1. ) Acclime Corporate Services Sdn. Bhd. v 1. ) Wong Youn Kim (WA-22NCvC-647-10/2024)

11 MLJ 141 at pp 154 -158:

| am of the following view regarding a protective order: (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 11 S/N U3xTuH81hkykjsqjYeijg ; 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. | rely on the judgment of Lee Seiu Kin J in the Singapore High Court in BBW v BBX and Others

5 SLR 755 at paras [21]-[30], as follows: The court's power to grant a sealing order

The sealing order is no doubt part and parcel of our civil procedure. In Navigator Investment Services Ltd v Acclaim Insurance Brokers Pte Ltd [2010] 1 SLR 25 (‘Navigator’), the Court of Appeal affirmed as much when it noted (at [66]) that ‘{t/here are, in fact, procedures in place for the sealing of court files’. Likewise, Prof Pinsler in Singapore Court Practice 2014 Vol 2 (LexisNexis, 2014) describes the sealing order (at para 60/4/4) as ‘well-established’. Yet, despite its ubiquity, the source of the court’s power to grant a sealing order seems to be, hitherto, an open question.

As observed by Prof Pinsler in Singapore Court Practice 2014 Vol 1 (LexisNexis, 2014) (at para 42/1/17), the sealing order is not provided for in any statute or the Rules of Court (Cap 322, R 5, 2014 Rev Ed) (‘ROC’). It 12 § S/N U3xTuH81hkykjsqjYeijg ; also appears that no provision is made for it in the Supreme Court Practice Directions (1 January 2013 release). Neither have our courts pronounced on this question; indeed, it has been noted that ‘the legal status of [the sealing] order in general proceedings has yet to be judicially examined’ (Singapore Court Practice 2014 Vol 1 at para 42/1/17).

Academic writers, however, have suggested that the court has the inherent power to grant a sealing order. In Singapore Court Practice 2014 vol 1, Prof Pinsler takes the view (at para 42/1/17) that the court ‘may have the inherent power to grant a sealing order pursuant to O 92 r 4 [of the ROC] in the interests of justice’, although this ‘has yet to be declared as the juridical basis of the remedy’. In Vol 2 of the same text, Prof Pinsler argues (at para 60/4/4) that in the absence of a specific provision in the ROC, ‘it may be contended that a court has the inherent power ... to make a sealing order in the interest of the administration of justice’. 13

This view is also shared by Asst Prof Goh Yihan (‘Asst Prof Goh’) in his article ‘The Inherent Jurisdiction and Inherent Powers of the Singapore Courts: Rethinking the Limits of their Exercise’ [2011] SULS 178. ...

In my view, the suggestion by Prof Pinsler and Asst Prof Goh makes ample sense, and | agreed that the court has the inherent power to grant a sealing order.

First, if the sealing order is indeed an accepted part of our civil procedure (see [21] above) and if there is indeed no statutory basis for it (see [22] above), then it must necessarily follow that the court has the inherent power to grant a sealing order. To conclude otherwise would lead to the unlikely (and somewhat absurd) corollary that our courts have, through the years, been acting ultra vires in granting sealing orders.

Second, the sealing order also falls within the descriptions given of the court’s inherent power. The inherent power of the court is reflected in O 92 r4 of the ROC ... 14 § S/N U3xTuH81hkykjsqjYeijg ; The court’s inherent power ‘stems from the court’s status and role as the adjudicating organ of the legal system’ and ‘is to be exercised in exceptional circumstances when there is a pressing need to ensure a just outcome’ (Principles of Civil Procedure at para 01.006). It has been said that ‘the concern is with the ability of the court to make appropriate orders to ensure the achievement of justice and the efficacy of its administration’ (Singapore Court Practice 2014 Vol 1 at para 1/1/7). In the arbitration context, the decision to grant a sealing order is made by weighing the principle of open justice against the need to preserve confidentiality in arbitration (see

below). Thus, the sealing order is fundamentally concerned with a just outcome’ as well as the ‘achievement of justice and the efficacy of its administration’. This brings it squarely within the aforementioned descriptions of the court’s inherent power.

Third, the notion of the court having the inherent power to grant a sealing order has been accepted by other courts. In The Attorney General of Nova Scotia and Ernest Harold Grainger v Linden Macintyre [1982] 1 15 SCR 175 (‘Macintyre’), the majority of the Supreme Court of Canada alluded to this when it observed (at 189) that: Undoubtedly every court has a supervisory and protecting power over its own records. Access can be denied when the ends of justice would be subverted by disclosure or the judicial documents might be used for an improper purpose ... (Emphasis added. )

Indeed, numerous cases emanating from the provincial superior courts of Canada have noted (more explicitly) that the court has the inherent power to grant a sealing order. ...

For the above reasons, | was of the view that the court has the inherent power to grant a sealing order. (Emphasis added.) (2) the following UK cases have granted protective orders: (a) in the Court of Appeal case of Warner-Lambert Co v Glaxo Laboratories Ltd [1975] RPC 354 at pp 359- 16 § S/N U3xTuH81hkykjsqjYeijg ; 360, Buckley LJ ordered that only the court, counsel and certain persons from the party applying for discovery could have access to the confidential information in question; and in Roussel Uclaf v Imperial Chemical Industries plc

RPC 45 at pp 50-52 Aldous J (as he then was) in the High Court imposed certain conditions on the discovery of confidential information, namely the plaintiffs (who applied for discovery) had to undertake: (i) (ii) that the person to whom the confidential information was to be disclosed, should not be involved in similar proceedings in a French court; and to pay the defendants any sum the court might decide that the defendants (who disclosed the confidential information) had suffered by any wrongful disclosure of the confidential information. The above decision by Aldous J has been affirmed on appeal to the Court of Appeal: (3) Protective Orders have also been granted in the following Australian cases: 17 (a) (b) in Mobil Oil Australia Ltd & McDonalds Australia Ltd v Guina Developments Pty Ltd [1996] 2 VR 34 at pp 39-40, Hayne JA (as he then was) in the Court of Appeal of the State of Victoria held that in ordering a discovery of confidential information, the court may restrict access to such information to counsel, solicitor and nominated experts only; and the judgment of Finkelstein J in the Federal Court in Conor Medsystems Inc v University of British Columbia (No 4) [2007] FCA 324 at paras [7]-{13]; and (4) 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 (5) in deciding to grant a protective order or otherwise: (a) the court should balance the following competing considerations: (i) 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; 18 (ii) (ii) the plaintiffs right to apply for discovery of all relevant documents in support of the plaintiff's claim; and (iil) the need to protect the defendant's proprietary interest in the confidential information in question; there is no universal or general formula to be followed — please see the judgment of Russell LJ (as he then was) in Warner-Lambert Co at p 362: and the learned judge should inspect the documents himself or herself to decide whether a protective order should be granted or not — please see Mobil Oil Australia at p 40. If parts of the confidential information are not relevant to the case in question, the court may redact those parts. Such a redacting power is clear from the following cases: (i) | please see the judgment of Lord Wilberforce in the House of Lords in Science Research Council v Nasse; BL Cars Ltd (formerly Leyland Cars) v Vyas [1979] 3 All ER 673 at p 680; and 19 (ii) | Tokai Corporation v DKSH Malaysia Sdn Bhd

MLJU 621 at para [26](1) and (2). 25. So much for the law. 26. Let me now turn my attention to the current issues. 27. In this regard, the plaintiffs claim that the documents that they sought to protect contain, amongst others, contact information and the pricing of the plaintiffs services, which they have accumulated over time, as well as non-public information that gives the plaintiffs an edge over its competitors in the same field from a business and commercial standpoint. 28. Asaresult, the plaintiff argues that the defendants would not be prejudiced in any way, as opposed to the irreparable harm that would occur to their commercial interests if those documents fell into their competitors’. 29. The defendants, however, launched a vigorous attack on Enclosure 37. According to the defendants, there are tactical manoeuvres on the part of the plaintiffs to prevent them from filing a proper defence without seeing those alleged confidential documents, which were the subject of their notices to produce. Here, | note that both defendants have filed Notices to Produce to provide those documents in order to be able to respond properly to the plaintiff's allegations. 20 30. Aside from that the defendants argue that the plaintiffs failed to provide most, if not all, of the relevant documents in order for the parties, including this court, to be able to get a sense of their nature and aspect. This failed to comply with the relevant case law that required the party seeking such a protective order to comply with the strictest tests. 31. In support of their point, the defendants cite the Canadian case of Sherman Estate v Donovan [2021] 2 RCS 75, which held, amongst others, that these three prerequisites must be met before a protective order can be issued: A. The Test for Discretionary Limits on Court Openness

Court proceedings are presumptively open to the public (Macintyre, at p.189; AB. v. Bragg Communications Inc., 2012 SCC 46, [2012] 2 S.C.R. 567, at para. 11).

The test for discretionary limits on presumptive court openness has been expressed as a two-step inquiry involving the necessity and proportionality of the proposed order (Sierra Club, at para. 53). Upon examination, however, this test rests upon three core prerequisites that a person seeking such a limit must show. Recasting the test around these three prerequisites, without altering its essence, helps to 21 S/N U3xTuH81hkykjsqjYeijg ; clarify the burden on an applicant seeking an exception to the open court principle. In order to succeed, the person asking a court to exercise discretion in a way that limits the open court presumption must establish that: (1) court openness poses a serious risk to an important public interest; (2) the order sought is necessary to prevent this serious risk to the identified interest because reasonably alternative measures will not prevent this risk; and, (3) as a matter of proportionality, the benefits of the order outweigh its negative effects. Only where all three of these prerequisites have been met can a discretionary limit on openness — for example, a sealing order, a publication ban, an order excluding the public from a hearing, or a redaction order — properly be ordered. This test applies to all discretionary limits on court openness, subject only to valid legislative enactments (Toronto Star Newspapers Ltd. v. Ontario, 2005 SCC 41, [2005] 2 S.C.R. 188, at paras. 7 and 22). 22 32. The defendants argue that the said test is a high bar that serves to maintain the strong presumption of open courts that applies to all judicial proceedings. Therefore, it is solely up to the plaintiffs to prove that the court's openness poses a serious risk. This is because openness is the norm and covertness is the exception; a party which initiates a legal proceeding waives its right to privacy. 33. My anxious consideration has been given to the arguments of both parties. 34. In this regard, | find a protective order is necessary, at least at this point, in order to protect the plaintiffs’ commercial interests and prevent their competitors from accessing them. It is important to note that these documents have been collected over time by the plaintiffs, and are non-public information that provides the plaintiffs with a competitive advantage over their competitors. As a result, making the same public or disclosing it without adequate safeguards and a protective order would be extremely risky for the plaintiffs. 35. Additionally, the plaintiffs may face risks related to the Securities Commission Guideline and the potential infringement of the Personal Data Protection Act 2010. Due to the potential risks that plaintiffs would face in comparison to the position of the defendants, the interest of justice would require the documents to be protected. 23 S/N U3xTuH81hkykjsqjYeijg ; 36. As support for the above findings, | refer to Sections 4, 8 and 45 of the Personal Data Protection Act 2010 ("PDPA") as follows: Section 4 of PDPA: “personal data” any information in respect of commercial transactions, which- (a) is being processed wholly or partly by means of equipment operating automatically in response to instructions given for that purpose; (6) is recorded with the intention that it should wholly or partly be processed by means of such equipment: or (c) is recorded as part of a relevant filing system or with the intention that it should form part of a relevant filing system, that relates directly or indirectly to a data subject, who is identified or identifiable from that information or from that and other information in the possession of a data controller, including any sensitive personal data and expression of opinion about the data subject; but does not include any information that is processed for the purpose of a credit reporting business carried on by a credit reporting agency under the Credit Reporting Agencies Act 2010; 24 S/N U3xTuH81hkykjsqjYeijg ; Section 8 of PDPA: Subject to section 39, no personal data shall, without the consent of the data subject, be disclosed- (a) for any purpose other than- (i) the purpose for which the personal data was to be disclosed at the time of collection of the personal data: or (ii) a purpose directly related to the purpose referred to in subparagraph (i); or (b)to any party other than a third party of the class of third parties as specified in paragraph 7(1)(e). Section 45 of PDPA: (1) There shall be exempted from the provisions of this Act personal data processed by an individual only for the purposes of that individual's personal, family or household affairs, including recreational purposes. (2) Subject to section 46, personal data- (a) processed for- (i) the prevention or detection of crime or for the purpose of investigations; (ii) the apprehension or prosecution of offenders; 25 S/N U3xTuH81hkykjsqjYeijg ; or (ili) the assessment or collection of any tax or duty or any other imposition of a similar nature, shall be exempted from the General Principle, Notice and Choice Principle, Disclosure Principle and Access Principle and other related provisions of this Act; (b) processed in relation to information of the physical or mental health of a data subject shall be exempted from the Access Principle and other related provisions of this Act of which the application of the provisions to the data subject would be likely to cause serious harm to the physical or mental health of the data subject or any other individual; (c) processed for preparing statistics or carrying out research shall be exempted from the General Principle, Notice and Choice Principle, Disclosure Principle and Access Principle and other related provisions of this Act, provided that such personal data is not processed for any other purpose and that the resulting statistics or the results of the research are not made available in a form which identifies the data subject: (d) that is necessary for the purpose of or in connection with any order or judgement of a court 26 shall be exempted from the General Principle, Notice and Choice Principle, Disclosure Principle and Access Principle and other related provisions of this Act; (e) processed for the purpose of discharging regulatory functions shall be exempted from the General Principle, Notice and Choice Principle, Disclosure Principle and Access Principle and other related provisions of this Act if the application of those provisions to the personal data would be likely to prejudice the proper discharge of those functions; or (f) processed only for journalistic, literary or artistic purposes shall be exempted from the General Principle, Notice and Choice Principle, Disclosure Principle, Retention Principle, Data Integrity Principle and Access Principle and other related provisions of this Act, provided that- (i) the processing is undertaken with a view to the publication by any person of the journalistic, literary or artistic material; (ii) the data controller reasonably believes that, taking into account the special importance of public interest in freedom of expression, the publication would be in the public interest; and 27 (iii) the data controller reasonably believes that in all the circumstances, compliance with the provision in respect of which the exemption is claimed is incompatible with the journalistic, literary or artistic purposes. 37. A set of guidelines has also been issued by the Securities Commission Malaysia under Section 377 of the Capital Markets and Services Act 2007 regarding the submission of corporate and capital market product proposals. These guidelines are: 1.02 It is expected that the Submitting Party adheres to the following principles: (a) Integrity To demonstrate integrity in all professional and business dealings. (b) Objectivity To avoid situations of conflict of interest or any situation that compromise or affect professional or business judgments. (c) Professional competence and due care To demonstrate and maintain professional knowledge and skill at the level expected and 28 S/N U3xTuH81hkykjsqjYeijg ; exercise due care and diligence in carrying out its functions. (dq) Confidentiality To maintain and safeguard confidentiality of information acquired as a result of professional and business dealings, and not disclose such information to any person or use such information, unless there is a legal or professional duty or obligation to do so. 5.15 A Submitting Party must ensure the confidentiality of and protect against unauthorised use of or access to applicant's records and information. 38. To this end, even if some documents are not produced first, as argued by the defendants, it seems reasonable enough to me that the plaintiffs are entitled at this stage to do so, since otherwise the element of confidentiality would lose its significance. What would happen to those documents if the court ultimately decided against the plaintiffs? Should those documents be disclosed prematurely, the plaintiff may suffer irreparable damage. 29 S/N U3xTuH81hkykjsqjYeijg ; 39. Further, despite not knowing the exact nature of the documents, the court would still be able to determine their category and what they contained based on the plaintiffs’ description. To me, the issue is whether those documents would eventually have to be produced for trial to be protected by the protective order. Following that, the parties would be able to review and deal with them accordingly. This is not the case where the effect of the order is unknown. 40. In fact, there is more to it than that. Several factors have been taken into consideration in order to reach these conclusions, including, amongst others, the following. 41. As a starting point, | failed to see any good reason why the defendants need to be so concerned about sealing or protecting the documents in the manner that the plaintiffs are seeking. Although there are doubts regarding the full nature of the undisclosed documents at this point, several aspects stand out. They are as follows: (a) Firstly, these documents would eventually have to be produced during trial, and only such documents would fall under the protective order, so no harm would come to the defendants. (b) Secondly, the imposition of this condition on such documents is only temporary pending the outcome of this case, at least at this point. 30 S/N U3xTuH81hkykjsqjYeijg ; (c) Thirdly, the imposition of such an order would not prevent the defendants from ventilating their issues and defences fully. (d) Fourthly, the parties have the liberty to apply. (e) Fifthly, the presiding judge, me at the moment, has full discretion to alter, amend and/or modify this order on my own motion, after consulting the parties, and without the need for any application. 42. In any event, the first defendant is also fully aware that the documents sought to be protected are confidential. It is part of her terms of employment as stipulated in the Acclime Employee Handbook and applicable to all the plaintiffs’ employees in Malaysia: “Clause 8.16 Independence / Confidentiality i. This clause must be read in conjunction with the company’s Confidential Information Policy. ii. It is inevitable that certain employees will, by the nature of their position, often be in possession of confidential information about the company and/or its associates. 31 3xTUuH81hkykjsqjYeijg a ; Note : Serial number val be used to verify the originality of this document via eFILING portal Vi. Vil. Any such information obtained in the course of company employment should not be used for personal advantage or used improperly. An employee should not, without proper authority, disclose any confidential information about the company’s and/or its associates’ affairs to unauthorized persons or use or appear to use such information for the benefit of him or others. All client lists, office manuals, precedent documents, or office documents of any nature whatsoever that you may use or prepare during the course of your employment remain the property of the company at all times. You are obliged to maintain the confidentiality of all affairs of the company and all its clients, which you may come across during the course of your work and after termination of your employment. You are required to observe the code of ethics as company secretaries or any professional body at all times.” Conclusion 43. Following the above analysis, Enclosure 37 is therefore allowed with costs in the cause, with some modifications as follows: 32 S/N U3xTuH81hkykjsqjYeijg ; (a) (d) The first step would be to delete the words "and in any subsequent appeals", as well as the word "always" as it appeared in paragraph 2. As a next step, the plaintiffs to delete the words "and/or appellate" in paragraph 2 (b) (i). For paragraph 2 (d), to delete the words "separated from the other documents in the Judge's or Judges’ chambers" and add the words "to efile the first page of the relevant bundle of documents" after the word "ana". In paragraph 2 (h), the words "or any subsequent appeals" and the phrases "or the Judge's chambers at alll times up to the end of the sentence" should be deleted. This protective order, however, applies to any appeals relating to interlocutory matters arising out of this action. In order to avoid any doubt, the court is not the custodian of the documents, and no order will be binding on the court. Order accordingly. 33 Dated 6" May 2025 (Raja Ahmad Mohzanuddin Shah) Judge High Court of Malaya Kuala Lumpur Counsel for the Plaintiffs : Joshua Teoh Beni Chris & Teng Wei Hun Messrs Skrine Counsel for the First Defendant: Chok Zhin Theng, Michelle Chin Zi Shan & Zhe Qi Cheong Messrs Cheah Teh Su Counsel for the Second Defendant: Cheong Su Yin & Tan Zhi Ching Messrs Cheong Su Yin & Co. 34 § S/N U3xTuH81hkykjsqjYeijg ;