N2N Connect Berhad v Chua Tiong Hoong (WA-22IP-16-03/2021)

N2N CONNECT BERHAD [Company No.: 523137-K]

NGN CONNECTION SDN BHD [Company No.: 742157-T]

N2N GLOBAL SOLUTIONS SDN BHD [Company No.: 741093-K]

HERMES BOS SDN BHD [Company No.: 1091813-A]

NETINFINIUM SOLUTIONS SDN BHD [Company No.: 1015043-M] …PLAINTIFFS

CHUA TIONG HOONG [NRIC No.: 700731-03-5045]

AHMAD ASHRAF BIN AZMAN [NRIC No.: 851215-02-6167] 2! !

SHYAM SUNDAR RAYUDU [Passport No.: Z2431071]

WONG VOON FUI [NRIC No.: 770116-05-5523]

FINEVO TECHNOLOGY SDN BHD [Company No.: 1253439-P]

AK PARTNER HYBRID CONNECT SDN BHD [Company No.: 1238880-H] …DEFENDANTS

GENERAL RESERVE OF DIGITAL ASSETS LIMITED [Company No.: 2689283]

STELLARBYTE SDN BHD [Company No.: 1273848-D]

SINERGY TECHNOLOGIES (M) SDN BHD [Company No.: 963101-W]

WINVEST GLOBAL SDN BHD [Company No.: 1052060-P] …INTERVENERS 3! ! GROUNDS OF JUDGMENT (Enclosure 953 – Application by the 1st, 5th and 6th Defendants to Set Aside the Plaintiffs' Notice to Produce dated 24.08.2025) A. INTRODUCTION [1] This is the 1st, 5th and 6th Defendants ("the AKF Defendants") application vide enclosure 953 to set aside the Plaintiffs' Notice to Produce dated 24 August 2025 ("the NTP"), issued pursuant to Sections 65 and 66 of the Evidence Act 1950 ("EA 1950"). [2] The Plaintiffs in resisting the application, contended that the NTP was lawfully issued and is consistent with the statutory framework governing secondary evidence under the EA 1950. The Plaintiffs’ stance is that this Court has no jurisdiction, or, in the alternative, no reason to set aside the NTP. The Plaintiffs further asserted that the documents requested are relevant, necessary, and within the custody, possession, or power of the AKF Defendants. [3] The AKF Defendants asserted that the NTP is oppressive, disproportionate, and an abuse of process. They argued that it circumvents the completed discovery process and impermissibly shifts the burden of proving the Plaintiffs' case onto them. They invoke the Court's inherent jurisdiction under Order 92 rule 4 of the Rules of Court 2012 ("ROC 2012") as the basis for the relief sought. 4! ! [4] Having considered the written submissions of both parties, I dismissed enclosure 953 with costs in the cause. I now state the grounds of my decision. B. BACKGROUND FACTS AND PROCEDURAL HISTORY [5] This suit was commenced by the Plaintiffs on 31 March 2021 against the Defendants in an action involving allegations of intellectual property infringement, misappropriation of confidential information and trade secrets, breach of fiduciary and contractual duties, and conspiracy. The dispute concerns, at its core, the Plaintiffs' proprietary software and the alleged wrongful taking, copying, and use of the Plaintiffs' proprietary materials by the Defendants for the benefit of competing enterprises. A Consent Judgment was entered on 1 March 2024 between the Plaintiffs and the 2nd to 4th Defendants. The remaining Defendants who are still parties to this suit are the 1st, 5th, and 6th Defendants (collectively, the "AKF Defendants"). [6] The procedural history of this matter is extensive and complex, spanning approximately five years. For clarity, I outline the key developments below:

The Anton Piller Order ("APO") [7] On 2 April 2021, this Court granted the Plaintiffs an ex parte Anton Piller Order ("APO") authorising the Plaintiffs to enter the Defendants' premises and to seize, copy, and image infringing items 5! ! and information as identified under the APO. The APO further granted the Plaintiffs leave to use any information, articles, materials and/or documents obtained as a result of the execution of the Order for the protection or further protection and/or enforcement of the Plaintiffs' rights or interests being the subject of this action, including use of the same in any other proceedings or prosecution against the Defendants or any other parties. [8] Between 5 April 2021 and 15 April 2021, the APO was executed against the 1st, 3rd, 4th, 5th, and 6th Defendants. The Plaintiffs engaged Deloitte Corporate Solutions ("Deloitte") as their information technology forensic specialist to assist in the execution. Deloitte was responsible for the imaging and extraction of data from the Defendants' devices during the execution. The Defendants engaged their own forensic specialist, Le-Global Services Sdn Bhd ("LGMS"), to observe the execution, particularly the seizure of data from the Defendants' devices. LGMS subsequently filed two reports on the execution of the APO on 7 May 2021. As a result, various documents and information were obtained from the Defendants' premises ("APO Information"), extracted from a total of 23 devices. [9] Between 10 and 14 April 2021, all original devices and documents seized from the Defendants were returned to the Defendants' forensic expert, LGMS, at the Defendants' request. On 13 April 2021, a copy of data from the 23 devices was provided to the Defendants via their solicitors. The chain of custody was documented through Chain of Custody Forms between the Supervising Solicitors, LGMS, and the Defendants' solicitors. It is the Plaintiffs' position that the AKF Defendants have at all material 6! ! times had unhindered access to the APO Information, both through the return of the original devices and through the copies provided to them. The AKF Defendants, for their part, contend that they "lost control over the data allegedly found in the 23 devices during the execution of the APO" and have raised serious issues regarding the imaging methodology and forensic integrity of the data during the extraction process.

(ii) The Setting Aside of the APO and its Reinstatement [10] On 20 April 2021, the Defendants filed applications to set aside the APO ("Setting Aside Applications"). On 24 September 2021, this Court dismissed the Setting Aside Applications. The AKF Defendants, together with Shyam and Voon Fui, appealed to the Court of Appeal. [11] On 6 July 2023, the Court of Appeal unanimously allowed the appeals and set aside the APO, further ordering damages to be assessed. [12] The Plaintiffs filed a motion for leave to appeal to the Federal Court, which was granted on 7 December 2023 on one question of law. On 29 April 2024, the Federal Court set aside the Court of Appeal's order and reinstated the APO. The Federal Court did not give specific directions on the APO Seized Data, leaving the matter for directions from this Court. The reinstatement of the APO is significant because, as the Plaintiffs contended, the APO expressly grants the Plaintiffs leave to use the APO Information in this action. 7! ! The AKF Defendants, however, maintained that the forensic integrity and chain of custody issues surrounding the extraction of data from the 23 devices remain live and unresolved.

(iii) The Defendants' Protective Order ("DPO") [13] On 19 April 2021, the AKF Defendants applied for a protective order (Encl. 64). On 21 April 2021, this Court granted the AKF Defendants an Interim Protective Order. On 12 April 2022, the AKF Defendants obtained a Defendants' Protective Order at Enclosure 365 ("DPO"), which was sealed by the Court Registry on 16 November 2022. The effect of the DPO was that all APO Information was to be handed over to the Supervising Solicitors, and the Plaintiffs were prevented from accessing the same. The Defendants, however, were not subject to the same prohibition and had unhindered access to the APO Information at all material times. It is the Plaintiffs’ case that the AKF Defendants' repeated adoption and treatment of the APO Information as their own confidential documents throughout the proceedings is inconsistent with their subsequent challenge to the authenticity and contents of those documents. The AKF Defendants dispute this characterisation.

(iv) The Discovery Order [14] On 25 July 2023, the Plaintiffs filed an application for discovery at this Court. On 8 December 2023, this Court dismissed the discovery application. The Plaintiffs appealed. 8! ! [15] On 5 December 2024, the Court of Appeal allowed the appeal against the 1st, 5th, and 6th Defendants (the "Discovery Order"). The Court of Appeal dismissed the appeal against the 2nd to 4th Defendants. The Court of Appeal specifically found that the Plaintiffs had adequately addressed both the relevancy and necessity of the documents sought, disagreeing with this Court's earlier finding that the Plaintiffs had only addressed relevance and not necessity. The Court of Appeal stated that the Plaintiffs had "not only addressed the issue of relevancy, but also listed why the documents requested are necessary for the fair disposal of the matter or the saving of costs." The Plaintiffs rely on this finding to support their position that the relevancy of the Discovery Documents cannot now be denied by the AKF Defendants' bare allegations. The AKF Defendants, however, contended that the Discovery Order does not extend to or validate the NTP, which they regard as a separate and impermissible mechanism. [16] Pursuant to the Discovery Order, the AKF Defendants filed Verification Affidavits on 6 January 2025 and 27 January 2025. On 27 December 2024, the AKF Defendants filed a Notice of Application (Encl. 699) to vary the DPO and to claim confidentiality and protection over various Discovery Documents. On 23 January 2025, the AKF Defendants stated they would only provide a copy of their "confidential" Discovery Documents to the Plaintiffs pending resolution of the confidentiality mechanism between parties and/or a decision by this Court. [17] The production of Discovery Documents occurred in multiple batches: the 1st Batch of Discovery Documents was provided on 24 9! ! January 2025 (described by the AKF Defendants as "non-confidential" Discovery Documents via a Google Drive link, with one pen drive following on 27 January 2025 due to a technical error). A Consent Order dated 10 February 2025 (Encl. 719) was recorded to govern the confidentiality of the Discovery Documents. [18] The Defendants' source codes were provided on 21 February 2025 in the form of 9 pen drives. The 2nd Batch of Discovery Documents was provided on 7 March 2025 (the remaining purported confidential Discovery Documents via Google Drive link). The 3rd Batch of Discovery Documents was provided on 10 April 2025 with 11 additional pen drives, the AKF Defendants having tabulated a list of documents which they confirmed are found in the Common Bundle of Documents. It is the AKF Defendants' position that the Discovery process applied for by the Plaintiffs themselves was completed prior to the commencement of trial.

The Extraction Protocol Order ("EPO") [19] On 7 April 2025, this Court granted the Extraction Protocol Order ("EPO") for the Plaintiffs to extract the APO Information under supervised and transparent conditions at the offices of the Supervising Solicitors, Messrs Cheang & Ariff. All parties, including the AKF Defendants' solicitors, counsel, experts, forensic observer, and the interveners' solicitors and counsel, were allowed to attend and witness the extraction process. The EPO specifically provided for the participation of up to four persons from the Defendants' solicitors' and/or counsel's firm, up to two Defendants' Experts, up 10! ! to one advocate and solicitor from each applicable law firm on record for the respective Interveners, and up to two persons from the Defendants' Forensic Observer. The extraction was conducted between 17 April 2025 and 30 May 2025. [20] As a result of the EPO, the APO Information was extracted and handed to the AKF Defendants via their solicitors for their objections pursuant to the DPO. On 13 June 2025, during a case management hearing before Adlin J, the AKF Defendants informed the Court that they would not be exercising their right to provide an objection list of the extracted materials to the Plaintiffs pursuant to paragraph 18.5(b) of Enclosure 731, and would not be providing a list of details of unidentified source codes pursuant to paragraph 23.2 of Enclosure 731. The Court allowed these waivers and agreed that the Court would oversee the marking of documents into Part A, B, and C when necessary.

(vi) Part C Classification and the NTP [21] On 21 July 2025, the Plaintiffs' solicitors wrote to the AKF Defendants' solicitors requesting marking of documents for the Common Bundle of Documents. On 28 July 2025, the AKF Defendants replied by marking all APO Information and various other documents as Part C documents, thereby disputing their authenticity and contents. The Plaintiffs took strenuous objections to this, as according to them this was done despite the AKF Defendants' repeated prior adoption and treatment of the APO Information as their own confidential documents throughout earlier 11! ! stages of the proceedings. The Plaintiffs characterise this as the AKF Defendants "disassociating themselves from the APO Information" after having repeatedly claimed confidentiality and protection over the same documents, and submit that this constitutes approbating and reprobating. [22] The AKF Defendants, for their part, contended that their challenge to the Part C documents is grounded in legitimate concerns over the acquisition process, the imaging methodology, and the forensic integrity of the data extracted during the execution of the APO, which they intend to address through witness testimony at trial. [23] On 20 August 2025, parties appeared before this Court to address the Part C classification issues. The Plaintiffs informed this Court that unnecessary burden, time, and cost would be imposed upon them to discharge their legal duty to exhibit each of the voluminous documents categorised as Part C by the AKF Defendants. I directed parties to resolve the issues between themselves and reminded that high costs would be imposed on the AKF Defendants should it be found after trial that the Part C marking was unnecessary. [24] The AKF Defendants insisted that all Part C documents remain classified as Part C. Consequently, the 1st Batch Discovery Documents, the 2nd Batch Discovery Documents, the 3rd Batch Discovery Documents, and all APO Information extracted under the EPO were all classified as Part C by the AKF Defendants. 12! ! [25] On 24 August 2025, four days after the Court hearing on the Part C issue the Plaintiffs issued the NTP, requesting the AKF Defendants to produce various documents marked as Part C that are believed to be in the possession or power of the AKF Defendants. The NTP identified 1,634 items under Annexure A and further requested all Part C documents in the AKF Defendants' custody, possession, or power. [26] The AKF Defendants have calculated that the total pages of documents requested amounts to 25,231 pages, although the Plaintiffs noted that no such total number was stated in the NTP itself. The Plaintiffs contended that the NTP was issued promptly, taking into account that parties were still arguing and settling the Part C issue before this Court just four days earlier. The AKF Defendants contended that the NTP was filed at the eleventh hour, after the Discovery process had been completed, after the classification of the Common Bundle of Documents under Order 34 of the Rules of Court 2012 had concluded, and after trial had already commenced, and was therefore filed in bad faith and constitutes an abuse of process. [27] On 29 September 2025, the AKF Defendants filed Enclosure 953 to set aside the NTP. The AKF Defendants invoke this Court's inherent jurisdiction under Order 92 rule 4 of the ROC 2012 to set aside the NTP, arguing that it is oppressive and disproportionate, and that it constitutes an abuse of process, circumvents the Discovery process that has already run its course, disregards the Part C classification framework under Order 34, shifts the burden of proving the authenticity of Part C documents onto the AKF Defendants mid-trial, 13! ! and imposes an obligation to produce and testify regarding 25,231 documents. ! [28] !As stated earlier, the Plaintiffs opposed the application on the grounds that neither the EA 1950 nor the ROC 2012 explicitly provides for setting aside a notice to produce; the NTP is consistent with Sections 65 and 66 of the EA 1950; the requested documents are relevant given the APO and the Discovery Order; and the NTP serves merely as notice, not compulsion, with the law itself dictating the legal consequences based on the AKF Defendants' response. [29] At the outset, it is important to identify the true nature of the present dispute. This is not an application to determine the ultimate admissibility, truth or evidential weight of any particular document. Nor is it an application to decide, in advance of a trial, whether any document marked as Part C will eventually be exhibited. The core issue is whether the NTP served by the Plaintiffs ought, in the circumstances of this case, to be set aside altogether as being impermissible in law or abusive in process. C. THE ISSUES FOR DETERMINATION [30] Having considered the submissions of the parties, I identify the following broad issues for determination: a) Whether this Court has jurisdiction and/or inherent power to set aside or regulate a Notice to Produce issued under Section 66 of the Evidence Act 1950. 14! ! b) Whether the NTP issued by the Plaintiffs amounts to an abuse of process, is oppressive, disproportionate, or was issued in bad faith. c) Whether the NTP circumvents the completed discovery process and the Part C classification framework under Order 34 of the ROC 2012. d) Whether the documents sought in the NTP are relevant and within the custody, possession, or power of the AKF Defendants. e) Whether the NTP impermissibly shifts the burden of proof from the Plaintiffs to the AKF Defendants. f) Whether the NTP should be set aside and compliance dispensed with, or whether the NTP should be upheld. D. ANALYSIS AND FINDINGS a) Jurisdiction to Set Aside a Notice to Produce [31] At the outset, it is necessary to explain the effect of a NTP under the EA 1950. A Notice to Produce is not, in itself, a coercive order of the Court compelling production. Rather, it is a procedural mechanism linked to the law of primary and secondary evidence. Its purpose is to notify the party in possession of a document that the document should be produced, failing which the party giving the notice may, subject to the requirements of the EA 1950, seek to rely on secondary evidence of its contents. In that sense, the legal 15! ! consequences of an NTP arise from compliance or non-compliance with it, rather than from any need for the Court to “set it aside” as though it were a court order. [32] The NTP in the present case was issued pursuant to sections 65 and 66 of the EA 1950. Section 65 sets out the circumstances in which secondary evidence may be given of the existence, condition, or contents of a document. Section 66, in turn, provides that secondary evidence of the contents of a document shall not be given unless the party proposing to adduce such evidence has first given notice to the party in whose possession or power the document is, requiring that party to produce it. [33] As to the operation of a NTP and the consequences of compliance or non-compliance with it, I can do no better than reproduce the relevant portion of the Plaintiff’s submissions, which accurately sets out the position in the following terms: According to the Evidence Act 1950, the proper response towards a Notice to Produce is for the recipient to either comply or not comply with the Notice to Produce, and the consequences will depend on such compliance or non-compliance. In the case of a compliance, D1, D5 and D6 will produce the documents for Plaintiffs’ inspection, which documents are bound to be given as evidence at Trial when relevant and required. Section 163 Evidence Act 1950 states: “When a party calls for a document which he has given the other party notice to produce, 16! ! and the document is produced and inspected by the party calling for its production, he is bound to give it as evidence if the party producing it requires him to do so and if it is relevant.” In the case of a non-compliance, inter alia, a. Plaintiffs will be allowed to rely on secondary evidences to prove the contents under Section 66 Evidence Act 1950, which states: “Secondary evidence of the contents of the documents referred to in paragraph 65(1)(a) shall not be given unless the party proposing to give such secondary evidence has previously given to the party in whose possession or power the document is, or to his advocate, such notice to produce it as is prescribed by law; and if no notice is prescribed by law, then such notice as the court considers reasonable under the circumstances of the case” b. D1, D5 and D6 will not be allowed to produce the document itself at a later stage to contradict the secondary evidences under Section 164 Evidence Act 1950 which states: - “When a party refuses to produce a document which he has had notice to produce, he may not afterwards use the document as evidence without the consent of the other party or the order of the court. ILLUSTRATION A sues B on an agreement, and gives B notice to produce it. At the trial A calls for the document, and B refuses to produce it. A gives secondary evidence of its contents. B 17! ! seeks to produce the document itself to contradict the secondary evidence given by A, or in order to show that the agreement is not stamped. He may not do so.” [34] An important point to note is that the EA 1950 does not expressly provide a mechanism for the setting aside of a NTP. The Plaintiffs seize upon this absence to argue that the Court is powerless to intervene once a NTP has been issued under Section 66. [35] The AKF Defendants countered this argument by invoking Order 92 rule 4 of the ROC 2012, which preserves the inherent jurisdiction of the Court to make such orders as may be necessary to prevent injustice or to prevent an abuse of the process of the Court. [36] I have given careful consideration to the submissions of both parties on this issue. [37] The Plaintiffs' position in essence is that a NTP under Section 66 EA 1950 is an autonomous procedural mechanism, entirely self-contained within the EA 1950, and that the Court has no power to interfere with or regulate such a notice once issued. According to the Plaintiffs, the only consequence of non-compliance with a notice to produce is that the issuing party becomes entitled to adduce secondary evidence under Section 65 EA 1950, and that the recipient party suffers no prejudice because it retains the option of whether or not to produce the documents. 18! ! [38] While I accept that the statutory purpose of a notice to produce under Section 66 EA 1950 is indeed to enable the party giving notice to lay the foundation for adducing secondary evidence should the recipient fail to produce the original documents, I am unable to accept the Plaintiffs' further proposition that this statutory purpose necessarily and conclusively ousts the Court's inherent jurisdiction to prevent abuse of process. [39] I am unable to accept the Plaintiffs' submission that the Court is entirely powerless to intervene once a NTP has been served. Indeed, the EA 1950 does not expressly provide for "setting aside" a NTP. As the Plaintiffs correctly submitted, sections 66, 163 and 164 of the EA 1950 also prescribe the evidential consequences of compliance or non-compliance with such a notice. However, the lack of an express provision for setting aside does not, on its own, strip the Court of all procedural control when a notice is served oppressively, for a collateral purpose, or in a manner constituting an abuse of process. [40] The inherent jurisdiction of the Court housed in Order 92 rule 4 of the ROC 2012 expressly preserves the Court's inherent power to make any order as may be necessary to prevent injustice or to prevent an abuse of the process of the Court. The Federal Court in DP Vijandran v Karpal Singh [1993] 2 MLJ 94 affirmed the breadth of this inherent jurisdiction, citing with approval the decision in Tan Lay Soon v Kam Mah Theatre Sdn Bhd and the principle enunciated in Smith v Peters (1875) LR 20 Eq 511 that the Court has jurisdiction to make any interlocutory order which is reasonably asked as ancillary to the administration of justice at the hearing of 19! ! the cause. The Federal Court further endorsed the reference to Order 92 rule 4 of then High Court Rules 1980 as a reminder to the High Court of its inherent powers to make any orders as may be necessary to prevent injustice or to prevent an abuse of process. The Court in DP Vijandran held as follows: ! “The scope of O 91 r 4 and the inherent powers of the court is neatly explained in the case of Tan Lay Soon v Kam Mah Theatre Sdn Bhd (Malayan United Finance Bhd, Intervener) in these words (at p 446): …In so holding, the Court of Appeal had followed Smith v Peters (1875) LR 20 Eq 511 in which it was held that the court has jurisdiction to make any interlocutory order which is reasonably asked as ancillary to the administration of justice at the hearing of the cause. The cases of Astro [1982] 3 All ER 335 and Smith v Peters [1985] 2 MLJ 45, were cited with approval by the Federal Court in TR Hamzah & Yeong Sdn Bhd v Lazar Sdn Bhd wherein reference was also made to the provisions of O 92 r 4 which reminds the High Court of its inherent powers to make any orders as may be necessary to prevent injustice or to prevent an abuse of process of the court. (Emphasis added) [41] In a proper case, therefore, I am of the view that the Court may regulate, limit, out of necessity set aside a NTP that is shown to be abusive or oppressive. 20! ! [42] Sections 65 and 66 of the EA 1950 do not expressly or impliedly exclude or limit the Court's inherent powers. Although these sections are silent on the Court's power to regulate notices to produce, silence cannot be equated with exclusion. To hold otherwise would imply a legislative intent to create a procedural mechanism immune from judicial oversight, even in cases of manifest abuse. [43] The Plaintiffs' argument effectively invites this Court to find that once a NTP under Section 66 is issued, the Court is powerless to intervene regardless of the scope, timing, scale, or potentially oppressive effect of the notice. With respect, that position is untenable. I agree with the AKF Defendants that the acceptance of such a proposition would create an anomalous and unjust lacuna in the Court's power to regulate its own proceedings. [44] I note the Plaintiffs’ reliance on Ong Yew Teik v Kamal V.P. Tan

1 LNS 50 (Court of Appeal) in explaining the nature and purpose of a notice to produce. In that case, the Court of Appeal made clear that the purpose of a notice to produce is not to afford the holder of the document an opportunity “to explain or confirm the document”, but merely to enable that party to produce the original at trial, if he so wishes, so that the best evidence of its contents may be adduced. The Court in Ong Yew Teik held as follows: " [33] … The respondent had been issued with a Notice to Produce the originals of the identified emails received by him. The emails in question were copied in to the respondent at the material time. Once the Notice to Produce under section 66 had 21! ! been issued to the respondent and the respondent fails to produce the same, the appellant is entitled to rely on secondary evidence of those emails in the form of copies made of the originals. See Dato Mohd Anuar bin Embong & Another v. Bank Bumiputra Malaysia Bhd [2003] 3 MLJ 37 and Kok Kee Kwong v. Pubic Prosecutor [1972] 1 MLJ 124. [34] In the latter case, Raja Azlan Shah J [as His Highness then was] held: “Section 65(a)(i) states that secondary evidence of the contents of a document may be given when the original is shown or appears to be in the possession or power of the accused and when after due notice as mentioned in s. 66 the accused does not produce it. Roscoe’s Criminal Evidence, 15th Edn, p 11 states: When a document is in the hands of the adverse party, a notice to produce it in Court must be given to him, before secondary evidence of its contents can be received. Its object is not, as formerly thought to give the holder an opportunity of providing the proper testimony to explain or confirm the document but it is merely to enable him to produce it if he likes at the trial and thus to secure the best evidence of its content.” 22! ! [Underlined Emphasis Added] [45] In my considered view while the case of Ong Yew Teik is instructive on the general purpose of a NTP, namely, to enable the adduction of secondary evidence. The case of Ong Yew Teik does not however address the question of whether the Court has inherent jurisdiction to set aside or regulate a NTP that is abusive, oppressive, or disproportionate. That question was simply not before the Court of Appeal in Ong Yew Teik. [46] I further note the AKF Defendants' reliance on the Australian Federal Court decision in Abbey Laboratories Pty Ltd v Virbac (Australia) Pty Ltd (No 2) [2025] FCA 1082. [47] I find the reasoning in Abbey Laboratories persuasive insofar as it recognises the court's power to set aside or dispense with compliance of a notice to produce where it amounts to a fishing expedition, is oppressive, or where the documents sought bear no reasonable relationship to any identifiable issue in the proceedings. [48] That said, I wish to emphasise that the threshold for setting aside a NTP ought to be high. A notice to produce is a well-established procedural tool under the EA 1950, and its routine deployment ought not to be lightly interfered with. The Court should exercise its inherent jurisdiction sparingly and only where it is satisfied that the notice to produce has been issued in a manner that amounts to an abuse of process, is manifestly oppressive or disproportionate, or is designed to circumvent proper procedural safeguards. 23! ! [49] Accordingly, I find that this Court does possess the inherent jurisdiction and power, pursuant to Order 92 rule 4 of the ROC 2012, to set aside or regulate a NTP issued under Section 66 of the EA 1950, in appropriate circumstances where such notice amounts to an abuse of the Court's process, is oppressive, or is otherwise contrary to the interests of justice. I therefore reject the Plaintiffs' threshold objection that this Court lacks jurisdiction to entertain the AKF Defendants' application. b) Whether the NTP Amounts to an Abuse of Process or is Oppressive [50] The AKF Defendants submited that the NTP is oppressive and constitutes an abuse of process on several grounds: a) the sheer scale of the NTP, demanding the production of 25,231 pages of documents; b) the timing of the NTP, issued after the commencement of trial and after the completion of the discovery process; c) the breadth of the NTP, which in addition to the 1,634 specifically identified documents in Annexure A, demands "ALL DOCUMENTS AND/OR MATERIALS" in relation to the suit; and d) the impracticality of compliance, given that the AKF Defendants assert they lost control over data found in the 23 devices during the execution of the APO and have raised serious concerns 24! ! about the imaging methodology and forensic integrity of the extraction process. [51] The Plaintiffs on the other hand took the position that the NTP is not oppressive because: a) the documents are specifically identified in Annexure A, consisting of 1,634 items; b) the AKF Defendants have demonstrated clear understanding of the documents requested, having accurately counted the pages; c) the documents are Part C documents in the Common Bundle of Documents which the Plaintiffs themselves compiled, meaning the Plaintiffs know the contents and are not on a fishing expedition; d) the NTP was issued promptly on 24 August 2025, only four days after the Court hearing on 20 August 2025 where the Part C issue was addressed; and e) the NTP imposes no prejudice on the AKF Defendants because they need only produce documents if they wish to, with the law prescribing the consequences of non-compliance. My Analysis 25! ! [52] I acknowledge the Plaintiffs' point that the documents in Annexure A of the NTP have been specifically identified and that the AKF Defendants have demonstrated the ability to ascertain with precision what documents are being sought and their total page count. This is not a case where the NTP is vague or unintelligible. The AKF Defendants plainly know what is being requested. [53] However, the specificity of identification does not, by itself, immunise the NTP from scrutiny as to its scale, purpose, and effect. [54] The scale of the NTP is significant. The NTP demands production of 25,231 pages of documents. In addition to the 1,634 items specifically listed in Annexure A, the NTP also demands "ALL DOCUMENTS AND/OR MATERIALS" in the AKF Defendants' custody, possession, or power in relation to this suit. This catch-all demand is, in my judgment, overbroad. It is not limited to any specific category or type of document. It is not confined to documents relevant to any particular issue in the proceedings. It casts the net as wide as conceivably possible. While the specifically enumerated documents in Annexure A may be sufficiently identified, the omnibus demand for "all documents and/or materials" goes beyond what is reasonable or proportionate for a notice to produce issued during trial. [55] On the question of timing, I note the Plaintiffs' submission that the NTP was issued promptly after the Court hearing of 20 August 2025, which addressed the Part C classification issue. I accept that there is some contextual justification for the timing, given that the Part C issue was only addressed four days before the NTP was issued. 26! ! The Plaintiffs should not be faulted for acting expeditiously in light of the Part C classification that had just been finalised. [56] However, the broader context must also be considered. This suit was commenced in March 2021 which is approximately five years before the NTP was issued. The discovery process, which the Plaintiffs themselves initiated, culminated in the Court of Appeal's Discovery Order dated 5 December 2024. That process was completed prior to the commencement of trial on 18 August 2025. The extraction of APO Information under the EPO was completed between April and May 2025. The Common Bundle of Documents was compiled and the Part A, B, and C classifications were made prior to trial. In this context, the issuance of a NTP demanding 25,231 pages of documents after the commencement of trial even accounting for the Part C developments on 20 August 2025 raises legitimate concerns about whether the NTP is being used for a purpose that goes beyond the legitimate statutory objective of laying the foundation for secondary evidence. [57] The Plaintiffs submitted that the NTP imposes no prejudice on the AKF Defendants because the recipients of a notice to produce are not compelled to comply. This is legally correct as a matter of the EA

A notice to produce is not a compulsory process. The recipient may choose not to produce the documents, in which case the issuing party becomes entitled to adduce secondary evidence under Section 65. [58] However, the AKF Defendants raised a more nuanced point. They contended that the practical effect of the NTP, in the context of this 27! ! case, is to shift the burden of proving the authenticity and contents of Part C documents from the Plaintiffs who are the parties seeking to rely on those documents to the AKF Defendants. If the AKF Defendants do not produce the documents, the Plaintiffs will seek to adduce secondary evidence and rely on the copies already in their possession. If the AKF Defendants do produce the documents, they will effectively be authenticating documents whose provenance and forensic integrity they dispute. [59] This concern is not without merit, and it intersects with the burden of proof issue which I will address separately under Issue (e) below. [60] As to the question of whether the NTP constitutes a "fishing expedition," I am satisfied that the Plaintiffs are not fishing for documents whose existence or contents are unknown to them. The documents are Part C documents in the Common Bundle of Documents. The Plaintiffs know their contents. The purpose of the NTP is to obtain the original documents in the AKF Defendants' possession so that they may be produced in Court for the purpose of marking as exhibits. This is a legitimate purpose under the EA 1950 framework. [61] On the facts before me, I do not find that the present NTP is properly characterised as a fishing expedition. A significant number of the documents sought are not unidentified or conjectural documents. They are documents already embedded within the procedural history of this case. These are documents arising from the APO process, the discovery process, the EPO extraction process, and the subsequent Part C classification exercise. The Plaintiffs have 28! ! not come to Court asking for some broad class of unknown commercial material in the hope that something useful may turn up. Rather, they seek originals or production of documents that have already featured, in one way or another, in the proceedings. [62] It is also material that the AKF Defendants themselves took the position that a very large number of documents should be marked as Part C. Whether that position was justified is not something I decide here. But once that position was taken, it was foreseeable that the Plaintiffs would consider what steps were necessary to prove such documents if they intended to rely on them. In that sense, the NTP did not emerge in a vacuum. [63] On balance, while I find that the core of the NTP being the specifically identified documents in Annexure A is not, in itself, an abuse of process or a fishing expedition, the omnibus demand for "ALL DOCUMENTS AND/OR MATERIALS" in relation to this suit is overbroad and oppressive. To that extent, the NTP goes beyond what is proportionate and reasonable. However, I do not find the NTP, in its entirety, to be an abuse of process warranting wholesale setting aside. c) Whether the NTP Circumvents the Discovery Process and Part C Framework [64] The AKF Defendants submitted that the NTP effectively circumvents the discovery process that has already run its course and disregards the Part C classification framework under Order 34 of the ROC

They argued that the Plaintiffs, having obtained discovery 29! ! through the Court of Appeal's Discovery Order and having extracted APO Information through the EPO, are now seeking to use the NTP as a backdoor mechanism to compel the AKF Defendants to produce and effectively authenticate documents mid-trial. [65] The Plaintiffs responded that the NTP is not a discovery mechanism but an entirely different procedural tool under the EA 1950. It is not meant to compel documents but merely to give notice. The Plaintiffs further submitted that the NTP was necessitated by the AKF Defendants' own conduct in classifying virtually all documents including APO Information and Discovery Documents as Part C, thereby disputing the authenticity and contents of their own documents. My Analysis [66] I accept the legal distinction between a notice to produce under Section 66 EA 1950 and a discovery application under Order 24 of the ROC 2012. They are conceptually different procedural mechanisms serving different purposes. A discovery application compels the disclosure and production of documents. A notice to produce merely serves as a procedural prerequisite for the adduction of secondary evidence and carries no compulsive force. [67] The AKF Defendants are correct that the discovery process in this case has been completed. The Court of Appeal's Discovery Order has been complied with. The EPO extraction process has been completed. The Common Bundle of Documents has been prepared. The Part C classifications have been finalised. In the ordinary 30! ! course, the procedural machinery for getting documents before the Court should have been substantially completed before the commencement of trial. [68] However, the Plaintiffs are also correct that the situation in this case is far from ordinary. The AKF Defendants' decision to classify all APO Information and Discovery Documents as Part C has created an unusual procedural predicament. [69] In this context, the Plaintiffs' issuance of the NTP is not entirely without justification. The Plaintiffs face the practical consequence of the AKF Defendants' wholesale Part C classification. It is axiomatic that the Plaintiffs bear the burden of proving the authenticity and contents of each Part C document before it can be marked as an exhibit. The NTP, as a procedural step, enables the Plaintiffs to call upon the AKF Defendants to produce the originals, failing which the Plaintiffs may adduce secondary evidence. This is a legitimate procedural avenue. [70] I also do not accept that the Plaintiffs are acting in bad faith merely because the NTP was served after the first days of trial. The chronology shows that disputes concerning the classification of documents and the consequences of Part C marking were still being actively addressed shortly before the NTP was issued. The Plaintiffs’ position that the NTP was served promptly after it became plain that the impugned documents would remain marked as disputed is not, on the materials before me, inherently implausible. 31! ! [71] The AKF Defendants argued that the NTP is “oppressive” because it demands production of 25,231 pages. I accept that the volume is substantial. The Court must always be alert to the risk that procedural devices may be used oppressively by force of scale alone. Yet scale must be assessed in context. The present litigation is document-heavy, and technologically complex. The volume complained of is not a free-standing figure detached from the parties’ own litigation positions. It is the consequence, at least in material part, of the scope of the documents already generated, extracted, discovered, and disputed in this suit. [72] More fundamentally, the NTP does not itself compel testimonial explanation of each document, nor does it require the AKF Defendants to certify the truth of the documents in the way suggested in argument. The extent of any forensic consequence from non-production is governed by the Evidence Act. I therefore do not regard the mere numerical volume, without more, as sufficient to justify setting aside the NTP outright. [73] I am not persuaded that the NTP, in its core purpose, circumvents the discovery process. The discovery process was concerned with the disclosure of documents. The NTP is concerned with the production of original documents for the purpose of exhibit marking at trial. These are distinct procedural objectives. [74] However, the manner and scale of the NTP must still be proportionate. The omnibus demand for "ALL DOCUMENTS AND/OR MATERIALS" beyond the specifically identified Annexure 32! ! A documents does, in my view, encroach upon the territory of discovery. To that limited extent, the NTP overreaches. [75] Accordingly, I find that the NTP, insofar as it seeks the production of specifically identified documents in Annexure A, does not impermissibly circumvent the discovery process or the Part C classification framework. However, the omnibus demand for "ALL DOCUMENTS AND/OR MATERIALS" goes beyond the legitimate scope of a notice to produce and encroaches upon the discovery process. d) Relevance and Custody, Possession, or Power [76] The AKF Defendants submitted that the Plaintiffs have failed to demonstrate the relevance of the 25,231 documents to the Plaintiffs' pleaded causes of action, and that relevance cannot be established merely by reference to the AKF Defendants' objections to authenticity or the Part C classification. [77] The AKF Defendants further contended that the documents were extracted from devices seized during the APO execution, processed by the Plaintiffs' own forensic expert Deloitte, and that the AKF Defendants lost control over the data during the APO execution. Accordingly, while the original devices may be in the AKF Defendants' physical possession, the AKF Defendants cannot be said to have custody, possession, or power over the specific documents in the form in which they appear in the Common Bundle. 33! ! [78] The Plaintiffs asserted that the relevance of the documents cannot be denied in light of: a) the APO, paragraph 30 of which specifically grants the Plaintiffs leave to use any information obtained as a result of the APO execution for the protection and enforcement of the Plaintiffs' rights in this action; and b) the Court of Appeal's findings in the Discovery Order that the documents are relevant and necessary for the fair disposal of the matter. [79] As to custody, possession, or power, the Plaintiffs pointed out that between 10 and 14 April 2021, all original devices were returned to the Defendants, and on 13 April 2021, copies of the 23 devices were also provided to the Defendants. The Plaintiff contended that the AKF Defendants have at all material times had unhindered access to the APO Information. My Analysis [80] On the question of relevance, I am guided by the Court of Appeal's findings in the Discovery Order dated 5 December 2024. The Court of Appeal expressly found that the Plaintiffs had adequately addressed both the relevancy and necessity of the documents sought. While the Discovery Order and the NTP are distinct procedural mechanisms, the relevance of the underlying documents does not change depending on the procedural vehicle used to seek their production. 34! ! [81] Furthermore, paragraph 30 of the APO specifically grants the Plaintiffs leave to use any information, articles, materials, and/or documents obtained as a result of the APO execution for the protection or enforcement of the Plaintiffs' rights in this action. This is a subsisting Court order. The relevance of the APO Information for the purposes of this trial has been confirmed by the Court. [82] I am unable to accept the AKF Defendants' submission that the Plaintiffs have failed to demonstrate relevance. The documents in question are Part C documents in the Common Bundle of Documents. They have been identified as relevant to the issues in these proceedings through the discovery and extraction processes. Their relevance has been judicially affirmed at multiple tiers of court. [83] On the question of custody, possession, or power, the evidence before me is clear that all original devices were returned to the Defendants between 10 and 14 April 2021. Copies of the 23 devices were provided to the Defendants on 13 April 2021. The Defendants have had unhindered access to the APO Information since that date. The DPO restricted the Plaintiffs' access while leaving the Defendants' access entirely unimpeded. The AKF Defendants have therefore been in continuous and unhindered possession of the original devices and the data contained therein since April 2021—a period of over four years prior to the issuance of the NTP. [84] The AKF Defendants contended that the Plaintiffs' argument on possession is "circular and self-serving" because the 23 devices were seized and processed by the Plaintiffs' own forensic expert, 35! ! Deloitte, during the APO execution, and the chain of custody, imaging methodology, and forensic integrity are matters within Deloitte's knowledge. I understand the thrust of this argument: the AKF Defendants suggest that it is the extracted digital copies and not the original devices that form the basis of the Part C documents, and that the AKF Defendants cannot meaningfully "produce" documents that were forensically extracted by the Plaintiffs' own expert. [85] However, this argument conflates two distinct concepts. Section 66 of the EA 1950 speaks of the party in whose "possession or power" the document is. In that sense, the documents in question originated from the AKF Defendants' own devices that is from their computers, laptops, hard drives, and other digital storage media. The original data resides on those devices. Those devices were returned to the AKF Defendants. The AKF Defendants are the originators and custodians of the underlying data. They have at all material times had access to the original files. That the Plaintiffs' forensic expert made copies of that data during the APO execution does not divest the AKF Defendants of possession or power over the original data on their own devices. [86] Furthermore, the Discovery Documents which form a significant portion of the documents sought under the NTP were produced by the AKF Defendants themselves in compliance with the Discovery Order. These are documents that the AKF Defendants identified, compiled, and handed over to the Plaintiffs' solicitors in multiple batches. There can be no credible dispute that these documents are within the AKF Defendants' possession or power. 36! ! [87] I also note that during the EPO extraction process, which was conducted at the offices of the Supervising Solicitors, the AKF Defendants' solicitors, counsel, experts, and forensic observer were all present and permitted to observe and participate in the extraction exercise. The process was open and transparent. The extracted materials were subsequently handed to the AKF Defendants via their solicitors for their review and objections. The AKF Defendants cannot now claim ignorance of or lack of access to these materials. [88] Accordingly, I find that the documents sought under the NTP are relevant to the issues in this suit, a finding supported by the APO (paragraph 30), the Court of Appeal's Discovery Order, and the nature of the documents as Part C documents in the Common Bundle. I further find that the documents are, for the purposes of Section 66 EA 1950, within the custody, possession, or power of the AKF Defendants. The AKF Defendants' arguments to the contrary are rejected. e) Whether the NTP Impermissibly Shifts the Burden of Proof [89] The AKF Defendants advance what is, in my view, their strongest argument: that the NTP effectively shifts the burden of proving the authenticity and truth of disputed Part C documents from the Plaintiffs who seek to rely on those documents to the AKF Defendants. The AKF Defendants relied on the Federal Court decision in Live Capital Sdn Bhd v Pioneer Conglomerate Sdn Bhd [2025] 4 MLJ 420. 37! ! [90] The position in Live Capital Sdn Bhd is that where a document is disputed as to its authenticity or the truth of its contents, the burden lies on the party seeking to rely on that document to prove it properly. Such a document cannot simply be marked as an exhibit and treated as evidence of its truth. Unless the maker of the document is called to verify its authenticity and contents, the document remains hearsay and has no evidential value. The case also makes clear that the opposing party does not bear the burden of disproving the document, such as by proving forgery, unless and until the party relying on it has first established a prima facie case. Further, failure to call the maker or other material witnesses may justify an adverse inference. [91] The Federal Court case of Live Capital Sdn Bhd held as follows: “[29] Did the learned JC follow the correct procedure in admitting and marking the two vouchers as exhibits? We think not. The proper procedure was for him to postpone the marking of IDP1 and IDP2 as exhs. P1 and P2 until after the maker or makers of the documents were called to give evidence, which was never done. Until then, the two vouchers should remain as IDP1 and IDP2, ie, for identification purposes only and not for the purpose of proving the truth of their contents as they were disputed both as to authenticity and contents. But to be fair to the learned JC, having converted IDP1 and IDP2 to exhs. P1 and P2, he did give learned counsel for the appellant the right to challenge the 38! ! correctness or otherwise of the “description” of the two documents and to submit on tampering. [30] By “description” the learned JC could only mean the contents of P1 and P2 which he made clear the respondent still needed to prove although the two documents had been marked as exhibits. But that goes more to the issue of weight rather than to the issue of admissibility. For any weight to be attached to the contents of the documents, the documents must first of all be documents that had properly been admitted in evidence. Nothing short of that will suffice. [31] What the Court of Appeal set as precedent, a dangerous one we would say, is that the authenticity and contents of disputed documents, ie, Part C documents need not be verified by the maker of the documents before they can be admitted in evidence and that all that is required of the party seeking to rely on such documents is to have them marked as exhibits, and once that is done, the contents of the documents are deemed to be the truth. [32] With due respect to the learned judges of the Court of Appeal, the procedure they adopted is unknown to law. Unless the authenticity of the two vouchers had been verified by calling the maker or makers of the documents, the contents of the documents remained hearsay as the purpose of producing them was to prove the truth of the contents and not merely to prove that the notation and alterations 39! ! were made (Subramaniam v. PP [1956] CLJU 115; [1956] 1 LNS 115; [1956] 1 MLJ 220). Clearly, the respondent had no other purpose in producing P1 and P2 as exhibits other than to prove that the RM7 million was an advance and not a commission. They were therefore caught by the rule against hearsay. [33] A document cannot be admitted in evidence and marked as such until it has been properly proved: See the judgment of Shankar J (as he then was) in Chong Khee Sang v. Phang Ah Chee [1983] CLJU 57; [1983] 1 LNS 57; [1984] 1 MLJ 377. Such a document has no evidential value, is irrelevant and should not be admitted in evidence and if admitted must be disregarded. [34] The fact that DW2 signed on the two payment vouchers did not make him the maker of the documents as the dispute was not over his signatures but over the authenticity and truth of the contents. It was therefore wrong for the learned JC to have converted IDP1 and IDP2 to exhs. P1 and P2 simply because DW2 confirmed that the signatures on the two documents were his signatures. For the same reason, it was misconceived for the respondent to have placed importance on the fact that the respondent admitted to signing P1 and P2. Any other hypothesis would mean that anyone would be free to tamper with documents without the knowledge of the person who signed the documents and the documents could still be used against him 40! ! without the need for the party seeking to rely on the documents to verify the authenticity of the documents. That cannot be a correct position of the law. [35] Both the clerk and the company secretary of the respondent would have been in a position to adduce the best evidence available as they would be able to testify on the notation and alterations on the two payment vouchers as well as the entries in the general ledger. No explanation was proffered as to why these witnesses were not called or made available at the trial. It is trite law that failure to call material witnesses will result in the invocation of adverse inference. In Sarkar on Evidence (14th edn), the learned authors dealt with the matter in the following terms: Everything is to be presumed against a party who keeps his adversary out of possession of evidence by taking means of retaining the evidence in his own custody. A similar presumption may also arise when a party does not call witnesses who are within his reach and are acquainted with the facts of the case … When a party failed to call as his witness the principal person involved and who was in a position to give a first hand account of the matter in controversy and who could have refuted on oath the allegation on the other side, it is legitimate to draw an adverse inference … [36] The learned JC was therefore justified in the circumstances to draw adverse inference 41! ! against the respondent for failing to call the maker or makers of exhs. P1 and P2. Casting aside exhs. P1 and P2 for being inadmissible and irrelevant, it is clear that at the close of its case, the respondent produced no credible evidence documentary or otherwise to prove, on a prima facie basis, that the RM7 million was an advance and not a commission. There was therefore nothing for the appellant to answer to the respondent’s claim that the RM7 million was an advance and not a commission. [37] At the risk of repetition, it needs to be emphasised that the appellant had neither the legal nor evidential burden to prove forgery of the two vouchers or, for that matter, to prove anything at all if otherwise the respondent had failed to establish a prima facie case at the close of its case. The fact that the appellant opted to call evidence instead of submitting no case to answer at the close of the respondent’s case does not change the equation. This error by the Court of Appeal on the burden of proof was an error that goes to the root of the matter which renders the whole judgment fundamentally flawed and liable to be set aside. … [40] That disposes of our determination of the appeal but for completeness, we set out below ss. 101 and 102 of the Evidence Act which are codifications of the common law concept of burden of proof and on whom it lies. The provisions are clear and unambiguous and speak for themselves and 42! ! need no further deliberation by us save for us to reproduce them for ease of reference: Section 101. Burden of proof

Whoever desires any court to give judgment as to any legal right or liability, dependent on the existence of facts which he asserts, must prove that those facts exist.

When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. … Section 102. On whom burden of proof lies The burden of proof in a suit or proceedings lies on that person who would fail if no evidence at all were given on either side. … (Emphasis added) [92] Based on the foregoing, the AKF Defendants submitted that if the Plaintiffs wish to rely on the 25,231 documents, the proper course is to call Deloitte to give evidence as to the origin, chain of custody, imaging methodology, and forensic integrity of the data, rather than to use Section 66 EA 1950 as a mechanism to escape from the burden of proof. [93] Learned counsel for the Plaintiff diametrically submitted that the NTP does not shift the burden of proof. According to learned counsel, the NTP merely gives notice to the AKF Defendants to produce documents. If the AKF Defendants choose not to produce, 43! ! the Plaintiffs will adduce secondary evidence under Section 65 EA

The burden of proving their case remains with the Plaintiffs at all times. Learned counsel further submitted that the issue of calling the maker is irrelevant to the NTP, which is about calling for documents to be produced in Court, not about calling for the maker. [94] Learned counsel for the Plaintiffs also submitted that the question of admissibility of documents is a matter to be determined during the trial process, not summarily by way of affidavit evidence in this application. Learned counsel emphasised that the AKF Defendants have no right to demand that admissibility be determined summarily, bypassing the full trial process which involves cross-examination of witnesses. My Analysis [95] I accept the general proposition articulated in Live Capital Sdn Bhd that the burden of proving the authenticity and truth of disputed documents lies on the party seeking to rely on them. This is a well-established principle of the law of evidence. The Plaintiffs, as the parties who seek to rely on the Part C documents to prove their case, bear the burden of establishing the authenticity and admissibility of those documents. [96] However, I must examine whether the NTP, properly understood, shifts that burden. A notice to produce under Section 66 EA 1950 is a procedural prerequisite for the adduction of secondary evidence under Section 65. Its effect, upon non-compliance by the recipient, is to entitle the issuing party to adduce secondary evidence of the 44! ! contents of the document. The NTP does not, by itself, prove the authenticity or truth of the documents. It does not shift the burden of proof on the substantive issues. The Plaintiffs must still prove their case. They must still establish the authenticity, reliability, and admissibility of the evidence they seek to rely upon, whether they produce primary or secondary evidence. [97] The AKF Defendants are concerned that if they produce the original documents in response to the NTP, they will be authenticating the Part C documents by their own act of production and thus relieving the Plaintiffs of the burden of proof. On the other hand, if they do not produce, the Plaintiffs will resort to secondary evidence, the copies already in their possession and the AKF Defendants are afraid that the non-production may be held against them as an adverse inference. [98] This concern, while understandable, overstates the legal effect of a notice to produce. The production of a document in response to a notice to produce does not, without more, amount to an admission of the document's authenticity or contents. The producing party retains the right to challenge the document's authenticity, contents, and weight during the trial process. Similarly, non-production does not create an irrebuttable presumption against the non-producing party. It merely entitles the other party to adduce secondary evidence, the weight and admissibility of which remain subject to the ordinary rules of evidence and judicial assessment. [99] I am also mindful that the Plaintiffs have indicated their intention to call expert witnesses regarding the acquisition process, and the trial 45! ! is ongoing. The AKF Defendants too intend to call witnesses on the same issue. The question of forensic integrity, chain of custody, and authenticity of the extracted data is a matter that will be ventilated at trial through the testimony of witnesses and the cross-examination process. It would be premature for this Court, in the context of this interlocutory application, to make definitive findings on the burden of proof as it relates to the substantive merits of the case. [100] The Plaintiffs' submission that admissibility is part of a trial process, has merit. The AKF Defendants are, in effect, asking this Court to determine questions of admissibility and burden of proof in a summary manner through affidavit evidence, without the benefit of cross-examination and the full trial process. This is not the appropriate forum for such determinations. [101] That said, I am not entirely unsympathetic to the AKF Defendants' position. The practical effect of the NTP, in the context of this case where the AKF Defendants have classified all documents as Part C and the Plaintiffs are now seeking production of those same documents does place the AKF Defendants in an uncomfortable procedural position. However, that discomfort is, in significant part, a consequence of the AKF Defendants' own strategic decision to classify virtually all documents as Part C. Having taken the position that the authenticity and contents of these documents are disputed, the AKF Defendants cannot now complain when the Plaintiffs take procedural steps to address that very dispute. 46! ! [102] In my judgment, although this Court retains an inherent jurisdiction to prevent abuse of process, the AKF Defendants have not established a proper basis to set aside the NTP in the present case. The NTP is, in substance, an evidential step taken by the Plaintiffs after a large tranche of documents had been marked as disputed. Its service does not transfer the legal burden of proof from the Plaintiffs to the AKF Defendants. Its non-compliance is addressed by the EA 1950 itself. The complaints now raised by the AKF Defendants go more to the future questions of proof, authenticity, chain of custody, and weight of evidence at trial than to the validity of the NTP as such. [103] The Federal Court in Ba Rao & Ors v Sapuran Kaur & Anor [1978] 2 MLJ 146 rejected bare and unsupported objections to a notice to produce, upheld the notice to produce, and refused the appellants’ attempt to exclude the evidence sought by the respondents. The Court made clear that a mere assertion of confidentiality, without supporting evidence, is insufficient to prevent production of relevant evidence. In emphasising the paramount importance of full disclosure of relevant facts in the administration of justice, the Federal Court held as follows: “This is an appeal … on a preliminary issue in the matter of Notice to Produce … … A mere assertion of confidentiality and that affairs of State are involved without evidence in support cannot, in my view, shut out the evidence sought by the respondents. … The terms of Reference or any document relating thereto were not before the court. … I am of 47! ! opinion that this was uttered with tongue in cheek and with no other object than to suppress evidence which may or may not assist the respondents in their claim … In the administration of justice nothing is of higher importance than that all relevant evidence should be admissible and should be heard by the tribunal that is charged with deciding according to the truth. To ordain that a court should decide upon the relevant facts and at the same time that it should not hear some of those relevant facts from the person who best knows them and can prove them at first hand, seems to be a contradiction in terms. It is best that truth should be out and that truth should prevail.” [104] In sum, I find that the NTP does not impermissibly shift the burden of proof from the Plaintiffs to the AKF Defendants. The burden of proving their case, including the authenticity and admissibility of the documents they rely upon, remains with the Plaintiffs at all times. The NTP is a procedural mechanism under the EA 1950, and its issuance does not alter the substantive burden of proof. The questions of admissibility, authenticity, and weight of evidence are matters to be determined during the trial process. f) Whether the NTP Should Be Set Aside or Upheld [105] Having addressed the individual issues raised by the parties, I now turn to the ultimate question: what order should this Court make in respect of Enclosure 953? 48! ! [106] In summary, my findings are as follows:

This Court possesses the inherent jurisdiction to set aside or regulate a notice to produce issued under Section 66 EA 1950 where it amounts to an abuse of process or is oppressive (Issue a);

The core of the NTP—the specifically identified documents in Annexure A—is not an abuse of process or a fishing expedition, but the omnibus demand for "ALL DOCUMENTS AND/OR MATERIALS" is overbroad and oppressive (Issue b);

The NTP, insofar as it relates to the Annexure A documents, does not impermissibly circumvent the discovery process or the Part C classification framework, but the omnibus demand encroaches upon the discovery process (Issue c);

The documents sought are relevant and within the custody, possession, or power of the AKF Defendants (Issue d); and

The NTP does not impermissibly shift the burden of proof (Issue e). [107] I note from the Court Minutes dated 20 August 2025 (Exhibit "CK- 13") that this Court had already addressed the Part C issue with the parties. The Plaintiffs had raised concerns about the unnecessary burden, time, and cost imposed by the wholesale Part C classification. This Court directed parties to resolve the issues between themselves and specifically warned that high costs would 49! ! be imposed on the AKF Defendants should it be found after trial that the Part C marking was unnecessary. The AKF Defendants nevertheless insisted on maintaining the Part C classification. [108] The Court records its observation that the AKF Defendants' wholesale classification of APO Information and Discovery Documents as Part C, in circumstances where the AKF Defendants had previously claimed those same documents as their own confidential and proprietary materials, is a matter that will be taken into account in the final assessment of costs. The Court's warning at the hearing of 20 August 2025 regarding the imposition of high costs for unnecessary Part C classification remains operative. [109] In this context, the Plaintiffs' issuance of the NTP four days later, on 24 August 2025, was a reasonable and proportionate response to the procedural situation created by the AKF Defendants' insistence on maintaining the wholesale Part C classification. The Plaintiffs, faced with the burden of proving the authenticity and contents of a vast number of Part C documents, availed themselves of a legitimate procedural tool under the EA 1950 to lay the foundation for the adduction of secondary evidence. [110] While I do not set aside the NTP, I accept one aspect of the AKF Defendants’ concern. The phraseology in the NTP referring to “all documents and/or materials” in relation to the suit, if read entirely literally and in isolation, is capable of being misunderstood as an unbounded and open-ended demand. Procedural fairness requires clarity, especially in a trial of this scale. 50! ! [111] However, the Court is entitled to construe the NTP in context. Read fairly against the surrounding circumstances, including Annexure A, the Part C disputes, and the parties’ own submissions, the NTP is not to be treated as a general roving demand for any and all documents conceivably connected with the case. It is to be understood as directed to the documents specifically identified in Annexure A and to the relevant disputed documents within the custody, possession or power of the AKF Defendants that form part of the evidential controversy already joined between the parties. [112] In so construing the NTP, the Court preserves the legitimate evidential function of the notice while preventing any possible overreach. To that extent, I consider the AKF Defendants’ concern sufficiently addressed without the drastic step of setting the NTP aside. [113] I add that nothing in this judgment should be taken as relieving the Plaintiffs of the burden of proving the admissibility, authenticity or truth of any disputed document. Nor should this judgment be read as compelling the AKF Defendants to give explanatory testimony or to become the proving witnesses for the Plaintiffs’ case. Those are separate matters governed by the Evidence Act, the Rules of Court, and the ordinary law on proof. [114] In exercising its inherent jurisdiction, the Court must balance the interests of justice as between the parties. On one hand, the AKF Defendants are entitled to protection from oppressive or disproportionate procedural demands. On the other hand, the Plaintiffs are entitled to utilise legitimate procedural mechanisms to 51! ! prove their case, particularly in circumstances where the AKF Defendants' own conduct has created the procedural necessity for the NTP. [115] I am satisfied that the NTP, insofar as it relates to the 1,634 specifically identified items in Annexure A, is a legitimate exercise of the Plaintiffs' rights under Section 66 EA 1950. The documents are specifically identified, relevant, and within the AKF Defendants' custody, possession, or power. The NTP was issued promptly after the Part C issue was addressed by this Court on 20 August 2025. The AKF Defendants have demonstrated a clear understanding of what documents are sought. There is no fishing expedition. The NTP in respect of the Annexure A documents is neither oppressive nor an abuse of process. [116] However, I am equally satisfied that the omnibus demand in the NTP for "ALL DOCUMENTS AND/OR MATERIALS" in relation to this suit, beyond the specifically identified Annexure A documents, is overbroad, disproportionate, and goes beyond the legitimate scope of a notice to produce under Section 66 EA 1950. This portion of the NTP is not sufficiently specific and effectively operates as an open-ended demand that encroaches upon the territory of discovery. To that limited extent, the NTP is set aside. E. DECISION [117] For the reasons set out above, I make the following orders: 52! !

The AKF Defendants' application in Enclosure 953 to set aside the Plaintiffs' Notice to Produce dated 24 August 2025 is dismissed.

The Notice to Produce dated 24 August 2025 is upheld and maintained insofar as it relates to the 1,634 items specifically identified in Annexure A. The AKF Defendants are at liberty to comply or not comply with the NTP in respect of these documents, and the consequences of compliance or non-compliance shall be governed by the ordinary operation of Sections 65 and 66 of the EA 1950. For completeness, I clarify that the Plaintiffs’ NTP dated 24.08.2025 is to be understood as referring to the documents identified in Annexure A and the relevant disputed documents already forming part of the evidential matrix of this action and said to be within the custody, possession or power of the AKF Defendants. It is not to be treated as a freestanding vehicle for a roving demand unconnected with the issues in the suit. The Notice to Produce dated 24 August 2025 is set aside to the extent that it demands "ALL DOCUMENTS AND/OR MATERIALS" in the AKF Defendants' custody, possession, or power in relation to this suit, beyond the 1,634 items specifically identified in Annexure A of the NTP. This omnibus demand is struck out as overbroad and disproportionate.

For avoidance of doubt, the Plaintiffs retain the right to adduce secondary evidence under Section 65 of the EA 1950 in respect of any documents identified in Annexure A that the AKF Defendants fail or refuse to produce, subject to the ordinary 53! ! rules of evidence and admissibility as determined by this Court during the trial process.

The burden of proving the authenticity, contents, admissibility, and weight of documents relied upon by the Plaintiffs remains with the Plaintiffs at all times, whether primary or secondary evidence is adduced. Nothing in this order alters the substantive burden of proof.

The issue of admissibility of the Part C documents, including questions of authenticity, chain of custody, forensic integrity, and the need to call the maker, shall be determined by this Court during the trial process, and not in the context of this interlocutory application. I further clarify that the dismissal of Enclosure 953 does not determine the admissibility, authenticity, truth, or evidential weight of any particular document. All objections in that regard are expressly preserved to be taken at trial in accordance with the law.

Costs of this application shall be costs in the cause. Dated this day of 23rd April 2026. -Sgd-EDWIN PARAMJOTHY MICHAEL MUNIANDY JUDICIAL COMMISSIONER COMMERCIAL DIVISION (NCC 7) HIGH COURT OF MALAYA KUALA LUMPUR 54! ! Counsel: For the Plaintiff : Chandra Sekar a/l K.Kandasamy and Chew Yi Ting (Messrs. Chandrasekar & Assoc) For the Defendant 1st, 5th and 6th : Wendy Lam together with Wong Jia Ee, Aiman Haqeem Al Sadat, Melveer Jay Singh a/l Anajee Singh (PIC) and Tan Zhao Ying (Paralegal) (Messrs. Himahlini & Co.)