1. ) Nur Qyira Izzati Binti Yusri v 1. ) Mohammad Jazlan Bin Shahrif (WA-21NCvC-255-12/2021)

At approximately 8:30 pm, a group of police officers (including D1-D7) led by D1 arrived to monitor the Vigil. They approached the plaintiffs with D2 demanding to see the plaintiffs' NRIC, to which they complied.

The plaintiffs then negotiated with D2 to allow them to leave peacefully to which he initially agreed, but he immediately retracted and refused the plaintiffs from leaving the Area, followed by the plaintiffs' arrest by D1-D7.

They were forced into two separate police trucks:

P1-P6 and P16 (arrested by D5-D7) were physically ushered into a truck with fifteen other women without social distancing;

(ii) P7-P15 (arrested by D1-D4) were physically ushered into a truck with fifteen other men without social distancing; and

(iii) D1-D7 pressured the media to leave the Area.

D1-D7 told them they were not under arrest but would be taken to the police headquarters in Dang Wangi (IPD Dang Wangi) for documentation purposes. The NRIC given were detained, and no grounds were given for their detention.

The plaintiffs claimed that:

They suffered other forms of physical assault from the police officers, including D1-D7 (paragraph 37 SoC);

(ii) At the IPD Dang Wangi, the plaintiffs were instructed to hand over their mobile phones to D1-D8, which P2 and P16 refused as there was no basis for their arrest. At the instruction of D8, P2 and P16 were then handcuffed;

(iii) Except for P12 and P16, the other plaintiffs, without their consent, were marked with numbers on their forearms with a permanent red marker pen by D1-D8. No consultation with lawyers present outside the IPD was allowed;

(iv) Their statement under s.112 CPC were recorded. S/N 7ZtJ5cZS4UEfkHkw8sevw

At approximately 11.40 pm, the plaintiffs were gradually released with compounds of RM2,000.00 issued by D2-D7 under Regulation 10 of the Prevention and Control of Infectious Diseases (Measures Within Infected Local Areas) (National Recovery Plan) Regulations 2021 (the Regulations-the Compounds). THE APPLICATION [4] The plaintiffs seek to have the following information:

Information and/or documents on the full names, body numbers, NRIC, and the office address of the police personnel involved on the night of the incident on 19.08.2021; and

(ii) Information and/or documents on the full names, body numbers, NRIC, and office address of D4, known as Saiful, who was involved on the night of the incident on 19.08.2021. In the alternative, the interrogatories on the following information are asked:

The police personnel on duty that was involved;

(ii) The full names, body numbers, NRIC, and the office address of the police personnel involved on the night of the incident on 19.8.2021; and

(iii) The full names, body numbers, NRIC, and the office address of the police personnel involved on the night of the incident on 19.8.2021. THE ISSUE [5] The main issue in this application is whether the plaintiffs have met the requirements/relevant and legal threshold for discovery by interrogatories as provided for under O.24 r.3 or r.4, O.26 r.1(3), and O.73 r.10 RC 2012. S/N 7ZtJ5cZS4UEfkHkw8sevw SUBMISSION BY THE PLAINTIFFS [6] The plaintiffs argued that:

The defendants' detention or arrest on 19.08.2021 was unlawful. On the night of the incident, there were many police officers involved (including D1-D7). The plaintiffs seek information on the police personnel involved in their unlawful arrest. The information is relevant and necessary for the just disposal of this suit promptly. It relates to the factual issues in this dispute and cited Yekambaran s/o Marimuthu v Malayawata Steel Bhd [1994] 2 CLJ 581 which made it clear that, first, there must be a document; second, the document is relevant; third, the document is in the possession, custody or power of the person where the order is sought, and finally, the application is necessary to ensure the fair disposal of the matter.

Their attempt under O.18 r.12 RC 2012 (for further and better particulars of the defendants' defence) was unsuccessful, leading to the present application.

The information on the police personnel involved in the plaintiffs' unlawful detention is evidently in the defendants' power, possession and custody. Still, they deny this, claiming they were not wearing nametags or ID at the time. It is not disputed that the AGC had entered appearance concerning D4 though only identified with his first name as Saiful in this Writ, showing that they have his full identification details or else the AGC would not have acted on it. D4 has, in the circumstances, submitted to the jurisdiction of this Court: Malayan Banking Bhd & Anor v Swasta Jaya Sdn Bhd [1990] 2 MLJ 12, SC. It is untenable for the defendants to deny now they have knowledge.

It is trite that O.26. r.1(3) of RC 2012 requires the Court to consider whether the list of interrogatories is relevant and necessary for the fair disposal of the matter. The Court is empowered to order interrogatories to be directed to the defendants as to the names of the police officers involved: Pertubohan Berita Nasional Malaysia v Stephen Kalong Ningkan [1980] 2 MLJ 19, FC. It should only refuse if it were detrimental to the public interest: s.36(1) Government Proceedings Act 1956 (GPA). The Court in Kanagi a/l Seperumaniam v Dato' Abdul Hamid Bin Mohamad [2004] 5 MLJ 495, HC, quoted and followed a House of Lords decision that public interest is that interest shared by all citizens in general and by the community at large concerning financial or legal liabilities.

The defendants failed to show how this disclosure would adversely affect the public interest. They cannot be allowed to pick and choose what to disclose and what not arbitrarily. Their objections are grounded merely on two basis. First, the disclosure is not necessary as it is a fishing expedition. It falls within s.5 and s.6 of the Government Proceedings Act 1956. Second, a pre-action discovery should have been filed by the plaintiffs.

The foregoing objections cannot hold because:

S.5 GPA requires the identity and liability of the public officer who had allegedly committed the tort to be ascertained before the Government can be made liable: Haji Abdul Rahman v Government of Malaysia [1966] 2 MLJ 174, affirmed by the Federal Court in Kerajaan Malaysia & Ors v Lay Kee Tee & Ors [2009] 1 MLJ 1, FC. The identity of the public officers must be identified before liability can be attached. Otherwise, it is fatal: S/N 7ZtJ5cZS4UEfkHkw8sevw Balakrishnan a/l Subramaniam v Penguasa Pusat Pemulihan Akhlak, Simpang Renggam, Johor Darul Takzim [2014] 10 MLJ 226, HC;

(ii) Reading s.6(1) together with s.5 of the GPA, the plaintiffs could only file a claim against the police officers who could be held personally liable for the alleged tortious Act are named as Defendants: Maslinda bt Ishak v Mohd Tahir bin Osman [2009] 6 MLJ 826, CA; Mohd Nor Afandi bin Mohamed Junus v Rahman Shah Alang Ibrahim [2008] 3 MLJ 81, CA. The Government is only liable if the Act of the public officer could give rise to a public action against the public officer: LBCN Development Sdn Bhd & Anor v Pengarah Tanah dan Galian Selangor & Ors [2014] 3 MLJ 445, CA;

(iii) This application is not a fishing expedition, and neither is it oppressive to the defendants. The Plaintiffs have already pleaded to the alleged tortious Act committed by the police officers save for the names and details of the officers involved. It is, therefore, not a fishing expedition to prop up the case: Nguang Chan aka Nguang Chan Liquor Trader & Ors v Hai-O Enterprise Bhd & Ors [2009] 5 MLJ 40, CA. In exhibit NQY-1, the plaintiffs have exhibited the photographs and video recordings of the incident on 19.8.2021, showing the presence of the police personnel involved apart from D1-D7. Contrary to the defendants' arguments, disclosing the names and NRIC of that personnel cannot be categorised as "sulit": Norhayati Mohd Ariffin v Khor Yi Shuen & Ors [2021] 1 LNS 1931, HC; and S/N 7ZtJ5cZS4UEfkHkw8sevw

(iv) Pre-action discovery (O.24 r.7A RC 2012) is not required since the plaintiffs have identified part of the alleged tortfeasors and the tortious acts: Infoline Sdn Bhd v Benjamin Lim Keong Hoe [2017] 8 CLJ 554, CA. As clearly pointed out in Bandar Utama Development Sdn Bhd & Anor v Bandar Utama 1 JMB [2019] 10 CLJ 516, CA, an action can be filed without pre-action discovery where subsequent orders for discovery can be obtained through the normal process. In the premise, the plaintiffs have met the legal threshold of O.24 r.3 or r.4, O.26 r.1(3), and O.73 r.10 RC 2012 pray for order in terms of enclosure 12. SUBMISSION BY THE DEFENDANTS [7] It was argued that:

The defendants cited discovery principles in Yekambaran s/o Marimuthu v Malayawata Steel Bhd and the defendants also cited Dato' Sri Dr Ling Liong Sik v Krishna Kumar s/o Sivasubramaniam [2002] 2 MLJ 278, which held that particulars would not generally be ordered concerning matters of evidence or inference is drawn or substitute interrogatories.

The information sought in enclosure 12 is unnecessary since the information on D4 is not within the defendants' knowledge. Paragraph 37 of the SoC described the alleged tortious Act; therefore, the particulars asked for are irrelevant. In addition, s.5 and s.6 of the GPA do not require such information to be pleaded in the SoC.

In the circumstances, there is no necessity for the information sought by the plaintiff in enclosure 12. S/N 7ZtJ5cZS4UEfkHkw8sevw The defendants pray that the plaintiffs' application is dismissed with costs. THE LAW [8] Discovery by interrogatories in a nutshell:

Interrogatories consist of a series of written questions posed to the opponent about the case concerning the discovery of facts, which is to enable a party to obtain from the opposite party admissions or evidence of material facts to be added at the trial or to appraise the strength or weakness of the case before the trial and thereby to assist in the fair disposal of the proceedings at or before the trail or is saving costs. The answers to interrogatories might also reduce the need for and scope of discovery;

Interrogatories that do not relate to a matter in question, otherwise known as "fishing interrogatories, " are not allowed.

Interrogatories can be served before the pleadings are closed without leave of the Court. However, once pleadings are closed, the leave of the Court is necessary for serving interrogatories.

If the answer to the interrogatories is insufficient, the Court may make an order requiring a party to make necessary further answers either by affidavit or on an oral examination as the Court may direct. [9] O.26, r.1 RC 2012 provides:

(1) A party to any cause or matter may apply in Form 44 to the Court for an order-

giving him leave to serve on any other party interrogatories relating to any matter in question between the applicant and that other party in the cause or matter; and

requiring that the other party to answer the interrogatories on the affidavit within a specific period of time which shall not be less than fourteen days from the date of service of the interrogatories.

A copy of the proposed interrogatories in Form 45 shall be served together with the application for such leave.

On the hearing of an application under this rule, the Court shall give leave as to such only of the interrogatories as it considers necessary either for disposing fairly of the cause or matter or for saving costs; and in deciding whether to give leave, the Court shall take into account any offer made by the party to be interrogated to give particulars or to make admissions or to produce documents relating to any matter in question.

A proposed interrogatory which does not relate to such a matter as is mentioned in paragraph (1) shall be disallowed notwithstanding that it might be admissible in oral cross-examination of a witness.

If an order is made, it shall be in Form 46 and shall be served by the applicant on the party against whom it is made.

Interrogatories shall be answered by affidavit in Form 47, and the affidavit shall be filed, and a copy thereof served on the party interrogating within the time specified in the order. [10] Order 26 RC 2012 is mainly used to elicit admissions. Interrogatories are not confined to facts directly in issue but extend to any facts the existence or non-existence which is relevant to the facts in issue. In Sheikh Abdullah Bin Sheikh Mohamed v Kang Kock Seng [1975] 1 MLJ 89, FC held that further considerations to be considered by the Court in the exercise of its discretion also include: "(1) Although interrogatories must be confined to matters which are in issue, they may under some circumstances extend to facts the existence or non-existence of which is relevant to the existence or non-existence of the facts directly in issue. In considering whether the interrogatories should be allowed or not, the Court must consider whether they are designed to obtain admissions of facts which will reduce the issues, shorten the length of the trial and thus save costs…" S/N 7ZtJ5cZS4UEfkHkw8sevw Guided by the principles aforesaid, to succeed in his application for interrogatories, the three requirements must be fulfilled:

Whether the interrogatories are designed to obtain admissions of relevant facts which will reduce the issues;

(ii) Whether the interrogatories will shorten the length of the trial; and

(iii) Whether the interrogatories will expedite the trial and reduce costs. [11] Whether an order for interrogatories should be made or otherwise depends mainly on the facts of each case. However, it must be pointed out that in any given case, the burden is on the party who alleges to prove and not otherwise. FINDINGS [12] Section 5 and 6 of the Government Proceedings Act 1956 provides:

Liability of the Government in tort Subject to this Act, the Government shall be liable for any wrongful act done or any neglect or default committed by any public officer in the same manner and to the same extent as that in which a principal, being a private person, is liable for any wrongful act done, or any neglect or default committed by his agent, and for the purposes of this section and without prejudice to the generality thereof, any public officer acting or purporting in good faith to be acting in pursuance of a duty imposed by law shall be deemed to be the agent of and to be acting under the instructions of the Government.

Limits of liability of the Government

No proceedings shall lie against the Government by virtue of section 5 in respect of any act, neglect or default of any public officer unless proceedings for damages in respect of such act, neglect or default would have lain against such officer personally. (emphasis added)

Any written law which negatives or limits the amount of the liability of any public officer in respect of any act, neglect or default committed by that officer shall, in the case of proceedings against the Government under section 5 in respect of such act, neglect or default of such officer, apply in relation to the Government as it would have applied in relation to such officer if the proceedings against the Government had been proceedings against such officer. S/N 7ZtJ5cZS4UEfkHkw8sevw

No proceedings shall lie against the Government by virtue of section 5 in respect of anything done or omitted to be done by any person while discharging or purporting to discharge any responsibilities of a judicial nature vested in him or any responsibilities which he has in connection with the execution of a judicial process.

No proceedings shall lie against the Government by virtue of section 5 in respect of any act, neglect or default of any public officer unless that officer was at the material time employed by the Government and paid in respect of his duties as an officer of the Government wholly out of the revenues of the Government, or any fund certified by the appropriate financial officer for the purposes of this subsection or was at the material time holding an office in respect of which the appropriate financial officer certifies that the holder thereof would normally be so paid.

For the purposes of subsection (4), the expression "appropriate financial officer" means, in respect of the Federal Government, the Minister of Finance, and in respect of the Government of a State, the State Financial Officer, and, in the case of the States of Sabah and Sarawak, the State Minister responsible for finance. [13] S.5 GPA provides the limit of the liability of the Government (State or Federal) concerning the wrongful act of its officers. For so long as the officer in good faith pursues a duty imposed by law, it shall be deemed the agent of and operating under the Government's instructions. At the same time, s.6

GPA makes it clear that the Government's liability is conditional on its officers' liability in the alleged conduct. The said officer must, at the time, be employed and paid to follow the instructions of the Government. In these circumstances, I agree with the Senior Federal Counsel's (SFC) arguments representing the defendants that s.5 and s.6, contain no requirements for the information sought by the plaintiffs in pursuing their present suit. [14] I refer to the affidavit in support (enclosure 13) at para 10-13, I fail to see the relevance of the said interrogatories in assisting the plaintiff in the trial preparation and I also find the plaintiffs have failed to satisfy the three requirements stated above (see Sheikh Abdullah Bin Sheikh Mohamed v Kang Kock Seng). The provision allowing the Governments liability in tort S/N 7ZtJ5cZS4UEfkHkw8sevw and the limits of that liability (s.5 and s.6, respectively) do not in any way support the requirements for the disclosure of the details sought, which is a matter of evidential materials that can be canvassed and ventilated at the substantive hearing of the plaintiffs' suit. In the upshot, I find no compelling materials to grant such an order in the circumstances. CONCLUSION [15] In light of the foregoing and after closely scrutinising and examining all evidence and facts adduced before me, I conclude that there is no merit in the plaintiffs' application in enclosure 12. It is therefore dismissed with costs of RM3,000.00 (global) payable within 14 days from the date of this order. Dated 31.10.2022 HAYATUL AKMAL ABDUL AZIZ JUDGE HIGH COURT OF MALAYA WILAYAH PERSEKUTUAN KUALA LUMPUR Counsels: Ms Kee Hui Yee, together with Ms New Sin Yew and Ms Nur Izni Syazwani bt Ahmad (PDK) Messrs AmerBON Counsels for the Plaintiffs Mr Mohd Azhar Hamzah (SFC), together with Mr Mohd Ashraf Abdul Hamid (FC) Attorney General Chambers For the Defendants S/N 7ZtJ5cZS4UEfkHkw8sevw