1. ) Wang See Sooi v Tan Yon Chia (BA-22NCvC-113-03/2021)

1.

WANG SEE SOOI BIOCOSLAB MANUFACTURING SDN BHD [NO. SYARIKAT 200901005800 (848750-A)] AND DEFENDANT TAN YON CHIA 08/01/2023 00:12:59 BA-22NCvC-113-03/2021 Kand. 122 JUDGMENT (Enclosure 72) Background facts [1] The claim by 1st and 2nd plaintiff (P1 and P2) against defendant stems from defamation; breach of an employment contract; failure to serve notice of resignation as well as failure to return crucial documents belonging to P2. Proof during trial is to be proffered by plaintiff on a balance of probabilities, and the court would decide on the preponderance of evidence available. It has been informed to this court that the defendant upon leaving employment of P2 has been a housewife. [2] Application by plaintiffs in enclosure 72, is for an injunction to prohibit the defendant either personally or through her agents, employees and or her representative from:

continuing and/or entering into any transactions with P2’s customers and or former P2’s customers (including and not limited to 1 Doc Medical Group Sdn Bhd (1 Doc), Blossom Peach Network (Blossom), Ilska Bioinnovation Sdn Bhd (Ilksa) and Elementz Lifestyle Sdn Bhd (Elementz), with immediate effect until final disposal of this action against defendant together with other defendants (if the plaintiffs' application for the joinder of parties is permitted); and

(ii) using, storing, disclosing and amending P2’s confidential information obtained by defendant and other defendants (if the plaintiffs' application for addition of parties is permitted) in any manner with immediate effect until final disposal of this action against the defendant together with other defendants (if the plaintiffs' application for joinder of parties is permitted). [3] For the record, prayer for injunction, in paragraph 79 (h) of plaintiffs’ statement of claim (SOC) pertains a tort of defamation and it reads: “Satu injunksi bagi menghalang defendan daripada terus menyebarkan kenyataan-kenyataan fitnah yang bersifat slander terhadap plaintif-plaintif.” Thus, a point noteworthy is, although Order 29 rule 1(1) of the Rules of Court 2012 (ROC) renders: An application for the grant of an injunction may be made by any party to a cause or matter before or after the trial of the cause or matter, whether or not a claim for the injunction was included in that party’s originating process, counterclaim or third-party notice, as the case may be. but the injunctive relief prayed for against the defendant in enclosure 72 is to restrain her from using confidential information pertaining business of P2 and transactions involving P2’s customers obtained whilst she was in the employment of the defendant, to her advantage as well as for her not to enter into any transactions whatsoever with P2’s customers or former customers. Issues [4] This court has to decide if an order of injunction could be granted on the face of the following factual matrix: • There has been a delay by the plaintiffs to apply for the injunctive relief from the date of filing of the writ and statement of claim. • The injunctive relief prayed for in the statement of claim is diametrically opposite to the order of injunction prayed for in enclosure 32. • There is no full and frank disclosure by the plaintiffs in their affidavits to support the application on the allegations against the defendant. • The allegations made against the defendant are unsubstantiated, thus posing a credible dispute. • Existence of the contract of employment with the defendant is disputed. • Even if it exists, there is a restraint of trade clause which is prohibited under the law, pursuant to section 28 of the Contracts Act 1950 (Act 156). • An order of injunction, if granted against the defendant would infringe on her right to livelihood, which is her sacrosanct right. • At point of time of application, the defendant is only a housewife. • On the face of inconsistent, untrue and feeble allegations made against the defendant, strength of the plaintiffs’ case is in doubt which has a direct effect on the substantial issues to be tried. • As such, subject to proof during the trial, damages may serve as an adequate remedy for the plaintiffs. • Balance of convenience does not favour the plaintiffs, and preservation of status quo is unjustifiable. • Plaintiffs have to contend with competition and business rivalry as it does not have a monopoly in the business of manufacturing pharmaceutical and cosmetic products. • Plaintiffs unable to show a fair prima facie case in support of the title which they assert. The confidential information which is alleged to be “taken away” by the defendant to be used to her advantage does not belong to the plaintiffs and the information pertaining identity of customers is in the public domain. • Injunction, if granted would be prejudicial and detrimental to the defendant and would cause irreparable damage to her, as opposed to the benefit the plaintiffs may derive by preventing their customers from being allegedly “taken away” by the defendant. Applicable law [5] In a nutshell, it was decided by Salleh Abbas FJ (as he was then, later Lord President) in the case of Lian Keow Sdn Bhd v Overseas Credit Finance Bhd (1982) 2 MLJ 162, that an interlocutory injunction is a temporary and discretionary remedy. When granting or not granting it, the court is not concerned with chances of success or failure of the plaintiff in proving their suit at trial. The court is more concerned with what it has to do to protect the right of the parties so that no irreparable injury would be caused to either of them. Hence, the general purpose of an interlocutory injunction is to maintain or preserve the status quo of parties to the writ; to prevent hardship or prejudice to one or other parties; to preclude one party from overreaching or outwitting the opposite party; and to prevent surprise at trial, thus there has to be full and frank disclosure. An injunction, once granted would have the effect of preserving a fair balance between parties and accords them due protection while awaiting finality of the proceeding. [6] Further, following the decision in the case of Keet Gerald Francis Noel John v Mohd Noor @ Harun Abdullah & 2 Ors (1995) 1 MLJ 193, His Lordship Gopal Sri Ram JCA (as he was then, later FCJ), certain conditions are to be fulfilled by a plaintiff before an order of interlocutory injunction could be granted, which are:

There must be a bona fide serious question to be tried;

Plaintiff must show that damages would not be an adequate final remedy; and

The interim relief is justified on the balance of convenience, i.e. to weigh the balance of convenience in deciding whether to grant an injunction. Delay in application [7] Prayer for an order of injunction is an equitable remedy available under the law to aid the vigilant. Thus, a plaintiff has to apply for it speedily. He cannot sleep on his rights. It is so decided in the case of Evercrisp Snack Products (M) Sdn Bhd v Sweeties Food Industries Sdn Bhd (1980) 2 MLJ 297). But in the present case, although the plaintiffs have accused defendant for using and disclosing confidential information since 17.3.2021, as pleaded in paragraph 57 and 58 of the SOC, but an injunction is sought against the defendant from using and disclosing the alleged confidential information only on 25.3.2022. Therefore, there has been a delay of 12 months. [8] Accordingly, the pivotal question is, are the plaintiffs serious in pursuing this remedy? An attempt was made to explain the delay - stating they have only discovered some new facts in January 2022, thus enabling them to only apply for an injunction on 25.3.2022. Even so, there has been a delay of 3 months. Since the basis for injunction is because the plaintiffs are supposed to have been seriously prejudiced by the infraction or infringement by the defendant, the alleged infringement has to be injuncted speedily, and any delay would be needless and unacceptable. With the delay, it is apparent that the plaintiffs are not seriously prejudiced or disadvantaged by the act and/or conduct of the defendant. It also demonstrates lack of seriousness on the part of plaintiffs to pursue the relief. (See: Shashitharan Pillay a/l Baskaran Pillay v Salleh bin Hussin & Anor (1995) 4 CLJ 265). No full and frank disclosure [9] When seeking an injunctive relief, the plaintiffs shall make a full and frank disclosure of all material facts and issues necessary for an order against the defendant. Likewise, any answer by the defendant or likely to be asserted and any facts which may lead the court not to grant the order must also be disclosed. (See: O29 r 1 (2A) (a) to

ROC). This is because, once injunction is granted, it would seriously prejudice the defendant, which in the present case, would cripple the defendant from pursuing her ordinary affairs. Her right to livelihood cum gainful employment is in jeopardy, if she wishes to be employed, after having left the employment of P2 at the end of September 2020. Her right to livelihood is sacrosanct and protected by Article 5(1) of the Federal Constitution. (See: Tan Tek Seng v Suruhanjaya Perkhidmatan Pendidikan & Anor (1996) 1 MLJ 251). [10] So, what did the plaintiffs not disclose? It is the following:

That P2’s customer, 1 Doc was not communicating with P2 after the defendant had resigned from P2 at the end of September 2020. But the stark fact is, it was still communicating with P2 in May 2021, contrary to the plaintiffs’ claim. This is evidenced by the complaint made by 1 Doc on 11.5.2021 to P2 on its product;

Further to that, there are also proforma invoices issued by P2 to 1 Doc on 17.12.2020, which is a date after resignation of defendant from P2 in September 2020. The proforma invoices shows there was ongoing business dealing with P2 and 1 Doc, thus payment request was made from 1 Doc. So was the position of Elementz, another customer of P2, where proforma invoices were issued by P2 on 19.11.2020. There was also WhatsApp communication between 1 Doc, Elementz and P2, after resignation of the defendant. Therefore, for the plaintiffs to aver, P2’s customers ceased communication with it after resignation of defendant is not true.

P2 had claimed its customers have moved to Maxcos Manufacturing Sdn Bhd (Maxcos), an entity incorporated by the defendant’s husband, one Lee Chee Seang, and the migration was induced by the defendant. But it is not fully elaborated in the affidavits deposed by plaintiffs, thus leaving the allegations made unsubstantiated. This would also include the allegation made that P2’s customers were dissatisfied. To the contrary, 1 Doc stopped trading with P2 because when the products were sold to them, its packaging was similar to that sold to other entities owned by P1, like Skin Renew International (Malaysia) Sdn Bhd (Skin Renew) and SR Clinic Sdn Bhd (SR Clinic). This had affected the business relationship between P2 and its customers. In that respect, claim made by plaintiffs that the defendant is the causa causans of the alleged debacle, is preposterous, as it is unsupported with relevant and material facts.

A further claim made by plaintiffs is that in the mobile phone with number 016-2095669, owned by P2’s customer, Evon How (Evon), all WhatsApp conversations between P2 and Evon were allegedly deleted by the defendant. However, it is revealed, an individual Evon does not exist and the mobile phone with the said phone number was utilised by one Jimmy Lee who is in fact P1’s son. Besides, the webpage of “daganghalal” also show the said phone number belongs to Skin Renew, an entity owned by P1. It was later admitted to by plaintiffs, the mobile phone number belongs to Jimmy Lee and no further explanation was afforded on the identity of Evon. Obviously, an attempt is made by plaintiffs to reel a story to sustain its application against the defendant for an order of injunction, with Evon playing her role as a fictitious character. This is disconcerting, as the truth is, the number belongs to Skin Renew and used by P1’s son.

Another claim is that P2’s email address at biocoslab@biocoslab.com was used and controlled by the defendant and all emails in its “sent item” category was allegedly deleted by her. On examination, it is revealed the said email address does not exist at all. This is yet another attempt by plaintiffs to bolster its case against the defendant, with a false and baseless allegation.

In the same vein, whilst plaintiffs have claimed P2’s email address at enquiry@biocoslab.com was used and controlled by the defendant and again all emails in its “sent item” category were deleted by her, it is revealed later, the said email address was used by P1’s son, Jimmy Lee. Subsequently, this fact is admitted to by the plaintiffs.

It is also alleged, P2’s email address at sales@biocoslab.com was used and controlled by the defendant and emails in its “sent item” category was deleted by the defendant. Again, on examination, it turns out, one Karen Gan, an employee of P2 has been in charge to use the said e mail address, which was subsequently admitted to by the plaintiffs.

In sum total, the contrasting allegations against the defendant made by plaintiffs; that she has full access and use of all of P2’s email addresses; contents of which in the “sent item” category were deliberately deleted by her; which is later found to be untrue; are made to embarrass and prejudice the defendant; and to bolster a case against the defendant in order to obtain an order of injunction. Balance of convenience [11] As understood in law, balance of convenience is evaluation of the degree of harm either party might suffer if the injunction is, or is not granted and the extent by which such harm could be compensated with damages. In weighing the balance, this court is bound to consider essential justice of the case, in toto, and not solely to one party. Thus, premised on the affidavit evidence available, granting or refusal of an interlocutory injunction has to be decided, by taking the course which would lower the risk of injustice. On the one hand, there is risk, if the injunction is refused, but if the plaintiffs were to succeed later in establishing such relief at the trial, their legal right to protection for which the injunction is sought, may have meanwhile suffered harm and inconvenience or monetary loss for which they cannot be recompensed. On the other hand, there is also a risk, if an injunction is granted and plaintiffs are unsuccessful at the trial, the defendant in turn, may have suffered loss, damage and inconvenience which cannot be undone and recompensed. (See: Alor Janggus Soon Seng Trading Sdn Bhd v Sey Hoe Sdn Bhd & Ors (1995) 1 MLJ 241 SC). Therefore, it is only proper for this court to weigh the balance of convenience, when considering the application by plaintiffs for an interlocutory injunction. [12] Defendant in this case contends, balance of convenience does not lie with the plaintiffs. As, even if injunction is granted, it is unlikely customers of P2 would recommence business with P2, as it has turned out, unsatisfactory products were produced by P2 which do not meet the customers’ requirements, since the time when defendant left its employment. It is also the contention of defendant in her defence, that an inexperienced chemist has been employed by P2. Further to that, P2’s customer such as 1 Doc has lost confidence in the plaintiffs as associated companies belonging to P1, like Skin Renew and SR Clinic have used packaging for products, similar to that sold to 1 Doc. This court too cannot compel former customers of P2 to recommence business with P2, since in an open market, they are free to do business with whichever entity they wish to. P2 on the other hand, cannot assume to have a monopoly in its business as manufacturer of pharmaceutical and cosmetic products, as there are many other manufacturers, like Maxcos dealing with the same products. A decision by the Singapore High Court in the case of Thomas Cowan v Orme [1961] MLJ 41, supports such a contention, where 'monopoly' was stated as offending against public policy. In that case, FA Chua J held at page 43: … if the [ex-employee] is not allowed to operate, the plaintiffs would have a virtual monopoly in Singapore … It is of course against public policy to allow any particular trade to be monopolised. [Emphasis added.] Thus, the balance of convenience does not favour plaintiffs and there is no basis for its status quo to be preserved. [13] A further contention made is that by granting an injunction, it would be prejudicial to customers of Maxcos, like 1 Doc, which cannot be recompensed, as 1 Doc would be unable to obtain its supplies swiftly, which may result in it losing customers and suffering losses and irreparable damage, as its customers will seek out alternative means to manufacture their products, thus causing it to lose its customers for good. Such loss and damage cannot be easily recompensed. The net effect is, on a balance of convenience, granting of an injunction would be prejudicial to the defendant, and its effect would outweigh the benefit which the plaintiffs would derive. Thus, once again the balance of convenience does not favour the grant of an injunction. Status quo of parties [14] Another consideration by this court is to ensure as far as possible to keep matters and issues arising in the case to be in status quo pending determination of the dispute between parties, pursuant to the writ and SOC by plaintiffs. In deciding if status quo has to be maintained, regard would be had to the balance of convenience and the extent of damage which would be suffered by the plaintiffs which can be compensated with an award of damages instead of an injunctive relief. With that, the balance of convenience and preservation of status quo of parties are entwined, when considering the effect of an injunctive relief on parties to the proceeding. [15] In that respect, this court is guided by Kerr on Injunctions, which is instructive: The interlocutory injunction is merely provisional in its nature, and does not conclude a right. The effect and object of the interlocutory injunction is merely to keep matter in status quo until the hearing or further order. In interfering by interlocutory injunction, the court does not in general profess to anticipate the determination of the right, but merely give it as its opinion that there is a substantial question to be tried, and till the question is ripe for trial, a case has been made out for the preservation of the property in the meantime in status quo. A man who comes to court for an interlocutory injunction, is not required to make out a case which will entitle at all events to relief at hearing. It is enough if he can show that he has a fair question to raise as to the existence of the right which he alleges, and can satisfy the court that the property should be preserved in its present actual condition, until such question can be disposed of. In exercising the jurisdiction, the court does not pretend to determine legal rights to property, but merely keeps the property in its actual condition until the legal title can be established. The court interferes on the assumption that the party who seeks its interference has the legal right which he asserts, but needs the aid of the court for the protection of the property in question until the legal right can be ascertained. The office of the court to interfere being founded on the existence of the legal right, a man who seeks the aid of the court must be able to show a fair prima facie case in support of the title which he asserts. He is not required to make out a clear legal title, but he must satisfy the court that he has a fair question to raise as to the existence of the legal right which he sets up, and that there are substantial grounds for doubting the existence of the alleged legal right, the exercise of which he seeks to prevent. The court must, before disturbing any man’s legal right, or stripping him of any of the rights with which the law has clothed him, be satisfied that the probability in favour of the case ultimately failing in the final issue of the suit. The mere existence of a doubt as to the plaintiff’s right to the property, interference with which he seeks to restrain, does not of itself constitute a sufficient ground for refusing the injunction, though if it is always a circumstance which calls for the attention of the court. [16] Principles governing interlocutory injunction are also dealt with by the House of Lords in the case of American Cyanamid Co. v Ethicon Ltd (1975) AC 396, wherein the basic principles are aptly stated in the following terms: In order to be able to grant an interlocutory injunction, the court does not have to be satisfied that if the case went on trial on no other evidence than is before the court on the hearing of the application for interlocutory relief, the plaintiff would be entitled to a permanent injunction in the same terms as that sought in the interlocutory proceedings. Where damages would be an adequate remedy, no interlocutory injunction should normally be granted, but if there is doubt as to the adequacy of damages, the question of the balance of convenience arises, and although it might not be improper to take into account, as one of the many varying factors relevant to this question, the relative strength of each party’s case, this should be done only on the basis of facts disclosed by the affidavit evidence as to which there is no credible dispute, without embarking on anything resembling a trial of the action. When an interlocutory injunction is sought, the balance of convenience will the overriding consideration. [17] Thus, in a nutshell, it is necessary for any plaintiff, including in the present case, seeking interlocutory relief to show that there is at least a serious question to be tried and to adduce sufficiently precise factual evidence to satisfy this court that they have a real prospect of succeeding in its claim at the trial. (See: In re Lord Cable, decd.

1 WLR 7 at page 19). The question that arises, is there such factual evidence on the face of non-disclosure of material facts and evidence as alluded to above, and the delay in making the application which demonstrates plaintiffs lack of seriousness. Restraint of trade [18] The injunction sought in this case, would also be in restraint of trade, which is disallowed by law. Hardship would be caused to the defendant if an injunction is granted, in view of the restraint of trade prayed for. The first prayer in enclosure 72 is self-explanatory, whereby the defendant is sought to be prohibited from having any business dealing with P2’s former and present customers, with immediate effect until final disposal of the suit by plaintiffs. The relief sought is in the nature of a prohibitory injunction. [19] Surveying the law, specifically section 52(1) of the Specific Relief Act 1950 (Act 137) which renders, an injunction may be granted to prevent breach of an obligation existing in favour of the applicant, arising either expressly or by implication. (See also: Vethanayagam v Karuppiah & Ors (1968) 1 MLJ 283). It is argued by the plaintiffs that an express obligation vis defendant’s contract of employment with P2 exist, that she would not be employed in any form of like employment or industry, like that of P2 when she leaves the employment of P2. The implied obligation relied on is fidelity towards the plaintiffs, as her former employer. In law, the provision in the contract of employment relied on tantamount to be in restraint of trade. The defendant, on the other hand, vehemently denies she has even entered into such a contract of employment. With that the existence of the contract and its contents are in dispute. The defendant has maintained she is not involved in the business similar to that of P2, since she is only a housewife since her resignation from P2, and has not entered into any transaction with P2’s customers or former customers as alleged by the plaintiffs. Allegation by plaintiffs that she is involved in her husband’s business in Maxcos is feebly supported by a photograph on the use of a Honda City car with registration number BNH 2622 by her which was parked outside her husband’s office. That car belongs to her husband. She shares usage of the car with her husband, but he uses it to work. She goes to the husband’s office with that car to send cooked food for her husband. Therefore, there is no evidence by plaintiffs that the defendant is involved in any business that is similar to P2 and she has entered into any business transaction with its customers or former customers. [20] Preventing the defendant from having business engagement with any other entity after her resignation from P2, cannot be enforced pursuant to section 28 of the Contracts Act 1950 (Act 156), which provides: Every agreement by which anyone is restrained from exercising a lawful profession, trade, or business of any kind, is to that extent void. Additionally, pursuant to section 54(f) of Act 137, an injunction will not be ordered to prevent the breach of a contract if the performance of it cannot be specifically enforced. So, specific performance cannot be ordered against the defendant, simply because it is unenforceable pursuant to section 28 of Act 156. With that, the injunction sought by plaintiffs in prayer 1 of enclosure 72, shall also be refused too. The relief sought in prayer 1 is also wide, as it includes all customers of P2 and its former customers, which smacks on unreasonableness. A prohibition limiting to customers dealt with by the defendant whilst in in the employment of P2 is not sanctioned by law, what more future unidentified customers. The relief sought is without basis and premature too. [21] Extent to which this court will allow an employer to restrain his former employee to prevent competition in the use of personal skill and knowledge acquired by an employee in the employer’s business is illustrated in the case of Framroz v Mitri (1932) MLJ 96. It was decided in that case that as there was no trade secret in the plaintiff’s business which required protection, the employer could not obtain an injunction to restrain the employee. In that case, it was held on the evidence adduced, there being no trade secrets in the plaintiff’s business that required to be protected and the defendant not being in a position to detach the plaintiff’s customers, the restrictive covenant was not reasonably necessary for the protection of the employer and unenforceable and void. Thus, fact in issue in each case, is the question as to what circumstances under the restriction are reasonable with regard to the interests of the parties concerned and public. So, much depends on the factual matrix before the court. The very concept of reasonableness per se, is central to the doctrine of restraint of trade, necessitating close analysis of the relevant facts. When employers include a restraint of trade clause in an employment contract, like the present case, the plaintiffs have to be clear about the type of interests they are seeking to protect and ensure the clause is not wider than is necessary to protect those interests. The courts, when balancing the competing interests of the employer and employee, will then examine closely the specific facts and circumstances of the case, before deciding whether to sustain or strike down the clause. A damning factor in the present case, is that the defendant is disputing the existence of the contract of employment itself with the plaintiffs. Further to that, the relief prayed for is also far-fetched to cast a net for her not to deal with unidentified future customers, which smacks on unreasonableness. [22] In the Singapore case of Prestressing (Australia) Pty. Ltd. v Mulholland (1971) 2 MLJ 89, the High Court had to consider whether the plaintiff company could prevent its ex-employee from using the skill and knowledge in his profession which the employee had acquired in the course of his employment. The defendant, who was a professional civil engineer acquired some training and experience in a system for prestressing construction whilst in the employ of the plaintiff. The contract of employment however did not contain any covenant from the defendant. Nevertheless, the plaintiff company contended that they were entitled to an injunction to prevent the defendant from using for his own benefit or the benefit of his employers his recollection of the features of the company’s system of prestressing construction. The crucial question faced by the court was to decide whether the plaintiff had any trade secret within the meaning of that expression. The court held that in this case the defendant was never entrusted with any trade secret or confidential information within the meaning of the expression as used in this type of case and the plaintiffs were therefore not entitled to the injunction which they sought. [23] The scope of the phrase ‘trade secrets and confidential information’ was discussed in the case of Thomas Marshall (Exports) Ltd. v Guinie (1978) 3 AER 193 at pages 209 to 210, wherein Megarry VC examined the scope in the following terms: If one turns from the authorities and looks at the matter as a question of principle, I think (and I say this very tentatively, because the principle has not been argued out) that four elements may be discerned which may be of some assistance in identifying confidential information or trade secrets which the court will protect. I speak of such information or secrets only an industrial or trade setting. First, I think that the information must be information the release of which the owner believes would be injurious to him or of advantage to his rivals or others. Second, I think the owner must believe that the information is confidential or secret, i.e. that it is not already in the public domain. It may be that some or all of his rivals already have the information: but as long as the owner believes it to be confidential I think he is entitled to try and protect it. Third, I think that the owner’s belief under the two previous heads must be reasonable. Fourth, I think that the information must be judged in the light of the usage and practices of the particular industry or trade concerned. It may be that information which does not satisfy all these requirements may be entitled to protection as confidential information or trade secrets: but I think that any information which does satisfy them must be of a type which is entitled to protection. [24] The 2nd prayer by plaintiffs in enclosure 72, is for an order to prohibit defendant from using the confidential information she is in possession of or she had acquired whilst in employment of P2, with immediate effect until final disposal of the suit by plaintiffs against her. The prohibition sought is again vague, wide as well as ill-defined to be couched as relief under the law, as the plaintiffs did not identify what is the confidential information. A poser would be – how is the court to injunct something which is unidentified? What would be the basis for this court to know if the alleged information is confidential in nature, before an injunctive relief is granted? Moreover, identity of P2’s customers are not confidential as details of them are readily available in the public domain at the National Pharmaceutical Regulatory Agency (NPRA) website, as demonstrated by plaintiffs themselves, when the proposed 3rd defendant’s customer details were exhibited. [25] On the formulation for manufacture of products, claimed by plaintiffs to be confidential information, it is not owned by the plaintiff but by its customers, thus they do not have the rights to injunct usage of the same. The formulations were provided by P2’s customers to enable P2 to manufacture products. It is also confirmed in the affidavits filed, that P2 is engaged by its customers together with the said formulations. [26] On the grant of an order of injunction against the defendant’s husband and/or Maxcos, it is apparent they are yet to be made a party to this proceeding. He is not a party to the contract of employment which had a restraint of trade stipulation in it, thus not subjected to it. Findings and conclusion [27] As decided by our apex Court, in Sivaperuman v Heah Seok Yeong Realty Sdn Bhd (1979) 1 MLJ 150 an interim interlocutory mandatory injunction would never be granted before trial save in exceptional and extreme rare cases. Further, following another decision, by the Federal Court in Gibb & Co v Malaysia Building Society Berhad (1982) 1 MLJ 271, an applicant for an injunctive relief, must show an unusually sharp and clear case and the court must feel a high degree of assurance that a similar injunction would already be granted at trial. Likewise, is also the decision of the Court of Appeal in Foong Seong Equipment Sdn Bhd (Receivers & Managers appointed) v Keris Properties (PK) Sdn Bhd (No. 2)

5 MLJ 393. Applying those principles of law to the facts and circumstances of the plaintiffs’ case which is before this court, its case is not exceptional nor extremely rare. This court does not feel a high degree of assurance that a similar injunction would already be granted at the conclusion of trial, since preponderance of evidence, as available on record, favours only the defendant. If the case goes for trial, witnesses including P1 and defendant would be rigorously cross-examined, after which the court would sieve through their evidences to know the probable truth, and whose version would prevail on balance of probabilities. There are also weaknesses in the case by plaintiffs, which are: • The plaintiffs have no rights to the confidential information. • They do not own copyright to the confidential information. • The confidential information as claimed to be owned by the plaintiffs are not confidential at all, as it is already in public domain. • Albeit the purpose of the injunctive relief sought by plaintiffs is to preserve status quo, but its effect would be to obtain a final relief. On that basis, an order of injunction is seldom granted, as the desirable effect would not be equitable. • Plaintiffs are seeking an interim injunction to give them, what they in fact wish but would be unable to obtain without proceeding to trial. As decided in the case of RCA Sdn Bhd v Pekerja Pekerja RCA Sdn Bhd (1991) 1 MLJ 309, The effect of the interim injunction granted in the present case is to give the plaintiffs what they really want all along which they never have before without going to trial. An interim injunction which virtually gives the full relief to be secured at the trial is never granted save in exceptional cases and extremely rare cases. In the present case there are no exceptional circumstances to warrant the grant of an injunction at the present stage … • Plaintiffs are not entitled to enforce the restraint of trade provision in the contract of employment, as it is contrary to section 28 of Act 156. • They are not sanctioned under the law to seek an injunction to prevent the defendant from using and disclosing confidential information since such confidential information is not owned by P2 but its customers. To reiterate, the said information is not owned by plaintiffs, but it is already in public domain. By granting an injunction at this stage of the case, is in fact allowing them rights which they do not have. • Reason for stoppage of business by P2’s customers with P2, is not because of the alleged “taking away” of its customers by the defendant but it is purely due to the fact that P2 was unable to produce the products as required by customers, satisfactorily in order to meet their requirements. The customers have lost confidence in P2. [28] In view of the above, there is no substantial question to be tried, and pursuant to the body of affidavit evidence available, whether there is a case for the defendant to meet, is doubtful. She had left the employment of P2 since September 2020; since then she has been only a housewife; there is no tangible evidence supporting the allegation that she is assisting her husband, the proposed second defendant at Maxcos, which is contended to be a competitor of the plaintiffs. In the absence of a substantial question to be tried, there is no necessity for this court to preserve the plaintiffs right to the confidential information vis details of customers’ which is already in public domain. In sum total, the begging question is, if the plaintiffs have the legal right as it asserts. Premised on the body of affidavit evidence available, case of the defendant seems stronger as opposed to the case of the plaintiffs’ vis its claim for an injunctive relief. The plaintiffs’ claim on the basis that the defendant has breached her implied obligation of fidelity to them is tenuous, as there is no tangible proof vide primary facts for the said obligation to have been breached by the defendant. There is also no tangible proof, of entrustment of confidential information with the defendant, when she was in their employ, for her to have exploited it to her advantage, subsequently. It has to emphasised, she was employed as P2’s General Manager, and as the designation suggest, she was only entrusted with the overall management of P2, in which case, she would have general managerial knowledge of the affairs and business of the company in its entirety, before she left P2. Furthermore, the alleged confidential information supposed to have been taken away by the defendant is not property of the plaintiffs, as details of customers could be obtained publicly via website; formulation for the products manufactured belongs to the customers of the plaintiffs and not the plaintiffs. [29] As alluded to above, granting of an interlocutory injunction, is an equitable and discretionary remedy, thus plaintiff must come to this court with clean hands. The plaintiff must be prepared to do what is right and fair. (See: Scomi Group Bhd v Gelombang Global Sdn Bhd & Anor (2020) 12 MLJ 708). It is apparent from the affidavits filed for the application for an interlocutory injunction, the plaintiffs did not come with clean hands when seeking the relief, as no full and frank disclosure is made. As alluded to above, the plaintiffs have reeled a story and bolstered up evidence to suit their application for an injunctive relief. The averments made for and behalf of the plaintiffs in their affidavits, are driven by a motive to restraint the defendant from pursuing her livelihood at Maxcos, its competitor, if she decides to do so. The non-disclosure of relevant and material facts, seems deliberate and reckless, and it has a detrimental and prejudicial effect on the plaintiffs, but favours refusal of an order for injunction. (See: Cheah Theam Swee & Anor v Overseas Union Bank Ltd & Ors (1989) 1 MLJ 426). [30] This court agrees with submission by counsel for defendant that the plaintiffs’ undertaking as to damages is a barren one. It is such, as the plaintiffs have admitted in paragraph 26 of Enclosure 73 that P2 is suffering from losses and the financial position of P2 has been severely affected as a result of the decline in revenue, which the defendant attributes it to decline of sales due to P2’s inability to produce satisfactory products that meets requirement of its customers as P2 now has in its employment, a chemist who lacks experience. It is also agreed, there has to be something more forthcoming and fortifying from the plaintiffs, may be in the form of a bank guarantee or any other security. In that regard, undertaking as to damages by the plaintiffs is monetarily worthless. (See: Fulcrum Capital Sdn Bhd v Dato’ Samsudin Abu Hassan (2001) 5 CLJ 73). [31] The other pertinent question, would damages serve to be an adequate remedy, if the plaintiffs succeed at the trial. If yes, an interlocutory injunction will be refused. (See again: American Cyanamid Co v Ethicon Ltd). If damages recoverable would be adequate remedy, and the defendant is in a financial position to pay, no interim injunction should be granted, however strong the plaintiff’s claim appears to be at that stage. Refusal of the injunction should not expose plaintiffs to an irreparable damage or defeat the very purpose for which the action has been brought. In the present case, based on the available evidence, the case of the plaintiffs is not strong enough to sustain an injunctive relief against the defendant, as the evidence tendered is feeble, tenuous and does not link the defendant to the allegation of breaches made against her. Foremost, as a housewife, she is not in a position to manoeuvre the confidential information allegedly belonging to the plaintiffs. [32] It has to be emphasised, plaintiffs are still entitled to damages which is a sufficient remedy, provided they are able to prove their case against the defendant on a balance of probabilities. The proposed amended SOC in Enclosure 56 sets out prayers and reliefs sought by plaintiffs against the defendant. It is pertinent to note that from prayers 79(a), (c), (d), (e), the plaintiffs have sought damages against the defendant. In prayer 79(g), the plaintiffs seek a public apology. In prayer 79(h), the plaintiffs seek for an injunction against the defendant from publishing the alleged defamatory statement. In prayer 79(i) and (j), the plaintiffs seek for specific performance against the defendant to return the Batch Manufacturing Record and to execute the non-disclosure Agreement. Nowhere has the plaintiffs prayed for an injunctive relief against the defendant to prevent her from trading with P2’s customers and to prevent the use of the alleged confidential information. This is even after the plaintiffs have discovered the alleged new facts but still refused to amend their SOC to include such relief. Hence, it is again fortified, plaintiffs are never serious with the injunctive relief as prayed for in enclosure 72, and thus subject to proof with viva voce evidence, damages could culminate to be an adequate compensation. Any loss of business, reputation and goodwill as claimed by the plaintiffs, which is subject to strict proof, are to be assessed by this court at the trial. [33] In the upshot, the plaintiffs have failed to satisfy all the requirements and/or test warranting an injunctive relief. Thus, application for an injunction in enclosure 72 is dismissed with costs. Counsel for defendant prays for costs in the region of RM10,000 to RM15,000, in view of the getting up involved to resist the application for an injunction. Counsel for plaintiff submits, for an amount of RM4000 to RM5000. Court had allowed costs of RM8000, which is fair, reasonable and proportional. Dated 7 January 2023 SGD Muniandy Kannyappan Judge High Court NCVC 11, Shah Alam. Counsel for plaintiff – Gan Yi Yang, Liew Zu En and Ng Shawn of Messrs. Lee Gan Teo Wong, Advocates and Solicitors. Counsel for defendant - Rozlan Malcolm with Lok Hon Jet of Messrs. Rozlan Khuen, Advocates and Solicitors.