Michael Ang Aek Hang v Wee Yong Huang (BA-12A-39-08/2023)

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1 DALAM MAHKAMAH TINGGI DI SHAH ALAM DALAM NEGERI SELANGOR DARUL EHSAN, MALAYSIA RAYUAN SIVIL NO. BA-12A-39-08/2023

Lampiran

Lampiran 36 ialah permohonan oleh Plaintif di bawah Aturan 24 Kaedah 16 Kaedah-Kaedah Mahkamah 2012 dan/atau Aturan 92 Kaedah 4 Kaedah-Kaedah Mahkamah 2012 dan/atau bidang kuasa sedia ada Mahkamah yang Mulia ini untuk satu perintah berikut: 1) Pembelaan dan Tuntutan Balas Defendan-Defendan bertarikh 11.4.2022 adalah dibatalkan; 2) Suatu Penghakiman dimasukkan bagi pihak Plaintif dalam membenarkan tuntutan Plaintif di dalam Writ Saman bertarikh 2.3.2022 dan Pernyataan Tuntutan bertarikh 15.3.2022; 3) Kos; dan 4) Lain-lain relif dan/atau perintah yang dianggap suai manfaat oleh Mahkamah yang Mulia ini. [3] Alasan-alasan ringkas untuk permohonan ini adalah: 1) Plaintif telah memuaskan Mahkamah ini dan Berjaya memperoleh suatu Perintah Mahkamah bertarikh 21.3.2023 untuk penzahiran khas (“Perintah Penzahiran Khas”) terhadap Defendan-Defendan; 2) Defendan-Defendan dikehendaki untuk mengemukakan dokumen-dokumen yang diminta melalui Perintah Penzahiran Khas dalam tempoh masa 21 hari dari 21.3.2023; 3) Defendan-Defendan telah enggan dan/atau gagal mematuhi Perintah Penzahiran Khas sehingga hari ini walaupun Plaintif telah mengingati Defendan-Defendan; 4) Kegagalan Defendan-Defendan untuk mengemukakan dokumen-dokumen yang diminta berdasarkan Perintah Penzahiran Khas sehingga hari ini telah memprejudikan Plaintif dari segi masa, wang dan tenaga; 5) Kegagalan Defendan-Defendan juga menunjukkan bahawa Defendan-Defendan memandang rendah dan remeh terhadap arahan dan perintah Mahkamah yang Mulia ini. Ini merupakan suatu penghakiman terhadap Mahkamah yang Mulia ini; dan 6) Alasan-alasan_ terperinci untuk permohonan ini adalah terkandung dalam Afidavit Sokongan yang diikrarkan oleh Wee Yong Huang (No.K/P: 890508-14-5583). [4] Setelah membaca dan meneliti permohonan, kertas kausa berkaitan termasuk kesemua Afidavit dan Hujahan Bertulis, nas-nas yang disertakan, berserta hujahan lisan, maka diputuskan bahawa permohonan di Lampiran 36 di perenggan 1 dan 2 dibenarkan dengan kos RM5000.00. [4] In considering the Respondent’s application to strike out the Appellants’ Defence and Counterclaim, the learned Sessions Court Judge made reference to a number of authorities that had dealt with this aspect of practice and procedure. These include Hup Soon Omnibus Co Sdn Bhd & Anor v Lim Chee [2017] AMEJ 1523; [2018] 1 CLJ 641; [2017] MLJU 1937; [2017] MLRAU 515 (“Hup Soon Omnibus”) and Damai Jaya Realty Sdn Bhd v Pendaftar Hakmilik Tanah, Selangor [2015] 5 AMR 381; [2015] 2 MLJ 768; [2015] 4 MLRA 592 (“Damai Jaya Realty”). [5] The Sessions Court also referred to the provision in Order 24 rule 16(1) of the Rules of Court 2012 and the cases that have discussed this provision. [6] Having considered the above authorities, the learned Sessions Court Judge regarded the issue before it as one that was “mudah”. According to the learned Sessions Court Judge, the Appellants “mengingkari Perintah Penzahiran dan berdiam diri” (see para [22] of the Grounds of Judgment). [7] The learned Sessions Court Judge then went on to state as follows: [23] Isu-isu baru pula dibangkitkan dalam Afidavit Jawapan Defendan-Defendan (Lampiran 38) iaitu tiba-tiba mengemukakan beberapa dokumen dan mendakwa ada dokumen-dokumen dicuri dan pernah melaporkan kepada polis. [24] Walhal isu-isu baru ini tidak pernah dibangkitkan sebelum ini. Ini menjadikan isu-isu baru sebagai “afterthought”. [25] Tiada rayuan oleh Defendan-Defendan terhadap Perintah Penzahiran bertarikh 21.3.2023 atau permohonan mengetepikan Perintah Penzahiran’ bertarikh 21.3.2023 difailkan. [26] Maka, Perintah Penzahiran bertarikh 21.3.2023 adalah muktamad dan telah menjadi ‘res-judicata’. [27] Mahkamah mendapati jawapan Defendan-Defendan adalah satu dalihan semata-mata. [28] Setelah meneliti dan mempertimbangkan kes secara keseluruhannya, Mahkamah tiada pilihan melainkan membenarkan Lampiran 36 seperti dinyatakan di perenggan [4] di atas. The Respective Submissions in this Appeal [8] The Appellants averred that they had “mematuhi sebahagian Perintah Penzahiran (Kandungan 35) dengan telah membekalkan kepada Plaintif dokumen-dokumen yang dinyatakan di dalam Perenggan 1, 2 dan 7 Jadual yang dilampirkan di Perintah tersebut serta Dokumen-Dokumen Cadangan Defendan-Defendan”. Hence, it was contended by the Appellants that “Kandungan 36 wajar ditolak sepertimana yang telah diputuskan di dalam kes Westports Malaysia Sdn Bhd v Oracle Corporation Malaysia Sdn Bhd & Anor [2022] 1 LNS 1827; [2022] MLJU 1882”. [9] The Appellants also asserted in this appeal that the Order for Discovery made in the Sessions Court was not an “Unless Order”. [10] The Appellants further alleged that any failure on their part to comply with the Order of the Sessions Court was not a deliberate or wilful act as the documents were not in their possession at the material time. The Appellant urged this Court to take note of Attitude Models & Production Sdn Bhd v Jade Eservices Malaysia Sdn Bhd [2022] 1 LNS 2540; [2022] MLJU 2722; [2022] MLRHU 2255 concerning the exercise of the court’s discretion when considering the present matter. [11] On the issue that the documents were not in their possession at the material time, the Appellants were attempting to rely on their “theft allegation” as justification for their failure to comply with the Discovery Order. This relates to the Appellants’ application in Enclosure 5 to adduce fresh evidence. This application was made pursuant to Order 55 rule 7 of the Rules of Court 2012. It was dismissed by this Court on 4 March, 2024. [12] By way of a preliminary point, the Respondent informed this Court that despite the Court’s directions and extension of time given to the Appellants to serve their Written Submissions to the Respondent by 20 May, 2024, the Appellants failed to comply with the directions. The Respondent asserted that he had to find out about Enclosure 18 (the Respondents’ Written Submissions) from the e-filing system. [13] On the merits of the present appeal, the Respondent submitted the following grounds to support the contention that this appeal ought to be dismissed. “First, the Defendants consistently failed to comply with the Specific Discovery Order, even until to-date; and Second, the Defendants did not come to Court with clean hand by lying in numerous occasions in order to rescue their failed case.” The Law and the Applicable Principles [14] Order 24 rule 16(1) of the Rules of Court 2012 provides as follows: Failure to comply with requirement for discovery (O. 24, r. 16) 16. (1) If any party who is required by any of the foregoing rules, or by any order made thereunder, to make discovery of documents or to produce any documents for the purpose of inspection or any other purpose fails to comply with any provision of that rule or with that order, as the case may be, then, without prejudice, in the case of a failure to comply with any such provision, to rule 11(1), the Court may make such order as it thinks just including, in particular, an order that the action be dismissed or, as the case may be, an order that the defence be struck out and judgment be entered accordingly. [15] The above provision has been considered and invoked in a number of cases. For example, in Ong Boon Hua @ Chin Peng & Anor v Menteri Hal Ehwal Dalam Negeri, Malaysia & 3 Ors [2008] 4 AMR 694; [2008] 5 CLJ 42; [2008] 3 MLJ 625; [2008] 1 MLRA 759, the Court of Appeal held as follows: [59] The failure on the part of Chin Peng to produce those documents sought for by the respondents/defendants for inspection was fatal. Discovery was not given by the stated time and at the end of that time since the discovery has not been given, the High Court was right in allowing the respondents/defendants' application under Order 24 of the RHC with costs in the cause and, finally, dismissing the appellants/applicants' three applications forthwith with costs (see page 4 of "AAR(2)"). [60] It is always prudent to remember that Order 24 rule 16(1) of the RHC gives power to the court to order, for instance, that the defence be struck out and that judgment be entered accordingly unless the party complies with the rule or order for discovery by the stated hour of the stated day…”. [16] In Azraimah Che Abdullah v Ahmad Sharil Ikram Ramli & Anor [2019] AMEJ 0198; [2019] 1 LNS 1209; [2019] MLJU 855, the High Court held as follows: [35] In the instant OS, if the plaintiff is not happy with the nature of the discovery order, what the plaintiff should have done is to make an application to set aside or otherwise vary the same… In the circumstances, the original discovery order remains an order that has to be complied with. A non-compliance of the same without a valid ground would certainly attract the application of O. 24 r. 16(1) for the OS be dismissed. [36] The grounds given by the plaintiff in the AIR-24 are untenable. Until and unless the discovery order is varied in the manner in which the plaintiff envisaged it to be, the plaintiff has no choice but to comply with the same. If the plaintiff opted not to comply with the discovery order as reflected in the sealed copy of the same, she did that at her own peril. [17] Reference may also be made to another decision of the High Court, Aaravalli a/p S Muthiah v Dr Ng Hee Hua & Anor [2017] 1 AMR 505; [2018] 5 CLJ 449; [2016] MLJU 1289; [2016] MLRHU 1363, where the Court provided a clear exposition of the purpose of Order 24 rule 16(1) of the Rules of Court 2012 in the following terms: [36] In other words, the purpose of Order 24 rule 16(1) of the Rules of Court 2012 is to secure compliance relating to the production of the documents which the Appellant/Plaintiff possess and has sought to relied on in initiating this suit. Thus, having gone through the law, I am of the opinion that the Learned Session Judge was correct in dismissing the Appellant/Plaintiff case, due to the Appellant/Plaintiff’s failure to produce the two CT Scan films. The Decision of this Court [18] This Court will first address the Appellants’ contention that the Order for Discovery issued by the Sessions Court did not constitute an “Unless Order.” [19] This argument, however, does not provide a valid basis for setting aside the Sessions Court’s decision. In this regard, reference may be made to the following authorities: Muhammad Ammar bin Haron v Sharifah Zahidah binti Syed Nooh & 2 Ors [2024] AMEJ 2394; [2024] CLJU 2337; [2024] MLJU 2700; [2024] MLRHU 1928 (“Muhammad Ammar”) and Telekom Malaysia Berhad v Swis Resources Sdn Bhd [2024] 8 AMR 97; [2024] CLJU 2382; [2024] MLJU 2724; [2024] MLRHU 1952 (“Swis Resources”). In Muhammad Ammar, this Court had the opportunity to observe as follows: [34] This Court is also cognizant of the authorities cited by the Defendants, namely, Sunway PMI-Pile Construction Sdn Bhd v Pembinaan Chan & Chua Sdn Bhd [2001] AMEJ 0281; [2003] 5 CLJ 63; [2002] 7 MLJ 538; [2001] 5 MLRH 665 (“Sunway PMI-Pile”) and Hong Leong Assurance Bhd v American Home Assurance Co, Malaysia [2008] 8 MLJ 547; [2008] 4 MLRH 840 (“Hong Leong Assurance Bhd”) which illustrate instances where courts have struck out parties’ claim for flouting courts’ orders, notwithstanding the absence of an unless order. [35] The legal position is that the presence or absence of an unless order is not in itself a fetter to the Court’s discretion to strike out a party’s claim for non-compliance of pre-trial case management directions under Order 34 rule 2(3) of the Rules of Court 2012. [36] This works both ways, even in circumstances where there is a non-compliance of an unless order. Although the ordinary result for non-compliance of an unless order is that the sanction of the order will be imposed, the said sanction may be avoided if the non-compliance was due to extraneous circumstances or something beyond the non-complying party’s control (see for example, Lee Kok Vun v Aineh bt Binsin [2021] AMEJ 1630; [2021] CLJU 1583; [2021] MLJU 3094; [2021] MLRHU 1515 at paragraphs [21] – [23]; Hytec Information Systems Ltd v Company City Council [1997] 1 WLR 1666; Re Jokai Tea Holdings Ltd (Note) [1992] 1 WLR 1196). [37] A theoretical example of circumstances beyond the non-complying party’s control could be if the noncompliance with an unless order occurred due to the sudden serious illness suffered by the party or the party’s counsel. But it is important to note that, in such situations, the non-complying party’s legal representatives should undertake their best endeavours to notify the Court about the said circumstances or to make alternative arrangements (see Faisal @ Ibrahim Bin Haji Siraj and Aikbee Timbers (Sarawak) Sdn Bhd v Solid Timber Sdn Bhd [2020] AMEJ 1272; [2020] MLJU 1596); [2020] MLRHU 1320. [38] In the upshot, on Issue 1, this Court agrees with the Defendants’ position that it can strike out the Plaintiff’s claim under Order 34 rule 2(3) of the Rules of Court 2012 for non-compliance of the pre-trial case management directions notwithstanding the absence of an unless order. As noted, the presence or absence of an unless order does not fetter nor circumvent a court’s discretion under Order 34 rule 2(3) of the Rules of Court 2012. [20] In Swis Resources, this Court reiterated the above point in the following terms: [40] The Appellant had persistently highlighted that the learned Sessions Court Judge’s Order to strike out its claim under Order 34 rule 2(3) of the Rules of Court 2012 was made in the absence of an unless order, peremptory order, warning or a ‘second chance’. Unless Order [41] On the unless order point, this Court in Muhammad Ammar emphasized that an absence of an unless order itself does not circumvent the courts’ ability to make an Order to strike out a party’s claim under Order 34 rule 2(3) of the Rules of Court 2012 for non-compliance with pre-trial case management directions. [42] For example, the Court of Appeal in Koh Heng Jin held that: [40] In our view even though the learned judge did not issue an “unless order”, O. 34 r. 2(2) of the ROC … clearly contemplates that orders and directions issued by the court during pre-trial case management are peremptory in nature as O. 34 r. (3) of the ROC confers on the court the power to, inter alia, strike out a party’s claim either on its own motion or upon the application of any party, in the event that such party defaults in complying with any order and/or directive issued by the court under the said O. 34 r. 2(2). [43] As explained by Mohd Nazlan JC in How Hock Sing @ Low Kim Chwee v Lee Say Peng [2015] 6 AMR 381; [2015] 9 CLJ 368; [2015] MLJU 712; [2015] MLRHU 856 (“How Hock Sing”), an unless order “is an order of the Court that directs a party to perform some process requirement by a specified date and states the consequences of transgression”. His Lordship in another case, Ineax Engineering Sdn Bhd v Ineax Process Sdn Bhd & Anor [2017] AMEJ 0478; [2017] CLJU 665; [2017] MLJU 543; [2017] MLRHU 380 explained as follows: [26] At any rate, what is important to note is that under Order 34, the powers of the Court to dismiss an action are not confined to situations where an ‘unless order’ has been made and not complied with. [44] Likewise, when considering whether to exercise its discretion under Order 34 rule 2(3) of the Rules of Court 2012, the High Court held that: [10] And I do not think that such discretion can be exercised only if I had made an unless order as the provision does not say so and I do not think I should read the words “unless order” into the said sub-rule. [21] While Muhammad Ammar and Swis Resources concerned the provision in Order 34 rule 2(3) of the Rules of Court 2012, the principle articulated therein applies with equal force to rebut the Appellants’ contention in the present appeal. [22] On the next critical issue raised by the Appellants – namely, their assertion that any failure to comply with the Sessions Court’s order was neither deliberate nor wilful, as the relevant documents were not in their possession at the material time and were only “discovered” later – this matter has been duly addressed by this Court. In dismissing the Appellants’ application to adduce fresh evidence, this Court made, inter alia, the following findings: (i) The Appellants never pleaded the theft allegation in their Defence and Counterclaim filed on 11 April 2022; and (ii) The Appellants likewise never raised the theft allegation when opposing the discovery application in the Sessions Court. [23] At the risk of repetition, the Court of Appeal in Damai Jaya Realty has unequivocally affirmed that the principle mandating compliance with court orders is deeply entrenched in our jurisprudence. [24] In addition to the authorities cited by the parties, this Court also considers Sitrac Corp Sdn Bhd & Anor v Dato’ Syed Hamzah bin Syed Abu Bakar (deceased) (representative appointed, Syed Sazlee bin Syed Hamzah) & Ors [2022] 10 MLJ 900; [2021] MLRHU 2151 to be relevant. [25] As in Hup Soon Omnibus, this case involves a wilful and blatant disregard of a court order. While the orders in Hup Soon Omnibus and the present appeal may differ – Hup Soon Omnibus concerned a directive to deposit security for costs, whereas this case pertains to an order for discovery – both attract similar sanctions. [26] The importance of ensuring strict compliance with court orders and directions cannot be overstated. Otherwise, provisions such as Order 24 rule 16(1) of the Rules of Court 2012 risk being reduced to mere dead letters. Likewise, the integrity and sanctity of judicial orders would be compromised if such orders could be disregarded with impunity. [27] Ultimately, the justification for imposing any sanction depends on the factual matrix of each case. [28] The Court must also assess whether the non-compliant party has provided any plausible explanation for their failure to adhere to the order. [29] Having carefully considered the facts and circumstances of this appeal, and applying the established legal principles, this Court is of the considered view that the learned Sessions Court Judge rightly exercised her discretion under Order 24 rule 16(1) of the Rules of Court 2012 in striking out the Appellants’ Defence and Counterclaim and entering judgment in favour of the Respondent. [30] Accordingly, this appeal is dismissed with costs. [31] The Appellants are to pay costs of RM20,000 to the Respondent, subject to allocatur. Dated: 3 March, 2025 sgd [CHOONG YEOW CHOY] Judicial Commissioner High Court of Malaya Shah Alam Counsel: Lok Cha Jung for the Appellants (Messrs. Lok & Partners) Teeruvarasu a/l K Muthusamy for the Respondent (Messrs. Varasu Law Chambers)