Gan Pei Ling v Yong Mee Lee (BA-12B-109-10/2024)

YONG MEE LEE

(No. K/P: 821129-08-5059) [Menuntut sebagai Pegawai Awam Persatuan Kebajikan Inspirasi Kemanusiaan (Story of Seed) (No. Pendaftaran: PPM-016-10-251102016) bagi dan untuk pihaknya]

AUDREY YEOH CHENG GIN

(NO. K/P: 821129-08-5059) …RESPONDEN-RESPONDEN [Dalam Perkara Guaman Sivil No.: BA-B53F-4-02/2020 Dalam Mahkamah Sesyen di Shah Alam

YONG MEE LEE

(No. K/P: 821129-08-5059) [Menuntut sebagai Pegawai Awam Persatuan Kebajikan Inspirasi Kemanusiaan (Story of Seed) (No. Pendaftaran: PPM-016-10-251102016) bagi dan untuk pihaknya] …PLAINTIF-PLAINTIF …DEFENDAN Disatukan Dengan Guaman Sivil No.: BA-B53F-15-08/2019 Dalam Mahkamah Sesyen di Shah Alam

AUDREY YEOH CHENG GIN

(NO. K/P: 821129-08-5059) …PLAINTIF-PLAINTIF …DEFENDAN] GROUNDS OF JUDGMENT Introduction [1] This appeal originated from two consolidated suits at the Sessions Court by the Respondents who were 2 sets of Plaintiffs in No. BA-B53F- 4-02/2020 (“Suit 4”) and Suit No. BA-B53F-15-08/2019 (“Suit 15”) respectively. The Plaintiffs had claimed that the Appellant/Defendant defamed them in the same series of Facebook posts. [2] As a brief procedural background, Suits 4 and 15 were tried before the Sessions Court Judge who allowed the Plaintiffs’ claims on 31-10- 2022, gave various injunctive relief and ordered the Defendant to pay RM50,000.00 as general damages, RM50,000.00 as aggravated damages and RM50,000.00 as exemplary damages with costs of RM20,000.00 to the Plaintiffs. [3] On the Defendant’s appeal to the High Court, the Judgment of the Sessions Court was set aside on 20-7-2023. The High Court decided certain issues on that appeal, namely:

that the claim by the 2nd Plaintiff in Suit 4 (namely the Society, sued through its officer) was dismissed with costs;

no exemplary damages may be awarded and remitted the case to the Sessions Court for reconsideration based on the following instructions:

On the pleaded defamatory meanings/imputations were defamatory The test of whether or not the published words are defamatory is the test of a hypothetical reasonable man

On the defence of justification For a defence of justification to succeed, the Defendant only need to prove the truth of main sting of the libel or gist of the libel as pleaded by the Plaintiff, rather than the exact words used. If the sting of the libel is justified, then immaterial allegations cannot be grounds for finding against the

On the defence of qualified privilege The trial judge is to reconsider and analyse the evidence before coming to a decision whether on facts the Defendant was entitled to succeed on the defence of qualified privilege

On whether aggravated damages were correctly awarded The trial judge is to reconsider the evidence and make factual findings in accordance with the correct legal principles on aggravated damages before coming to a decision whether or not aggravated damages should be awarded over and above the general damages here [4] Based on the instructions, it may be inferred that the pleaded defence of fair comment had been rejected by the High Court. There was no appeal to the Court of Appeal against that earlier High Court decision. Preliminary issue [5] On 30-09-2024, the Sessions Court Judge gave a fresh Judgment that excluded the award of exemplary damages, but was otherwise identical to the Judgment given on 31-10-2022. The Sessions Court Judge declined to re-consider the matter, reiterated her findings and orders of 31-10-2022 and regarded the Court to be functus officio. [6] A re-trial was not ordered when the case was remitted by the High Court for re-consideration by the Sessions Court with its audio-visual advantage intact having tried the case. However, the Sessions Court Judge was clearly wrong to rule that the Court was functus officio. Both counsels agreed that this appeal should now be decided based on the records of appeal. [7] There was also a helpful concession by counsel at the hearing of the appeal that the impugned Facebook posts were capable of bearing the imputations assigned to them as pleaded, by their natural and ordinary meaning or by way of innuendo (collectively, “Imputations”): Suit 4 (Natural and ordinary meaning) (Innuendo) Suit 15 [8] As set out above, P1 in Suit 4 refers to the 1st Respondent who was the 1st Plaintiff in Suit 4. P1 and P2 in Suit 15 refer to the 3rd and 4th Respondents who were the 1st and 2nd Plaintiffs in Suit 15. In this Judgment, it is convenient to refer to the 3 Respondents by name, i.e. Jojo Yong, Audrey Yeoh and Kon Ting Fei respectively and to the Appellant as GPL. GPC refers to Gan Pei Chi, the younger sister of GPL. [9] Jojo Yong, Kon Ting Fei, GPC and GPL were all at some point in time, office bearers of a registered society known as Story of Seed (“SOS”). SOS was registered in 2016 with the assistance of GPL. The name of the society has been used in some charity animal welfare work, but no evidence was led of any AGM held or accounts filed, and indeed only a bare framework of a constitution was lodged. [10] GPL contended that SOS is a front for a cult led by Jojo Yong. Analysis and Findings [11] The pleaded Imputations were derived from the Defendant’s impugned Facebook posts dated between 6-6-2019 to 23-1-2020. In the first of these posts, the Defendant identified the Plaintiffs in both suits by name and captioned photographs. [12] The main sting of the Imputations is that they are part of a cult. The remaining Imputations were consequential in that they set out actions undertaken as part of the alleged cult, or the characteristics of the individuals in the cult, all of which were decidedly negative in connotation. [13] The generally accepted textbook definition of what is defamatory can be taken from Gatley on Libel and Slander as cited in Syed Husin Ali v Sharikat Penchetakan Utusan Melayu Berhad & Anor [1973] 2 MLJ 56 (“Syed Husin”): “There is no wholly satisfactory definition of a defamatory imputation. Any imputation which may tend ‘to lower the plaintiff in the estimation of right thinking members of society generally’, ‘to cut him off from society’ or ‘to expose him to hatred, contempt or ridicule’, is defamatory of him. An imputation may be defamatory whether or not it is believed by those to whom it is published.” [14] The proper approach to determine if the words complained of are capable of bearing a defamatory meaning is as explained in Tun Datuk Patinggi Haji Abdul Rahman Ya’kub v Bre Sdn Bhd & Ors [1996] 1 MLJ 393: “…to consider the meaning such words would convey to ordinary reasonable persons using their general knowledge and common sense; it is not confined to strict literal meaning of the words but extends to any references or implication from which persons can reasonably draw.” [15] The test for whether a statement is defamatory is thus an objective one, independent on the subjective state of mind of the author or the specific audience to whom it was published. The Federal Court held in Lim Guan Eng v Ruslan Kassim & Another Appeal [2021] 4 CLJ 155 held as follows: “[29] The defamatory nature of the imputation is to be judged by the ordinary and reasonable members of the community or an appreciable and reputable section of the community (see Jones v. Skelton [1963] 3 All ER 952; Peak v. Tribune Co [1909] 214 US 185; Hepburn v. TCN Channel Nine Pty [1983] 2 NSWLR 682). The ordinary person has been held to be one of fair average intelligence (see Slayter v. Daily Telegraph Newspaper Co Ltd [1908] 6 CLR 1, who is not avid for scandal (see Lewis v. Daily Telegraph Ltd [1964] AC 234) but who may engage in some degree of loose thinking (see Morgan v. Odhams Press Ltd [1971] 2 All ER 1156) and reading between the lines (see Farquhar v. Bottom [1980] 2 NSWLR 374), but who, at the same time, should not be unduly suspicious (see Keogh v. Incorporated Dental Hospital of Ireland [1910] 2 Ir R 577)”. [16] Further, the offending words must be considered in the context of the whole article and not simply on isolated passages. Per Gatley on Libel & Slander, 12th edn, at para 3.31: “It follows from the fact that the context and circumstances of the publication must be taken into account, that the claimant cannot pick and choose parts of the publication which, standing alone, would be defamatory. This or that sentence may be considered defamatory, but there may be other passages which take away the sting. In this regard, the reasonable reader is assumed to have read the whole article complained of. If "in one part of the publication something disreputable to the plaintiff is stated, but that is removed by the conclusion, the bane and the antidote must be taken together".” [17] In this case, there is no universal definition of a cult, but there are commonly recurring characteristics associated with a cult, namely a relatively small group of people having beliefs or practices, especially relating to religion, that are regarded as deviant with excessive control over members, estrangement from family and friends and some level of exploitation. [18] Based on the objective legal tests for what is defamatory, this Court has no difficulty finding that the Imputations are indeed defamatory. Any association with a cult is pejorative and would tend to lower the plaintiffs in the estimation of right-thinking members of society generally, to cut them off from society or expose them to hatred, contempt or ridicule. [19] The principal issues for determination in this appeal are therefore the rejected defences i.e.:

Whether the defamatory Imputations are true in substance

Whether the impugned Facebook Posts were occasions of qualified privilege and if so, whether their publication was actuated by malice

If neither defence is proved, whether the case warranted award of RM50,000.00 in aggravated damages Defence of Justification [20] The main plank of the defence case is that of justification. The burden to prove the truth of the Imputations is on the Defendant. The Sessions Court in its original grounds of Judgment had found as follows: Unfortunately, there was no reasoning or evaluation of the evidence to arrive at the conclusion that GPL failed to prove the Imputations to be true in substance. [21] At common law, it is well established from cases like Chase v News Group Newspapers [2002] EWCA Civ 1772, that in a defamation claim, the party who pleads justification is only required to establish the ‘essential’ or ‘substantial’ truth of the impugned publication – that is, the sting of the libel claimed. [22] The above is set out in section 8 of the Defamation Act 1957 which provides as follows: “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 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.” [23] The primary question therefore is whether it is in substance true that Jojo Yong, Audrey Yeoh and Kon Ting Fei are part of a cult. [24] In Singapore, the Court of Appeal had the opportunity to consider a similar case of defamation in Chen Cheng & Anor v Central Christian Church and other appeals [1999] 1 SLR 94 (“Central Christian Church”). The plaintiffs there were referred to in a number of publications as cults and cult leaders. The approach of the Court of Appeal was as follows: “[32] Reverting to the facts here, what we need to do is to examine them and consider whether on those facts the defendants have justified the meaning of the word `cult' as defined by us. Looking at the facts as proved we find that all that has been established is this. CCC are a very religious group - indeed extremely religious - making very heavy demands on their members in terms of time and commitments, and through the system of discipleship retain a firm hold on or control over their members, jealously guarding them against any outside influence. As a result of the heavy commitments, the members would inevitably be isolated from their families, relatives and friends. CCC carry out very intensive recruitment exercises at every turn with their members evangelizing, making contact with people, inviting them to join their church and seeking to convert them. They are somewhat bigoted in their beliefs and doctrines, and consider that their church is the only true one and their way is the only way to salvation. For that reason they refuse to recognize baptism conducted by other churches, except those churches within their own group. We find that none of their teachings and practices could or would be considered by the ordinary man in Singapore as abhorrent or harmful to society. The ordinary man may find that some of their teachings and practices rather disagreeable and would probably not commend them to anyone but would not consider that they are abhorrent or harmful to society. In our judgment, the defendants have failed in the defence of justification.” [25] In this case, GPL pleaded and sought to prove that Jojo Yong was in truth practicing what would be understood by the ordinary reasonable person to be cultism based on the following facts:

Used false or unverifiable statements regarding her spiritual powers to persuade people into becoming her students

Coached her followers to practice her way of spiritual meditation purportedly to protect themselves and their family from the harm of “dark beings”

Organized retreats and charged “energy fee” allegedly because the world is shrouded by “dark beings”

Exerted dominance and influence, was revered and expected selfless contribution from her students

Caused and celebrated the breakdown in relationship between followers and their family

Took offence at and expelled those who questioned her; acting in concert with her followers to harass with acts of intimidation and threats [26] Unlike the recognizable religious fervour of members in Central Christian Church which the Singapore Court of Appeal found to be practices which were not abhorrent or harmful to society and therefore not characteristic of a cult, this Court finds that the same cannot be said of the beliefs and teachings attributed to Jojo Yong and the alleged actions of Audrey Yeoh and Kon Ting Fei in response to GPL’s criticisms. [27] In reviewing the volumes of documentary evidence and transcripts from the trial of this case, it is the view of this Court that the trial Judge had failed to derive proper benefit from the undoubted advantage of seeing and hearing witnesses at the trial, and in reaching her conclusion, has not properly analysed the entirety of the evidence which was given before her. I refer to Choo Kok Beng v Choo Kok Hoe & Anor [1984] 2 MLJ 165b and the following observation of the Privy Council: “Their Lordships respectfully agree with the Court of Appeal that the findings favourable to the appellant were arrived at “without an adequate scrutiny and consideration of all the evidence before him”. Their Lordships are well aware, as no doubt were the Court of Appeal, of the limited circumstances in which it is open to an appellate court to reverse the findings of a trial judge based on credibility of the witnesses who have given evidence at the trial. But when a trial judge has so manifestly failed to derive proper benefit from the undoubted advantage of seeing and hearing witnesses at the trial and, in reaching his conclusion, has not properly analysed the entirety of the evidence which was given before him, it is the plain duty of an appellate court to intervene and correct the error lest otherwise that error result in serious injustice.” [28] On the facts, Jojo Yong had broken away from another group led by one Cordelia Lee and Kon Ket Sing and assumed the position of a spiritual teacher. There was a preponderance of evidence that tended to show that Jojo Yong was engaged in spiritual practices involving meditation, chanting, “energy protection and healing” and “sip tai sui,” which of itself, are not deviant or harmful. However, her spiritual practices were embellished with a belief in and pervasive references to what are termed “dark beings,” “fallen angels” and “galactics.” [29] It may be inferred that the references to “dark beings” and “fallen angels” instilled fear in those who are supposedly tainted or shrouded by such entities. The references were not only attributed to Jojo Yong by GPL who testified that Jojo Yong frequently accused her of being tainted by dark beings due to her character flaws, but recur in the available evidence that emanated from Jojo Yong herself. Some examples: Cross examination of Jojo Yong E-mails about “sip tai sui” 8-2-2015 at 02:02, Cordelia & Ket <cordyket@gmail.com> wrote: “Hi everybody, It’s the time of the year again when we offer Sip Tai Sui (STS) services. … This year onwards, Cordelia will hand over STS duties to Jojo. And I’ll probably be assisting her.” *********** 1-9-2015 at 17:05, GPL <peilinggan@gmail.com> replied to Jojo Yong with a translation of a STS report: ********** 12-3-2017 at 11:01, Jojo Yong <jojoyong218@gmail.com> wrote in what appears to be promotional material for STS services by Jojo Yong “Jojo Yong, who is a medium will perform the STS service this year. She performed STS last year for about 200 people…..” Jojo Yong introduced advanced level STS services as follows: [30] Thus, while it is true that activities involving meditation, chanting and sip tai sui are found in conventional religions and cultural practices, the cultish elements of the brand of spiritual teaching by Jojo Yong are present in the repeated and insidious references to “dark beings,” “fallen angels” and “galactics,” and the apparently harmful effects of her teachings. By this I mean the evidence of altered behavior and break up of relationships. [31] There was first hand evidence of the altered behavior of GPL when she was following Jojo Yong. DW-1 (Sheridan Mahavera Mohamad Shakir) was GPL’s ex-boyfriend who was a documentary maker that followed the group on a trip to document their animal welfare work. He testified that the followers were awoken to chant in the middle of the night during “spiritual emergencies.” [32] DW-2 (Gan Kim Pho) who is the father of GPL and GPC, also testified to the altered behavior of GPL and GPC when they were connected to Jojo Yong and the society: … [33] The twist of events referred to by DW-2 was the subsequent estrangement of GPC from her family and her eventual move to live with Jojo Yong and what was described as retaliation against GPL for questioning Jojo Yong. While GPL left Jojo Yong in December 2017, GPC lived with Jojo Yong from end 2017 to end 2020. As at the dates of the trial, she had not returned to the family fold. [34] The evidence of GPC’s radically transformed behavior towards her family was in full evidence, particularly her Facebook condemnation of GPL and her parents. There was none of the common reasons for falling out between family members in evidence as the truth of any of the allegations by GPC about GPL remained hearsay and inadmissible because GPC did not give evidence at the trial. [35] Hearsay is inadmissible to prove the truth of what was said, but may be admissible as evidence of the fact that GPC said what was exhibited in her statements and videos. These documents were admitted into evidence as Part B documents and it would appear that GPC was convinced that GPL was surrounded by “dark beings.” [36] The Gan family tried with the help of the police, to persuade GPC to return on more than one occasion. Jojo Yong, Audrey Yeoh and others were always close by. According to GPL, GPC also left her job in Ipoh and was not contactable. The estrangement developed into a rage by GPC against GPL and her family for what was perceived as their attacks on Jojo Yong. [37] After Suit 15 was filed on 2.8.2019, between 12.8.2019 and 31.1.2020, GPC posted over 56 hate-filled statements and videos on her Facebook page and announced that she was cutting ties with the family. There was also an escalation of harassing emails from Audrey Yeoh, Kon Ting Fei and other followers of Jojo Yong between 15-6-2018 and 16-6- 2018, 11-3-2019 and 12-3-2019. They came in a barrage of hundreds of messages with a common theme i.e. referring to GPL as “Karma Ling” and suggesting that karma would punish her. [38] The inference is compelling that the assault of 607 disturbing emails that GPL received from the anonymous email accounts xokarmaling@gmail.com and karmaling@yahoo.com between 12.3.2019 and 14.3.2019 were also sent by the same group of Jojo Yong’s followers. These emails contained even more disturbing content including grotesque and demonic images meant to shock and scare the recipient. [39] For context, this Court noted that the admissibility of certain documents were disputed by the Plaintiffs:

Telegram messages between Jojo Yong and GPL and scholarly articles on cults on the internet – sought to be admitted via s90A Evidence Act 1950 (“EA”) GPL sought to adduce the Telegram messages as computer evidence via a certificate as the messages were screenshots printed from her iPhone, a computer. She explained that she had reinstalled the Telegram app and lost all the messages on the said iPhone. This Court finds that the documents ought to have been admissible as there was no impeachment of the certificate under s90A of the EA which contain the only requirements for the admissibility of computer evidence.

Emails between Kon Ket Sing and the Plaintiffs and letters from Kon Ket Sing’s solicitors – sought to be admitted via s73A of the EA Judicial discretion to admit such documents is available under s73A(2) of the EA where the maker is not called nor originals produced if the Court, “having regard to all circumstances of the case, is satisfied that undue delay or expense would otherwise be caused”. In this case, there was satisfactory evidence of genuine unsuccessful attempts to serve a subpoena on Kon Ket Sing. This Court finds that the documents ought to have been admitted. [40] The probative value of the documents may be diminished by the absence of the maker for cross examination, but the avenues for the admission of relevant evidence which do not indicate forgery or fabrication should have been utilised by the Sessions Court Judge. [41] In respect of some of the documents which were excluded by the Sessions Court, they contained evidence relevant and material to the matters in contention, namely the dynamics between Jojo Yong and GPL and the similar patterns of behavior towards Kon Ting Fei’s cousin, Kon Ket Sing by the same group of people. Kon Ket Sing and Cordelia Lee were as mentioned, the leaders of the group that Jojo Yong had broken away from. [42] It is therefore the view of this Court that in the light of the preponderance of evidence adduced, the onus of proof had shifted in the course of the trial to Jojo Yong, Audrey Yeoh and Kon Ting Fei to respond substantively. [43] As explained in International Times & Ors v Leong Ho Yuen [1980] 1 MLJ 86, while the burden of proving justification remained with GPL throughout the trial, the onus of proof was constantly shifting depending on the weight of the evidence adduced: “The onus as opposed to burden is not stable and constantly shifts during the trial from one side to the other according to the scale of evidence and other preponderates. Such shifting is one continuous process in the evaluation of evidence. According to sections 102 and 103 of the Evidence Act, if the party with whom this onus lies whether initially or subsequently as a result of its shifting does not give any or further evidence or gives evidence which is not sufficient, such party must fail.” [44] This Court struggled to find any reasonable explanation in their testimonies for Jojo Yong’s spiritual teachings, for not counselling GPC to reconcile with her family and for the disturbing barrage of emails from Audrey Yeoh and Kon Ting Fei to GPL. It was also the impression of the Court from reviewing the transcripts of the proceedings that they came across as evasive and untruthful. The following are examples:

There were several notable denials by Jojo Yong that contradicted the documented evidence e.g. that she was a spiritual teacher to GPL and that she performed STS readings, as earlier mentioned.

Audrey Yeoh feigned a detachment from GPC, claiming not to know her personally and never being involved in her family or personal life, despite having been present in each of the recorded encounters with GPC’s family.

Audrey Yeoh when questioned about her barrage of emails to GPL, responded simply that they are false allegations despite the clear documentary evidence and made no attempt to explain herself.

Kon Ting Fei also refused to give a straight answer to any question posed about his barrage of emails to GPL and the material in evidence with which he would have been familiar concerning his quarrel with his cousin Kon Ket Sing and Cordelia Lee. [45] The most material evidence that was missing from the trial was the testimony of GPC. This Court considers that the circumstances warranted the invoking of section 114(g) of the EA against Jojo Yong, Audrey Yeoh and Kon Ting Fei for their failure to call GPC to testify. [46] As a final observation on the evidence, it seemed the Gans were not the only family that experienced the estrangement of a family member following from their contact with Jojo Yong. There was also evidence concerning Jojo Yong’s excommunication of students other than GPL (Heong, Shan and Jonathan) for alleged failures to conform to her teachings, Whatsapp messages with a relative of another follower (Diana Ooi) expressing concern over Diana’s neglect of children and affected relationships because of her pre-occupation with Jojo Yong’s teaching and the isolated and subservient life of another former student who lived with Jojo Yong (Jamie). [47] Considering the totality of the evidence, the Sessions Court ought to have found that GPL had proven on the balance of probabilities, that the defamatory Imputations in Suit 4 [Natural meaning (a)-(d), (g)-(i), (k),

(o), (p) and innuendo (k)-(l)] and Suit 15 [(a), (e) and (f)] are substantially true. Conclusions [48] As justification is a total defence, this Court sees no necessity to delve into the other issues canvassed in these appeals. For the reasons set out, the appeals are allowed with costs of RM25,000.00 here and below and the Judgment of the Sessions Court is set aside. Bertarikh : 10 Mac 2025 SGD ELAINE YAP CHIN GAIK PESURUHJAYA KEHAKIMAN MAHKAMAH TINGGI MALAYA SHAH ALAM Peguam Untuk Perayu: K Shamugan (bersama Kee Hui Yee), Tetuan Kanesalingam & Co. Untuk Responden-Responden: Teh Lei King (bersama Lee Chee Yang), Tetuan Desmond