Lampiran
LAMPIRAN A Senarai semua akaun bank turut termasuk (akaun-akaun simpanan tetap) yang disimpan oleh Pempetisyen untuk tempoh dari bulan April 2012 sehingga ke sehingga 3.7.2024, turut termasuk dari Public Bank, UOB Bank, Citibank, dan Maybank. 2. Berdasarkan perenggan (1) di atas, senarai semua penyata bank yang dikekalkan oleh Pempetisyen untuk tempoh dari tahun 2012 sehingga 3.7.2024 3. Senarai semua bank yang disimpan oleh Pempetisyen untuk tujuan mempunyai kad kredit untuk tempoh dari tahun 2012 sehingga ke sehingga 3.7.2024 turut termasuk dari Public Bank, UOB Bank, Citibank, dan Maybank. 4. Berdasarkan perenggan (3) di atas, senarai semua penyata bank yang dikekalkan oleh Pempetisyen untuk tempoh dari tahun 2012 sehingga 3.7.2024. 5. Penyata akaun untuk kad debit Mastercard Public Bank, no. kad: 5509 8900 3649 6999 dari masa kad tersebut diberikan oleh pihak bank sehingga 3.7.2024. 6. Penyata akaun untuk kad debit Visa Public Bank, no. kad: 4848 1000 5765 1677 dari masa kad tersebut diberikan oleh pihak bank sehingga 3.7.2024. 7. Penyata akaun untuk kad Visa Public Bank, no. kad: 4553 5703 5007 6134 dari masa kad tersebut diberikan oleh pihak bank sehingga 3.7.2024. 8. Penyata akaun untuk kad Visa Platinum UOB Bank, no. kad: 4141 7000 0740 2420 dari masa kad tersebut diberikan oleh pihak bank sehingga 3.7.2024 9. Penyata akaun untuk kad Visa Platinum Citibank dari masa kad tersebut diberikan oleh pihak bank sehingga 3.7.2024 10. Penyata akaun untuk kad debit Mastercard Maybank, no. kad: 5491 8620 3160 8506 dari masa kad tersebut diberikan oleh pihak bank sehingga 3.7.2024 11. Salinan paspot(-paspot) milik Pempetisyen dari tahun 2022 sehingga ke Julai 2024. 12. Salinan tiket-tiket penerbangan Pempetisyen dari tahun 2022 sehingga 3.7.2024. [13] The RW believes that the documents listed in Lampiran A to the Notice of Application are in the possession, custody, authority and/or control of the PH, The RW also seeks an order to order the PH to make a list of the documents which are in its possession, custody, authority and/or control of the PH. [14] The PH states that the discovery documents are merely a fishing expedition that are not relevant based on the pleadings filed. The RW also seeks for the PH’s travelling records from 2022 to July 2024 and flights tickets from 03.07.2024 until present date. The PH submits that the PH’s travelling records are irrelevant and unnecessary and would tantamount to allowing the RW to fish for evidence and caused injustice to the PH. [15] The RW also failed to show that the discovery documents are relevant for this Court’s determination, be it the divorce petition or in the counter-claim. Analysis and findings of the court [16] It is unequivocal that the Court possesses the discretionary power to consider and adjudicate this application in accordance with the Rules of Court 2012 (ROC 2012). In the case of Nguang Chan, also known as Nguang Chan Liquor Trader & Others v Hai-O Enterprise Bhd & Others [2009] 5 MLJ 40, the Court of Appeal determined that: “Under O 24 r 13(1) of the Rules of High Court, an order for the production of documents for inspection is not to be made unless the court is of opinion that such order is necessary either for disposing fairly of the case or matter or for saving costs. It is for the party seeking production to satisfy the court that such production is necessary for the purpose specified in r 13(1). The court would dismiss a plaintiff’s application for discovery if the plaintiff is merely fishing for evidence to prop up his case and to allow him discovery would be unduly oppressive to the party giving discovery (at P47). [17] In Yekambaran s/o Marimuthu v Malayawata Steel Bhd [1993] MLJU 96; [1994] 2 CLJ 581, the Court held that: “The essential elements for an order for discovery are threefold, namely first, there must be a ‘document’, secondly, the document must be ‘relevant’ and thirdly, the document must be or have been in the ‘possession, custody or power’ of the person against whom the order for discovery is sought. It is indisputable that the items sought were documents and were in the possession, custody or power of the defendant.” [18] The Court concludes that certain documents are pertinent to assessing the PH's income, and this does not constitute a 'fishing expedition. This Court wishes to reference the case of Datuk Amar James Wong Kim Min & Anor v Pendaftar Pertubuhan [2004] 6 MLJ 235; [2004] 1 LNS 2011, in which, the Court held at p 239 (MLJ) that: “To me, the applicants must be specific to the documents they are requesting for disclosure, otherwise, their application will turn out to be mere fishing expedition. This court, is not going to issue the applications … [19] In Kuah Kok Kim & Ors v Ernst & Young (a firm) [1997] 1 SLR 169, the Court of Appeal in Singapore held that: “As long as the appellants described the type or class of documents with reasonable precision, and that class of documents were relevant to the cause of intended cause of action that would be enough. They need not go on to describe and name each and every such document specifically. Indeed, it would be unreasonable and impossible for the Appellants to do so. In that case the court decided that, the plaintiff’s attempt to seek for a wide range of documents would render their application to be a fishing expedition.” [20] In our case, items such as follows: “7. Penyata akaun untuk kad Visa Public Bank, no. kad: 4553 5703 5007 6134 dari masa kad tersebut diberikan oleh pihak bank sehingga 3.7.2024. Mahkamah: Dibenarkan mulai tempoh April 2012 atau daripada tempoh masa kad tersebut diberikan (sekiranya selepas April 2012) sehingga 03.07.2024. (8) Penyata akaun untuk kad Visa Platinum UOB Bank, no. kad: 4141 7000 0740 2420 dari masa kad tersebut diberikan oleh pihak bank sehingga 3.7.2024 Mahkamah: Dibenarkan: mulai tempoh April 2012 atau daripada tempoh masa kad tersebut diberikan (sekiranya selepas April 2012) sehingga 03.07.2024. Penyata akaun untuk kad Visa Platinum Citibank dari masa kad tersebut diberikan oleh pihak bank sehingga 3.7.2024 Mahkamah: Dibenarkan mulai tempoh April 2012 atau daripada tempoh masa kad tersebut diberikan (sekiranya selepas April 2012) sehingga 3.7.2024 [21] Those documents are stated clearly and not in a general way that confuses the PH to supply them. Based on the supporting affidavit, RW has exhibited the following images as support to prove that PH has an account at the relevant bank. After examining, the Court only allowed items 7,8 and 9 of Lampiran A because, based on the images/photos, only three bank cards have PH's name while the other cards do not show any connection with PH. [22] Therefore, a ‘fishing expedition’ in this sense would refer to documents which are not specific and identified. This is not the case in the RW’s application. The RW had successfully identified which discovery documents that RW is seeking from the PH. It is clear that the bank accounts are specific as to the bank account numbers; their bank source and the date of statements. [23] The Court at this stage will not make assumptions and if RW has evidence of the latter or any support, the application for disclosure can still be made. [24] For other items that were rejected, it was a fishing expedition because what was requested was too broad, namely a list of all bank accounts. “Senarai semua akaun bank turut termasuk…” and “ dari masa kad tersebut diberikan oleh pihak bank sehingga 3.7.2024”. The documents in question are too broad. The Divorce Petition was filed in 2023. The marriage took place in 2012; however, the application did not specify the duration. [25] In this case too, PH has not yet filed any documents. If after the filing of documents are completed and RW feels that it is necessary to make an application, it can still be made. This is because this application can be made at any time. The issues to be tried have also not been filed. [26] At the same time, there has been no application made to PH's lawyers or PH itself to submit relevant documents. If it be the case that discovery is tied to the question whether it is relevant to any issue or question raised on the pleadings, then the Court may order the determination of that issue or question before deciding on the extent of the order for discovery. [27] For the application in items 9 and 10, which are travel documents, it is too broad because the applicant is applying for a longer period of time. PH’s travel records have not been identified on their specific timeline of such travel records. [28] This Court, upon reviewing the submitted affidavit, determines that the PH is obligated to provide the pertinent documents (items 7, 8, and 9) specified in the application. Given that the Divorce Petition pertains to matters occurring "during the marriage," it is essential to obtain documents that reflect the financial capacity of both parties. These documents will facilitate an evaluation of PH's financial situation, although the scope of the request should not be excessively broad. [29] The requested documents are related to both pleadings and are relevant to the claims. The application by the RW has merits as it fulfilled the requirements under O 24 of the ROC 2012. The documents referred to are stated in the affidavits and pleadings. The application for discovery of documents under O 24 r 10 of the ROC 2012 is applied to documents referred to in the affidavit and pleadings. If the application was made to support a witness statement, not to support an affidavit or RH’s pleadings, it can be said it amounts to a fishing expedition. [30] This Court is therefore satisfied that based on the facts of the case and also the pleadings of the Divorce Petition, the bank statements/accounts would avail the Court and the RW for a proper examination of the PH’s financial capacity, which is: “a material statement averred in the divorce petition in relation to the PH’s financial standing” [31] The Court also ruled that the documents are not only relevant but also necessary and saves the parties’ costs. This guidance has been decided in the case of Malaysia Debt Ventures Berhad v Platinum Techsolve Sdn Bhd & Ors [2020] MLJU 1421, the Court of Appeal delivering judgment of the Court examined numerous cases on the subject and concluded that: “[198] Further, it is also imperative for the respondents to establish that the DSA is necessary. Relevance cannot be conflated with necessary, as what is relevant may not be necessary. [199] In our view, the question as to whether the document for which disclosure is sought is necessary is an important and we might, add pivotal component for the order of discovery under O 24 r 7 of the ROC. Indeed, O 24 r 8 of the ROC also makes it imperative that the court to refuse discovery if it is satisfied that discovery was not necessary. … [202] In our view, the proper approach to the question of whether discovery is ‘necessary’ may be gleaned from the case of Bayerische Hypo-und Vereinsbank AG v Asia Pacific Breweries (Singapore) Pte Ltd and other applications [2004] SGHC 155; [2004] 4 SLR (R) 39 (‘Bayerische’) where the High Court of Singapore at para [37] stated as follows: “The ultimate test is whether discovery is necessary for disposing fairly of the proceedings or for saving costs. An assertion that the documents are relevant will not be good enough. Equally, an assertion that the documents are necessary because they are relevant will not be enough. (Emphasis added.)” [32] It is also a factor for the Court’s consideration that it will reduce the costs of the parties. It is the Court’s discretion to allow this application as stated under O 24 r 13 of the ROC 2012 for the production and inspection of any documents as follows: “Production to be ordered only if necessary (O 24 r 13) (1) An order for the production of any documents for inspection or to the Court shall not be made under any of the foregoing rules unless the Court is of the opinion that the order is necessary either for disposing fairly of the cause or matter or for saving costs.” [33] The Federal Court recently clarified and emphasized the test in order to determine whether the documents in question are required for a fair disposition of the matter or for cost savings in Protasco Bhd v Tey Por Yee & Anor and other appeals [2021] 6 MLJ 1, held that: “ [22] There is a specific legal framework for discovery in Malaysia, specifically O 24 ROC. Prior to the coming into force of the ROC, the Rules of the High Court 1980 (‘RHC’) similarly provided for discovery (though non-party discovery was dealt with through the application of common law principles). It is in this context that consideration should be given to the existence of a specific legal framework for discovery in Malaysia, previously under the RHC, and now, the ROC. The ROC is an exhaustive code providing no room for the exercise of any common law principles of discovery. It was submitted that this carries with the following legal implications. If a party is seeking discovery against a bank as a nonparty, that party must apply for discovery under O 24 r 7A(2) ROC. If this is prior to the commencement of action, then the application is moved under O 24 r 7A(1) ROC. … [33] Order of discovery will only be granted if the court is satisfied that discovery is necessary for disposing fairly of the cause or matter or for saving costs. O 24 r 8 of the ROC 2012 provides that if the court is satisfied that discovery is not necessary, or not necessary at that stage of the cause or matter, it may dismiss or adjourn the application and refuse to make such an order if in its opinion that discovery is not necessary. (Emphasis added.) Conclusion [34] The Court determined that RW has satisfied the requirements based on the balance of probabilities, adhering to the established principles that have directed this Court regarding the application, which is therefore partially granted and certain items were declined at this stage (items 1,2,3,4,5,6 and10). [35] Nevertheless, it is important to note that this decision does not hinder the submission of disclosure applications at any time should the need arise. For the record, there have been a number of applications filed in this case till this date. [36] Nevertheless, the parties are still submitting applications, and this Court will continue to consider applications that are not yet known to be finished. As a result, the Enclosure 1 trial is still far from over (excluding any appeals that have been or will be submitted and additionally, the changes in solicitors that have taken place and those that are anticipated in the future). [37] In light of the aforementioned reasons, this Court has concluded that, in the interest of justice, RW's application for discovery in Enclosure 22 (Lampiran A: items 7,8 and 9) is allowed, with no order as to costs. …………sgd………….. AZIZAN MD. ARSHAD Judge High Court of Malaya (3) at Pulau Pinang Dated: 21.03.2025 Counsel for the Petitioner: P. Vaasudevan, Yuvarshana Vaasu & Yannis Neoh 51-8-E, Menara BHL No.51, Jalan Sultan Ahmad Shah 10050 Georgetown Penang Counsel for the Respondent: V. Muniandy, Fiona Aurelia Culas Tetuan Andy & Co No.8-2, Jalan PJS 8/17 Dataran Mentari, Bandar Sunway 46150 Petaling Jaya Selangor Darul Ehsan Legislations refered to: 1. Law Reform Act Law Reform (Marriage and Divorce) Act 1976 2. Divorce and Matrimonial Proceedings Rules 1980 3. Section 3 of the Evidence Act 1950 4. O 24 r 10 of the ROC 2012 5. O 24 r 13 of the ROC 2012 Cases referred to: 1. Nguang Chan, also known as Nguang Chan Liquor Trader & Others v Hai-O Enterprise Bhd & Others [2009] 5 MLJ 40 2. Yekambaran s/o Marimuthu v Malayawata Steel Bhd [1993] MLJU 96; [1994] 2 CLJ 581 3. Datuk Amar James Wong Kim Min & Anor v Pendaftar Pertubuhan [2004] 6 MLJ 235; [2004] 1 LNS 2011 4. Kuah Kok Kim & Ors v Ernst & Young (a firm) [1997] 1 SLR 169 5. Protasco Bhd v Tey Por Yee & Anor and other appeals [2021] 6 MLJ 1 6. Malaysia Debt Ventures Berhad v Platinum Techsolve Sdn Bhd & Ors [2020] MLJU 1421