationship of one of the Defendant’s key witnesses.

The legal action herein is not a litigation involving public interest. To the contrary, the familial relationship, dignity and the marriage of the Defendant take centre stage in the legal action herein. Therefore, there is no utility and it is not in the interest of justice that these delicate, private and personal matters to be adjudicated in public for public scrutiny.

In the course of the proceedings:

private and personal matters pertaining to the decency and/or chastity of the litigant(s) and/or witnesses are likely to be examined.

(ii) witnesses’ testimonies about their private, sensitive and/or intimate personal history/private lives are likely to be tendered and examined.

Witnesses may be subject to unnecessary embarrassment, ridicule and/or social stigma in the event the Orders prayed herein are not granted and the witnesses are required to testify about their private, sensitive and/or intimate personal history/private lives.

Witnesses may be deterred from testifying before this Court in the event the Orders prayed herein are not granted; if compelled to testify, there is a material risk that the witnesses may turn hostile and/or uncooperative, thereby depriving litigants of the right to fair trial and/or defeating interest of justice.

Parties and witnesses in these proceedings are/were of substantial social and/or commercial standing.

The Defendant is a prominent business figure, locally and internationally.

(ii) The Plaintiff (in Suit 22 and 23) claims to be a former national badminton player.

(iii) The witnesses in the proceedings are also notable members of the community, both locally and internationally.

A particular witness named in the Defendant’s List of Witnesses is a female who is about to marry her intended spouse and she is fearful to testify, given the risk that her testimony may be scandalised to sell news, which in turn may jeopardise her prospects of marriage.

Currently, there is already publicity on these proceedings through news reporting and social media. Chronology of proceedings

The relevant contemporaneous documents, proceedings and dates can be gleaned from the table below: No. Document Encl. No. Date 1 Amended Writ 30 5.12.2022 2 Amended Statement of Claim 31 7.12.2022 3 Amended Defence 121 3.5.2024 4 Grounds of Decision (Encl. 128) 151 31.5.2025 5 Notice of Application 176 11.7.2025 6 Certificate of Urgency 177 11.7.2025 7 Hearing of Application 176 19.9.2025

The cause papers filed pursuant to Encl. 176 are as follows:

Defendant’s Affidavit in Support of Dato’ Seri Thai Kim Sim filed on 11.7.2025 (Encl. 175), Affidavit in Support

filed on 22.7.2025 (Encl. 185) Affidavit in Support (3) filed on 23.7.2025 (Encl. 189); Reply Affidavit of filed on 5.8.2025 (Encl. 191) and Summary Submissions (Encl. 201).

Plaintiff’s Affidavit in Support of Datuk Wira Tan Bee Geok filed on 30.7.2025 (Encl. 190).

Defendant’s Written Submissions (Encl. 192), Reply Submissions (Encl. 196) and Bundle of Authorities (Encl. 193 and 197).

Plaintiff’s Written Submissions (Encl. 194), Reply Submissions (Encl. 198), Submissions Summary (Encl. 201) and Bundle of Authorities (Encl. 195 and 199).

The two other cases related to this action (Suit 31) are as follows:

Civil Suit No. WA-23NCvC-22-03/2022 (Suit 22) Lin Woon Fui v. Dato’ Seri Thai Kim Sim; and

Civil Suit No. WA-23NCvC-23-03/2022 (Suit 23) Lin Woon Fui v. Dato’ Seri Teh Chee Kien.

On 22.4.2025 (Encl. 151 Grounds of Decision), this Court makes the following orders:

Suit 31 is to be heard/tried separately from Suit 22; and

Suit 22 is to be heard/tried together with Suit 23.

Suit 31, Suit 22 and Suit 23 concern a similar cause of action and similar facts giving rise to the cause of action. Therefore, issues and matters to be tried are largely similar and the witnesses to be called for all the 3 suits are the same.

In view thereof, a similar application for Protective Order has been filed respectively in Suit 22 (Encl. 74), Suit 23 (Encl. 58) and Suit 31 (Encl. 176) by the Defendant.

The Court directed that the Oral Submissions and Reply Submissions on the even date to be articulated by the Defendant’s counsel (Tong Wei Hang) in respect of the following: No. Suit No. Encl. 1 31 176 2 22 74 3 23 58

Following that, the Plaintiff’s Counsel (S. Ravenesan) for Suit 31 and the Plaintiff’s Counsel for Suit 22 and Suit 23 (Tan Lee Kiat) made their respective submissions. Thereafter, upon hearing the submissions of the respective Counsel, the Court will make a considered decision in relations to the respective Notice of Application in this action and in Suits 22 and 23.

The Defendant submits that the Orders prayed for as follows:

To prevent information and/or details in Suit 31, including testimonies of witnesses and/or documents tendered before this Court during the adjudication of Suit 31 from being published; and

To allow the trial in Suit 31 to be conducted in camera and to the exclusion of parties/individuals who are not directly involved in the adjudication of Suit 31.

The Submissions of the Defendant are as follows:

The issues to be tried, matters to be proven and evidence to be tendered and/or examined at trial will be personal, familial and/or private. (para. 6.2 (a))

The issues to be tried, matters to be proven and evidence to be tendered and/or examined at trial are sensitive and intrusive into the parties and/or witnesses’ private lives and/or personal histories. (para. 6.2 (b))

An open trial will occasion irreparable prejudice to the interest of justice and right to fair trial. (para. 7)

The real risks of irreparable harm to the interest of justice; there is a real risk that the reporting of the details of the trial will be more rampant and the reports will become more sensational. (para. 8.11)

An open trial of Suit 31 will generate irreparable and unnecessary harm on economical interest. (para. 9)

The Plaintiff submits as follows: Dissimilarity of proceedings

that the nature of the claims and the cause of action in this action are substantially different with the Kuala Lumpur Divorce Petition No. WA-33-160-04/2024 between the Plaintiff and the Defendant. The present proceedings are distinct in nature and concern defamatory statements made against the Plaintiff. (paras. 6 & 7);

the present defamation suit involves the publication and malicious statements to third parties, raising issues of reputational harm, public perception and damage to the Plaintiff’s professional standing. The nature, subject matter and legal principles applicable to each proceeding are entirely distinct. (para. 11) Issues as to witness

Any concern or worries about reputational embarrassment for individuals and witnesses do not justify granting a protective order. (para. 15.1)

This case involves serious allegations made by the Defendant which have cause significant reputational harm and extended beyond private realm and the public status of the parties heightens the importance of transparency and the need for the proceedings to be conducted openly and fairly. (para. 15.2)

The suggestion that witnesses may be judged by the public is speculative and does not constitute sufficient reason to close or shield proceedings. Mere apprehension of negative perception is not a valid ground for confidentiality of the issuance of a protective order. (para.

15.6)

The present case raises issues of public interest, including the misuse of defamatory statements in personal and commercial disputes involving high profile individual. It is therefore all the more important that the proceedings remain open, so as to preserve public confidence in the justice system and ensure that justice is not only done but seen to be done. (para. 15.7) Public records

The cause papers filed in Court form part of the public records accessible by any member of the public. Once filed the affidavits are public documents and are said to be in the public domain. (Extreme System Sdn. Bhd. v. Ho Hup Construction Co. Bhd. & Ors. (No. 4) [2011] 10 CLJ 186 (para. 18 and 19)

The matrimonial proceedings and the action in this Court are premised on two separate causes of action and as such any orders made in the matrimonial proceedings do not bind the parties here even if the parties are identical. (para. 22)

The Defendant had not established despite the publications made, that the extensive media publicity concerning the nature of the proceedings against him would cause a real and substantial risk of serious prejudice to the trial. (para. 23) Improper use of protective order

The application for a protective order is not a bona fide attempt to protect the integrity or sanctity of these proceedings but rather a strategic effort to protect himself from the reputational consequences of his own conduct. (para. 28)

For ease of reference, Section 15 (1) CJA 1964 reads as follows: “(1) The place in which any Court is held for the purpose of trying any cause or matter, civil or criminal, shall be deemed an open and public court to which the public generally may have access: Provided that the Court shall have power to hear any cause or matter or any part thereof in camera if the Court is satisfied that it is expedient in the interests of justice, public safety, public security or propriety, or for other sufficient reason so to do.”

The High Court in the case of Affin Bank Bhd v. WT Low & Ng Realty Sdn Bhd [2003] 1 CLJ 674 at p. 681 outlined the Court’s inherent jurisdiction to order that the case be heard in camera where the interest of justice so require as follows: “Courts have in the past exercised its inherent jurisdictions in a wide variety of situations. Some examples are certainly apt to cite. Thus, under its inherent jurisdiction, the court may dismiss an action for want of prosecution where the action has been allowed to lie dormant for a long period exceeding even the relevant limitation period (Krakauer v. Katz [1954] 1 WLR 278; [1954] 1 All ER 244). The court too may dismiss an action by resorting to its inherent jurisdiction where the court is satisfied that by reason of prolonged or inordinate delay – which is inexcusable, the defendant has suffered or is likely to suffer prejudice or that it is no longer possible to have a fair trial between the parties (Allen v. Sir Alfred McAlpine & Sons Ltd. [1968] 2 QB 229, CA). Again, the court may, acting under its inherent jurisdiction and at any stage of the proceedings which may even extend to after judgment, proceed to:

vary; and

modify; its own order so that it could express correctly its own intention and meaning and thereby ensure that the ends of justice are not defeated (Thynne v. Thynne [1955] P. 272, CA; and Pearlman (Veneers) S.A. (Pty) v. Bernhard Bartels [1954] 1 WLR 1457). Again, under the umbrella of its inherent jurisdiction, the court may order that the case be heard in camera where the interest of justice so require (D. v. D. [1903] P. 144; and Scott v. Scott [1913] AC 417). Again, acting under its inherent jurisdiction, the court may decline to proceed with the proceedings where the parties are dead or non-existent (Tetlow v. Orela Ltd [1920] 2 Ch. 24; and Lazard Brothers & Co. v. Midland Bank Ltd. [1933] AC 296).”

In the case of Kingtime International Ltd & Anor v. Petrofac E&C Sdn Bhd [2020] 11 MLJ 141 at p. 155, the High Court outlined the Court’s inherent powers in granting a protective order as follows: “[20] […] (1) a protective order may be granted pursuant to the court’s inherent jurisdiction, court’s inherent power and/or O 92 r 4 of the RC. Such a power is necessary to ensure that confidential information is disclosed to the court to enable the court to decide justly the case at hand and at the same time, to preserve the confidentiality of the information in question. […]

Protective Orders have been granted in many jurisdictions such as Singapore, UK, Australia, United States of America and Canada. It will be an anomaly, if not an injustice, if our courts do not have the power to grant protective orders; and

in deciding to grant a protective order or otherwise:

the court should balance the following competing considerations:

public interest requires all relevant evidence to be disclosed to the court so as to enable the court to decide justly the case at hand;

(ii) the plaintiff’s right to apply for discovery of all relevant documents in support of the plaintiff’s claim; and

(iii) the need to protect the defendant’s proprietary interest in the confidential information in question; […]”

The High Court in the case of Toso Co Ltd v. Goodmeyer Curtain Accessories Supply Sdn Bhd [2025] 9 MLJ 379 at p. 386 decided on the legal position of the Court’s inherent power to grant Protective Order as follows: “[12] Our courts have acknowledged its inherent jurisdiction to grant such protective orders under O 92 r 4 of the Rules as outlined in the case of Kingtime International Ltd & Anor v Petrofac E&C Sdn Bhd [2020] 11 MLJ 141 (HC). In the said case, Wong Kian Kheong J (as His Lordship then was) relied on the Singapore High Court decision in BBW v BBX and Others [2016] SGHC 190; [2016] 5 SLR 755 (HC) wherein it was held that the court has an inherent power to grant sealing orders barring public access to court files and documents in appropriate cases. The primary purpose of this jurisdiction is to prevent injustice or an abuse of process. Protective and sealing orders are a vital tool to ensure that confidential information is disclosed in a controlled manner, minimizing any potential harm while facilitating the fair resolution of disputes.” “[14] According to the English case Warner-Lambert Co v Glaxo Laboratories Ltd, there is no universal or general formula to follow. Nonetheless, I believe the following two-pronged test established in the Supreme Court of Canada case, Sierra Club of Canada v Canada (Minister of Finance) [2002] 2 SCR 522 (SC), may serve as a guide for determining the applicable standard:

such an order is necessary in order to prevent a serious risk to an important interest, including a commercial interest, in the context of litigation because reasonably alternative measures will not prevent the risk; and

the salutary effects of the confidentiality order, including the effects on the right of civil litigants to a fair trial, outweigh its deleterious effects, including the effects on the right to free expression, which in this context includes the public interest in open and accessible court proceedings (‘the Sierra Club test’)”

The Court of Appeal in the case of Hong Yik Plastics (M) Sdn Bhd v. Ho Shen Lee (M) Sdn Bhd & Anor [2020] 1 MLJ 743 at p. 749 decided as follows: “[11] In both civil and criminal cases rights exist and are being adjudged. In each the same inherent and constitutional rights exist. In each the duty of the trial judge is the same. In each the parties are entitled to justice under law. Concomitant with this is the trial judge’s duty to determine and apply the law applicable to the facts found. To the lowest and humblest, to the weak, the poor, and to the strong, the same law applies. To be equally administered by a judge. However, justice does not exist in substantive law alone. Justice in the application of substantive law is dependent on the pre-existent fairness of the procedure; in other words, procedural due process in the trial of the cause. Procedural due process is not only for the parties, but, also, for the court itself. Only thereby can the court maintain its conscience and dignity. Only thereby can it appeal to, and justify the trust and confidence of the public. [12] Under our system of adversarial trials, the only participant impartially seeking the true facts and the applicable law is the trial judge. To achieve his purpose and objective in a just manner and with just results, the trial judge is under a duty to see that justice is done; by rendering to every person his due under the same law, equally, fairly, and impartially applied and administered, without bias, without prejudice, without passion, and irrespective of race, creed, economic or social status. In this connection, the duty of the trial judge extends to the preservation of the rights of litigants and a proper disposition of the matters in dispute. It is also the trial judge’s duty to, inter alia: protect witnesses from irrelevant, improper or insulting questions; allow them to be detained only so long as the interests of justice require; allow them to be examined only as to matters legal and pertaining to the issue; advise them of their right not to give an answer which will tend to incriminate them or one which will directly tend to degrade their character, unless it be the fact in issue or a fact from which the fact in issue would be presumed. [13] Accordingly, when the parties have finally arrived at trial, they are entitled to, and it is the trial judge’s duty to give them and to their cause, the calm and deliberate hearing, consideration, and study that the ideal of justice demands. A trial judge must treat lawyers, litigants and witnesses with respect and must refrain from comments that suggest that he has made up his mind in advance.”

The Plaintiff referred to the case of Lim Guan Eng v. Ruslan Kassim & Another Appeal [2021] 4 CLJ 155 at p. 193 where the Federal Court decided in relation to defamation proceedings as follows: “[101] Although the case law is compelling, I need to return to the question of why individual reputations are deserving of protection. To deal with this question, it is necessary to determine the more fundamental issue of the value of reputation and what really is being protected. In the early days, defamation law was only about the protection of individual reputations. The focus was on the falsity of the allegations resulting in dishonour to the intended target. It was a very serious matter. So, as it came to be recorded, King Alfred, more than a thousand years ago, provided that a slanderer should have his tongue cut out, unless he could redeem it with the price of his head. The honour of individuals was often adjudicated through duelling bouts (see VV Veeder, “The History and Theory of the Law of Defamation” (1903) 3 Columbia Law Review 546).” Was there abuse of the Court’s process

In the case of Jasa Keramat Sdn Bhd & Anor v. Monatech (M) Sdn Bhd [1999] 4 CLJ 533, the Court of Appeal succinctly decided as follows: “A fairly recent decision on the point is that of the English Court of Appeal in Gilham v. Browning & Anor [1998] 2 All ER 68. It was a case where the defendant's discontinuance of his counterclaim before the County Court was held to be an abuse of process. It was there held that whether in a particular case there was an abuse would be a question of fact and degree. Since the circumstances in which the court's process may be abused are varied and numerous, the categories of such cases are therefore not closed. Whether the institution of an action or its continuation or a step taken therein amounts to an abuse of process depends upon particular and individual circumstances. Where an action is found to be an abuse of the court's process, it may be struck out or stayed. If it is too late to do this, the party aggrieved may bring an action based upon the tort of abuse of process.”

The primary purpose of Court’s jurisdiction under O. 92 r. 4 ROC 2012 is to prevent injustice or an abuse of process. The Court’s duty in dealing with this application of protective and sealing orders is to ensure that confidential information is disclosed in a controlled manner and minimizing any potential harm while facilitating the fair resolution of disputes.

In this respect, the Court shall have regard to the interest of justice in preserving the integrity of the trial and to ensure the process of Court is not being abused.

The matters raised in this suit are issues regarding the publication of the defamatory statements and whether those statements are defamatory are questions to be decided by the Court.

The Divorce Petition involves the dissolution of the parties’ marriage and ancillary reliefs and in contrast this action is premised on defamation remedies and public interest outside the remit of matrimonial jurisdiction. The gravamen of the claim is the alleged reputational harm arising from the publication of serious allegations to third parties is beyond the family sphere.

The Court is inclined to agree with the Reply Submissions (para.

3.7) of the Defendant that the application herein if disallowed, the impact and/or prejudice which the High Court’s attempt to avoid through the Protective Order in the Divorce Petition will materialise through this suit given that the matters will be adjudicated openly in this suit.

The Court is of the considered view that the matters to be tried and/or evidence which will be presented during the trial in this suit and the Divorce Petition may overlap to a certain extend. The matters are personal, sensitive and/or familial in nature involving spousal loyalty, sanctity or familial and/or marital institution and/or personal history amongst the parties and/or witnesses. The duty of the trial judge extends to the preservation of the rights of litigants and a proper disposition of the matters in dispute. (see Hong Yik Plastic (supra)).

From the contemporaneous documents, the Amended Statement of Claim (Encl. 31) and Amended Defence (Encl. 121) there are allegations regarding reputational harm which extended beyond the private realm.

The Court is empowered to exercise its power under section 15

proviso of the CJA where the Court shall have the power to hear any cause or matter or any part thereof in camera if the Court is satisfied that it is expedient in the interests of justice, public safety, public security or propriety or for other sufficient reason so to do.

The action in this Court to be tried involves the familial relationship, dignity and the marriage of the Defendant and the Plaintiff and therefore the Court finds that it is not in the interest of justice that these delicate, private and personal matters to be dealt with in an open Court.

Needless to say, in the circumstances of this case, an open trial will only occasion irreparable prejudice to the interest of justice and the right to a fair trial. In this regard, the parties shall be accorded reasonable opportunity to present their respective case in Court without substantial disadvantage via a vis the other. Judicial Notice of media reports preceding trial

The High Court took judicial notice of the existence of certain news reporting as reflected in the case of Shantini Pillay a/p Narayanasamy Pillay v. Kanna Dasan a/l Narianasamy [2018] MLJU 1199 and Heineken Asia Pacific Pte. Ltd v. Super La Via Sdn. Bhd. [2019] 9 MLJ 572.

The media coverage is wide ranging as exhibited in the Defendant’s affidavit in Encl. 175 Exhibit TKS-1 and Encl. Exhibit TKS-2. These publications are cogent evidence that this suit attracts the attention of the media where these publications are available online and can be accessed globally. The Court in the case of Masyitah bt Md. Hassan v. Sakinah bt Sulong [2021] 7 MLJ 144 took judicial notice of breakneck speed that online news is susceptible to spreading, as this was a sufficiently notorious fact that the court could not ignore. The publications may lead to public or social judgment about the parties preceding the trial which fortified the granting of the Protective Order in the best interest of the parties. The Court is therefore mindful that a balance has to be struck between the interest of the Defendant and also in the interest of the Plaintiff.

Consequently, I find that the extensive publications and media publicity concerning the nature of the proceedings against the Defendant preceding the trial would cause a real and substantial risk of serious prejudice to this trial. Summary of Court’s Analysis.

The Court makes the following findings:

The matters in this suit to be tied are private, personal and familial;

An open trial will occasion irreparable prejudice to the interest of justice and right to fair trial; and

An open trial will also generate irreparable and unnecessary harm on economical interest.

In the circumstances, the Court makes the following orders as below:

There shall be no publication or reporting of any details in the media and/or social media relating to the proceedings, identities and/or details of the parties and witnesses in this suit without leave of Court.

The proceedings of this suit shall be heard in camera to the exclusion of any member of the media and/or any individual who is not directly parties in the proceedings.

The recording and the transcript of the proceedings shall be treated as confidential information and only be given to the parties in the suit and/or their solicitors.

Save and except for the parties in this suit and their solicitors, all cause papers, affidavits and supporting documents including the Notes of Proceedings filed electronically in the Case Management System shall be sealed and be made inaccessible to any third party save with leave of this Court.

Costs of this application is costs in the cause.

Nothing in the Order made shall affect any communication between parties and their solicitors.

Form 83 of the Rules of Court 2012 (the Penal Notice) be endorsed on the Order granted herein pursuant to Order 45 Rule 7 (4) of the Rules of Court 2012.

Parties be at liberty to apply.

Based on the aforesaid reasons, the Defendant’s application in Encl. 176 (based on paragraph 35 above) is hereby allowed. Dated: 31 October 2025 Sgd ………………………………………….. (EDDIE YEO SOON CHYE) Judicial Commissioner High Court of Malaya Kuala Lumpur Counsel for the Plaintiff: S. Ravenesan, Mohammad Danial bin Hazizan & Dhrrithi Patel. Messrs. S Ravenesan Kuala Lumpur Counsel for the Defendant: Rajasingham Gothandapani, Tong Wei Hang and Ong Tze Xian Messrs. Shearn Delamore & Co. Kuala Lumpur