1. Tan Yock Kuan v Cew Sin Plastics Pipe Sdn. Bhd. (WA-22IP-3-01/2017)

TAN YOCK KUAN (NRIC. No.: 581024-10-6677)

BESSTEM PLASTICS (M) SDN. BHD. (Co. No.: 177401-U) … PLAINTIFFS AND CEW SIN PLASTICS PIPE SDN. BHD. (Co. No.: 243310-M) … DEFENDANT JUDGMENT (After trial)

This case concerns a utility innovation (UI) registered under the Patents Act 1983 (PA).

The first plaintiff (1st Plaintiff) is the registered owner of a UI no. MY- 157369-A for a “Push-Fit Vibration Absorbing Joint” (UI 369). A Push-Fit Vibration Absorbing Joint (PVA Joint) is used to join permanently pipes in rainwater/drainage down-pipe systems and sanitary pipe-work systems (Pipe Systems). 2

By way of a license agreement dated 18.3.2004, the 1st Plaintiff granted an exclusive license to the second plaintiff company (2nd Plaintiff) to, among others, reproduce and exploit UI 369.

In the original action, the 1st and 2nd Plaintiffs (Plaintiffs) claimed that “Anti-Vibration Sockets” produced and sold by the defendant company (Defendant) has infringed UI 369 (Original Action). The Defendant has counterclaimed that UI 369 is invalid (Counterclaim).

The following questions will be decided in this case:

whether the limitation period stipulated in s 6 of the Limitation Act 1953 (LA) or the two-year limitation period in s 59(3) PA [as modified by the Second Schedule to PA (2nd Schedule)] applies to an infringement of UI (UI Infringement). I am not able to find any previous Malaysian case on this issue;

if the two-year limitation period applies to a UI Infringement -

whether the Defendant rely on the limitation defence when the Amended Defence and Counterclaim (ADC) has not pleaded such a defence as required by O 18 r 8(1) of the Rules of Court 2012 (RC)? In this regard, there are conflicting Court of Appeal decisions on this question; and

if the Defendant can rely on the limitation defence in this case, is the Original Action time-barred? This concerns a novel issue 3 regarding the interpretation of s 35(1) and (1A) PA (as modified by 2nd Schedule) on when a UI takes effect;

whether the 2nd Plaintiff (a licensee of UI 369) has a right under s 61(1) (as modified by 2nd Schedule), (2), (3) and (4) PA to claim for UI Infringement;

who is the notional person ordinarily skilled in the art (POSITA) regarding UI 369 and what constitutes common general knowledge (CGK) possessed by POSITA on the priority date of UI 369 (Priority Date)? Regarding this question, is a POSITA required to have -

previous experience in the interpretation of a UI or patent; and/or

work experience in the installation of pipes which uses UI 369?;

whether UI 369 can be invalidated on any one of the following grounds -

UI 369 is not “new” within the meaning in s 14(1) PA (as modified by 2nd Schedule);

UI 369 does not fall within the meaning of s 17 PA;

UI 369 has not sufficiently disclosed the innovation as required by s 23 PA read with reg. 12(1)(c) of the Patents Regulations 1986 (PR); and

the claim in UI 369 is vague and does not comply with reg. 13(1) PR; and 4

if UI 369 is valid, whether the Defendant’s production and sale of Anti-Vibration Sockets (Defendant’s Sockets) have infringed UI 369 under ss 36(1)(a), (2), (3)(a)(i) and 58 PA. In this regard, what test should be applied to determine the commission of UI Infringement. C. UI 369

The Claim in UI 369 [Claim (UI 369)] states as follows: “CLAIM A flexible vibration-absorbing joint, for joining two adjoining pipes (3a, 3b) in a sanitary pipe-work, or rainwater/drainage down-pipe system, comprising essentially an open enlarger section (10) with a narrow end

and an enlarged end (12), is characterised in which the narrow end (14) of the enlarger section (10) engages the first adjoining pipe (3a); the enlarged end (12) of the enlarger section (10) receives the second adjoining pipe (3b); the enlarged end (12) is internally equipped with a rubber ring (20) made from soft, tough and resilient material such as ethylene propylene rubber (EPDM); the rubber ring (20) is at least double-folded as in a S-profile, whereby the rubber ring (20) closes the gap between the outer diameter of the second adjoining pipe (3b) and the inner diameter of the enlarged end

(12), and the top edge of the profiled ring is retained on the enlarged end of the joint with the assistance of a snap cap (30), preferably made of poly propylene (PP).” 5 D. Plaintiffs’ case

The following witnesses gave evidence for the Plaintiffs in this case:

Mr. Hong Boon Kong (SP1). SP1 has been called as a POSITA regarding UI 369. SP1’s expert evidence regarding UI 369 will be discussed later in this judgment;

Mr. Tan Wang Khai (SP2); and

the 1st Plaintiff.

SP2 testified as follows, among others:

SP2 has a Bachelor’s Degree in Civil Engineering and a Master’s Degree in Construction Management. SP2 is a Corporate Member of the Institute of Engineers Malaysia (since 2009) and a registered Professional Engineer in the Board of Engineers, Malaysia (since 2009);

SP2 has more than 15 years’ experience in the field of civil engineering, specifically in the design, construction, supervision and management of bridges; and

SP2 has worked on at least 10 big construction projects which have utilized Plaintiffs’ PVA Joints (UI 369). Regarding PVA Joints -

PVA Joints are most reliable in Pipe Systems. PVA Joints are also used to join bridge structures. In bridges, PVA Joints are 6 stable and do not break despite vehicle movements along the bridge and changes in the temperature;

SP2 has not received any complaint regarding PVA Joints; and

SP2 has always recommended the use of PVA Joints to his clients.

According to the 1st Plaintiff, among others -

the 1st Plaintiff has about 36 years’ experience in designing new and innovative fittings for infrastructure and building piping products. When the 1st Plaintiff was employed in Hume Plastics Sdn. Bhd., he received a one-week intensive technical training in “uPVC” (unplasticized polyvinyl chloride) sanitary piping design offered by Wavin Plastic, a plastic plumbing manufacturer in the United Kingdom (UK);

the 1st Plaintiff’s late brother was a plastic mould-maker and the 1st Plaintiff had learnt a lot from his late brother on how to design plastic mould;

the 1st Plaintiff has invented Upvc Pipe Sleeve which is patented in UK (in 1996) and Malaysia (in 1997);

the 1st Plaintiff owns four companies, including the 2nd Plaintiff;

the 1st Plaintiff gave a detailed testimony on how he had created UI 369; and 7

PVA Joints were initially used in “LRT Kelana Jaya Line Extension Project” (LRT Project). Subsequently, the Defendant’s Sockets replaced PVA Joints in the LRT Project. That was how the Plaintiffs discovered about the Defendant’s Sockets. After this discovery, the 1st Plaintiff published a notice in a Chinese newspaper to inform the public that he is the registered proprietor of UI 369 and he would not hesitate to commence legal proceedings to protect his rights regarding UI 369. E. Defendant’s case

The Defendant has called the following two witnesses to testify in this case:

Mr. Boey Weng Choong (SD1) is the POSITA called by the Defendant in respect of UI 369. SD1’s expert view regarding UI 369 will be discussed together with SP1’s expert testimony; and

Mr. Wong Sek Kheong (SD2).

SD2 is the founder, director and shareholder of the Defendant. SD2 testified, among others, as follows:

the Defendant is one of the leading manufacturers and distributors of plastic pipes;

SD2 has more than 30 years of hands-on working experience in the plastic piping industry. SD2 oversees the Defendant’s product design, quality of products, initiation and management of product development; 8

SD2 alleged that he had invented the Defendant’s Sockets based on the multiple rubber folds of a car’s manual gear shift stick. The Defendant’s Socket was not copied from UI 369. Prior to the filing of the Original Action, SD2 has never seen a PVA Joint. Furthermore, PVA Joints cannot be purchased in the open market but are instead sold directly by the Plaintiffs to their customers. Hence, SD2 could not have seen and copied from a PVA Joint; and

SD2 has detailed four differences between the Defendant’s Sockets and PVA Joints. F. Application of PA to UI

Section 17A(2) PA has enumerated certain provisions in PA which do not apply to UI’s. According to s 17A(1) PA, except for provisions in Part IVA of PA (ss 17B and 17C), provisions in PA “shall” apply to UI’s as modified by the 2nd Schedule. G. What is limitation period for UI Infringement?

Section 6 LA reads as follows: “Limitation of actions of contract and tort and certain other actions. 6(1) Save as hereinafter provided the following actions shall not be brought after the expiration of six years from the date on which the cause of action accrued, that is to say -

actions founded on a contract or on tort;

actions to enforce a recognisance; 9

actions to enforce an award;

actions to recover any sum recoverable by virtue of any written law other than a penalty or forfeiture or of a sum by way of penalty or forfeiture.

An action for an account shall not be brought in respect of any matter which arose more than six years before the commencement of the action.

An action upon any judgment shall not be brought after the expiration of twelve years from the date on which the judgment became enforceable and no arrears of interest in respect of any judgment debt shall be recovered after the expiration of six years from the date on which the interest became due.

An action to recover any penalty or forfeiture or sum by way of penalty or forfeiture recoverable by virtue of any written law shall not be brought after the expiration of one year from the date on which the cause of action accrued: Provided that for the purpose of this subsection the expression “penalty” shall not include a fine to which a person is liable on conviction for a criminal offence.

Nothing in this section shall apply to -

any cause of action within the Admiralty jurisdiction of the High Court which is enforceable in rem other than an action to recover the wages of seamen, or

any action to recover money secured by any mortgage of or charge on land or personal property.

Subject to the provisions of sections 22 and 32 of this Act the provisions of this section shall apply (if necessary by analogy) to all claims 10 for specific performance of a contract or for an injunction or for other equitable relief whether the same be founded upon any contract or tort or upon any trust or other ground in equity.” (emphasis added).

The relevant part of s 59 PA provides as follows: “Infringement proceedings 59(1) The owner of the patent shall have the right to institute court proceedings against any person who has infringed or is infringing the patent. …

The proceedings in subsections (1) and (2) may not be instituted after two years from the act of infringement. [as modified by 2nd Schedule]” (emphasis added).

My research has not revealed any previous Malaysian case which has decided on the limitation period for a UI Infringement under s 59(1) PA. I am of the view that the two-year limitation period in s 59(3) PA (as modified by 2nd Schedule) applies to UI Infringement (Two-Year Limitation Defence). The reasons for my view are as follows:

section 59(3) PA (as modified by 2nd Schedule) is a specific provision which is intended by Parliament to apply to UI Infringement;

s 3 LA provides as follows - “Saving for other limitation enactments 11

This Act shall not apply to any action or arbitration for which a period of limitation is prescribed by any other written law or to any action or arbitration to which the Government or the Government of any State is a party and for which if it were between subjects a period of limitation would have been prescribed by any other written law.” (emphasis added). The first limb of s 3 LA (LA “shall not apply to any action … for which a period of limitation is prescribed by any other written law”) has expressly provided that LA shall not apply when a written law has provided for a limitation period. Section 59(3) PA (as modified by the 2nd Schedule) is that provision of written law within the meaning of the first limb of s 3 LA; and

none of the six subsections in s 6 LA provide for a limitation period for UI Infringement. H. Whether Defendant may rely on Two-Year Limitation Defence

The ADC did not plead the Two-Year Limitation Defence. Nonetheless, the Defendant’s learned counsel, Mr. Ken St. James, contends that the Defendant may rely on the Two-Year Limitation Defence. Mr. Ken St. James firstly submits that the Two-Year Limitation Defence is an “absolute” and not a “conditional” defence. Hence, the Two-Year Limitation Defence is not required to be pleaded according to the judgment of the Federal Court delivered by James Foong FCJ in Tasja Sdn Bhd v Golden Approach Sdn Bhd [2011] 3 CLJ 751. Mr. Ken St. James then relies on the following judgment of the Court of Appeal 12 delivered by PS Gill JCA (as he then was) in Lee Cheng Yee (suing as administrator of the estate of Chia Miew Hien) v Tiu Soon Siang t/a Tiyor Soon Tiok & Sons Company & Anor [2004] 1 MLJ 670, at [5]-[8] and [10]-[13] - “[5] Hence, it was the argument of the respondent/defendant's counsel that since the cause of action arose in 1983, and it was a dependency claim, one must be guided by s 7 of the Civil Law Act 1956, more in particular s 7(5) of the said Act which reads as follows: … [6] In connection with the present case it was the submission of the respondent/defendant's counsel that the suit was only filed on 13 January 1989, some five years after the death of the deceased in question. [7] In his riposte, the appellant/plaintiff's counsel submitted that the issue of limitation was not specifically pleaded in the defence of the respondent, and neither was a request made that the matter be set down as a preliminary issue. As such, it was his submission that the respondent is not entitled to rely on the limitation to defeat the claim. [8] We would in principle have been persuaded by this submission, but for the timely intervention of the respondent''s counsel who drew our attention to the case of Kuan Hip Peng v Yap Yin & Anor [1965] 1 MLJ 252. … … [10] The application came before Hashim J (as he then was) who adjourned it into open court for hearing, and in the event, made an order that the plaintiff's suit be dismissed. [11] On appeal to the Federal Court, Thompson LP in dismissing the appeal had this to say at p 254: 13 Now it is clear from the general course of reasoning upon which it is based and from the reference to the Real Property Limitation Acts that the case of Dismore v Milton [1938] 3 All ER 762 , has no application in relation to a Statute of Limitations which is absolute and without exceptions. Where there are exceptions which would affect the operation of the statute it is clear that a plaintiff need not plead them until the defence of limitation has been raised on the pleadings by the defendant (see Dawkins v Penrhyn (Lord) (1878) 4 App Cas 51, 59; Busch v Stevens [1963] 1 QB 1) . But that is not the position in the present case. The terms of s 7(5) of the Civil Law Ordinance are absolute and contain no exceptions. They are that 'such action shall be brought within three years after the death of the deceased person'. It is true that, as Goddard LJ said with reference to the corresponding section of the English Act, the section 'merely prescribes a period of limitation' ( Lubovsky v Snelling [1944] 1 KB 44, 47) and that it does not contain a condition precedent or anything of the sort. Nevertheless the period is absolute. There is no room for doubt as to when it begins to run. It runs from the death of the person of whose support the plaintiff has been deprived. The cause of action arises on death (see Seward v 'Vera Cruz' (1884-5) 10 App Cas 59, 67, 70). There are none of the saying provisions in favour of a plaintiff that were found in the Statute of James I and are to be found today in the English Limitation Act of 1939 or our own Limitation Ordinance of 1953. There is no question of infancy or disability or anything of the sort or of acknowledgment. The only way in which the consequences of the section 14 could be avoided would be if there had been some agreement not to plead the statute and this would constitute a new cause of action ( Lubovsky v Snelling) and would require to be set out in the statement of claim. Finally, there can be no question of importing into the matter any of the saving provisions of the Limitation Ordinance by any process of construction for by section 3 of that Ordinance it 'shall not apply to any action... for which a period of limitation is prescribed by any other written law'. [12] In regard to the issue at hand, we are guided by the dicta of Thompson LP in the case of Kuan Hip Peng that a plea of limitation need only be pleaded where limitation is not absolute, such as under the Limitation Act 1953. It would not apply to a Statute of Limitation which is absolute, and without exception. In this case, we find that s 7(5) of the Civil Law Act 1956, and equally s 7(5) Civil Law Act (as amended in 1984) are absolute in nature. Hence, there is no necessity to plead limitation. [13] The learned trial judge we hold was correct in holding that the claim under s 7 Civil Law Act 1956 must fail.” (emphasis added).

Firstly, it is to be noted that in Tasja and Kuan Hip Peng, no defence had been filed because the defendants in both cases had filed striking out applications. As such, Tasja and Kuan Hip Peng can be easily distinguished from this case where the Defendant has filed ADC and the trial of this case has been concluded.

O 18 r 8(1) RC states as follows: 15 “Matters which shall be specifically pleaded O 18 r 8(1) A party shall in any pleading subsequent to a statement of claim plead specifically any matter, for example, performance, release, any relevant statute of limitation, …” (emphasis added).

In the Court of Appeal case of Tengku Ismail bin Tengku Sulaiman (suing as father of Tengku Iskandar Shah bin Tengku Ismail, deceased) & Ors v Sia Cheng Soon & Anor [2006] 5 MLJ 228, at [3]-to [5], [11] and [17]-[22], Zaleha Zahari JCA (as she then was) decided as follows: “[3] The case had proceeded to full trial before the sessions court on 31 May 2000 at the conclusion of which the sessions court judge directed that written submissions be filed. In their written submissions the defendants' counsel raised the issue of limitation for the first time; that the plaintiffs' claim was time barred as it was filed out of the time frame prescribed by s 7(5) of the Act. [4] On this issue of limitation, the sessions court judge held that parties were bound by their pleadings. She took the view that if the defendants had intended to rely on limitation as a defence, it must be pleaded pursuant to O 14 r 14(1) of the Subordinate Court Rules 1980. By reason of the defendants' failure do so, she held that it was accordingly not open for them to rely on the same. The sessions court judge then entered judgment for the plaintiffs. [5] On appeal, the sessions court judge's decision was reversed. The High Court Judge took a contrary view. The reasoning of the High Court Judge in making the decision that he did were as follows: By reason of the Act having its own period of limitation as 16 provided in s 7(5), and by reason of the Limitation Act 1953 being not applicable to this case, the High Court judge held that s 7(5) was an absolute provision which has to be applied under all circumstances; that any person mindful of instituting any proceedings under s 7 must do so within three years after the death of the person deceased. His Lordship also took into consideration the absence of a pari materia provision in terms of s 4 of the Limitation Act 1953 in the Act. In the absence of such a provision in the Act, he held that it was not necessary for the defendants to plead limitation as a defence. … [11] The defendants' counsel submitted that the High Court judge was right in making the decision that he did. That it was not necessary for the defendants to plead limitation as s 7(5) of the Act contains no exceptions and is absolute in nature and, the requirement that it be pleaded does not arise. Limitation need only be pleaded in a situation where there are exceptions for the time frame prescribed to apply. It was incumbent upon the plaintiffs to file their action within a period of three years and that the defendant is entitled to the right conferred by s 7(5). The decision of the Federal Court in Kuan Hip Peng v. Yap Yin & Anor [1965] 1 MLJ 252 and that of the Court of Appeal in Lee Cheng Yee (suing as administrator of the Estate of Chia Miew Hien) v. Tiu Soon Siang t/a Tiyor Soon Tiok & Sons Company & Anor [2004] 1 MLJ 670 were cited as authorities in support of these propositions. … [17] … A plea of limitation raised at submissions stage after the court has gone through the whole process of full trial clearly no longer serves its purpose as a procedural bar when the case can, if raised at an earlier, be struck out based on a technical defence. By reason of the failure to plead the issue of limitation, the plaintiffs clearly have been lulled into a sense of security that the case would be met on the merits. If it was still open for a defendant to raise limitation at such a late stage, there would clearly have been a 17 wastage of precious judicial time. The court notes that, in the circumstances of the present case, limitation was raised at a stage when the evidence at trial indicated 100% liability on the part of the defendants. To permit the defendants to raise limitation, would effectively be giving the defendants an opportunity to renew the fight on an entirely different defence. [18] On the case law referred to us, after careful examination of the cases of Kuan Hip Peng and Lee Cheng Yee, we have come to the conclusion that we are not bound to follow them for the following reasons. [19] The case of Kuan Hip Peng can clearly be distinguished. It was not a case about the requirement of pleading of defence of limitation as the point was taken by way of a striking out application. The decision was delivered without reference to an express provision on pleading. Limitation was raised at a very early stage. The plaintiff in that case was not taken by surprise. The plaintiff had the opportunity to meet them. The issue on non-compliance of the rules relating to pleading was not an issue in such a situation. [20] Had the defendant in this case taken a similar course of action and applied to strike out the statement of claim on the basis of a time bar, only then would the decision in Kuan Hip Peng be a complete answer. We are therefore in agreement with counsel for the appellant that Kuan Hip Peng's case is therefore not an authority on non-pleading of limitation. [21] As for the decision of a court of co-ordinate jurisdiction, that of the Court of Appeal in Lee Cheng Yee which extended the principle in Kuan Hip Peng further to the pleading question, there was clearly no consideration of O 14 r 14(1) of the SCR and O 18 r 8(1) of the RHC which have statutory force. That decision in that respect was per incuriam. This court is not bound by the decisions of courts of co-ordinate jurisdiction which clearly is made per incuriam. 18 Having arrived at the conclusions that we have arrived at, we consider that we are entitled and our duty to depart from it. [22] The omission in this case to plead limitation could have been inadvertent, it may have been deliberate. Whatever the real reason for the omission may be, the object of pleadings of not taking the opposite party by surprise as a matter of natural justice as provided by the Rules must be observed. A defence by 'ambush' clearly should not and cannot be permitted to continue to form part of our procedural law when it results in an injustice to a litigant. A defendant who fails to plead a limitation defence, and allowed a case to proceed to be fought on the merits, is not to be permitted to fall back upon a plea of limitation as a second line of defence at the conclusion of trial.” (emphasis added).

In view of the conflicting Court of Appeal decisions in Lee Cheng Yee and Tengku Ismail, as a matter of stare decisis, the High Court has a choice to decide which Court of Appeal case to be followed - please see Tenaga Nasional Bhd v Api-Api Aquaculture Sdn Bhd [2015] 3 AMR 811, at [84].

With respect, I am inclined to follow Tengku Ismail for the following reasons:

O 18 r 8(1) RC is a mandatory provision because the imperative term “shall” is employed in that provision;

O 18 r 8(1) RC is not brought to the attention of the Court of Appeal in Lee Cheng Yee; and 19

where a defendant has not pleaded limitation in the defence and the trial has been completed, to allow the defendant to raise the limitation defence during final submission will cause an injustice to the plaintiff. This is because the plaintiff is “ambushed” by the defendant and is unable to adduce any evidence to rebut the limitation defence. A trial by ambush is anathema to the notion of a fair trial.

Based on Tengku Ismail, the Defendant cannot rely on the Two-Year Limitation Defence because such a defence has not been pleaded in ADC. This decision is fortified by the following reasons:

the Defendant has previously obtained leave of court to amend its defence and counterclaim in an extensive manner and yet, the Defendant did not insert the Two-Year Limitation Defence in ADC; and

all the parties have agreed to the issues to be determined in this case (Agreed Issues) - please see O 34 r 2(2)(k) RC. The Two-Year Limitation Defence is not raised by the Defendant as one of the Agreed Issues. Furthermore, the Defendant did not seek leave of court to amend the Agreed Issues to include the Two-Year Limitation Defence. I. Is Original Action time-barred?

Despite the above decision that the Defendant cannot raise the Two-Year Limitation Defence, I will decide whether the Original Action is time-barred under s 59(3) PA (as modified by 2nd Schedule) in the event that the Court of Appeal reverses the above decision. 20

The question is when does a UI take effect under s 35(1) and (1A) PA (as modified by 2nd Schedule)? This is because a UI has to take effect before the UI can be infringed.

Section 35(1) and (1A) PA (as modified by 2nd Schedule) state as follows: “35. Duration of certificate for a [UI].

The duration of a certificate for a [UI] shall be ten years from the filing date of the application.

Without prejudice to subsection (1) and subject to the other provisions of this Act, a certificate for a [UI] shall be deemed to be granted and shall take effect on the date the certificate for [UI] is issued.” (emphasis added).

UI 369 is filed on 5.3.2004. Based on s 35(1) PA (as modified by 2nd Schedule), UI 369 takes effect on 5.3.2004. I am not able to accept this construction because -

the certificate for UI 369 [Certificate (UI 369)] is only issued on 15.6.2016 (more than 12 years and 3 months after the filing of UI 369). In my view, UI 369 cannot be effective until the issue of the Certificate (UI 369); and

if this court decides that UI 369 takes effect on 5.3.2004 (the filing date), this will cause an injustice to the 1st Plaintiff as the registered proprietor of UI 369 as follows - the 1st Plaintiff will be unlawfully 21 deprived of his right to exploit commercially UI 369 for a period of 12 years and 3 months. According to s 35(1) and (2) PA (as modified by 2nd Schedule), the maximum duration of a UI is 20 years (an initial period of 10 years and two consecutive five-year terms).

I am of the view that in accordance with s 35(1A) PA (as modified by 2nd Schedule), UI 369 takes effect on 15.6.2016, the date of issue of the Certificate (UI 369). The Original Action is filed on 25.1.2017, well within the two-year limitation period prescribed by s 59(3) PA (as modified by 2nd Schedule). Accordingly, irrespective of when the Defendant has infringed UI 369, the Original Action is not time-barred in this case. J. Whether 2nd Plaintiff can claim for UI Infringement

Reproduced below is s 61 PA - “Infringement proceedings by licensee and beneficiary of compulsory licence. 61(1) For the purposes of this section, “beneficiary” means any licensee unless the licence contract provides that the provisions of this subsection do not apply or provides different provisions [as modified by the 2nd Schedule];

Any beneficiary may request the owner of the patent to institute Court proceedings for any infringement indicated by the beneficiary, who shall specify the relief desired.

The beneficiary may, if he proves that the owner of the patent received the request but refuses or fails to institute the proceedings within three months from the receipt of the request, institute the proceedings in his own name, after notifying the owner 22 of the patent of his intention but the owner shall have the right to join in the proceedings.

Notwithstanding that the three‐month period referred to subsection (3) has not been satisfied, the Court shall, on the request of the beneficiary, grant an appropriate injunction to prevent infringement or to prohibit its continuation, if the beneficiary proves that immediate action is necessary to avoid substantial damage.” (emphasis added).

The question that now arises is whether the 2nd Plaintiff as an exclusive licensee of UI 369 has a right to claim for UI Infringement. The answer to this issue is in the negative because the 1st Plaintiff as the registered owner of UI 369 has already filed the Original Action regarding UI Infringement. There is therefore no room to apply s 61(2), (3) and (4) PA (which may enable the 2nd Plaintiff to file an action for UI Infringement). This view is supported by the following three High Court cases:

the judgment of Abdul Malek Ahmad J (as he then was) in Premier Products Co Ltd & Anor v Zamrud Fibre Industries (M) Sdn Bhd & Anor [1994] 4 CLJ 1043, at 1053-1054;

Yaacob Md. Sam J’s (as he then was) decision in Fukuyama Automation Sdn Bhd v Xin Xin Engineering Sdn Bhd & Ors [2015] 9 MLJ 823, at [92] and [93]; and

Kingtime International Ltd & Anor v Petrofac E & C Sdn Bhd [2018] MLJU 1840, at [18(3)] and [18(4)]. 23

Based on the reason expressed in the above paragraph 29, the Original Action filed by the 2nd Plaintiff is dismissed with costs. K. Counterclaim should be decided before Original Action

The relevant part of s 56 PA provides as follows: “Invalidation of patent 56(1) Any aggrieved person may institute Court proceedings against the owner of the patent for the invalidation of the patent.

The Court shall invalidate the patent if the person requesting the invalidation proves ‐

that what is claimed as a [UI] in the certificate for a [UI] is not a [UI] within the meaning of section 17 or is excluded from protection under section 13 or subsection 31(1) [as modified by the 2nd Schedule];

that the description or the claim does not comply with the requirements of section 23; …” (emphasis added).

I will first decide the Counterclaim because if UI 369 is invalidated, the Original Action by the 1st Plaintiff must be consequentially dismissed.

I have no hesitation to find that the Defendant is “aggrieved” by UI 369 within the meaning of s 56(1) PA and is therefore entitled to file the Counterclaim. This is because the 1st Plaintiff by way of the Original Action has applied for relief against the Defendant for an infringement of UI 369. 24

Section 3 PA has defined the “Register” to mean, among others, the Register for Certificates for UI’s (Register) kept under the PA. Under s 33A(1) PA, among others, the Register shall be prima facie evidence of all matters required by PA to be entered therein. As such, in view of the registration of UI 369 under s 31(2)(a) and (b) (as modified by the 2nd Schedule) read with s 33A(1) PA, the Defendant bears the burden to invalidate UI 369 under s 56(2) PA. Furthermore, according to s 103 of the Evidence Act 1950 (EA), the Defendant who has alleged a particular fact (that UI 369 is invalid), has the onus to prove such a particular fact. This is also decided by Azahar Mohamed J (as he then was) in the High Court case of Kendek Industry Sdn Bhd v Ecotherm (TFT) Sdn Bhd [2010] 10 CLJ 219, at [29].

As a modified PA applies to UI’s [please see s 17A(1), (2) PA and 2nd Schedule], I am of the view that a POSITA’s expert opinion is relevant to all issues concerning UI’s. This is also the approach taken in Kendek Industry, at [32]-[39]. A POSITA’s expert view is relevant to assist the court in the determination of the following matters regarding a UI:

whether a UI falls under s 17 PA as an “innovation” or “invention” which is “new” according to s 14(1) PA (as modified by 2nd Schedule);

what is the scope of a claim in a UI? This concerns the construction of a claim in the UI - Kendek Industry, at [32]; 25

whether the description in a UI has complied with reg. 12(1)(c) and

PR read with s 23 PA - Kendek Industry, at [54]-[57] and [65]- [68];

whether the claim in a UI is clear, concise and is fully supported by the description in the UI as required by reg. 13(1) PR read with s 23 PA - Kendek Industry, at [40] and [46]; and

has a claim in a UI been infringed by a defendant?

Despite the importance of a POSITA as explained in the above paragraph 35, the court is not bound by a POSITA’s expert opinion and it is ultimately up to the court to decide all matters regarding the UI - Kendek Industry, at [39].

A POSITA for a UI is a notional person who -

is ordinarily skilled regarding the UI. This skill may be obtained by study, training, work and/or personal experience in respect of the UI; and

possesses CGK concerning the UI on the priority date of a UI. L(1). Who is a POSITA for UI 369?

UI 369 concerns an innovation regarding a joint which joins permanently pipes in Pipe Systems. As such, a POSITA for UI 369 [POSITA (UI 369)] should be ordinarily skilled in joints which join pipes in Pipe Systems and the POSITA (UI 369) has obtained such a skill by way of study, training, work and/or personal experience. 26

Section 45(1) EA provides as follows: “Opinions of experts 45(1) When the court has to form an opinion upon a point of foreign law or of science or art, or as to identity or genuineness of handwriting or finger impressions, the opinions upon that point of persons specially skilled in that foreign law, science or art, or in questions as to identity or genuineness of handwriting or finger impressions, are relevant facts.” (emphasis added). I find as a fact that SP1 is a POSITA (UI 369) under s 45(1) EA due to the following evidence and reasons:

SP1 has a Master’s Degree (with Merit) in Advanced Manufacturing Systems Engineering from Coventry University, UK, in 1995; and

SP1 has worked for a total of 20 years in “Plastics Technology and Manufacturing” industry for the following companies -

HIL Industries Bhd. (HIL) (from June 1997 to December 2006). HIL is a public listed company which provides custom plastic injection moulds. SP1 was HIL’s General Manager when he left HIL;

Polytainer Industries Sdn. Bhd. (PISB) (from January 2007 to February 2011). SP1 was an executive director of PISB, a plastic blow moulding company; and 27

T-Venture Industries (M) Sdn. Bhd. (TVI) (from March 2011 until now). SP1 is presently an executive director of TVI. TVI manufactures, among others, plastic injected moulded jerrycan products.

The court has ordered a “hot tubbing” of SP1 and SD1 pursuant to O 40A r 5 RC (Experts’ Discussion). In the Experts’ Discussion (Bundle G), SD1 questioned SP1’s competence to testify as a POSITA (UI 369) on the following two grounds (2 Objections) -

SP1 has no prior experience in construing a UI or patent; and

SP1 has no work experience in the installation of pipes which use UI

369.

I have no hesitation to overrule the 2 Objections because case law only requires a POSITA to have ordinary skill regarding a UI. If an expert has previous experience in the interpretation of a UI or patent or has previous work experience regarding the UI, such an experience clearly supports the finding that the expert is indeed a POSITA for the UI. However, the lack of such an experience does not ipso facto disqualify the expert from giving evidence as a POSITA for a UI so long as the expert has the necessary skill by way of study, training, work and/or personal experience regarding the UI. There is always a first time for an expert to be a POSITA for a UI even though he has no experience in construing a UI or has no work experience regarding the UI. By analogy, I cite the following judgment of Abdoolcader FJ in the Federal Court case of Dato’ Mokhtar bin Hashim & Anor v Public Prosecutor [1983] 2 MLJ 232, at 278 - 28 “Mr. Jagjit Singh complains that Gee has never given evidence in the High Court but we can see no rule requiring this as a prerequisite to accepting him as an expert. He has given evidence, as he said, in the lower courts and even if he had not that would not debar him from being accepted as an expert if he could satisfy the court as to his standing, as there is always a first time for everything. Previous testification in court as an expert witness is no doubt an added consideration but not necessarily the primary consideration for an otherwise qualified person.” (emphasis added).

I am not able to find as a fact that SD1 is a POSITA (UI 369) pursuant to s 45(1) EA because -

SD1 did not produce his Curriculum Vitae (CV) in this case. Under s 106 EA, when any fact is especially within a person’s knowledge, the person has the burden to prove that fact. Accordingly, SD1 has the onus to adduce his CV to assist the court to decide whether SD1 is a POSITA (UI 369) or otherwise;

the CV of a person (X) who claims to be an expert is important for the opposing party to ascertain whether X is really an expert. During pre-trial case management, this court has given directions that experts should exhibit their CV in their affidavits prior to the Experts’ Discussion. O 40A r 3(2)(a) RC provides that an expert’s report “shall” “give details of the expert’s qualifications”. SP1 and the Plaintiff cannot inquire regarding SD1’s qualification, training, professional background and experience because SD1 did 29 not provide his CV. In the circumstances, I am constrained to find that SD1’s suppression of his CV attracts an adverse inference against SD1 under s 114(g) EA - please see the judgment of the Supreme Court delivered by Mohd. Azmi SCJ in Munusamy v Public Prosecutor [1987] 1 MLJ 492, at 494;

during the Experts’ Discussion, when questioned by SP1, SD1 alleged that SD1 had worked as a “mechanical engineer” at Sam McCoy Manufacturing Sdn. Bhd. (SMM) and had overseen projects that installed pipes and facilities for water and waste-water treatment. SD1 has not produced any qualification that he is a mechanical engineer. Furthermore, SD1 did not adduce any evidence that SMM is in an industry regarding joints of pipes in a Pipes System; and

SD1 has been practicing as a registered patent agent, registered trade mark agent and registered industrial design agent. According to SD1, he had been practicing “exclusively in the field of intellectual property since 2006” with focus on the preparation, filing and prosecution of patent applications. Such evidence regarding SD1’s background and work experience (not regarding UI 369) militates against any finding that SD1 is a POSITA (UI 369). If I have accepted SD1 as a POSITA (UI 369), in future UI cases, a party (Y) may easily circumvent case law requirement of a POSITA by requesting any patent attorney to be Y’s POSITA in the UI case!

I attach weight to SP1’s expert opinion because he is a POSITA (UI 369) - please see the above paragraph 39. As SD1 is not a POSITA (UI 369), 30 I do not attach any weight to SD1’s expert evidence - please the above paragraph 42.

The 1st Plaintiff is the inventor of UI 369. As such, I cannot accept the 1st Plaintiff’s evidence as a POSITA (UI 369) - Kendek Industry, at [44]. Nor can I consider SD2 as a POSITA (UI 369) because he is the alter ego of the Defendant and is clearly an interested witness in this case - please see Mohammad Mubde Absi & Ors v Hyat Collections Sdn Bhd & Ors, Kuala Lumpur High Court Civil Suit No. WA-22IP-15- 04/2017 at [26]. M. CGK regarding UI 369

UI 369 did not provide for a Priority Date. According to s 27A(1) PA, the Priority Date of UI 369 is 5.3.2004, the date of filing of the application for

Based on UI 369, the CGK possessed by a POSITA (UI 369) on the Priority Date is CGK regarding joints of pipes in a Pipes System.

I will adopt patent cases regarding the interpretation of a claim in a UI. This is because PA applies to UI’s with modifications provided in the 2nd Schedule [please see s 17A(1) and (2) PA]. Based on patent cases, I adopt the following approach:

the first step is to ascertain the scope of the claim in a UI - please see the judgment of the Federal Court delivered by Raus Sharif CJ in Spind Malaysia Sdn Bhd v Justrade Marketing Sdn Bhd & 31 Ors [2018] 4 MLJ 34, at [98]. This is because the monopoly claimed in a UI is defined only in its claim and not in the other parts of the UI - please see reg. 13(5) PR and the judgment of Zulkefli CJ (Malaya) (as he then was) in the Federal Court case of SKB Shutters Manufacturing Sdn Bhd v Seng Kong Shutter Industries Sdn Bhd & Anor [2015] 6 MLJ 293, at [34];

the Court may be assisted by a POSITA’s expert opinion in construing the scope of a claim in a UI but ultimately, it is up to the Court to interpret the claim in the UI - Kendek Industry, at [39];

the primary objective in interpreting a claim in a UI is to limit (not to extend) the monopoly of the claim in the UI - SKB Shutters Manufacturing (at [19]) and Spind (at [97]); and

the court shall construe a claim in a UI in a purposive manner based on the expert testimony of a POSITA (UI 369) - Spind, at [123].

Based on SP1’s expert opinion as a POSITA (UI 369), I adopt a purposive interpretation of the Claim (UI 369) as follows:

the purpose of Claim (UI 369) is to join permanently two pipes in an easy, speedy and cost-saving manner so as to prevent leaking and to enable both connected pipes to move independently of each other while both pipes remain joined permanently by way of the PVA Joint (which has a quality to absorb vibration of the pipes and to prevent a break or leak in the joined pipes) [Purpose (UI 369)]; and 32

the essence of Claim (UI 369) is a “S-profile” rubber ring (S-Profile Rubber Ring) which joins permanently two pipes so as to attain the Purpose (UI 369).

I must add that SD1 has construed Claim (UI 369) in a literal manner. If I have accepted SD1’s expert view on the interpretation of Claim (UI 369), such a construction will defeat the Purpose (UI 369). O. Does UI 369 fall under s 17 PA?

Sections 12(1), 16 and 17 PA provide as follows: “Meaning of invention. 12(1) An invention means an idea of an inventor which permits in practice the solution to a specific problem in the field of technology. Industrial application 16. An invention shall be considered industrially applicable if it can be made or used in any kind of industry. Definition 17 For the purposes of this Part and any regulations made under this Act in relation to this Part, “utility innovation” means any innovation which creates a new product or process, or any new improvement of a known product or process, which is capable of industrial application, and includes an invention.” (emphasis added).

I am of the view that s 17 PA has the following three limbs:

an innovation which creates a new product or process and the innovation is capable of “industrial application” (within the meaning of s 16 PA);

an innovation which is a new improvement of a known product or process and the innovation is capable of industrial application; and

an “invention” as understood in s 12(1) PA which is new and is capable of industrial application. O(1). Whether UI 369 is “new”?

Section 14 PA (as modified by 2nd Schedule) provides as follows: “Novelty. 14(1) A utility innovation is new to Malaysia if it is not anticipated by prior art.

Prior art shall consist of –

everything disclosed to the public by written publication, by oral disclosure, by use or in any other way, prior to the priority date of the application for a certificate for a utility innovation claiming the utility innovation;

the contents of a domestic application for a certificate for a utility innovation having an earlier, priority date than the application referred to in paragraph (a) to the extent that such contents are included in the certificate for a utility innovation granted on the basis of the said domestic application.

A disclosure made under paragraph (2)(a) shall be disregarded - 34

if such disclosure occurred within one year preceding the date of the application and if such disclosure was by reason or in consequence of acts committed by the applicant or his predecessor in title;

if such disclosure occurred within one year preceding the date of the application and if such disclosure was by reason or in consequence of any abuse of the rights of the applicant or his predecessor in title.” (emphasis added).

I accept SP1’s expert opinion that UI 369 is an innovation which is a “new” improvement of a known product (which joins pipes in a Pipes System) within the meaning of s 14 PA (as modified by 2nd Schedule) read with the second limb of s 17 PA. The new improvement introduced by UI 369 is that UI 369 joins permanently two pipes in an easy, speedy and cost-saving manner and ensures that the pipes do not leak and can move independently of each other.

SD1 alleges that UI 369 is not “new” and is similar to products manufactured by Rimplas Industries Sdn. Bhd. (Rimplas Products) which are sold by VicPlas Holdings Pte. Ltd., a Singapore company, for more than 20 years in Malaysia. I am not able to accept SD1’s expert opinion that UI 369 is not “new” because as explained by SP1, Rimplas Products are different from UI 369. According to SP1, Rimplas Products use a “single ply rubber surround sloping “/” type” which slopes downwards (unlike UI 369 which use a S-Profile Rubber Ring).

SPI has opined that UI 369 is “new” because prior art, namely United States (US) Patent No. “6,481,755 B2” and US Patent No. 4,583,771, are “vastly different” from UI 369. As such, I have no hesitation to decide 35 that UI 369 has not been anticipated by any prior art [as understood in s 14(2)(a) PA (as modified by 2nd Schedule)] on the Priority Date. O(2). Is UI 369 a new “invention”?

Additionally or alternatively, I find as a fact that UI 369 constitutes an “invention” within the meaning of s 12(1) PA. As explained by SP1’s expert evidence, UI 369 consists of an “idea of an inventor which permits in practice the solution to a specific problem in the field of technology” [within the meaning of s 12(1) PA]. The “idea” in UI 369 provides a solution regarding the joining of pipes in Pipe Systems.

I am satisfied that UI 369 is “new” - please see the above paragraphs 53-

As UI 369 is an “invention” under s 12(1) PA, UI 369 falls within the third limb of the definition of UI in s 17 PA. O(3). Whether UI 369 is “industrially applicable”

Parliament has given a wide meaning to the term “industrially applicable” in s 16 PA (any kind of industry). Based on SP1’s expert opinion, I find as a fact that UI 369 is “industrially applicable” under s 16 PA.

The above expert testimony of SP1 regarding the industrial application of UI 369, is corroborated by SP2. Due to SP2’s qualification, training and experience, I find as fact that SP2 is an expert under s 45(1) EA in, among others, Pipe Systems. SP2 has given his expert view that PVA Joints are most reliable and do not break. 36

Premised on the expert opinion of SP1 and the reasons given in the above Parts O and O(1) to O(3), I have no hesitation to decide that UI 369 falls within the second and/or third limbs of s 17 PA. P. Has UI 369 complied with regs. 12(1)(c) and 13(1) PR?

Regulations 12(1)(c) and 13(1) PR provide as follows: “reg. 12 Description

The description shall first state the title of the invention as appearing in the request and shall ‐ …

disclose the invention in such terms that it can be understood and in a manner sufficiently clear and complete for the invention to be evaluated and to be carried out by a person having ordinary skill in the art, and state any advantageous effects of the invention with reference to the background art; … reg 13.

The claims shall be clear and concise and fully supported by the description; …” (emphasis added).

Mr. Kent St. James has submitted that the Claim (UI 369) has not sufficiently disclosed the innovation as required by reg. 12(1)(c) PR. I am not able to accept this contention. I am of the view that in accordance with reg. 12(1)(c) PR, the following parts of UI 369 have sufficiently disclosed the innovation or invention [Innovation/Invention (UI 369)) in such terms that it can be understood and in a manner sufficiently clear 37 and complete for the Innovation/Invention (UI 369) to be evaluated and to be carried out by a POSITA (UI 369) and to state any advantage of the Innovation/Invention (UI 369) with reference to the background art -

“Technical Field”;

“Background of the Innovation”;

“Summary of the Innovation”;

“Brief Description”; and

“Specific Example”. The above decision is confirmed by the expert evidence of SP1.

Based on SP1’s expert opinion, Claim (UI 369) has complied with reg. 13(1) PR because Claim (UI 369) is clear, concise and is fully supported by the description in UI 369 [Description (UI 369)]. Q. Whether UI 369 should be invalidated

A UI cannot fall within any of the paragraphs in s 13(1)(a) to (d) PA. If otherwise, the UI may be invalidated under s 56(2)(a) PA (as modified by 2nd Schedule). Although the Defendant did not rely on s 13(1) PA to invalidate UI 369, I take this opportunity to state that UI 369 is not prohibited by s 13(1)(a) to (d) PA. Section 13(1) PA reads as follows: “Non‐patentable inventions. 13(1) Notwithstanding the fact that they may be inventions within the meaning of section 12, the following shall not be patentable: 38

discoveries, scientific theories and mathematical methods;

plant or animal varieties or essentially biological processes for the production of plants or animals, other than man‐made living micro‐organisms, micro‐biological processes and the products of such micro‐organism processes;

schemes, rules or methods for doing business, performing purely mental acts or playing games;

methods for the treatment of human or animal body by surgery or therapy, and diagnostic methods practised on the human or animal body: Provided that this paragraph shall not apply to products used in any such methods.” (emphasis added).

As explained in the above Parts O, O(1) to O(3) and P, I find no ground to invalidate UI 369 under s 56(2)(a) or (b) PA. Consequently, the Counterclaim is dismissed with costs.

I reproduce below the relevant parts of ss 36(1)(a), (2), (3)(a)(i) and 58 PA: “Rights of owner of patent 36(1) Subject and without prejudice to the other provisions of this Part, the owner of a patent shall have the following exclusive rights in relation to the patent:

to exploit the patented invention; 39 …

No person shall do any of the acts referred to in subsection

without the consent of the owner of the patent.

For the purposes of this Part, “exploitation” of a patented invention means any of the following acts in relation to a patent:

when the patent has been granted in respect of a product:

making, importing, offering for sale, selling or using the product; … 58 Acts deemed to be infringement. Subject to subsections 37(1), (2) and (3) and section 38, an infringement of a patent shall consist of the performance of any act referred to in subsection 36(3) in Malaysia by a person other than the owner of the patent and without the agreement of the latter in relation to a product or a process falling within the scope of protection of the patent. ” (emphasis added).

I am not able to find any Malaysian case which has laid down a test to ascertain UI Infringement. As PA applies to UI’s with certain modifications [please see s 17A(1), (2) PA and 2nd Schedule], I adopt one of the tests to decide patent infringement, namely the “Essential Integers Test”. The Essential Integers Test has been explained by Lord Upjohn in the 3-2 majority judgment in the House of Lords’ case of Rodi & Wienenberger AG v Henry Showell Ltd [1969] RPC 367, at 391 (Rodi’s Case), as follows: “To constitute infringement, the article must take each and every one of the essential integers of the claim. Non-essential integers may be omitted or replaced by mechanical equivalents.” 40 (emphasis added). Rodi’s Case has been followed by Vernon Ong JCA in the Court of Appeal in Yeohata Machineries Sdn Bhd & Anor v Coil Master Sdn Bhd & Ors [2015] 6 MLJ 810, at [15]. R(1). Whether Defendant’s Sockets have infringed Claim (UI 369)

SP1 has compared PVA Joint (based on UI 369) and the Defendant’s Socket. SP1 has given his expert view that the Defendant’s Socket reproduced the essence of Claim (UI 369), namely the S-Profile Rubber Ring. In fact, SP1 has described the Defendant’s Socket as a “direct copy” of PVA Joint. Accordingly, applying the Essential Integers Test, I am satisfied that based on SP1’s expert testimony as a POSITA (UI 369), the Defendant’s Socket has the same S-Profile Rubber Ring, the essence of UI 369. Consequently, the making, offering for sale and sales of Defendant’s Sockets have infringed UI 369 under ss 36(1)(a), (2),

(3)(a)(i) and 58 PA. S. Court’s decision

The following is a summary of the above decision:

the two-year limitation period provided by s 59(3) PA (as modified by the 2nd Schedule) and not the limitation period stipulated in s 6 LA, applies to UI Infringement;

the Defendant did not plead the Two-Year Limitation Defence in ADC [as required by O 18 r 8(1) RC] and cannot therefore raise such a defence in this case; 41

in accordance with s 35(1A) PA (as modified by 2nd Schedule), UI 369 takes effect on 15.6.2016, the date of issue of the Certificate (UI 369). The Original Action is filed on 25.1.2017 and is well within the two-year limitation period prescribed by s 59(3) PA (as modified by 2nd Schedule);

as the 1st Plaintiff has filed the Original Action for UI Infringement, the 2nd Plaintiff cannot claim for UI Infringement under s 61(1) [as modified by 2nd Schedule], (2), (3) and (4) PA;

SP1 (not SD1) is a POSITA (UI 369). Hence, this court attaches weight to SP1’s expert view on UI 369 and does not give any weight to SD1’s expert opinion regarding UI 369;

UI 369 cannot be invalidated because -

UI 369 is “new” within the meaning in s 14(1) PA (as modified by 2nd Schedule) read with the second limb of s 17 PA;

UI 369 is an “invention” under s 12(1) PA and falls within the meaning of the third limb of s 17 PA;

UI 369 has sufficiently disclosed the innovation and/or invention as required by s 23 PA read with reg. 12(1)(c) PR; and

in accordance with reg. 13(1) PR, Claim (UI 369) is clear, concise and is fully supported by the Description (UI 369); and

the making, offering for sale and sales of Defendant’s Sockets have infringed UI 369 under ss 36(1)(a), (2), (3)(a)(i) and 58 PA. 42

The upshot is -

the Original Action by the 2nd Plaintiff is dismissed with costs to be paid by the 2nd Plaintiff to the Defendant;

the Counterclaim is dismissed with costs to be borne by the Defendant in favour of the 1st Plaintiff; and

the Original Action by the 1st Plaintiff against the Defendant is allowed with costs.

On the day I delivered my oral grounds for this case, I received sad news from Mr. Ho Yok Yuen, the Plaintiffs’ learned counsel, that SP1 had passed on. My deepest condolence to SP1’s family. WONG KIAN KHEONG Judge High Court (Commercial Division) Kuala Lumpur DATE: 15 MAY 2019 Counsel for Plaintiffs: Mr. Ho Yuk Yuen, Ms. Esther Hor Su Ying & Mr. Joseph Wong Hup Hin (Messrs Y.Y. Ho & Lee) Counsel for Defendant: Mr. Ken St. James & Mr. Jonathan Gerard. (Messrs Michael Chai Ken)