1. ) Caliph Consultancy Group Sdn. Bhd. v 1. ) One Two One Advisor Sdn. Bhd. (WA-22IP-18-02/2024)

CALIPH CONSULTANCY GROUP SDN BHD (COMPANY NO.: 201201000795 [974319-H])

MOHD HAMZAVI BIN MD ZAIN (IC NO.: 761111-03-5369) … PLAINTIFFS

ONE TWO ONE ADVISOR SDN BHD (COMPANY NO.: 201001027965 [911884-T])

QAIZER CONSULTANCY SDN. BHD. (COMPANY NO.: 202301047905 [1541819-H])

KHAIRUL AFIFIE BIN RAZALI

FWD TAKAFUL BERHAD (COMPANY NO.: 200601011780 [731530-M]) … DEFENDANTS GROUNDS OF JUDGMENT A. Introduction [1] The plaintiffs filed an application (“Plaintiffs’ Application”) to seek an order for identified documents and information (collectively, the “Information”) to be treated in the manner as detailed in the Plaintiffs’ Application. The Information is in exhibits “MH-37” and “MH-38” of the affidavit in support of the plaintiffs’ application for an injunction (“Plaintiffs’ Injunction Application"). [2] After considering the evidence before the court and hearing counsel’s submissions, the court dismissed the Plaintiffs’ Application. These are the grounds of the court’s decision. B. Background Facts The plaintiffs’ appointments as agents under the 4th defendant [3] The 2nd plaintiff is a shareholder and director of the 1st plaintiff. The plaintiffs are former takaful agents under the 4th defendant. They were appointed by way of the following agreements: a. An agency agreement dated 18 December 2019, pursuant to which the 2nd plaintiff was appointed as an agent under the 4th defendant, responsible to promote and procure customers for the 4th defendant’s takaful products; b. An agency leader agreement dated 18 December 2019, pursuant to which the 2nd plaintiff was appointed as an agency leader, responsible for the recruitment, training and supervision of agents under the 4th defendant; and c. An agency leader corporation agreement dated 19 December 2019, pursuant to which the 1st plaintiff was appointed as an agency leader corporation under the 4th defendant (“Caliph ALC”), responsible to perform services for the 4th defendant, including to recruit agents, and to develop and supervise agents under Caliph ALC. The ALC System [4] The 1st defendant operates a software-as-a-service centre called the “Agency Leader Corporation Management Centre”, which provides an insurance / takaful agency management computer system and related support services (“ALC System”). [5] On 1 January 2022, the 1st plaintiff and the 1st defendant entered into a subscription agreement, pursuant to which the 1st plaintiff agreed to subscribe to and utilise the ALC System (“Subscription Agreement”) for Caliph ALC. [6] The ALC System operates by way of a web portal that presents information on commission payments to the 4th defendant’s agents under Caliph ALC. The system works in the following manner: a. The 4th defendant provides the 1st defendant with monthly commission data for takaful products sold by agents under Caliph ALC; b. The 1st defendant calculates the monthly commissions due to these agents using the ALC System, based on the 1st plaintiff’s allocation; and c. The 1st plaintiff then facilitates the payments of these commissions to the agents. The data and collection of information setting out the remuneration allocated to be paid to agents under Caliph ALC are referred to as the “Commission Allocation”. [7] For the purpose of the Commission Allocation, the ALC System records the agents’ hierarchy and positions in the agency structure of Caliph ALC (“Agent Database”). The plaintiffs’ resignations [8] The 4th defendant claimed that in May 2023, it discovered that the 2nd plaintiff had recruited agents for and engaged in Sun Life Malaysia Takaful Berhad’s (“Sun Life”) takaful business. The 4th defendant claimed the 2nd plaintiff had set up Caliph Life Sdn Bhd to sell takaful products for Sun Life, in competition with the 4th defendant. [9] Following the claim, the 4th defendant issued a letter dated 2 November 2023, alleging that the 2nd plaintiff had breached the agreements he executed with the 4th defendant. The plaintiffs responded by tendering their resignations by a letter dated 23 November 2023. The establishment of the 2nd defendant [10] After the plaintiffs’ resignations, the 3rd defendant, who had been an agent under Caliph ALC, established the 2nd defendant on 1 December

The 2nd defendant became an agency leader corporation under the 4th defendant. [11] The plaintiffs’ resignations as agents of the 4th defendant led to the closure of Caliph ALC. As a result, approximately 508 agents who had been under Caliph ALC left Caliph ALC, and chose to remain as agents under the 4th defendant (“Transferred Agents”). The Transferred Agents include agents who joined the 2nd defendant’s agency leader corporation (“Qaizer ALC”). The plaintiffs’ claim [12] The plaintiffs claimed the defendants misappropriated information of the plaintiffs’ agents from the ALC System, as the 1st defendant had unlawfully transferred the Commission Allocation and the Agent Database to the 2nd defendant. The plaintiffs claimed the Commission Allocation and the Agent Database are the plaintiffs’ confidential information and trade secrets. The plaintiffs further alleged that the 1st defendant’s transfer of the Commission Allocation and the Agent Database to the 2nd defendant was carried out in breach of the Subscription Agreement, and that the 4th defendant had induced the breach of the Subscription Agreement. [13] Thus, the plaintiffs filed this claim against the defendants for breach of confidentiality, misappropriation of trade secrets, unlawful interference with the 1st plaintiff’s trade, and conspiracy to injure. [14] The defendants denied any wrongdoing. They claimed that the transfer of the Commission Allocation and the Agent Database to the 2nd defendant was carried with the consent of the Transferred Agents, in order to give effect to the transition of the memberships, accounts and data of the Transferred Agents in the ALC System, from Caliph ALC to Qaizer ALC. C. The Plaintiffs’ Application [15] The Commission Allocation and the Agent Database form the Information, which the plaintiffs are seeking protection for in the Plaintiffs’ Application. [16] The Information is contained in the affidavit in support of the Plaintiffs’ Injunction Application. Because of this – and rightly so – the affidavit was not served on the defendants. Instead, the plaintiffs filed the Plaintiffs’ Application. [17] In the Plaintiffs’ Application, the plaintiffs sought, inter alia, the following orders: a. For the Information to be used solely for the purpose of this action; b. For the Information not to be, directly or indirectly, disclosed, summarised, described, characterised or communicated in any manner to any person, except to specified persons including the judge having conduct of this action, court personnel, solicitors and expert witnesses (“Recipients”); c. For the Recipients to sign an undertaking to protect the Information, and to take steps and implement measures to protect the Information; and d. For the Information to be sealed upon filing in court, and to be filed other through the court’s electronic filing system, to ensure that they are not disclosed, made accessible or made available to the public. D. Considerations and Findings Issues [18] In considering whether the Information should be protected in the manner as set out in the Plaintiffs’ Application, the court considered: a. The scope of the Plaintiffs’ Application; and b. The nature of the Information. The scope of the Plaintiffs’ Application [19] At the outset, I must stress that the protection of confidential information is of paramount importance, particularly in disputes involving intellectual property. Many intellectual property disputes involve documents and information that are confidential, and these documents and information must be protected in the course of proceedings, to preserve their sanctity and the sanctity of the proceedings, and to protect the interests of all parties involved. [20] For this reason, parties involved in intellectual property disputes will typically cooperate to ensure that information that is the subject matter of claims of breach of confidentiality or misappropriation of trade secrets is protected while proceedings are ongoing in court. This was the approach taken by learned counsel for the defendants, who had in principle conceded to the grant of an order to protect the Information from public access (while maintaining the position that the Information is neither confidential information nor trade secrets). [21] With the encouragement of the court, parties had attempted to negotiate the terms of an order to maintain the confidentiality of the Information. However, negotiations failed, and it was evident that learned counsel for the plaintiffs were unclear of what a confidentiality order entails, having confused the grant of a confidentiality order with an injunction over the use of the Information. [22] An order to protect the confidentiality of documents and information used in the course of proceedings has been referred to by different terms – a “protective order”, a “sealing order” and a “confidentiality order”. In dTechs EPM Ltd v British Columbia Hydro & Power Authority, [2019] FCJ No. 492, a decision of the Federal Court of Canada, which I found to be persuasive, the court acknowledged that the terms “protective order” and “confidentiality order” are used interchangeably. It was held that: “23 It has been the practice of this Court to grant requests for orders providing for the handling and protection of documents and information as between the parties during discovery. Such orders have been referred to interchangeably as "protective orders" or "confidentiality orders" in court decisions. Recent decisions by this Court highlight the tension--and possible confusion--between the standard applied for orders that govern the protection of materials exchanged between parties during discovery and those that allow for materials to be filed with the Court confidentially. … A. Confidentiality Order 24 The open court principle is a hallmark of our judicial system. It not only means that members of the public have a right to attend court hearings, but also that the public can get access, within certain limits and under some conditions, to the files and records of the Court. 25 A confidentiality order governs the filing of confidential documents and information on the court record, either in the context of an interlocutory motion or at the hearing of the proceeding on its merits. The open court principle is engaged when, if at all, a party seeks to file confidential information in support of a motion or, if the case goes to trial, the party's documents or answers from the discovery transcripts are introduced as evidence. … B. Protective Order 32 A protective order is intended to govern the handling of documents and information that the parties have treated confidentially and may be disclosed or compelled during documentary or oral discovery. The designation of a document as confidential under a protective order does not permit the document to be filed confidentially with the Court. 33 There is no presumed right of the public to participate in the discovery process or to have access to the fruits of discovery that are not submitted to the court: The Sedona Guidelines: Best Practices Addressing Protective Orders, Confidentiality & Public Access in Civil Cases (The Sedona Conference: 2007) ?www.thesedonaconference.org?. This is because pre-trial discovery, as a general rule, does not take place in open court. Documents are inspected or exchanged by counsel at a place of their own choosing. In the vast majority of civil cases, materials exchanged between the parties during discovery rarely see the light of day as few matters go to trial.” (emphasis added) [23] The above case makes a clear distinction between a confidentiality order and a protective order. The case defines a confidentiality order as an order that protects the confidentiality of documents filed in court, and allows the court to control access to documents filed while proceedings are ongoing. A protective order, on the other hand, governs the handling of a party’s confidential documents and information that are disclosed pursuant to a discovery order. A protective order is granted to prohibit an applicant seeking discovery from misusing the confidential information once discovery is granted. [24] I accept that a confidentiality order may contain a similar prohibition on the use of documents and information filed in court. However, such a prohibition would be unnecessarily restrictive in a case where these documents and information were already in the possession or knowledge of the opposing party before proceedings commenced. [25] This is the situation that presents itself before this court. In the present case, the Information consists of the Commission Allocation and the Agent Database, which were used to administer and facilitate payments of monthly commissions to the 4th defendant’s agents under Caliph ALC, including the Transferred Agents. Caliph ALC, as an agency leader corporation under the 4th defendant at the material time, was tasked to facilitate the payments of monthly commissions to the 4th defendant’s agents. Thus, the 4th defendant had always had access to the Information. [26] The 1st and 2nd defendants would have also had access to the Information as a result of the move of the Transferred Agents from Caliph ALC to Qaizer ALC. [27] In this situation, the court therefore finds that the prayers sought by the plaintiffs in the Plaintiffs’ Application to be far too wide. The following prayers in particular are of concern: a. Prayer 2, which requires the Information to be used solely for the purpose of this action: “The Protected Information shall be used solely for the purpose of this action”; b. Prayer 3.10, which contains prohibitions against, inter alia, discussions, disclosures and revelations of the Information, even after the conclusion of this action: “The Recipients of Protected Information shall not in any way discuss, disclose or reveal the Protected Information or any part of it to anyone who is not entitled to receive the Protected Information under the terms of this Order during and/or even after the conclusion of the action herein and in any ensuing appeal(s)”; c. Prayer 3.12, which prohibits the defendants and their solicitors from giving copies of the Information to third parties, except with the direction of the court and with prior written notice to the plaintiffs’ solicitors: “The Defendants and their respective solicitors shall undertake to this Honourable Court that they, their employees, directors, agents and/or representatives, shall, upon the direction of the Learned Judge or Judicial Commissioner and with prior written notice provided to the Plaintiffs’

3.12.1 make such copies of the Protected Information for the purposes of the action herein;

3.12.2 not give, directly or indirectly, such copies of the Protection Information to any person except to the Recipients;” d. Prayer 3.17, which requires the Information to be deleted upon the conclusion of this action: “Within thirty (30) days of the conclusion of this action, including the exhaustion of all ensuing appeals –

3.17.1 all and any Protected Information retained by the Defendants and/or the Defendants’ solicitors and counsel and their clerical staff assisting in this action (as may be contained in any storage device or retained in printed, recorded, digital, temporary or permanent form or any manner of form) shall be completely and permanently extinguished and deleted. No Protected Information or any part thereof shall remain to be retained or be in the possession of the Defendants and/or the Defendants’ solicitors and counsel and their clerical staff assisting in this action”. [28] The above prayers, if granted, would effectively permanently injunct the defendants from using the Information. This is far wider than the scope of a confidentiality order to protect or seal the Information from third party access, when filed in court. [29] It is important to note that the plaintiffs have filed the Plaintiffs’ Injunction Application to injunct the defendants from using the Information. In this regard, the prayers sought by the plaintiffs on the use of the Information should not be the subject matter of the Plaintiffs’ Application, but should instead be ventilated at the hearing of the Plaintiffs’ Injunction Application. [30] The legal tests for the court to grant a confidentiality order over documents and information and to restrict the information from public access are different from the legal tests for the court to grant an injunction over the use of the documents and information. The threshold to meet to grant an injunction is higher, involving considerations of whether there are issues to be tried, where the balance of convenience lies and whether damages are an adequate remedy. The tests for the grant of a confidentiality order, on the other hand, do not require an assessment of the case, but a consideration of the documents and information to be protected, and the necessity for protection. [31] It is therefore premature for the court to grant an order to injunct the defendants from using the Information, without the tests for the grant of an injunction being argued in court. I must stress that at this juncture, the defendants have not had sight of the Information, and as such, any injunction order granted against them on the use of the Information at this point would be patently unfair. [32] To support their application, the plaintiffs relied on Kingtime International Ltd v Petrofac E&C Sdn Bhd [2020] 11 MLJ 141, where the High Court held that the confidentiality of information can be safeguarded by a protective order granted under order 92 rule 4 of the Rules of Court 2012. [33] However, the plaintiffs appeared to have missed a crucial distinction between Kingtime (supra) and the present case, namely that in Kingtime (supra), the protective order was granted to restrain the applicants of a discovery order from misusing information obtained during the process of discovery for purposes other than the proceedings before the court. The applicants of the discovery order in Kingtime (supra) did not have possession of the information subject to discovery, prior to obtaining the discovery order. The order obtained was essentially a protective order and not a confidentiality order, based on the distinction set out in dTechs EPM (supra). [34] In the present case, the defendants were in possession of the Information, and as such, any order to protect the confidentiality of the Information should only be limited to preventing third parties or the public from having access to the Information, once it is filed in court. The question of the continued use of the Information by the defendants should only be dealt with in the Plaintiffs’ Injunction Application. [35] The court therefore finds that the scope of the Plaintiffs’ Application as it stands is far too wide. It is in substance a prohibitory injunction to prevent the defendants from using the Information. The nature of the Information [36] The court notes that the Information consists of: a. The Commission Allocation, which sets out the remuneration allocated to be paid to agents of the 4th defendant under Caliph ALC; and b. The Agent Database, which sets out the hierarchy and positions of agents of the 4th defendant in the agency structure of Caliph ALC. [37] The test on the grant of a confidentiality order is set out in the Canadian Supreme Court case of Sierra Club of Canada v Canada (Minister of Finance) [2002] 2 SCR 522. This test was recently adopted by the Malaysian High Court in Toso Co Ltd v Goodmeyer Curtain Accessories Supply Sdn Bhd [2025] 9 MLJ 379, in granting a protective and sealing order to prevent commercially sensitive and confidential information and documents from being publicly disclosed during proceedings on assessment of damages. [38] The test, as set out in Sierra Club (supra), is as follows: “53 … the test for whether a confidentiality order ought to be granted in a case such as this one should be framed as follows: A confidentiality order under Rule 151 should only be granted when:

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

the salutary effects of the confidentiality order, including the effects on the right of civil litigants to a fair trial, outweigh its deleterious effects, including the effects on the right to free expression, which in this context includes the public interest in open and accessible court proceedings.” (emphasis added) [39] Applying the above test, in assessing the Plaintiffs’ Application, the court must consider whether: a. The orders sought by the plaintiffs are necessary to prevent a serious risk to an important interest (including commercial interest); and b. The benefits of the orders outweigh their negative effects. [40] The court in Sierra Club (supra) also held at paragraph 54 of the judgment that the risk to the important interest must be a real and substantial risk grounded in evidence, and which poses a serious threat to the commercial interest in question. [41] There are two points to be noted on the question of the confidentiality of the Information. First, the Information was used by the 4th defendant to facilitate payments of commissions to agents formerly under Caliph ALC. Even after the plaintiffs’ resignations and the closure of Caliph ALC, the Transferred Agents continued to receive payments of commissions and incentives from takaful products they had sold while they were members of Caliph ALC. The Commission Allocation and the Agent Database are used on an ongoing basis to administer and facilitate payments of these commissions and incentives. [42] Second, the Information (specifically the Commission Allocation) has been widely shared through presentations and engagement sessions by the plaintiffs and their agents, and was used by the plaintiffs to attract agents to join Caliph ALC. I am in this regard guided by the case of Ganesh Raja a/l Nagaiah & Ors v NR Rubber Industries Sdn Bhd [2017] 2 MLJ 396, where the Court of Appeal held at paragraph [13] of its judgment that general information available to all employees or the public cannot per se attract the doctrine of confidentiality. [43] In view of the defendants’ possession of the Information and the extent of its dissemination by the plaintiffs, I find that the test in Sierra Club (supra) has not been met, in that there is no important interest, including commercial interest, requiring protection by way of a confidentiality order. [44] Further, since the plaintiffs have resigned from the 4th defendant, it is unlikely that the plaintiffs would have any use of part of the Information that concerns the Transferred Agents. The 4th defendant on the other hand is still using the Information, as payments of the commissions of the Transferred Agents are still governed by the structure set out in the Information. Thus, if the Plaintiffs’ Application is allowed, the defendants would be restrained from using the Information. Prayer 3.12 in particular prohibits the defendants from providing copies of the Information to third parties, except with the direction of the court and with prior written notice to the plaintiffs’ solicitors. The Transferred Agents are third parties who are not parties to this action, and such a prohibition would lead to prejudice to them, as they would not have access to information that concerns them and that is used to facilitate the payments of their commissions. [45] Based on the above, the court finds that due to the nature and scope of the Information, the protection sought over the Information in the manner as set out in the Plaintiffs’ Application is unjustified. Further, the orders sought will prejudice the defendants and the Transferred Agents. E.

[46] Based on the scope of the Plaintiffs’ Application and the nature of the Information, the court finds that the grant of an order to protect the Information is neither necessary nor justified. [47] As such, the Plaintiffs’ Application is dismissed, with costs. Dated 30 June 2025 ADLIN ABDUL MAJID Judge High Court of Malaya Kuala Lumpur Counsel: Plaintiffs : Christie Soosay Nathan (together with S. Surendran and Azra Hazirah Tadwin binti Tadad) of Messrs Suren Subra Law Chambers Defendants : Jack Yow (together with Melvin Ng Yet Ting and Lee Ji Kean) of Messrs Rahmat Lim & Partners