1. ) Federal Land Development Authority v 1. ) Tan Sri Haji Mohd Isa Bin Dato Haji Abdul Samad (WA-22NCvC-843-11/2019)

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1 DALAM MAHKAMAH TINGGI MALAYA DI KUALA LUMPUR (BAHAGIAN SIVIL) DALAM WILAYAH PERSEKUTUAN KUALA LUMPUR, MALAYSIA GUAMAN NO.: WA-22NCvC-843-11/2019

Lampiran

Lampiran A4 “Tatacara Pengendalian Saksi Yang Memberikan Keterangan Melalui Teknologi Komunikasi Jarak Jauh” paragraph 20 reads as follows: “Sekiranya saksi berada di luar negara dan berhasrat untuk memberikan keterangan melalui teknologi komunikasi jarak jauh permohonan hendaklah dibuat oleh peguam kepada Mahkamah dalam tempoh yang munasabah sebelum bermulanya prosiding.” [14] The Court in determining this Application may consider the factors outlined in paragraph 11 of the Arahan Amalan Ketua Hakim Negara No. 1/2021 with respect of the conduct of civil proceedings via remote communication technology and the relevant part reads as follows: “(e) sama ada mana-mana pihak akan diperjudiskan sekiranya keterangan diberikan melalui teknologi komunikasi jarak jauh; (g) sama ada saksi berada di dalam atau di luar negara dan sekiranya saksi berada di luar negara, sebab dan alasan saksi tidak dapat memberikan keterangan di dalam negara; (h) hak pihak-pihak untuk perbicaraan yang adil tetap terpelihara walaupun keterangan oleh saksi diberikan melalui teknologi komunikasi jarak jauh; dan (i) apa-apa hal keadaan lain yang akan dipertimbangkan oleh Mahkamah.” [15] The law relating to attendance of person, witness or prisoner as witness or party is provided for under Order 33A rule 3 of the Rules of Court (“ROC”) 2012 with effect from 15 December 2020 to facilitate proceedings by remote communication technology which reads as follows: “3 (1) In relation to the attendance of any person, witness or prisoner as witness or party, in any proceedings or the evidence to be given in person, the Court or Registrar may, on being satisfied that all the conditions specified in paragraph (2), direct the person, witness or prisoner as witness or party – (a) to attend (other than to give evidence) in those proceedings, by means of remote communication technology; or (b) to give evidence through remote communication technology. (2) The conditions referred to in paragraph (1) are as follows: (d) the Court or Registrar is satisfied that sufficient administrative and technical facilities and arrangements are made at the place where the person, witness or prisoner as a witness or party is to make an appearance or to give evidence.” [16] In exercising powers under O. 33A r. 3 ROC 2012, the Court must be careful not to prejudice any party in the hearing of evidence. In this respect I am mindful of the inherent powers of the Court to make any order as maybe necessary to prevent injustice or to prevent an abuse of the process of the Court. (see O. 92 r. 4 Rules of Court 2012) [17] The Court of Appeal in the case of Karen Yap Chew Ling v. Binary Group Services Bhd & Another Appeal [2023] 7 CLJ 534 at p. 545 (per Lee Swee Seng JCA delivering the judgement of the Court) decided as follows: “[34] Likewise, the Rules of Court 2012 (“ROC”) was amended with the introduction of O. 33A with effect from 15 December 2020 to facilitate proceedings to be conducted by remote communication technology. There was also the introduction of the Arahan Amalan Ketua Hakim Negara Bilangan 1 Tahun 2021 with respect to the conduct of civil proceedings via remote communication technology. [35] The decision to use the remote communication technology is at the discretion of the court as stated in the above practice direction. It is further stated that the court may have regard to the complexity of the case, the time to be taken for the taking of evidence, the quality of the internet transmission speed and the stability of the internet in the court’s concerned. The trial judge always retains a full discretion on the manner a trial is to be conducted.” [18] The High Court decided in the case of Ing Bank NV v. Anish Resources Sdn Bhd [2022] MLJU 591 as follows: “Our courts now from the Federal court right down to the Magistrates’ Courts are equipped to hear cases through “remote communication technology”. This is a development that we can all justly be proud of. After all, the well-known legal maxim is Justice delayed is justice denied.” Affidavit in Support of 12th Defendant (Encl. 718) [19] In paragraph 3 of Encl. 718, the 12th Defendant prayed for an Order inter alia that leave be granted for the 12th Defendant to testify through remote communication technology (RCT) by way of Zoom (or any other platform of similar nature as may be directed by the Court) throughout the entire proceedings. [20] Reference is made to the reasons outlined in paragraph 6 of Encl. to support the 12th Defendant’s Application inter alia that the 12th Defendant have relocated to Maryland USA since the year 2017 and is currently gainfully employed as a preschool teacher. [21] In paragraph 6 (e) of Encl. 718, the 12th Defendant referred to a letter dated 25.3.2024 (exhibited in AMY 2) by Messrs. Azim, Tunku Farid & Wong (ATFW) to the Plaintiffs’ counsel Messrs. Lee Hishamuddin Allen & Gledhill (LHAG) where paragraph 3 of the said letter inquired whether the Plaintiffs are agreeable for the 12th Defendant to testify via Zoom in the event that the trial is conducted physically, as she has relocated to the United States. [22] By letter dated 3.5.2024 LHAG in their reply to ATFW states that they are not agreeable for the 12th Defendant to testify via Zoom at the trial of this case. (see letter by ATFW dated 7.5.2024 para. 3 in Encl. 585) [23] By letter dated 16.5.2024 (Encl. 601) LHAG informs Court of their reasons why the Plaintiffs are not agreeable to the 12th Defendant’s Application for her evidence to be adduced by way of Zoom. In para 6 of Encl. 601, the Plaintiffs prays for the evidence of the 12th Defendant to be conducted physically and that the 12th Defendant’s Application be dismissed. [24] By letter dated 24.5.2024 ATFW in Encl. 609 outlined the reasons for the 12th Defendant to testify via Zoom as outlined in the grounds in para. (a) to (f). As the zoom hearing is regarded as an open Court proceeding and any interested parties may request for the Zoom link from the Court. The 12th Defendant states that the evidence by Zoom ought to be allowed on the balance of convenience and the 12th Defendant reserved her right to file a Notice of Application in respect of this issue. Submissions of 12th Defendant (Encl. 881 and 889) [25] The 12th Defendant submits that this Application ought to be allowed for the following reasons: (a) the 12th Defendant has relocated to Maryland, USA since 2017; (b) the uncertainty of the timetable of the trial in light of the multiple parties, trial dates and witnesses involved; (c) there is a real danger and substantial risk of the 12th Defendant losing her employment if this Application is not allowed; (d) effective measures can be imposed to ensure that the rights of the parties to a fair trial are preserved; (e) there is no prejudice suffered by the Plaintiffs. On the contrary, greater hardship will be suffered by 12th Defendant; and (f) it is in the interest of justice to allow this Application. [26] The 12th Defendant submits that on the uncertainty of the trial schedule in the light of the parties, trial dates and witnesses involved stating that there were a total of 31 parties and 19 law firms involved in both the main suit and counterclaim and 40 witnesses based on the list of witnesses filed by parties. [27] According to the 12th Defendant she is familiar with the process and relevant protocols and has the experience in testifying through remote communication technology where she testified as the 5th Defendant from New York USA in the High Court case of Low Han Kok & Anor. v. Yap Sien Toh & Ors. [2023] MLJU 741. [28] The 12th Defendant submits that conducting proceedings remotely is more efficient in the present case in view of the volume of the trial documents and parties involved. The counsel can utilise the ‘share screen’ function to display relevant or specific documents during the trial, without the need to sift through the voluminous physical documents, which is time-consuming. [29] The 12th Defendant filed the Submissions in Reply (Encl. 889) on 5.5.2025 maintaining that this Application ought to be allowed on the following reasons: (a) there are good reasons, and it is in the interest of justice to allow this Application; and (b) the cost and inconvenience raised by the Plaintiffs are non-issues if sufficient safeguards were imposed. Submissions of the Plaintiffs (Encl. 884 and 890) [30] The Plaintiffs (FELDA and FIC) submit that the 12th Defendant ought to give evidence by way of a physical appearance, instead of by Zoom, for the following reasons: (a) Prescribed Mode of Trial: that the parties to a trial must follow the Court’s prescribe more of trial unless there are compelling reasons to deviate from it as decided in the case of Karen Yap Chew Ling (supra) as follows: “[24] Parties to a trial must follow the Court’s timetable and prescribed mode of trial unless there are compelling reasons to deviate from the trial dates fixed by the Court or the prescribed mode of trial via being physically present to give evidence-in-chief and to be cross-examined by the opposing counsel and then to be re-examined by one’s own counsel.” (b) There is ample time for the 12th Defendant to make the necessary arrangements for her to travel back to Kuala Lumpur and be present in Court; (c) In the light of the nature of the dispute by the Plaintiffs against the 12th Defendant involving serious issues of conspiracy, fraud and dishonest assistance, the examination of the 12th Defendant must be done by way of a physical trial; (d) The effectiveness of cross-examination would be impacted in the event the 12th Defendant give evidence via Zoom as reflected in the case of Karen Yap (supra) as follows: “[27] It is not that cross-examination cannot be done remotely via the Zoom technology but the effectiveness of it may be lost due to lagging, poor internet connectivity and also the costs of engaging a supervising solicitor to ensure no prompting during the cross-examination. There is also the difficulty of ensuring that during the breaks the witness does not communicate with her counsel over there in Cyprus.” (e) Cost and inconvenience to Court and other parties. [31] The Plaintiffs filed Submissions in Reply in Encl. 890 on 5.5.2025. The Plaintiffs reiterated that the 12th Defendant is a material witness and it is undisputed that the 12th Defendant that she was the main partner and solicitor involved in the preparation, execution and carrying out the Disputed Agreements and Instruments. Analysis and Findings [32] I have read and perused the Affidavits in Support, Written Submissions and Authorities filed by the 12th Defendant and the Plaintiffs. I have also considered the Oral Submissions and Arguments forwarded and articulated by the respective parties’ counsel. [33] The Application by the 12th Defendant for the evidence to be conducted by Zoom is hereby disallowed on the following reasons: (a) The 12th Defendant and the Plaintiffs had earlier in their respective letters to Court as reflected in Encl. 601 and Encl. 609 forwarded the reasons for the evidence of the 12th Defendant to be conducted by Zoom or physically in open Court. (b) Even though the 12th Defendant in Encl. 609 clearly states their right to file a Notice of Application which was filed in Encl. on 7.12.2024, this Application filed is akin to having a second bite of the cherry. (c) On record during the case management on 13.9.2024, the 12th Defendant’s counsel applied orally the request of the 12th Defendant to testify by Zoom as the 12th Defendant is currently residing in the United States. The Court has directed that the 12th Defendant to testify physically in Court, for that matter this case in its entirety (also see para. 19) including the case management to be dealt with by physical attendance. (d) Public Interest. This case is not an ordinary case, this is a case of public interest and must be dealt with efficiently, effectively and expeditiously. The Court of Appeal in the case of Abd Rahman bin Soltan & Ors v. Federal Land Development Authority & Anor and other appeals [2023] 7 CLJ 705 at pp. 738 & 739 decided that it is in the public interest for this suit to be completed expeditiously. (e) Interest of Justice. The 12th Defendant in Encl. 718 (para. 20) states that the justice of the case lies in favor of granting the Application for evidence by Zoom. For the record, this case involves two Plaintiffs Federal Land Development Authority and Felda Investment Corporation Sdn. Bhd. and 21 Defendants in the Main Suit. In the Counter Claims there are 4 Plaintiffs (Defendants 5, 6, 7 and 8 in the main suit) against 22 Defendants (Defendants 1, 2, 3, 4, 9, 10, 11, 16, 17, 18, 19 and 20 in the main suit). All the parties are represented by lawyers from multiple legal firms. (f) In considering whether the hearing of evidence by the 12th Defendant ought to be conducted by remote communication technology, I have to be mindful of the many parties involved in this suit (see para. 26) and Suit WA-22NCvC-477-07/2019 to be heard together as directed by Court. The list of parties (if to be tabulated) involved in both Suits 843 and 477 is not exhaustive as the respective parties, their representatives, counsel representing the parties and their assisting counsel and witnesses are yet to be restricted in numbers when attending the Court proceedings. (g) In exercising the Court’s powers under O. 33A r. 3 ROC 2012, I find that if the evidence of the 12th Defendant is allowed to be conducted by Zoom, this Order if granted would be prejudicial to the other parties in this suit and in Suit 477. The interest of justice is best served when the entire judicial proceedings of these suits is dealt with physically in open Court. The 12th Defendant was sued as a partner of Messrs. Yeap, Yong & Amy and not in her personal capacity. Hence, the grounds that justice of the case lies with allowing the 12th Defendant to testify remotely is not justifiable in the circumstances of the case. (h) Needless to say, in exercising the inherent powers of the Court to make any order as may be necessary to prevent an abuse of the process of the Court under O. 92 rule 4 ROC 2012, the Court hereby orders the 12th Defendant to testify physically. This order is deemed necessary and appropriate in the interest of justice and further to ensure that justice is achieved in the interest of not only the 12th Defendant but also in the interest of all the other parties, thus preserving the rights of the parties in the main action and in the Counter Claim. [34] The Court when deliberating on the reasons and justification for the evidence of the 12th Defendant to be given by Zoom, referred to the factors to be considered as reflected in the Arahan Amalan KHN No. 1/2021 in paragraphs 11 (e) and (g). Decision [35] Based on the aforesaid reasons, prayer (a) of Encl. 717 is dismissed with costs of RM6,000.00 to be paid forthwith by the 12th Defendant to the Plaintiffs. Consequently, prayers (b), (c) and (d) of Encl. 717 are also dismissed. Dated: 9 May 2025 Sgd ………………………………………….. (EDDIE YEO SOON CHYE) Judicial Commissioner High Court of Malaya Kuala Lumpur COUNSEL Solicitors for the 12th Defendant Wong Hok Mun and Tan Ying Xuan Messrs. Wong Hok Mun Partnership Kuala Lumpur. Solicitors for the Plaintiffs Kumar Kanagasingam, Wong Han Wey, Medha Ong Ann Ting and Harshinie P. Paranitharan Messrs. Lee Hishammuddin Allen & Gledhill Kuala Lumpur.