Tan Han Kwan v Bluefire Development Sdn Bhd (22NCC-200-06/2014)

TAN MEI LI (No. K/P: 670204-10-5422)

TAN HAN KWAN (No. K/P: 711104-10-5829)

TAN SU LI … PLAINTIF - (No. K/P: 640331-10-7036)

BLUEFIRE DEVELOPMENT SDN BHD (No. Syarikat: 663455-M)

CH’NG KONG SAN … DEFENDAN - (No. K/P: 630520-07-5097) DEFENDAN

This was the 2nd Defendant’s application dated 1.12.2015 (Enclosure 181) filed pursuant to Order 42 Rule 13 of the Rules of Court 2012 to set aside the ex parte leave order dated S/N 2qcEdb3el0c8sA9ZsVGXw

4.11.2015 granting the Plaintiffs leave to commence committal proceedings against the 2nd Defendant (“this Application”).

This Application was only heard in April 2024, after the trial of the action had concluded and a decision had been delivered on 16.8.2021, by which time the learned trial judge had been elevated to the Court of Appeal. A]

On 21.9.2015, the Plaintiffs had applied ex parte for leave to commence committal proceedings against the 2nd Defendant via Enclosure 146, supported by a Statement pursuant to Order 52 Rule 3(2) of the Rules of Court 2012 dated 14.9.2015 (Enclosure 145) and an Affidavit in Support affirmed by Tan Mei Li on 15.9.2015 (Enclosure 147).

The ex parte order granting leave was obtained on 4.11.2015. This Application (Enclosure 181) was filed on 1.12.2015, within 30 days from the granting of the ex parte order, in compliance with Order 42 Rule 13 of the Rules of Court 2012.

The committal proceedings arose from allegations that the 2nd Defendant had fabricated evidence by deleting certain paragraphs from an email attachment/letter (“the Letter”), creating what the Plaintiffs termed as the “2nd Defendant’s Version” which differed from the “Plaintiffs’ Version” of the same document. S/N 2qcEdb3el0c8sA9ZsVGXw

The Plaintiffs relied on expert reports from Cybersecurity Malaysia dated 1.4.2014, PwC Consulting Services (M) Sdn Bhd dated 14.9.2015, and Nexia TS Technology Pte Ltd dated 17.9.2015 to support their allegation of fabricated evidence.

Subsequently, the trial was heard before Justice Has Zanah binti Mehat (as she then was), who delivered judgment in favour of the Plaintiffs on 16.8.2019. B]

The 2nd Defendant contended that the ex parte order ought to be set aside on the following grounds: i) The Plaintiffs’ expert reports failed to comply with Order 40A of the Rules of Court 2012, specifically the requirements for expert evidence under Order 40A Rule 3; ii) There was no full and frank disclosure by the Plaintiffs of material facts in the ex parte application.

The 2nd Defendant submitted that the requirements of Order 40A Rule 3 of the Rules of Court 2012 necessitate strict compliance, and that the expert reports exhibited in the Plaintiffs’ affidavits did not meet the prescribed formalities. S/N 2qcEdb3el0c8sA9ZsVGXw

The 2nd Defendant argued that the Plaintiffs failed to disclose material facts in their ex parte application, particularly that the CyberSecurity Report did not state certain conclusions that the Plaintiffs attributed to it in the Order 52 Statement.

The 2nd Defendant relied on the Court of Appeal decision in Tan Sri G Darshan Singh v. Tetuan Azam Lim & Pang [2013] 5 MLJ 541 (CA), emphasising that committal proceedings are mandatory in nature and if the process of court was wrongly used to obtain the ex parte order for leave, leave will be set aside. C]

The Plaintiffs argued that the 2nd Defendant’s application must fail based on the following reasons: i) The Plaintiffs had established a prima facie case which was fortified by the trial court’s finding that the 2nd Defendant had “fabricated evidence”; ii) The Plaintiffs’ expert reports complied with Order 40A of the Rules of Court 2012; iii) The 2nd Defendant’s contention of non-compliance with Order 40A had become academic since the expert reports and testimony had been accepted in evidence during trial. S/N 2qcEdb3el0c8sA9ZsVGXw

The Plaintiffs contended that Order 40A Rule 3 of the Rules of Court 2012 is not a mandatory requirement, citing the discretionary language “Unless the Court otherwise directs” in the provision.

The Plaintiffs submitted that there had been full and frank disclosure and that any alleged deficiencies in the expert reports were immaterial since the reports possessed the necessary substance and had been accepted by the court during trial. D] PRINCIPLES APPLICABLE TO SETTING ASIDE EX PARTE

The principles governing applications to set aside ex parte leave orders in committal proceedings are well-established. As held by the Court of Appeal in Tan Sri G Darshan Singh (supra) at page 549: “[16] … Any question whether the ex parte to commence committal proceedings was wrongly obtained must be dealt with first since it is the foundation in the process of committal proceedings. Two wrongs do not make a right. A court of law will not lightly allow its processes to be abused. If the process of the court was wrongly used to obtain the ex parte order for leave, that leave will be set aside first.” (own emphasis added) S/N 2qcEdb3el0c8sA9ZsVGXw

The purpose of the leave requirement in committal proceedings is to ensure that there is no abuse of the committal procedure. The leave requirement acts as a sieve to ensure that there is a prima facie basis for the committal application.

In ex parte applications for leave to commence committal proceedings, full and frank disclosure is paramount. As stated in Tan Sri G Darshan Singh (supra), the applicant must set out the facts fairly, including facts likely to be raised by the proposed alleged contemnor in objecting to the application if it were an inter parte application.

A fundamental principle established in Wee Choo Keong v. MBF Holdings Bhd & Anor and Another Appeal [1993] 3 CLJ 210 (FC) is that all proceedings must be halted once contempt proceedings have been initiated, and the contempt must be dealt with as a priority. Contempt should be purged as soon as possible before the trial is allowed to proceed, in order to prevent the main proceedings from being tainted. In this regard the Federal Court held as follows: “We are unable to accept that any exceptions per se exist to the general rule that a party in contempt cannot be heard until he has purged his contempt.” (own emphasis added) S/N 2qcEdb3el0c8sA9ZsVGXw

This principle reinforces that allowing trial proceedings to continue while committal proceedings remain pending is procedurally incorrect and undermines the integrity of the judicial process. The failure to adhere to this fundamental requirement provides additional grounds for setting aside the ex parte order. E] NON-COMPLIANCE WITH ORDER 40A OF THE RULES OF

The 2nd Defendant’s primary ground is that the Plaintiffs’ expert reports failed to comply with Order 40A Rule 3 of the Rules of Court 2012. Order 40A Rule 3(1) provides: “Unless the Court otherwise directs, expert evidence to be given at the trial of any action, is to be given in a written report signed by the expert and exhibited in an affidavit sworn to or affirmed by him testifying that the report exhibited is his and that he accepts full responsibility for the report.” (own emphasis added)

The examination of the Plaintiffs’ expert reports reveals several deficiencies in compliance with Order 40A: S/N 2qcEdb3el0c8sA9ZsVGXw Page 9 of 17 i) The CyberSecurity Report dated 1.4.2014 was prepared and filed before the formal requirements of Order 40A were addressed. ii) The expert reports were initially filed for interlocutory purposes rather than for trial, without regard to the formal requirements of Order 40A. iii) The reports lacked the prescribed formalities including proper affidavits sworn by the experts accepting full responsibility for their reports.

A critical procedural defect is that the 2 additional expert reports (PwC dated 14.9.2015 and Nexia dated 17.9.2015) which formed part of the basis for the Court granting leave were not mentioned or referred to in the Order 52 Rule 3(2) Statement dated 14.9.2015 (“Order 52 Statement”).

These additional reports were only introduced in the Additional Affidavit affirmed on 30.10.2015, yet they formed part of the basis upon which the Court granted the ex parte order on 4.11.2015. This violates the fundamental principle under Order 52 Rule 3(2) that all material facts must be contained within the four corners of the Order 52 Statement itself. S/N 2qcEdb3el0c8sA9ZsVGXw

The Court was therefore led to grant leave based on evidence that was not properly pleaded in the Order 52 Statement, constituting a fundamental procedural defect in committal proceedings that undermines the integrity of the ex parte application.

While the Plaintiffs argue that Order 40A is not mandatory due to the discretionary language “Unless the Court otherwise directs”, this argument fails to address the fundamental requirement that when expert evidence is relied upon in critical proceedings such as committal applications, proper compliance with procedural requirements is essential to ensure the reliability and admissibility of such evidence.

The timing of compliance is crucial. The expert reports were relied upon in the ex parte application in September and November 2015, but the formal affidavits by the experts were only filed on 17.5.2016, well after the ex parte order was obtained. This temporal disconnect undermines the reliability of the evidence presented to obtain the ex parte order. F] LACK OF FULL AND FRANK DISCLOSURE – REPORTS DO NOT EXPLICITLY ATTRIBUTE WRONGDOING TO THE

The 2nd Defendant’s second ground concerns the failure of full and frank disclosure in the ex parte application. The S/N 2qcEdb3el0c8sA9ZsVGXw Page 11 of 17 examination of the evidence reveals significant concerns in this regard.

The Plaintiffs relied heavily on the CyberSecurity Report in their Order 52 Statement and supporting affidavits. However, critical analysis shows that the CyberSecurity Report did not explicitly state several conclusions that the Plaintiffs attributed to it: i) That the 2nd Defendant’s Version was “not genuine and is a fabricated document”; ii) That the 2nd Defendant had “deliberately deleted” the missing portion in the Plaintiffs’ Version; iii) That the 2nd Defendant had “tampered” with the Plaintiffs’ Version.

Furthermore, the Plaintiffs failed to disclose the limitations and qualifications contained in their own expert reports. The Nexia report concluded: “6.4 Without access to the softcopy of the email in question in the defendant’s mailbox, we cannot determine the exact circumstances on how and why the defendant’s version is different from the plaintiff’s version.” (own emphasis added) S/N 2qcEdb3el0c8sA9ZsVGXw

Similarly, the PwC report stated: “11. If we are provided with electronic versions of the email received by the Defendant, then we may be able to determine the reasons for the differences between the Defendant’s and the Plaintiff’s documents. Without access to the electronic copies of the Defendant’s email and the document submitted as Exhibit CKS-10, we are unable to make this determination.” (own emphasis added)

These significant limitations in the expert evidence were not adequately disclosed in the ex parte application, thereby depriving the Court of crucial information necessary to make an informed decision on whether to grant leave. G]

Allegations of tampering of the Letter require expert evidence and can only be properly determined at trial.

In this regard, it required a lengthy trial involving multiple expert witnesses to determine whether the Letter in question had been tampered with.

Accordingly, a prima facie case of contempt could not have been established based solely on the affidavit evidence and S/N 2qcEdb3el0c8sA9ZsVGXw Page 13 of 17 reports, given the technical complexity and specialized nature of the issues involved. H]

The Plaintiffs argue that this Application has become academic due to the conclusion of the trial and the finding by Justice Has Zanah binti Mehat (as she then was) that the 2nd Defendant had “fabricated evidence”. However, this argument requires careful consideration.

Firstly, the post-trial written grounds of judgment have not yet been made available to the parties.

Secondly, notwithstanding the Court’s eventual findings after trial, the Plaintiff is not entitled to refer to or rely on the trial proceedings, as the evidence adduced at trial was not available at the time of the ex parte leave application.

This reinforces that the ex parte leave application must be determined solely on the materials that were available to the Court at the time the application was made.

Thirdly, it would be inappropriate for the Plaintiff to rely on evidence obtained at the trial to retrospectively validate the ex parte leave application, which must be decided based on the material available at that time. S/N 2qcEdb3el0c8sA9ZsVGXw

Subsequent events cannot be used to support or reinforce the ex parte leave application.

It is my respectful view that this is precisely why committal proceedings must be pursued without delay, so that the issue of contempt is dealt with expeditiously and does not risk tainting the main proceedings. Contempt must be purged at the earliest opportunity to preserve the integrity of the judicial process and to prevent any prejudicial effect on the substantive matter (Wee Choo Keong (supra)).

Even if the trial concluded with findings favourable to the Plaintiffs, such findings cannot cure the fundamental defects in the ex parte leave application, where the evidence in question was not available at that material time. The procedural integrity of committal proceedings must be upheld from the outset.

As established in Tan Sri G Darshan Singh (supra), if the process of Court was wrongly used to obtain the ex parte order for leave, that leave must be set aside first.

Further and in any event, the 2nd Defendant has appealed to the Court of Appeal against the judgment dated 16.8.2019. The appeal remains pending, and the findings of the trial court are accordingly subject to appellate review. S/N 2qcEdb3el0c8sA9ZsVGXw Page 15 of 17 I] THE COMMITTAL PROCEEDINGS ARE RENDERED

An additional consideration is the academic nature of the committal proceedings given the conclusion of the trial. Committal proceedings are designed to protect the administration of justice during ongoing proceedings. Where the underlying proceedings have concluded and findings have been made, the utility of committal proceedings is significantly diminished (Wee Choo Keong (supra)).

The authorities establish that Courts will not grant academic judgments or engage in futile exercises (Bar Council Malaysia v. Tun Dato’ Seri Arifin bin Zakaria & Ors (Persatuan Peguam-Peguam Muslim Malaysia, intervener) and another appeal [2020] 4 MLJ 773).

Given that the trial has concluded and substantive findings have been made on the very issues underlying the committal application, continuing with these proceedings would serve little practical purpose. J]

The procedural defects in the ex parte application cannot be cured by subsequent events or findings at trial. The integrity of the committal process demands strict adherence to proper procedures from the outset. S/N 2qcEdb3el0c8sA9ZsVGXw

For the reasons stated above, I allowed this Application, with no order as to costs. Dated this 30th day of July, 2025 -SGD- (WAN MUHAMMAD AMIN BIN WAN YAHYA) JUDGE HIGH COURT OF MALAYA, (COMMERCIAL DIVISION (NCC 3)) HIGH COURT OF KUALA LUMPUR IN THE FEDERAL TERRITORY, MALAYSIA COUNSEL FOR THE PLAINTIFFS : Ooi Chih Jen (Ng Yong Yee and Yap Tat Sing together with him) Messrs Chris Lim Su Heng T109, 3rd Floor, Centrepoint Bandar Utama, No. 3, Lebuh Bandar Utama, 47800 Petaling Jaya, Selangor Darul Ehsan Tel: 03-77278336 Email: enquiries@chrislim.com.my S/N 2qcEdb3el0c8sA9ZsVGXw Page 17 of 17 COUNSEL FOR THE DEFENDANTS : Andrew Fernandez (Anson Chee Weng Kian together with him) Messrs Cheang & Ariff 39 Court @ Loke Mansion, 273A Jalan Medan Tuanku, 50300 Kuala Lumpur Tel: 03-26910803 Email: ca@cheangariff.com LEGISLATION / RULES CITED Rules of Court 2012 ▪ Order 40A Rule 3 ▪ Order 42 Rule 13 ▪ Order 52 Rule 3(2)

Bar Council Malaysia v. Tun Dato’ Seri Arifin bin Zakaria & Ors (Persatuan Peguam-Peguam Muslim Malaysia, intervener) and another appeal [2020] 4 MLJ 773

Tan Sri G Darshan Singh v. Tetuan Azam Lim & Pang [2013] 5

Wee Choo Keong v. MBF Holdings Bhd & Anor and Another Appeal [1993] 3 CLJ 210 S/N 2qcEdb3el0c8sA9ZsVGXw