1. ) Sharifah Sofia Binti Syed Hussein v Pengarah Kepada Lembaga Kebajikan Haiwan (WA-24NCvC-2689-12/2021)

SHARIFAH SOFIA BINTI SYED HUSSEIN (IC No.: 850728-71-5000) [mewakili Hak Asasi Hidupan Liar Malaysia Global (No. Pendaftaran: 202103220067 (IP0559710-H)]

KARTINI FARAH BINTI ABD RAHIM (IC No.: 731211-10-5064) [mewakili Friends of Stray Animal Initiative (No. Pendaftaran: 202103377399 (LA0041197-V)]

MARIANI BINTI RAMLI (IC No.: 860805-49-5654) [mewakili Gibbon Conservation Society (No. Pendaftaran: PPM-007-10-22022020)]

AHMAD BIN MAT KIRAM (IC No.: 491106-06-5259)

ZACH FAROOQ BIN RAZALEIGH (IC No.: 020917-10-2091)

MARTIN EMMA REBECCA (Australia i-KAD No.: PA9975829)

MARTIN DEBBIE SAMANTHA (United Kingdom i-KAD No.: 560985366)

LUQMAN HAKIM BIN ANUAR ZAKI (IC No.: 900826-03-5749) 21/06/2022 09:48:42

MOHD FAIZUDDIN BIN ZAINAL ABIDIN (IC No.: 900911-03-6375)

NAMITA GILL A/P AMAR SINGH GILL (IC No.: 790525-05-5530) …PLAINTIFFS AND PENGARAH KEPADA LEMBAGA KEBAJIKAN HAIWAN …DEFENDANT Judgment Introduction [1] ‘All animals are equal, but some animals are more equal than others.’ [2] Such is the famous refrain from Animal Farm, by George Orwell, published in 1945. A satirical allegorical novella, it tells the story of a group of animals who rebel against their human master, hoping to create a society where animals can be equal, free and happy. This is, of course, fiction. [3] On Planet Earth the reality is that it is only humans who can create an ecological environment where animals can be safe, free and happy. This OS is an application for pre-action discovery by NGOs and concerned citizens and members of the public against The Director of the Animal Welfare Board [“Animal Welfare Board or the Defendant”]. Its purpose is to verify compliance by the Animal Welfare Board with its functions and tasks as mandated by the Animal Welfare Act 2015. [“Animal Welfare Act 2015” or “Act”] [4] I heard counsel on 21-03-2022, 04-04-2022 and 20-04-2022. On 12-05- 2022 I allowed the OS but confined the pre-action discovery documents to only the activity reports from the date of establishment of the Animal Welfare Board to date. Background Facts [5] The ten Plaintiffs here had filed an OS for pre-action discovery against The Director of the Animal Welfare Board. Their pleaded case is as follows. [6] The Plaintiffs are representatives from different animal welfare groups and/or societies in Malaysia. [7] The Defendant is the Director of the Animal Welfare Board, a statutory body established pursuant to Section 3 of the Animal Welfare Act 2015 which is entrusted with objectives and functions stipulated in Section 4(1) of the Act. [8] On 09-09-2021, the Plaintiffs had vide their solicitors e-mailed a letter dated 08-09-2021 (“The Plaintiffs’ 1st Letter”) to the Defendant requesting the following documents :- a. Copies of all minutes of meetings from the time of establishment of the Animal Welfare Board in 2016 to the current date. b. A list of all the activities that were carried out by the Animal Welfare Board pursuant to Section 4 of the Act. [9] However, the Defendant refused, failed and/or neglected to provide the requested documents without providing any valid basis to do so. [10] On 09-09-2021, the Defendant responded to the Plaintiffs’ 1st letter via e-mail (“The Defendant’s 1st E-mail”) that the documentation requested by the Plaintiffs were strictly confidential and access was restricted to members of the Board, attendees of the said meetings and/or officer(s) in the Veterinary Services Department or the Ministry of Agriculture. [11] In addition, the Defendant via the Defendant’s 1st Email provided brief information on the activities that have supposedly been carried out since the establishment of the Animal Welfare Board. [12] In response to the Defendant’s 1st Email, the Plaintiffs’ solicitors issued a letter dated 23-09-2021 (“The Plaintiff’s 2nd Letter”) to the Defendant, asserting and/or reiterating that the Plaintiffs still wish to obtain the relevant documentation and/or details in relation to the activities that were carried out by the Animal Welfare Board since its establishment in 2016. [13] However, the Defendant responded on 28-09-2021 via e-mail (“The Defendant’s 2nd E-mail”) insisting that the Animal Welfare Board had carried out their roles and responsibilities as stipulated under the Act without proffering further evidence thereof. [14] The Plaintiffs’ solicitors then responded to the Defendant’s 2nd E-mail with a letter dated 06-10-2021 (“The Plaintiff’s 3rd Letter”) once again requesting for the documentation related to the activities that have supposedly been carried out by the Defendant. Nevertheless, the Defendant has failed, refused and/or neglected to respond to the Plaintiffs’ 3rd Letter as to date. [15] Due to the failure/neglect and or refusal of the Defendant to respond to the Plaintiffs’ 3rd Letter, the Plaintiffs’ solicitors had issued yet another letter dated 08-10-2021 (“The Plaintiffs’ 4th Letter”) to the Defendant to request for all the relevant documentation on an urgent basis. However, the Defendant still failed, refused and/or neglected to respond to the Plaintiffs’ 4th Letter as to date. [16] In light of the Defendant’s refusals to provide the requested documentation to the Plaintiffs, the Plaintiffs filed a pre-action discovery for - a. All documents that are relevant in the execution of the Defendant’s powers under the Act particularly under Section 4. [17] The Defendant opposed the OS on the following grounds-a. The application is a fishing expedition. b. The documents requested are not relevant and not necessary. c. The Plaintiff failed to identify the possible cause of action and proposed Statement of Claim to the Court. d. The documents requested are official secrets as they involved the official business of the government. A review of the law on pre-action discovery in Malaysia Applicable rules of court [18] O 24 r 7A, O 24 r 8 and O 24 r 13 ROC 2012 are the applicable rules on pre-action discovery. They read as follows-Discovery against other person (O. 24, r. 7A)

(1) An application for an order for the discovery of documents before the commencement of proceedings shall be made by originating summons and the person against whom the order is sought shall be made defendant to the originating summons.

An application after the commencement of proceedings for an order for the discovery of documents by a person who is not a party to the proceedings shall be made by a notice of application, which shall be served on that person personally and on every party to the proceedings.

An originating summons under paragraph (1) or a notice of application under paragraph (2) shall be supported by an affidavit which shall-

In the case of an originating summons under paragraph

(1), state the grounds for the application, the material facts pertaining to the intended proceedings and whether the person against whom the order is sought is likely to be party to subsequent proceedings in Court; and

In any case, specify or describe the documents in respect of which the order is sought and show, if practicable by reference to any pleading served or intended to be served in the proceedings, that the documents are relevant to an issue arising or likely to arise out of the claim made or likely to be made in the proceedings or the identity of the likely parties to the proceedings, or both, and that the person against whom the order is sought is likely to have or have had them in his possession, custody or power.

A copy of the supporting affidavit shall be served with the originating summons or the notice of application on every person on whom the originating summons or the notice of application is required to be served.

An order for the discovery of documents before the commencement of proceedings or for the discovery of documents by a person who is not a party to the proceedings may be made by the Court for the purpose of or with a view to identifying possible parties to any proceedings in such circumstances where the Court thinks it just to make such an order, and on such terms as it thinks just.

An order for the discovery of documents may—

Be made conditional on the applicant giving security for the costs of the person against whom it is made or on such other terms, if any, as the Court thinks just; and

Require the person against whom the order is made to make an affidavit stating whether the documents specified or described in the order are, or at any time have been, in his possession, custody or power and, if not then in his possession, custody or power, when he parted with them and what has become of them.

A person shall not be compelled by such an order to produce any document which he could not be compelled to produce- [1] In the case of an originating summons under paragraph

(1), if the subsequent proceedings had already been commenced; or [2] In the case of a notice of application under paragraph

(2), if he had been served with a subpoena to produce documents at the trial.

For the purposes of rules 10 and 11, an application for an order under this rule shall be treated as a cause or matter between the applicant and the person against whom the order is sought.

Unless the Court orders otherwise, where an application is made in accordance with this rule for an order, the person against whom the order is sought shall be entitled to his costs of the application, and of complying with any order made thereon on an indemnity basis. Discovery to be ordered only if necessary (O. 24, r. 8)

On the hearing of an application for an order under rule 3, 7 or 7A, the Court, if satisfied that discovery is not necessary, or not necessary at that stage of the cause or matter, may dismiss or adjourn the application and shall in any case refuse to make such an order if and so far as it is of the opinion that discovery is not necessary either for disposing fairly of the cause or matter or for saving costs. Production to be ordered only if necessary (O. 24, r. 13)

13.(1) An order for the production of any documents for inspection or to the Court shall not be made under any of the foregoing rules unless the Court is of the opinion that the order is necessary either for disposing fairly of the cause or matter or for saving costs.

Where on an application under this Order for production of any document for inspection or to the Court, privilege from such production is claimed or objection is made to such production on any other ground, the Court may inspect the document for the purpose of deciding whether the claim or objection is valid. [emphasis mine] Relevant Malaysian case law on pre-action discovery [19] There are two leading authorities on this area of the law in Malaysia. Both are Court of appeal judgments. They are Infoline Sdn Bhd v. Benjamin Lim Keong Hoe [2017] 8 CLJ 554 CA [“Infoline”] and the subsequent case of Bandar Utama Development Sdn Bhd & Anor v Bandar Utama 1 JMB [2018] MLJU 697 CA. [“Bandar Utama Development”]. In both panels sit Mary Lim JCA. Infoline [20] In Infoline Mary Lim JCA [delivering the judgment of the court] has this to say of the history of pre-action discovery and the rationale for the insertion of the new O24 r7A in our ROC 2012- [13] Order 24 r. 7A is new specific provision enabling discovery in two situations. In the first scenario, discovery is sought prior to the commencement of action whereas in the second, it is sought after commencement of proceedings but against a non-party. The application for pre-action discovery is by means of an originating summons whereas in the latter, it is by means of a notice of application. [14] In summary, O. 24 r. 7A(3) requires an applicant seeking discovery of documents before action to:

State the material facts pertaining to the intended proceedings;

(ii) State whether the person against whom the order is sought is likely to be a party in the subsequent proceedings in the High Court;

(iii) Specify or describe the documents sought and show that the documents are relevant to an issue arising or likely to arise out of the claim made or likely to be made; and

(iv) Identify the persons against whom the order is sought is likely to have or had the documents in his possession, custody or power. [emphasis mine] [22] In Infoline, Mary Lim JCA has this to say of Singapore cases which had considered their equivalent of our O. 24 r. 7A, which is O. 24 r. 6- [16] Given that O. 24 r. 7A is new provision under our Rules of Court 2012, the respondent had invited the court to consider the approach of the courts in Singapore on the operation and application of their equivalent O. 24 r. 7A, which is O. 24 r. 6. Having considered them, we are not disinclined to follow them finding the cases cited persuasive as the procedural requirements on pre-action discovery are substantially similar. [17] The leading authority is the Court of Appeal’s decision in Kuah Kok Kim v. Ernst & Young [1996] 3 SLR (R) 485, a decision under the old O. 24 r. 7A, now amended to O. 24 r. 6. ,,, [19] Subsequently, Lai J in Ching Mun Fong v. Standard Chartered Bank [2012] 2 SLR 22, held that a pre-action application is particularly appropriate where the applicant needs information or evidence “to mount a claim, and not to fish for additional evidence to ground further causes of action”:

What then is the purpose of pre-action discovery? In Kuah Kok Kim v. Ernst & Young [1996] 3 SLR (R) 485 (“Kuah Kok Kim”) at [31], the Court of Appeal explained that pre-action discovery is to assist a plaintiff who “does not yet know whether he has a viable claim against the defendant, and the rule is there to assist him in his search for the answer”. The word “viable” must not be understood to mean that the plaintiff is entitled to pre-action discovery for the purposes of augmenting his case or to “complete his entire picture of the case”. If that was the case, the ordinary processes of general and specific discovery under O. 24 rr. 1 and 5 respectively would be subverted … Instead pre-action discovery serves a somewhat more modest purpose: it is merely to allow the plaintiff who suspects he has a case to obtain the necessary information to allow him to commence proceedings. [20] Three cases were examined by Lai J; namely Bayerische Hypo-und Vereinsbank AG v. Asia Pacific Breweries (Singapore) Pte Ltd [2004] 4 SLR (R) 39 and Ng Giok Oh v. Sajjad Akhtar [2003] 1 SLR (R) 375 where the applications were refused; and Beckkett Pte Ltd v. Deutsche Bank AG Singapore Branch [2003] SLR (R) 321 where the application was allowed. In both Asia Pacific Breweries and Ng Giok Oh, the applicants already knew their causes of action and were not otherwise constrained from commencing proceedings. The applications were really to enable the applicants to assess or augment the strength of their case. In Beckkett Pte Ltd however, the position was somewhat different. The defendant bank (qua pledgee) had sold certain shares belonging to the applicant (qua pledgor). The application for pre-action discovery of documents relating to the “details of the manner of sale of the pledged shares (whether by private treaty or auction)” was granted because the court found that without the information sought, the applicant would have no idea whether it had a basis to bring a claim against the defendant for failing to take reasonable steps to obtain the best price. [21] Further, Lai J was of the view that the Rules of Court: ... exists to provide a systematic and orderly process for the discovery of evidence leading to trial. The rule allowing for pre-action discovery complements this by helping potential plaintiffs to ascertain if they are in a position to commence proceedings: by virtue of the disclosed documents the potential plaintiff will be able to decide if he has a cause of action against the defendant. [23] In Infoline, Mary Lim JCA after reviewing Singapore, UK and Australian caselaw summarised the principles applicable as follows- [36] Considering the appeal properly under O. 24 r. 7A, we are of the view that the whole intent behind O. 24 r. 7A is the saving of costs, resources and time if early discovery is ordered, in fact ordered even before proceedings are commenced. If discovery reveals that the applicant’s concerns are unfounded, that in this case the respondent’s termination or cessation as a beneficiary is proper and in accord with the terms of the trust deed, litigation can largely be avoided. This obviously means saving of both time and costs… [37] With those considerations, what O. 24 r. 7A then requires from the applicant is an explanation as to why pre-action discovery and not discovery in the course of action or proceedings is necessary. The requisites in O. 24 r. 7A(3) indicate that pre-action discovery is really to assist a prospective litigant plaintiff to determine whether he has a viable claim against the intended defendant… [38] Insofar as the documents sought to be discovered are concerned, the documents must be specified or sufficiently described. All this is for practical purposes so that the order is capable of response and compliance from and by the defendant who is the appellant before us… [39] Finally, the applicant has to identify the person having possession, custody or power over the documents sought… [42] Therefore, in exercising discretion whether to grant discovery of specified or described documents in the possession, custody or power of the appellant, the respondent must satisfy the court that discovery of the same before filing of action against the appellant is indeed necessary, necessary at the particular stage of the application, and that is necessary because the order of discovery will allow for the fair disposal of the cause or matter or that it will lead to a saving of costs. The respondent must show that the discovery is necessarily required even before an action is initiated as it is precisely to enable the respondent to decide whether he can even commence action against the appellant in particular, to start with. And, if the information revealed from that discovery can determine or assist in reaching an answer to that predicament, then the order ought to be made. Such an approach is not only fair but sensible and practical as it can obviously avoid unnecessary litigation thus saving costs and preventing wastage of time and resources which is what pre-action discovery seeks to achieve. Where the court is of the opinion that the applicant is unable to satisfy these conditions, certainly the court must dismiss the application as is apparent from the terms of r. 8. [emphasis mine] Bandar Utama Development [24] In Bandar Utama Development, Hamid Sultan JCA [delivering the judgment of the court] after saying that Mary Lim JCA’s judgment in Infoline must be read together with his judgment said the threshold test to satisfy an order for pre-action discovery under Order 24 rule 7A is extremely high in contrast to common law right - [12] Pre-action discovery is not related to contractual parties but it is addressed to third parties who may be tortfeasors, etc. or parties who are necessary for the purported plaintiff to succeed in a claim or a potential party to be the defendant. …The threshold test to satisfy an order for pre-action discovery under Order 24 rule 7A is extremely high in contrast to common law right, as the rules sets out specific requirements and the court must exercise its power with caution and circumspect. It is a power which must be exercised in a genuine case and not for the purpose of annoying a third party or in cases related to fishing expedition, etc. [25] In Bandar Utama Development, Hamid Sultan JCA went on to review the leading UK case which reviewed and settled the common law jurisprudence on pre-action discovery. The case was Norwich Pharmacal Company v Customs and Excise Commissioners [1973] 3 WLR 164 [“Norwich”] - [13] The common law position for pre-action discovery was explained in great detail by House of Lords in Norwich Pharmacal Company v Customs and Excise Commissioners [1973] 3 WLR 164. A part of the judgment is reproduced here … as follows: “My noble and learned friends, Lord Cross of Chelsea and Lord Kilbrandon, have dealt with the authorities. … They seem to me to point to a very reasonable principle that if through no fault of his own a person gets mixed up in the tortuous acts of others so as to facility their wrongdoing he may incur no personal liability but he comes under a duty to assist the person who has been wronged by giving him full information and disclosing the identity of the wrongdoers. I do not think it matters whether he became so mixed up by voluntary action on his part or because it was his duty to do what he did. It may be that if this causes him expense the person seeking the information ought to reimburse him. But justice requires that he should cooperate in righting the wrong if he unwittingly facilitated its perpetration. [26] In Bandar Utama Development, Hamid Sultan JCA then summarised his understanding of Norwich as follows- [14] In the Norwich case, the House of Lords stated that where a person, albeit innocently and without incurring any personal liability, became involved in the tortious acts of others, he came under a duty to assist one injured by those acts by giving him full information by way of discovery and disclosing the identity of the wrongdoers, and for that purpose it mattered not that such involvement was the result of voluntary action or the consequence of the performance of a statutory duty or otherwise; and that, accordingly, prima facie the respondents were under a duty to disclose the information sought. In this case, the court held that a party could bring a specific action by writ against a person for discovery in the name of a potential defendant if that person has facilitated the wrongdoing of the potential defendant and has the necessary information. [emphasis mine] A summary of the law on pre-action discovery [27] The following are the principles to be applied on pre-action discovery as distilled from O 24 r 7A, O 24 r 8 and O 24 r 13 ROC 2012, Norwich, Infoline, Bandar Utama Development and case law-a) The burden of proof lies on the plaintiff to show that the court should exercise its discretion to grant a pre-action discovery. b) In respect of a pre-action discovery for a defendant to disclose documents on the identity of the wrongdoers, the plaintiff should show that the defendant although not the wrongdoers, has somehow got mixed up in the tortious acts of that wrongdoers so as to facilitate their wrongdoings so that he comes under a duty to assist the plaintiff who had been wronged by disclosing the identity of the wrongdoers. c) In respect of a pre-action discovery for information contained in a document to be provided by a defendant the plaintiff must show that the information is necessary in order for him to determine if he can even commence legal action against the intended defendant. In such cases, the pre-action discovery order ought to be made to avoid unnecessary litigation thus saving costs, preventing wastage of time and resources which is what pre-action discovery seeks to achieve. d) To resist disclosure, the defendant can show that the plaintiff is on a fishing trip or fishing expedition. In such a situation, the application will be dismissed. What amounts to a fishing trip or fishing expedition is vividly illustrated in this judgment of the Singapore High Court in Thyssen Hunnebeck Singapore Pte Ltd v TTJ Civil Engineering Pte Ltd [2003] 1 SLR 75 Choo Han Teck JC and cited in Billion Prima Sdn Bhd & Anor v Nutech Co Ltd & Anor [2017] 10 MLJ 213 Wong Kian Kheong JC- [6] In my view, I would hold that a ‘fishing expedition’ in the context of discovery refers to the aimless trawling of an unlimited sea. Where, on the other hand, the party concerned knows a specific and identifiable spot into which he wishes to drop a line (or two), I would not regard that as a ‘fishing expedition’. [emphasis mine] e) As an aside, it would not be remiss of me to add that using the act of fishing as an analogy to illustrate what is or is not a fishing expedition has respectable provenance. Retired Court of Appeal Judge Mahadev Shanker narrated observing Punch Coomaraswamy, at the time a Senior Partner at Braddell Brothers, rebutting his learned friend’s submission that in his application for discovery he was on a fishing expedition by saying- “My Lord, a fishing expedition is one where the applicant does not clearly know what documents he is after…My case is not like that. I have identified the documents I require these people to disclose. Since I know where the fish are, this is not a fishing expedition.” [see Summom Bonum The Ultimate Good by Dato’ Mahadev Shanker collated and edited by Santhi Latha 2021 ed. at p 221] f) To resist disclosure, the defendant can also show that that there is some consideration of public policy which prevents him from making this disclosure. Consideration of public policy which can prevent him from making disclosure maybe that such disclosures would or might impair or hamper the efficient conduct of a defendant’s statutory duties. And secondly such disclosure would or might be prejudicial to those whose identity would be disclosed. The Court will then have to do a balancing act by examining the facts. On the whole, if a document would be discoverable in a discovery application filed once a suit is commenced, such a document should be discoverable in my view. Especially if its disclosure now is necessary in order for the plaintiff to determine if he can even commence legal action in the first place against an intended defendant. For in such cases, the pre-action discovery order ought to be made to avoid unnecessary litigation thus saving costs and preventing wastage of time and resources which is the very objective of O 24 r 7A ROC 2012. g) Apart from considerations of public policy that prevent disclosure, the defendant can also show that he is prevented by common law or some statute from making this disclosure. Statutory defences available are for example legal professional privilege under s 126 to 129 of the Evidence Act 1950 or documents and information protected under sections 2, 13A and 16a of the Official Secrets Act 1972. h) When ordering pre-action discovery, a defendant is entitled to his costs of the application, unless the Court orders otherwise, and of producing a copy each of the documents ordered on an indemnity basis. [see O 24 r 7A(9) ROC 2012]. Thus, a defendant who sought the protection of a court order before giving pre-action discovery should be entitled to his costs of the application unless the court is of the view the defendant had unreasonably opposed the application. For practical purposes, it is useful for the Court to request parties to agree on the costs of the defendant for producing a copy each of the documents ordered. This is because O 24 r 7A(9) ROC 2012 reads as follows-Unless the Court orders otherwise, where an application is made in accordance with this rule for an order, the person against whom the order is sought shall be entitled to his costs of the application, and of complying with any order made thereon on an indemnity basis. Issues in this OS Defendant’s argument [1] The application is a fishing expedition [28] The Plaintiffs had filed a pre-action discovery for all documents that are relevant in the execution of the Defendant’s powers under Section 4 of the Animal Welfare Act 2015. [29] Section 4 of the Act reads-Functions of the Board

The Board shall have the following functions:

To monitor the work of associations or bodies established for the purpose of preventing trauma, pain or suffering to animals;

To monitor the work for the protection of animals including animals in rescue homes, animal shelters, or sanctuaries;

To monitor the situation of the place where the animals may find a shelter when the animals are infirmed or in need of protection;

To impart education in relation to the humane treatment of animals and to encourage the formation of public opinion relating to the infliction of trauma, pain or suffering to animals;

To promote the animal welfare by means of lectures, books, posters, cinematographic exhibitions and others;

To advise the Minister on any matter relating to animal welfare, the prevention of infliction of trauma, pain or suffering on animals, the prevention of unnecessary killing and to provide for the welfare and wellbeing of the animal;

To administer, enforce and ensure the effective implementation of this Act; and

To discharge all such functions as authorized under this Act or subsidiary legislation made under this Act, including those functions that may be entrusted to the Board under the direction of the Minister. [30] The long title of the Animal Welfare Act 2015 clearly states its objective is “to provide for the establishment of the Animal Welfare Board, to set out the functions of the Board, to promote the welfare and responsible ownership of animals, and for related matters.” [31] The functions of the Animal Welfare Board as set out in s 4 of the Animal Welfare Act 2015 are noble. If carried out fully, as mandated by Parliament, this would be an achievement civil society, in particular, and all Malaysians, in general, would be proud of. [32] To my mind, this application by the Plaintiffs in particular the 1st to 3rd Plaintiffs which are NGOs set out with special interests in animal welfare cannot be said to be a fishing expedition. [33] The documents sought are clearly identified. They relate specifically to the performance by the Animal Welfare Board of the functions set out in s 4 of the Animal Welfare Act 2015. Applying the trawl and drop analogy, I am of the view that the Plaintiffs’ application is not a ‘fishing expedition’ in the context of an aimless trawling of an unlimited sea. The Plaintiffs know a specific and identifiable spot into which they wish to drop their line. The Plaintiffs have dropped their line. The Plaintiffs have clearly identified the documents they want. Since the Plaintiffs know where the fish are, this is not called a ‘fishing expedition’. This is called catching fish! [see Thyssen Hunnebeck Singapore Pte Ltd v TTJ Civil Engineering Pte Ltd [2003] 1 SLR 75 Choo Han Teck JC and Billion Prima Sdn Bhd & Anor v Nutech Co Ltd & Anor [2017] 10 MLJ 213 Wong Kian Kheong JC ] [34] I therefore hold that this OS is not a fishing expedition. Defendant’s arguments [2] and [3] The documents requested are not relevant and not necessary. The Plaintiffs failed to identify the possible cause of action and proposed Statement of Claim to the Court. [35] These two grounds are without merits. The Plaintiffs had clearly stated that their intention is to file a suit for misfeasance in public office against the Defendant if the Animal Welfare Board had failed to carry out its functions under s 4 of the Animal Welfare Act as mandated by Parliament. The documents sought are clearly relevant and necessary. [36] The pre-action discovery is necessarily required even before an action is initiated as it is precisely to enable the Plaintiffs to decide whether they can even commence legal action against the Defendant. Such an approach is sensible and practical as it can obviously avoid unnecessary litigation thus saving costs, preventing wastage of time and resources which is what pre-action discovery seeks to achieve. See Infoline at [42]. [37] In any event, I am of the view that since the Defendant’s position is that it had fully carried out its functions under s 4 of the Animal Welfare Act, as mandated by Parliament, there is really nothing to hide. It should be proud to show that it had fully carried out its said functions. Defendant’s argument [4]- The documents requested are official secrets as they involved the official business of the government. The law on Official Secrets Act 1972 [38] The relevant sections are sections 1, 2A, 2B, 16 A and the Schedule. [39] Section 1 defines “official secret” as – "official secret" means any document specified in the Schedule and any information and material relating thereto and includes any other official document, information and material as may be classified as "Top Secret", "Secret", "Confidential" or "Restricted", as the case may be, by a Minister, the Menteri Besar or Chief Minister of a State or such public officer appointed under section 2B. [40] Section 2A and The Schedule read-a) 2A. The Minister may, from time to time, by order published in the Gazette, add to, delete from, or amend any of the provisions of the Schedule hereto. b) SCHEDULE [Section 2A] Cabinet documents, records of decisions and deliberations including those of Cabinet committees; State Executive Council documents, records of decisions and deliberations including those of State Executive Council committees; Documents concerning national security, defence and international relations. [41] Section 2B states-

A Minister, the Menteri Besar or the Chief Minister of a State may appoint any public officer by a certificate under his hand to classify any official document, information or material as "Top Secret", "Secret", "Confidential" or "Restricted", as the case may be. [42] Section 16A reads-

A certificate by a Minister or a public officer charged with any responsibility in respect of any Ministry, department or any public service or the Menteri Besar or the Chief Minister of a State or by the principal officer in charge of the administrative affairs of a State certifying to an official document, information or material that it is an official secret shall be conclusive evidence that the document, information or material is an official secret and shall not be questioned in any court on any ground whatsoever. [emphasis mine] Relevant case law [43] The earlier cases took the view that if a document is classified as a secret by its owner, the court will not question that even if it contains information generally known to the public. [see Datuk Haji Dzulkifli bin Datuk Abdul Hamid v PP [1981] 1 MLJ 112 FC, See Kok Koi v Chong Kui Seng & Ors and another Appeal [2010] 2 CLJ 481 CA and Malaysian Trade Union Congress & Ors v Menteri Tenaga, Air dan Komunikasi & Anor [2014] 2 CLJ 525 FC]. [44] Subsequent cases took a more inquisitorial and robust approach. The courts will scrutinise the said documents to ensure that the assertion of official secret is not just a mere label or a false label. The courts will have to be satisfied that harm will be caused to the public interest by its disclosure before upholding non - disclosure. [see Sufian bin Mohamad v Pengarah, Jabatan Bomba Dan Penyelamat Malaysia Negeri Sarawak 2019 1 LNS 2061 Supang Lian J at [31-33], Syarikat Kenderaan Melayu Kelantan Bhd Lwn. Jabatan Bomba Dan Penyelamat Negeri Pahang Darul Makmur [2014] 1 LNS 728 Mariana Hj Yahya J at [23] and Takong Tabari V. Government Of Sarawak & Ors [1995] 1 CLJ 403 at Held 1-3, Richard Malanjum J]. Application to our facts [45] In this OS the Defendant did not produce any certificate by a public officer certifying the documents sought here are official secrets. In the premises, I dismiss the objection that the documents can’t be discovered. Locus standi to file OS [46] During the course of submissions, the Defendant raised the issue of locus standi of the Plaintiffs to sue on behalf of animals. [47] Submissions were made as to whether the test should be “sufficient interest” or the ‘adversely affected test’ which requires an applicant to show he had a real and genuine interest in the subject matter which is the test for judicial review under O 53 ROC 2012 as set out in Malaysian Trade Union Congress & Ors v Menteri Tenaga, Air dan Komunikasi & Anor [2014] 3 MLJ 145 FC or the “adversely affected” test set out in Government of Malaysia v Lim Kit Siang United Engineers (M) Berhad v Lim Kit Siang [1988] 2 MLJ 12 SC, Tan Sri Hj Othman Saad v Mohamed bin Ismail [1982]2 MLJ 177 FC Abdoolcader J [speaking for the court] and Government of Malaysia v Fung Fon Chen @ Bernard & Anor [2013]1 LNS 1543 CA Rohana Yusuf JCA [majority]. [48] To my mind, the 1st to 3rd Plaintiffs here have sufficient locus standi irrespective of the test to be applied. Unlike the fictional world in Animal Farm, one surely can’t expect the animals on Planet Earth to rise up in rebellion and come to court to file an action under the Animal Welfare Act! I am of the view the 1st to 3rd Plaintiffs, as NGOs set up to look after the rights of animals, possess sufficient locus standi to file this OS.

[49] I hereby make the following orders-a) In respect of the 1st to 3rd plaintiffs prayer 1 [a] of the OS is allowed but documents to be discovered are confined to activity reports from the date of establishment of the Animal Welfare Board to date. b) Defendant to file and serve Form 38 [List of Documents] and Form 39 [Affidavit Verifying the List of Documents] under O 24 r 5 ROC 2012. c) Defendant to file and serve Form 40 [Notice to inspect documents] under O 24 r 9 ROC 2012. d) Costs of all documents requested by the 1st to 3rd Plts to be borne by the 1st to 3rd Plts on proper and reasonable charges or by soft copies if required at no costs by consent. e) No order as to costs as this is a public interest matter. .........(signed).............. Leong Wai Hong Judicial Commissioner High Court of Malaya Kuala Lumpur (NCVC 10) Dated: 20th June 2022 COUNSEL: 1) Rajesh Nagarajan and Pavitra Loganathan for Applicant. (Raj & Sach (Petaling Jaya)) 2) Mohd Isa bin Md Nor (Senior Federal Consel) for Respondent. (Kementerian Pertanian dan Industri Asas Tani (Putrajaya)) CASES REFERRED TO: 1) Bandar Utama Development Sdn Bhd & Anor v Bandar Utama 1 JMB [2018] MLJU 697 CA. 2) Billion Prima Sdn Bhd & Anor v Nutech Co Ltd & Anor [2017] 10 MLJ 213. 3) Datuk Haji Dzulkifli bin Datuk Abdul Hamid v PP [1981] 1 MLJ 112 FC. 4) Government of Malaysia v Fung Fon Chen @ Bernard & Anor [2013]1 LNS 1543 CA. 5) Government of Malaysia v Lim Kit Siang United Engineers (M) Berhad v Lim Kit Siang [1988] 2 MLJ 12 SC. 6) Infoline Sdn Bhd v. Benjamin Lim Keong Hoe [2017] 8 CLJ 554 CA. 7) Kok Koi v Chong Kui Seng & Ors and another Appeal [2010] 2 CLJ 481 CA. 8) Malaysian Trade Union Congress & Ors v Menteri Tenaga, Air dan Komunikasi & Anor [2014] 2 CLJ 525 FC. 9) Malaysian Trade Union Congress & Ors v Menteri Tenaga, Air dan Komunikasi & Anor [2014] 3 MLJ 145 FC. 10) Norwich Pharmacal Company v Customs and Excise Commissioners [1973] 3 WLR 164. 11) Sufian bin Mohamad v Pengarah, Jabatan Bomba Dan Penyelamat Malaysia Negeri Sarawak 2019 1 LNS 2061. 12) Syarikat Kenderaan Melayu Kelantan Bhd Lwn. Jabatan Bomba Dan Penyelamat Negeri Pahang Darul Makmur [2014] 1 LNS 728. 13) Takong Tabari V. Government of Sarawak & Ors [1995] 1 CLJ 403. 14) Tan Sri Hj Othman Saad v Mohamed bin Ismail [1982]2 MLJ 177 FC. 15) Thyssen Hunnebeck Singapore Pte Ltd v TTJ Civil Engineering Pte Ltd [2003] 1 SLR 75. LEGISLATION REFERRED TO: 1) Sections 1 of the Official Secrets Act 1972. 2) Sections 2A of the Official Secrets Act 1972. 3) Sections 2B of the Official Secrets Act 1972. 4) Section 3 of the Animal Welfare Act 2015. 5) Section 4 of the Animal Welfare Act 2015. 6) Sections 16 A of the Official Secrets Act 1972. 7) Order 24 rule 5 of the Rules of Court 2012. 8) Order 24 rule 6 of the Rules of Court 2012. 9) Order 24 rule 7A of the Rules of Court 2012. 10) Order 24 rule 8 of the Rules of Court 2012. 11) Order 24 rule 9 of the Rules of Court 2012. 12) Order 24 rule 13 of the Rules of Court 2012. 13) Order 53 of the Rules of Court 2012.