1. ) Bina Upaya Plantations Sdn Bhd v Al Yashir Bin Datuk Hj Yahaya (AA-22NCvC-60-06/2024)

BETWEEN BINA UPAYA PLANTATIONS SDN BHD 10 [Company No.: 914434-K]

BINA UPAYA CAPITAL SDN BHD [Company No.: 923230-X] 15

BINA UPAYA RESOURCES SDN BHD [Company No.: 974183-V] … PLAINTIFFS AND 20 AL YASHIR BIN DATUK HJ YAHAYA … DEFENDANT [Identity Card No.: 890127-08-5775] GROUNDS OF JUDGMENT Introduction [1]. This is my decision on the Plaintiffs’ application in Enclosure 5 for 25 discovery of bank statements pursuant to Order 24 Rules 3, 5, and 9 of the Rules of Court 2012. The Plaintiffs allege that the Defendant, while in de facto control as Group Chief Operating Officer, had misused his fiduciary position by unlawfully authorising the remittance of RM4.4 million to 37 third-party recipients. The 30 Plaintiffs rely on contemporaneous WhatsApp messages, police 09/06/2025 16:52:25 AA-22NCvC-60-06/2024 Kand. 43 reports, and AMLA notices to support their claim and seek discovery of the Defendant’s bank statements to trace the funds. [2]. The Defendant, in reply, argues that all the remittances were in fact done on the instructions of one Dato’ Haji Ismail bin Saffian. He 35 contends that the discovery application is speculative, lacks factual nexus, and amounts to a fishing expedition. He relies principally on the authorities of Kenwood Electronics (Malaysia) Sdn Bhd v People's Audios Sdn Bhd & Ors (2003) 5 CLJ 436; [2003] 5 MLJ 276; [2003] 2 AMR 70); [2002] 3 MLRH 877 and M Wealth 40 Corridor Sdn Bhd v BJ Properties Sdn Bhd & Ors [2021] 10 CLJ 43 ; [2022] 9 MLJ 721 [2021] MLRHU 1692; to argue that the Plaintiffs are improperly seeking to reverse the burden of proof and prematurely compel Defendant for disclosure. General proposition of the Law 45 [3]. The rules governing discovery are provided under Order 24 Rules 3, 5 and 9 of Rules of Court 2012: Order for discovery (O. 24, R 3).

Subject to the provisions of this rule and of rules 4 and 8, the 50 court may at any time order any party to a cause or matter (whether begun by writ, originating summons or otherwise) to give discovery by making and serving on any other party a list of the documents which are or have been in his possession, custody or power and may at the same time or 55 subsequently also order him to make and file an affidavit verifying such a list and to serve a copy thereof on the other party

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The documents which a party to a cause or matter may be ordered to discover under paragraph (1) are as follows a. the documents on which the party relies or will rely; and b. the documents which could : i. adversely affect his own case; 65 ii. adversely affect another party's case; or iii. support another party's case. Form of list and affidavit (O. 24, R 5).

A list of documents made in compliance with rule 3 shall 70 be in Form 38, and shall enumerate the documents in a convenient order and as shortly aspossible but describing each of them or, in the case of bundles of documents of the same nature, each bundle, sufficiently to enable it to be identified.

If it is desired to claim that any document is privileged from production, the claim shall be made in the list of documents with a sufficient statement of the grounds of the privilege

An affidavit made as aforesaid verifying a list of documents shall be in Form 39.

Unless otherwise agreed by the parties, a party preparing his list of documents shall cause to be bound and paginated all documents disclosed in Schedule 1 Part 1 to be intituled "List of Documents" and shall file and serve copies of the same on all the parties to the action whereupon the 85 documents shall be deemed to have been inspected.

Non-compliance with paragraph (4) shall preclude the party aforesaid from tendering any such document at the trial, save and except by the leave of the court. 90 Inspection of documents referred to in list (O. 24, R 9). 9 A party who has served a list of documents on any other party in compliance with rule 3 shall allow the other party to inspect the documents referred to in the list (other than any which he objects to produce) and to take copiesthereof and, 95 accordingly he shall, when he serves the list on the other party, also serve on him a notice in Form 40 stating a time within seven days after the service thereof at which the documents may be inspected at a place specified in the notice 100 [4]. The requirement for discovery is succinctly stated by Edgar Joseph Jr J in Yekambaran Marimuthu v Malayawata Steel Berhad [1994] 2 CLJ 581; [1993] MLJU 96; [1993] 4 MLRH 380: “The essential elements for an order of discovery are threefold: namely first there must be a ‘document’. Secondly, the 105 document must be ‘relevant’ and thirdly, the document must be or have been in the ‘possession, custody or power’ of the party against whom the order for discovery is sought.” [5]. What constitutes the relevance of discovery is stated in the 110 judgment of Justice Nantha Balan JCA in Malaysia Debt Ventures Berhad v Platinum Techsolve Sdn Bhd & Ors [2020] CLJU 1252; [2020] MLJU 1421; [2021] 1 MLRA 137, where he said: “…relevance is primarily determined by reference to the pleadings but there need not be a pleading for a matter to be 115 said to be in issue… relevance of an indirect kind suffices.” When assessing whether to grant discovery, the court must assume the facts pleaded by the party seeking discovery to be true. The opposing party’s version of events is not relevant at that stage; 120 Yekambaran Marimuthu (supra): “…it is the case of the party seeking the discovery that must be assumed to be true, and not that of the party from whom the discovery is sought.” Issues 125 [6]. The issues for determination are: a) Whether there is sufficient factual nexus to justify discovery? b) Whether granting discovery shift the burden of proof? c) Whether the Plaintiffs’ application constitute a fishing expedition? 130 d) Whether discovery will assist fair disposition of the case? e) Whether the Defendant’s explanation is supported by credible evidence? Whether there is sufficient factual nexus to justify discovery [7]. Having carefully reviewed the affidavits and submissions, I find that 135 the Plaintiffs have laid down a sufficient factual basis to support the discovery sought. The WhatsApp messages placed before this Court show direct instructions issued by the Defendant to an officer of the company for fund transfers to 37 identified entities. These are not speculative allegations. Further, there is an express disclaimer 140 by the Plaintiffs' director denying any authorisation on his part. The Defendant has also admitted retaining access to the Plaintiffs’ banking systems, including the registered mobile number used for transaction authorisations. [8]. While the Defendant argues that these communications are taken 145 out of context and that the Plaintiff should have pursued pre-action discovery first, I do not agree that this negates the nexus established. The decision to file suit, rather than seek pre-action discovery, indicates the Plaintiffs' seriousness in their allegations. If their case is unsustainable, they will bear the consequences at trial. 150 At this stage, however, there is a reasonable inference of nexus between the Defendant and the recipient accounts, sufficient to justify the discovery sought. Whether granting discovery shift the burden of proof? [9]. It is important to state that granting discovery does not alter or shift 155 the legal burden of proof. That burden, particularly in civil cases involving breach of fiduciary duty or dishonest assistance, remains firmly with the Plaintiffs under Section 101 of the Evidence Act

The Defendant relies heavily on Kenwood Electronics (supra), where the court dismissed discovery because it would have 160 had the effect of transferring the evidential burden onto the defendant. [10]. However, the facts in Kenwood are distinguishable, as clarified in WRP Asia Pacific v Lee Son Hong & Ors (ENCLS 17, 24, 27, 73) [2021] AMEJ 1494; [2021] MLRHU 1363, which more appropriately 165 guides this Court. There, the High Court affirmed that discovery relevant to pleaded issues does not shift the burden of proof; it merely facilitates access to documents that may assist a party in proving or rebutting a claim. As the learned judge observed: “I have held that the documents are relevant for the purpose 170 of discovery. Further, I do not find this case to be one where the Statement of Claim contains bare assertions. I had found that particulars of causes of action for conspiracy and dishonest assistance were sufficiently pleaded by the Plaintiff… It is too wide an argument to put forward that the 175 grant of a discovery order would result in the burden of proving the Plaintiff’s claim to be shifted… The burden would remain with the Plaintiff to prove its case.” In the present case, the Plaintiffs have pleaded specific causes of 180 action namely: breach of fiduciary duty, dishonest assistance, and knowing receipt, and have adduced primary evidence. The bank statements sought to relate to specific accounts and a definitive period directly tied to the pleaded allegations. The Plaintiffs remain obliged to establish their claims at trial. 185 [11]. Even if this Court grants discovery, the Defendant is not prejudiced. He retains all procedural safeguards to challenge the evidence and contest liability. Conversely, if the Plaintiffs were to proceed without seeking discovery and failed to establish the fund trail, it would be open to the Defendant to contend that the Plaintiff’s omission to 190 pursue discovery ought to weigh against them in the evaluation of their case. Whether the Plaintiffs’ application constitute a fishing expedition? [12]. This Court finds that the Plaintiffs’ application does not amount to a fishing expedition. The discovery sought is precisely defined, and 195 limited to the Defendant’s Maybank bank statements between 14 February 2020 and 9 June 2021, a period that directly corresponds with the alleged RM4.4 million in fund transfer. They have identified the relevant Maybank accounts and are not seeking disclosure of all financial records in a general manner. 200 [13]. The Defendant has not denied possession or control of these documents, thereby satisfying the requirement under Order 24 Rule 3 that discovery is only available against parties in possession, custody, or power of the documents sought. [14]. The Plaintiffs have clearly pleaded a cause of action grounded in 205 breach of trust, breach of fiduciary duty, knowing receipt, and dishonest assistance. This is not a case of pre-action discovery. The Plaintiffs have already commenced the present proceedings and rely on contemporaneous documentation. They are not searching for a cause of action but are seeking to substantiate an existing one. 210 In this regard, the decision of the Singapore Court of Appeal in Kuah Kok Kim v Ernst & Young (a firm) [1996] 3 SLR(R) 485 is instructive. The Court there clarified that: “…the nature of pre-action discovery, the plaintiff does not yet know whether he has a viable claim against the 215 defendant, and the rule is there to assist him in his search for the answer. Thus the safeguards specified in the rules are to ensure that the plaintiff is not allowed to take advantage of the rules merely to enable him to go on a fishing expedition” 220 That principle in Kuah Kok Kim (supra) is directed at pre-action discovery and has no application here, where the claim has already been filed and the class of documents sought is both relevant and reasonably specified. Whether discovery will assist fair disposition of the case? 225 [15]. This Court is satisfied that the discovery sought is likely to assist in the fair determination of the matter. The test from The Compagnie Financiere Et Commerciale Du Pacifique v. The Peruvian Guano Company [1882] 11 QBD 55 remains good law: if the documents sought in discovery might reasonably advance the 230 Plaintiffs’ case or damage the Defendant’s, they are discoverable. Brett LJ writing a separate judgment for the Court of Appeal in that case had laid down the principles in these words: The doctrine seems to me to go farther than that and to go as far as the principle which I am about to lay down. It seems 235 to me that every document relates to the matters in question in the action, which not only would be evidence upon any issue, but also which, it is reasonable to suppose, contains information which may - not which must - either directly or indirectly enable the party requiring the affidavit either to 240 advance his own case or to damage the case of his adversary. I have put in the words 'either directly or indirectly,' because, as it seems to me, a document can properly be said to contain information which may enable the party requiring the affidavit either to advance his own 245 case or to damage the case of his adversary, if it is a document which may fairly lead him to a train of inquiry, which may have either of these two consequences” [16]. This is consistent with the approach taken in a long line of cases 250 from our jurisdiction including Yekambaran Marimuthu (supra) and Ong Boon Hua & Anor v. Menteri Hal Ehwal Dalam Negeri Malaysia & Ors [2008] 5 CLJ 42; [2008] 3 MLJ 625; [2008] 4 AMR 694; [2008] 1 MLRA 759 both of which affirm the importance of relevance in discovery. 255 Whether the Defendant’s explanation is supported by credible evidence? [17]. Finally, I note that the Defendant’s assertion that he acted solely on instructions from Dato’ Haji Ismail is wholly unsupported by any contemporaneous material. There are no WhatsApp messages, 260 written instructions, or corroborating correspondence that has been exhibited. Neither has the Defendant lodged any police report disclaiming responsibility or clarifying his role. These remain bare assertions, which in law carry little probative value where they contradict contemporaneous evidence or lack specificity. This 265 principle can be gleaned from Eng Mee Yong & Ors v V Letchumanan [1979] CLJU 18; [1979] 1 MLRA 143; [1979] 2 MLJ 212 at 217: “Although in the normal way it is not appropriate for a judge to attempt to resolve conflicts of evidence on affidavit, this 270 does not mean that he is bound to accept uncritically… every statement on an affidavit however equivocal, lacking in precision, inconsistent with undisputed contemporary documents or other statements by the same deponent, or inherently improbable in itself it may be.” 275 And further: “It is for him [the judge] to determine in the first instance whether statements contained in affidavits that are relied 280 upon as raising a conflict of evidence upon a relevant fact have sufficient prima facie plausibility to merit further investigation as to their truth.” The Defendant’s position, being both unverified and contradicted by 285 the available documentary record, falls squarely within the category of statement that does not justify further investigation. [18]. Finally, I note that the Defendant’s assertion that he acted solely on instruction from Dato’ Haji Ismail is unsupported by any contemporaneous evidence. No WhatsApp messages or other 290 communications have been exhibited to that effect. Nor has any police report been lodged by the Defendant to disclaim knowledge or responsibility. As explained in Eng Mee Yong (supra), bare denials without supporting material do not carry much weight, particularly where they contradict documentary evidence. 295 Although in the normal way it is not appropriate for a judge to attempt to resolve conflicts of evidence on affidavit, this does not mean that he is bound to accept uncritically, as raising a dispute of fact which calls for further investigation, every statement on an affidavit however equivocal, lacking in 300 precision, inconsistent with undisputed contemporary documents or other statements by the same deponent, or inherently improbable in itself it may be. Conclusion [19]. In conclusion, this Court is satisfied that the Plaintiffs have 305 established a sufficient factual foundation, both in terms of relevance and specificity, to justify the discovery sought under Order 24 Rules 3, 5, and 9 of the Rules of Court 2012. The documents requested are confined to a defined period, relate directly to the pleaded causes of action and are not speculative. The 310 application satisfies the threshold requirements for discovery and does not seek to shift the burden of proof [20]. For these reasons, Enclosure 5 is allowed. The Defendant is directed to disclose the bank statements identified in the Notice within 14 days from the date hereof. Costs of RM1,000 is awarded 315 to the Plaintiffs. Date : 9 June 2025 MOSES SUSAYAN 320 Judicial Commissioner High Court in Malaya at Ipoh, Perak 325 Counsel: For the Plaintiffs : Norazali Nordin Advocates and Solicitors 330 [Maxwell Kenion Cowdy & Jones] Ipoh, Perak For the Defendant : Syamil Haidhar bin Abdul Jalil Alwi Advocates and Solicitor 335 [Messrs Amirfaliq & Syahidah] Ipoh, Perak (Notice: This Grounds of Decision is subject to official editorial revision) 340 Headnotes: The Plaintiffs applied for specific discovery of bank statements from the Defendant, alleging misuse of fiduciary position and unauthorised fund 345 transfers amounting to RM4.4 million. They relied on contemporaneous WhatsApp messages, AMLA notices, and police reports. The Defendant resisted the application, contending that all transactions were authorised by a third party and that the application was speculative and reversed the burden of proof. 350