Ling Yexiang v Lyc Mother & Child Centre Sdn Bhd (BA-12BCY-8-11/2024)

This is an appeal by Ling Yexiang, the defendant in the Sessions Court, against the decision of that court on 1 November 2024 following a full trial.

The parties will be referred to as they were in the lower court.

The Sessions Court provided no grounds of judgment as the trial judge had retired.

I wish to express the Court’s appreciation to the team of learned counsel for both the plaintiff and the defendants, who have provided assistance through their written and oral submissions, especially in the absence of the grounds of judgment by the trial judge.

The cause of action brought by the plaintiff against the defendant is based on the tort of defamation.

The Sessions Court had allowed the plaintiff’s claim as follows – a) Defendan dikehendaki membayar Gantirugi Am sejumlah sebanyak RM500,000.00 (Ringgit Malaysia Lima Ratus Ribu Sahaja) dan Gantirugi Teruk sejumlah sebanyak RM50,000.00 (Ringgit Malaysia Lima Puluh Ribu Sahaja) kepada Plaintif; b) Suatu injunksi terhadap Defendan daripada menyiarkan atau mengepos sebarang Kenyataan Bersifat Fitnah, pengeposan, komen atau perkataan yang memberi kesan serupa dengan Kenyataan Bersifat Fitnah tersebut di Lembaran akaun Facebooknya, sebarang lembaran akaun Facebook awam, sebarang forum online, Google Review atau penerbitan lain dalam apa jua cara sama sekali terhadap Plaintif; c) Defendan dikehendaki mengeluarkan dan memadam Kenyataan Bersifat Fitnah tersebut serta merta, termasuk penyiaran, komen atau perkataan yang membawa kesan yang serupa dengan Kenyataan Bersifat Fitnah tersebut daripada Lembaran akaun Facebooknya dan penerbitan lain dalam apa jua cara sama sekali yang diakibatkan olehnya terhadap Plaintif; d) Defendan dikehendaki menerbit dan/atau diakibatkan untuk menerbit dalam cara yang menonjol, suatu penarikan balik awam dan pemohonan maaf yang jelas kepada Plaintif dalam terma yang diluluskan oleh Plaintif di Lembaran akaun Facebook Defendan, forum awam Facebook dan di dua (2) suratkhabar kebangsaan dalam Bahasa Inggeris dan Cina pilihan Plaintif pada tarikh, saiz, dan mukasurat yang dikehendaki oleh Plaintif; e) Defendan dikehendaki membayar kos sejumlah sebanyak RM40,000.00 (Ringgit Malaysia Empat Puluh Ribu Sahaja) kepada Plaintif; dan f) Faedah pada kadar 5% setahun atas semua awad yang diberikan oleh Mahkamah yang Mulia ini dari tarikh penghakiman sehingga keseluruhan jumlah tersebut dan faedah dibayar oleh Defendan kepada Plaintif.

The plaintiff is a subsidiary of LYC Healthcare Berhad and operates a confinement centre.

The defendant is Thien Seea Vuen's husband (Thien). Thien was a customer of the plaintiff who stayed at the plaintiff’s centre for 28 days under the confinement package from 15 December 2020 to 11 January 2021 following her delivery.

The defendant has a Facebook account under the name Darl Ling with 2,600 followers.

The defendant alleged that on 8 January 2021, his wife suffered food poisoning after consuming food prepared at the plaintiff’s centre on 7 January 2021. He brought his wife to KMI Desa Medical Centre, where it was revealed that his wife had been infected with typhoid and/or food poisoning. His wife was admitted to Sunway Velocity Hospital for treatment. Thereafter, his wife did not return to the confinement centre.

The defendant wrote an email to the plaintiff on 9 January 2021. The plaintiff conducted an investigation that included sending a food sample to the test lab, and the result was negative. On 19 January 2021, the plaintiff’s Operations Manager responded to the defendant’s complaint. The plaintiff also informed the defendant of the result and stated that no complaints were received from the other 15 mothers in the same centre who had the same food as the defendant’s wife.

The defendant, via his Facebook account at URL https://www.facebook.com/ling.yexiang, posted and published statements that the plaintiff alleges to be defamatory as follows –

The above statement was allegedly published on the Malaysian Blacklisted Confinement Centre Facebook Public Forum by the defendant on 25 July 2021. On the same day, it was also republished by the Malaysian Confinement Centre.

The plaintiff then produced three additional statements, which were allegedly defamatory, during the trial, which are - i. Statement published on the Knewbii website dated 26.7.2021. ii. Review allegedly published by the defendant; and iii. Facebook comment allegedly made by the defendant.

The plaintiff contends that the defendant has falsely and maliciously published the defamatory statements. This has led to many malicious comments attacking the plaintiff.

According to the plaintiff, the publication of the defendant’s statement on social media targeted the plaintiff and adversely affected the plaintiff’s business.

The defendant did not offer an apology, despite demands, and the contested statement remains unpublished on social media.

There are two main points submitted by the learned counsel for the defendant. The defendant’s submission for the first point is summarised as follows: a) The first and second alleged statements were not pleaded verbatim, unlike the third statement. b) The allegedly defamatory statements of the fourth, fifth, and sixth, which the plaintiff introduced during the trial, are not explicitly pleaded in the Statement of Claim. These statements are as follows-i. Statement allegedly published on the Knewbii website dated 26.7.2021 (fourth alleged statement). ii. Review allegedly published by the defendant (fifth alleged statement). iii. Facebook comments allegedly made by the defendant (sixth alleged statement). c) The trial judge erred in awarding general damages of RM500,000 for six defamatory statements.

The second point raised by the defendant concerns the core issue of defamation. The learned counsel for the defendant refers to the defendant’s email to the plaintiff dated 9 January 2021, as shown on page 17 of the Bundle of Documents – Part A of Enclosure 9. The submission is that the substantial truth of the statement applies in this case.

The defendant's claim that statements 1, 2, 4, 5, and 6 are defamatory is flawed and cannot succeed. The statement published by the defendant, in summary, refers to the following:

An allegation that the defendant’s wife contracted typhoid as a result of consuming contaminated food and drinks while receiving services at the plaintiff’s confinement centre.

(ii) Secondly, the plaintiff’s staff at the confinement centre were not vaccinated, and the food served was undercooked.

(iii) The plaintiff was delayed in addressing the defendant’s complaint and also denied any liability for the incident allegedly experienced by the defendant’s wife.

(iv) An allegation that the plaintiff prepared food in advance and left it out for an extended period of time.

The defendant has raised several defences, including that the complained statement constitutes a fair comment. The published statement is not defamatory, as the translation in the Amended Writ is inaccurate.

The full trial took place from 7 to 9 August 2023, during which the Sessions Court Judge heard oral testimonies from four witnesses for each party.

The law regarding appellate intervention is settled. This Court should not interfere with a trial judge’s findings unless those findings are plainly wrong. In the case of Dream Property Sdn Bhd v Atlas Housing Sdn Bhd [2015] 2 CLJ 453, the Federal Court decided as follows – [60] It is now established that the principle on which an appellate court could interfere with findings of fact by the trial court is "the plainly wrong test" principle; see the Federal Court in Gan Yook Chin & Anor (P) v. Lee Ing Chin @ Lee Teck Seng & Anor [2004] 4 CLJ 309; [2005] 2 MLJ 1 (at p. 10) per Steve Shim CJ SS. More recently, this principle of appellate intervention was affirmed by the Federal Court in UEM Group Berhad v. Genisys Integrated Engineers Pte Ltd [2010] 9 CLJ 785 where it was held at p. 800: It is well settled law that an appellate court will not generally speaking, intervene with the decision of a trial court unless the trial court is shown to be plainly wrong in arriving at its decision. A plainly wrong decision happens when the trial court is guilty of no or insufficient judicial appreciation of evidence. (See Chow Yee Wah & Anor v. Choo Ah Pat [1978] 1 LNS 32; Watt v. Thomas [1947] AC 484; and Gan Yook Chin & Anor v. Lee Ing Chin & Ors [2004] 4 CLJ 309).

In Audrey Karen Barry v Datuk Dr Yee Moh Chai [2009] 3 MLJ 141, the Federal Court determined the appropriate treatment to be given to the findings of the trial judge – [23] The basis on which he came to the above conclusion is well set out in his judgment at pp 30, 35, 36, 37 and 38. In short the learned judge stated that there were serious contradictions and inconsistencies in PW2’s evidence which undermine his credibility. As often been said when the findings of the trial judge are of pure facts, based on the credibility of the witnesses, the appellate court will not as a general rule interfere with such findings. The trial judge is in a better position to assess the credibility of witnesses after having seen and heard them (see Abdul Rahim bin Abdul Hamid & Ors v Perdana Merchant Bankers Bhd (formerly known as Intradagang Merchant Bankers (M) Bhd) as trustee, manager and agent [2005] 3 MLJ 140,Hii Soo Chiong v Board of Management Yee Ting Primary School [1973] 2 MLJ 204 (FC)and Chong Sooi Chuen v Yuen Lai Chun [1988] 2 MLJ 443(SC).) We do not propose to engage in detail analysis of the evidence as this was meticulously done by the learned judge and we find that his findings are fully supported by the evidence before him.

Based on the submission from both parties, the main issues are as follows – i. Whether the words complained of are capable of defaming the plaintiff as a matter of law. ii. Whether the statements in their ordinary meaning or as a whole would be understood by an ordinary, reasonable person to carry defamatory imputations. iii. Whether the unequivocal apology ordered by the SCJ is excessive, given that the defendant only published his statement on his Facebook. ANALYSIS AND DECISION Issue 1: Whether the words complained of are capable of defaming the plaintiff as a matter of law.

This Court must determine that the plaintiff satisfies all three elements of the tort of defamation as outlined in the case of Raub Australian Gold Mining Sdn Bhd (in creditors’ voluntary liquidation) v Hue Shieh Lee [2019] 3 MLJ 720, which held - [30] In Ayob bin Saud v TS Sambanthamurthi [1989] 1 MLJ 315; [1989] 1 CLJ 152; [1989] 1 CLJ Rep 321, His Lordship Mohamed Dzaiddin J (as he hen was) has clearly laid down the necessary procedure in establishing claim for libel (with which we agree), when he said at p 361 (MLJ); p 155 (CLJ): In our law on libel, which is governed by the Defamation Act 1957, the burden of proof lies on the plaintiff to show (1) the words are defamatory; (2) the words refer to the plaintiff; and (3) the words were published. Where a defence of qualified privilege is set up, as in the present case, the burden lies on the defendant to prove that he made the statement honestly, and without any indirect or improper motive. Then, if he succeeds in establishing qualified privilege, the burden is shifted to the plaintiff in this case to show actual or express malice which upon proof thereof, communication made under qualified privilege could no longer be regarded as privileged: Rajagopal v Rajan [1972] 1 MLJ 45. [31] In other words, the plaintiff must prove three elements of the tort of defamation, which are:

The plaintiff must show that the statement bears defamatory imputations.

The statement must refer to or reflect upon the plaintiff’s reputation.

The statement must have been published to a third person by the defendant. The statement published by the defendant

This Court observed that the defendant admitted the publication of the alleged defamatory statement as follows –

On the second publication, the defendant admitted in paragraph 28 of the Statement of Defence that he published the statement on 25 July 2021 in the Facebook public forum “Malaysia Blacklisted Confinement Centre”.

(ii) Regarding the first publication, the defendant admitted during cross-examination that he had published the same defamatory statement on his Facebook Account and that these statements were published on several occasions.

Section 58 of the Evidence Act 1950 governs the situation where facts need not to be proved. Section 58 reads – 1) No fact need be proved in any proceeding which the parties thereto or their agents agree to admit at the hearing or which before the hearing they agree to admit by any writing under their hands, or which by any rule of pleading in force at the time they are deemed to have admitted by their pleadings: Provided that the court may, in its discretion, require the facts admitted to be proved otherwise than by such admissions.

This section has no application to criminal proceedings.

It is clear from section 58 above that the defendant’s admission in his statement of defence and testimony during trial is deemed to have been admitted by the trial judge.

Regarding the issue of publication, the learned counsel for the plaintiff submitted that the plaintiff did not dispute his identity as the owner of the Facebook account or the authorship of the first and second publications. Therefore, the defendant's liability is established, and the presumption under section 114A of the Evidence Act applies to the defendant.

The provision of section 114A of the Evidence Act 1950 is as follows:

Presumption of fact in publication

A person whose name, photograph or pseudonym appears on any publication depicting himself as the owner, host, administrator, editor or sub-editor, or who in any manner facilitates to publish or re-publish the publication is presumed to have published or re-published the contents of the publication unless the contrary is proved.

Therefore, the plaintiff has satisfied the element that the statements were published to third parties. The statement refers to the plaintiff.

The defendant denied that the statements referred to the plaintiff and challenged the accuracy of the translated version. This Court also refers to the first and second statements and is of the view that readers do not need further explanation to understand that the wording refers to the plaintiff. It’s clearly stated – # LYCMotherAndChildCentresdnBhd. “…Mereka tinggal di hospital sehingga 15hb dan saya juga dengan gembira membawa isteri dan anak ke pusat berpantang yang terkenal di Malaysia, LYC MOTHER AND CHILD CENTRE SDN BHD, di atas The Bre House di BUKIT JALIL AURORA”

The defendant also failed to identify who the party mentioned in the statement is. This Court holds that the plaintiff has satisfied the element that the published statements are referring to the plaintiff. Issue 2: Whether the statements in their ordinary meaning or as a whole would be understood by an ordinary, reasonable person to carry defamatory imputations

The learned counsel for the defendant argued a preliminary issue that the plaintiff did not specify which parts of those statements were defamatory. The defendant has cited the case of Dato’ Abdul Halim Ali & Anor v Sun Media Corporation Sdn Bhd & Anor [2015] 4 CLJ 928 in support of their argument.

In the aforementioned case, the disputed articles involved three lengthy pieces published by the defendant criticising the government procurement process. Justice Kamaludin Md Said stated that the articles did not criticise or discredit the plaintiff because they also acknowledged the defendant. As a result, the statements could carry different meanings and interpretations depending on the context in which they were published by the defendant.

I refer to the judgment by Justice Kamaluddin in Dato’ Abdul Halim Ali & Anor v Sun Media Corporation Sdn Bhd & Anor (supra), where he said – [109] The defamatory nature of an imputation also cannot be judged in isolation. It has to be ascertained by reference to the moral or social standards of society generally. This is an important part of the consideration of what constitutes defamatory matter. Such societal standards are not amenable to evidentiary proof. It will be up to the judges to consider the requisite standards when determining whether the matter is either capable of being defamatory or is in fact defamatory. See (Dato’ Seri Anwar Ibrahim v The New Straits Times Press (M) Sdn Bhd & Anor [2010] 5 CLJ 301; [2010] 2 MLJ 492 at pp. 503-504].

However, in this appeal, I find that the statements published by the defendant did not give credit to the plaintiff. Upon reviewing the entire statements, it is clear that readers can only draw one conclusion: the confinement centre operated by the plaintiff is unsafe for mothers and babies.

Having read the statement in its entirety, I do not agree with the defendant that the plaintiff failed to plead exactly what was stated in the words published by the defendant on Facebook. Are the publications defamatory to the plaintiff?

In the absence of grounds of judgment, I must refer to the Notes of Proceedings to identify if the trial judge made any findings. I find that the learned trial judge clearly indicated that he would read and evaluate the entire context of the published statement, and he disagrees with the defendant’s argument that the translated version of the article is inaccurate. This is evidenced in the Notes of Proceedings at page 526 of the Records of Appeal Vol. 2 b. – JUDGE: Kalau saya tengok kepada ini, konteks saya lebih kurang sama sahaja. Cuma penggunaan perkataan. You susun ayat kalau macam dalam ini, dalam pliding, mengatakan, “Saya mengadu kepada kaunter tentang faktor ini.” Dalam ini, “Saya mengadu faktor ini ke kaunter.” Dia susun terbalik and then, “Juga telah memberitahu pihak berkenaan mengenai semua ini dalam ini mengerangkan kepada unit berkaitan. Sehingga hari ini 21hb, mereka akhirnya memberi maklum balas. Mereka juga akhirnya mereka baru memberi balasan.” It’s maklum balas. So, apa yang masalahnya? It’s tentang penggunaan perkataan because terjemahan dalam Bahasa Cina kepada Bahasa Melayu, you tak boleh dapat exact word.

It is a well-established principle of law that this Court must consider the particular circumstances and context in which the alleged defamatory statements were published.

In Raub Australian Gold Mining Sdn Bhd (in creditors’ voluntary liquidation) v Hue Shieh Lee (supra) the Federal Court held that – [44] In coming to that determination, the Court of Appeal relied on the three tests set out in Gatley on Libel and Slander (12 Ed) at p 7 as follows:

(i)Would the imputation tend to lower the plaintiff in the estimation of right-thinking members of society generally?

(ii)Would the imputation tend to cause others to shun or avoid the claimant?

(iii)Would the words tend to expose the claimant to hatred, contempt or ridicule? [45] The above test is an objective test. In essence, it is a question of law that turns upon the construction of the words published. It is whether, under the circumstances in which the words were published, reasonable men to whom the publication was made, would be likely to understand it in a defamatory or libellous sense. The same test was applied and adopted by the Court of Appeal in Allied Physics Sdn Bhd v Ketua Audit Negara (Malaysia) & Anor and other appeals [2016] 5 MLJ 113; [2016] 7 CLJ 347.

Therefore, it is relevant for this Court to consider whether the statements are defamatory towards the plaintiff from the perspective of an ordinary, reasonable person in society.

Having reviewed the statements published by the defendant as outlined in paragraph 8 of the Amended Statement of Claim, and considering the overall content, including testimonies from witnesses, the narrative of the publication can be summarised as follows –

Picture 1 displays the first statement published by the defendant on the Facebook forum known as Malaysia Blacklisted Confinement Centre on 25.7.202.

Besides #LYCMotherAndChildCentreSdnBhd, it was also contains #Aduanpertama ; #Kanduganaduan X makanan tidak bersih, tidak bertanggungjawab, mengancam dan ugutan

The use of # indicates that the publication is intended to be easily shared among the public.

The sentence from “Untuk pakej bernilai RM15,000 diskaun 10% ..until tahap profesionalisme tertentu”.

(ii) Picture 2 displays the alleged defamatory statement, which provides the background of the complaint made by the defendant regarding the services offered by the plaintiff. It mentions that while staying at the confinement centre, his wife suddenly suffered food poisoning. The impact of this statement was that the plaintiff was implicated in causing his wife to experience food poisoning.

(iii) Picture 3 shows that the defendant publicly informed readers that his wife is having TIFOID (in capital letters). This statement suggests that the plaintiff caused typhoid and that the centre is unsafe and hazardous.

(iv) The statement in Picture 3 also shows that the plaintiff’s confinement centre is involved with unhygienic food and drink, which contributed to the typhoid.

Picture 4 shows the statement in which the defendant explains the link between typhoid and food preparation at the plaintiff’s confinement centre, which caused food poisoning suffered by his wife.

(vi) Picture 6 clearly indicates that the plaintiff’s confinement centre is a dangerous place for babies and confinement mothers, which attracts comment from the public - “Adalah saya masih akan memilih LYC pada masa hadapan? Mungkin tidak”.

Among other statements made by the defendant (translated from the original language into Bahasa) is reproduced below: TIFOID adalah jangkitan kuman yang boleh menyebabkan demam panas, cirit birit dan muntah. Ia boleh membawa maut. Ia disebabkan oleh Salmonella Typhi. Jangkitan ini biasanya merebak melalui makanan dan air minuman yang tercemar, dan lebih kerap berlaku di tempat yang kurang kerap mencuci tangan. Doktor juga mengatakan bahawa untuk jenis TIFOID ini ,salah satu sebab adalah kakitangan penyediaan makanan tidak mendapat vaksin atau makanan tidak cukup masak (orang dalam pantang tahu bahawa mereka tidak boleh makan makanan luar, mereka tidak boleh minum air kosong, mereka hanya boleh minum teh kurma merah).

The learned counsel for the defendant argues that the alleged statements are simply a record of the defendant’s review and opinion. This represents the defendant's constructive criticism and his wife’s experience during her stay at the plaintiff’s confinement centre.

On the contrary, the learned counsel for the plaintiff submits that –

PW3 explained the process by which the food was prepared and served to the mothers in the confinement centre. (b) Upon being notified of the complaint made by the defendant, PW3 requested the food sample collected from the dinner served to the mothers on 7 January 2021 for testing, which was sent to MyCo2 Sdn Bhd. The results confirmed that the food samples tested were free from Salmonella.

PW3 contacted the plaintiff via email to arrange a meeting and informed him about the lab test results so that the matter could be resolved amicably. However, the defendant ignored the email.

To support the defendant’s defence that the comment was constructive criticism rather than defamation of the plaintiff, I find that the defendant failed to produce evidence to substantiate his claim that his wife suffered from typhoid after eating food at the confinement centre. In my view, the statement adversely affects the plaintiff’s business because it is untrue.

I also refer to the hashtag used by the defendant in his statement. #LYCMotherAndChildCentreSdnBhd, it was also contains #Aduanpertama ; #Kanduganaduan X makanan tidak bersih, tidak bertanggungjawab, mengancam dan ugutan.

The statements published by the defendant indicate that the plaintiff is linked to other disreputable and irresponsible confinement centres, deceives clients, and conducts dishonestly to gain financially. They are not a qualified centre as claimed and should be boycotted by everyone. It is a dangerous place and unsafe for mothers and their babies.

Therefore, I agree with the submission from the learned counsel for the plaintiff that the alleged defamatory statement above, when read in its natural and ordinary meaning as a whole, would be understood by any reasonable person to carry defamatory imputations.

Furthermore, the defendant also argues that the plaintiff did not plead in their pleading that the alleged statement was false or untrue.

Regarding the defendant's assertion that the plaintiff did not plead that the statement was untrue, I find this to be without merit. In paragraph 12 of the amended statement of claim, the plaintiff pleads – Pada atau sekitar 16.1.2021, plaintiff melalui surat tuntutan memaklumkan defendan bahawa kenyataan yang disiarkan adalah tidak tepat kerana plaintif telah dengan segeranya menangani aduan dan juga menuntut defendan dan/atau isterinya untuk menghentikan semua penerbitan bersifat fitnah yang tidak benar terhadap plaintif.

From the defendant’s perspective, the comment published was aimed at a matter of public interest concerning women, pregnant women, or women who have recently given birth. It is also based on proven facts, so it cannot be considered scandalous, even if it amounts to criticism.

The defendant relied on the case of Mohd Rafizi bin Ramli v Dato Sri Dr Mohamad Salleh bin Ismail [2020] 1 CLJ 487, which held that comment or criticism for democracy to survive is a matter of public interest.

I am of the opinion that the case of Mohd Rafizi bin Ramli v Dato Seri Dr Mohamad Salleh bin Ismail (supra) should be distinguished from the present case, as the defendant failed to prove that the alleged facts in the statement published by him are true. The Court of Appeal in Mohd Rafizi bin Ramli v Dato Seri Dr Mohamad Salleh bin Ismail (supra) held – [8] In a defence of fair comment, if the primary facts are true, in the absence of malice and/or falsehood, the defence of fair comment should ordinarily succeed. This position will also be consistent with art. 10 of the Federal Constitution. Only when the primary facts are not true, other facts which the learned trial judge had admirably deliberated on the elements of fair comment to succeed becomes relevant. The true test of fair comment essentially is 'whether the comment is an honest expression of a genuine opinion'. (See Slim v. Daily Telegraph Ltd [1968] 2 QB 157; Chew Peng Cheng v. Anthony Teo Tiao Gin [2008] 8 CLJ 418). The phrase 'honest expression' and 'genuine opinion' does not relate to 'physical facts' but 'psychological facts'. Psychological facts related to the state of mind of the defendant to find liability or otherwise needs the court to take a holistic view of the case, the law and the Federal Constitution. (See Kyros International Sdn Bhd v. Ketua Pengarah Hasil Dalam Negeri [2013] 3 CLJ 813; [2013] 2 MLJ 650). [9] It is well-established that fair and bona fide comments or criticism upon matter of public interest cannot be scandalous or libellous or even warranting criminal defamation, etc. for democracy to survive. To put it mildly, punishing persons having some or all virtues of Socrates, Plato, etc. to be punished by way of imprisonment or monetary sum, etc. will not augur well for accountability, transparency and good governance in matters of public interest. Such persons are truly protected by not only under the law of defamation but also under art. 10 of the Federal Constitution which relates to freedom of speech guaranteed by the Federal Constitution. (See Bonnard v. Perryman [1891] 2 Ch. 269; Cream Holdings Ltd and Others v. Banerjee and Another[2005] 1 AC 253).

This Court also need to consider the submission by the learned counsel for the defendant that the allegedly defamatory statements of the fourth, fifth, and sixth, which the plaintiff introduced during the trial, are not explicitly pleaded in the Statement of Claim. These statements are as follows-

Statement allegedly published on the Knewbii website dated 26.7.2021 (fourth alleged statement).

(ii) Review allegedly published by the defendant (fifth alleged statement).

(iii) Facebook comments allegedly made by the defendant (sixth alleged statement).

In the case of Saiman Umar v Lembaga Pertubuhan Peladang [2015] 9 CLJ 153, the Federal Court held – [41] We should remind ourselves that parties to an action are bound by their own pleadings. It is therefore necessary to make the point that the court is also bound by the pleadings in as much as the parties themselves. The most important purpose of pleadings is to plead reasonable cause of action, define the issues of fact and questions of law to be determined by the court. It is a valid argument to make that the court is constrained to decide an action on which no issue has been raised by the parties in their respective pleadings (see Ambank (M) Bhd v. Luqman Kamil bin Mohd Don [2012] 3 CLJ 551; [2012] 3 MLJ 1; [2012] 3 MLRA 459 and Victory Avenue Mfg (M) Sdn Bhd v. Matsushita Electronic Devices (M) Sdn Bhd [2009] CLJU 296; [2009] 1 LNS 296; [2009] 5 MLJ 243).

Guided by the principle above, I find that the admission made by the defendant during cross-examination, although acknowledged, still needs to be pleaded. To hold the defendant liable for the plaintiff’s claim without such a claim being specifically pleaded is contrary to well-established legal principles.

After careful consideration of the written submissions from the plaintiff and defendant’s counsel, this Court hold that the plaintiff has discharged its burden of proof on the balance of probabilities for the first, second and third statements.

In Inas Faiqah Mohd Helmi v. Kerajaan Malaysia & Ors [2016] 2 CLJ 885, it was held as follows – Standard Of Proof [13] The standard of proof in civil cases is the legal standard to which a party is required to prove its case, namely on a balance of probabilities. In civil litigation, the question of the probability or improbability of an action occurring is an important consideration to be taken into account in deciding whether that particular event had actually taken place or not. In the case of Miller v. Minister of Pensions [1947] 2 All ER 372, Lord Denning said the following about the standard of proof in civil cases: The... [Standard of proof] ... is well settled. It must carry a reasonable degree of probability... if the evidence is such that the tribunal can say: 'we think it more probable than not' the burden is discharged, but, if the probabilities are equal, it is not.

Therefore, I agreed with the learned Session Court Judge’s decision to allow the plaintiff’s claim for defamation regarding the first, second, and third publications.

However, I respectfully disagree with the learned Session Court Judge’s ruling concerning the fourth, fifth, and sixth publications. I find that these publications do not merit consideration as the plaintiff did not plead them.

Regarding whether the plaintiff specifically pleaded loss of profit, I agree with the defendant’s counsel that this was not specifically pleaded by the plaintiff. Therefore, the principle in the case of Saiman Umar v Lembaga Pertubuhan Peladang (supra) applies. The plaintiff’s claim for loss of profit is legally unsustainable.

The principle of pleading is well-established. Consequently, I have decided to disregard the defence of justification as it was not pleaded by the defendant.

The plaintiff operates a confinement centre that has received several recognitions in the industry, including the Malaysia Health & Wellness Brand Awards 2019, the Baby Talk MamaPapa Readers' Choice Awards 2019, and the 28-Day International Natal Care Awards 2019.

The allegation in the defamatory statements concerns health-related issues linked to the services provided by an entity, which are reportedly charged at higher fees and have caught the public's attention.

In an era of rapid digital technological advancement and the online dissemination of information, defamatory statements published on social media can be shared worldwide instantly. This is evidenced by the fact that the defendant’s Facebook account was set to public and not private.

Consequently, I find that the reasonable amount for the general damages awarded to the plaintiff is RM250,000.00.

I am of the view that reader comments on the statement issued by the defendant support the fact that the published statement indeed impacted the credibility and reputation of the confinement centre operated by the plaintiff. This Court further notes that the business of a confinement centre is undoubtedly founded on the trust and confidence of its customers.

In my considered opinion, the defendant’s action of publishing a statement without verification and supported by documentary evidence to prove the accuracy and truth of the contents is detrimental to the plaintiff. Therefore, the plaintiff is entitled to be awarded exemplary damages.

Given the social and economic impact suffered by the plaintiff, I believe that this Court should refrain from interfering with the amount of exemplary damages awarded by the learned Session Court Judge. Issue 3: Whether the unequivocal apology ordered by the SCJ is excessive, given that the defendant only published his statement on his Facebook.

I am of the opinion that the confinement industry in Malaysia is particularly vulnerable to defamatory content spread via social media due to its sensitive nature and reliance on trust. Furthermore, this triggers a chain reaction of reputational and financial repercussions that are often immediate and significant.

The forum known as The Blacklisted Confinement Centre wields significant influence over its readers. This is evident from the comments posted by readers.

The word "blacklisted" itself has the power to attract the public's attention to the article. It leaves a strong impression on readers, which creates a negative effect and connotation that significantly damages the plaintiff’s reputation among the general public.

The Court has a duty to discourage unjustified attacks. This Court concludes that the unequivocal apology ordered by the Session Court is not unreasonable.

It is also my considered opinion that the orders by the learned Session Court Judge regarding the manner in which the defendant should express their apology are judicious and appropriate, considering the adverse effects experienced by the plaintiff.

On the balance of probabilities, the Court's findings are as follows-a) The plaintiff has successfully proven that the 1st, 2nd, and 3rd statements are defamatory statements published by the defendant against the plaintiff. b) The fourth, fifth and sixth statements were not pleaded in the Statement of Claim. c) The damages awarded by the learned Session Court Judge are excessive.

Therefore, the defendant’s appeal is allowed in part as follows-

Gantirugi am sebanyak RM500,000 diketepikan dan award gantirugi am dibenarkan setakat RM250,000.00 bagi penerbitan kenyataan pertama, kedua dan ketiga sahaja;

Award bagi Gantirugi teruk dikekalkan;

Perintah Mahkamah Sesyen dalam perenggan-perenggan 2,3, 4 dan 5 dikekalkan;

Keputusan mengenai kos di Mahkamah Rendah juga dikekalkan; dan

Bagi rayuan di sini, pihak menanggung kos masing-masing. Dated 8 August 2025 ........................................................... HAZIZAH KASSIM Judicial Commissioner Sivil High Court (NCvC10)

Shah Alam For the Appellant : Ng Chin Han Tetuan C.H. Ng & Co. (Petaling Jaya, Selangor)

For the Respondent : Josephie Sui dan Nur Aliya Syaffa Johari Tetuan Sui, Sumathi and Associates (Petaling Jaya, Selangor)