Desley Tng Ze How v Aia Berhad (JA-22NCC-45-07/2024)

AIA BHD (No. Syarikat: 200701032867/790895-D)

AIA PUBLIC TAKAFUL BHD (No. Syarikat: 201101007816/935955-M) …DEFENDAN-DEFENDAN GROUNDS OF JUDGMENT (Enclosures 53)

Enclosure 53 is pertaining to an application by the Plaintiff under O24 r3, r5, r7 and r8 Rules of Court 2012 for discovery and production of certain documents by the Defendants to be disclosed to the Plaintiff. The purpose is to facilitate findings on certain material facts within the documents as the documents originated from the Defendants and the facts being crucial to the Plaintiff’s case.

This Court allowed the said application having found them to be consistent with the Plaintiff’s contention as pleaded in the S/N W5vWfzXpy0W8cgSfeomlog Statement of Claim that he was wrongfully terminated on allegation of “Premium Financing” offence but without proof of any action instituted against him. Plaintiff also contended that he was referred to the Insurance Associations to be placed on the “Referred Agent Listing” (“RAL”) without him having notice or sight of the referral letters.

Having been terminated by both the Defendants and referred to the Insurance Associations and listed as “RAL”, the Plaintiff could no longer access the Defendants’ system to view and gather the relevant and necessary information and documents of insurance sale the Plaintiff had successfully performed during the tenure of the AIA agreement.

For completeness, the Plaintiff as insurance agent of the Defendant filed this suit claiming from the Defendants damages for breach of contract. The Defendants had authorized the Plaintiff as agent by virtue of the AIA agreement, entered into on 3.2.2023, to obtain and sell insurance policies with fees paid for the 1st year and renewal. The payment then to be forwarded to the 2nd Defendant.

The Defendants have agreed to pay the Plaintiff allowances, commissions and incentives as stated in the “Agency Compensation Handbook”. However, on 2.2.2024, the 1st Defendant relying on clause 25(b) and (e) of the AIA agreement, had terminated the AIA agreement on reason of “misconduct in relation to premium financing”. The allowances, S/N W5vWfzXpy0W8cgSfeomlog commission, incentives or remuneration of sales were also stopped. The Plaintiff was also referred to Life Insurance Association of Malaysia (“LIAM”) to be listed in category 1 of the “Referred Agent Listing”.

The 2nd Defendant followed suit by relying on clause 25(h), to terminate the AIA Takaful agreement. The payment of the allowances, commission, incentives or remuneration of sales were equally stopped. The 2nd Defendant took further action by referring the Plaintiff to the Malaysian Takaful Association (“MAT”) to be listed under category 1 of “Referred Agent Listing”.

Therefore, the Plaintiff’s claim for damages for loss of income from the date of the wrongful termination until the date of judgment would be dependable on the following documents which the Plaintiff intended to seek from enclosure 53’s application. In summary, the documents required and sought for by the Plaintiff amongst others are as follows: a) AIA contract dated 3.2.2023 between the Plaintiff and the 1st and 2nd Defendant; b) Documents pertaining to Takaful Certificates in the Defendant’s system “Microsoft Outlook-Premier Email, Microsoft Team, ALPP-Life Planner Portal, AIA E-feedback and ALPA-Life Planner Portal” identified as: S/N W5vWfzXpy0W8cgSfeomlog i. Communication record between the Plaintiff and Defendants; ii. Insurance policies sale records and Takaful certificates; iii. Record of accounts of Plaintiff’s income in the form of commission, allowance and bonus as per “Agency Compensation Handbook”; iv. Records of agents’ recruitment by the Plaintiff; v. List of insurance policy holders and Takaful Certificates handed; and vi. Records of Plaintiff’s “persistency rate”. c) Documents relating to Plaintiff’s alleged misconduct being: i. Complaint papers; ii. Investigation papers; iii. Outcome of the investigation; iv. Evidence to support the result of the investigation. d) Referral papers on Plaintiff to LIAM and MTA to have the Plaintiff listed under category 1 of “Referred Agent Listing”; e) Within 14 days from the date of this Order for the Defendant to hand a list in Form 38 O24 r5 to the Plaintiff, of the documents as required in (a) to (d); S/N W5vWfzXpy0W8cgSfeomlog f) Within 14 days from the date of this Order for the Defendant to depose and file an affidavit in Form 39 O24 r5(3) to the Plaintiff, of the documents as required in (a) to (d). A. Findings of this Court

This Court is of the view that the basis for this application by the Plaintiff centers on his right to be heard and defend himself before he was dismissed without the deserved remuneration as agreed via the AIA contract. This is a reasonable request and in accordance with the rules of natural justice.

As to the Plaintiff’s termination, the finding by this Court is that it was agreed by the Defendants only to the extent that an investigation was carried out but took the stand that the Plaintiff need not know the evidence existing to proof the Defendants’ findings.

The Defendants equally admitted that the Plaintiff will be barred from accessing the Defendants’ system once he was terminated.

To this Court, the admission of absence of full communication and disclosure of evidence relied by the Defendants to terminate the Plaintiff and from accessing the Defendants’ system, moved this Court to allow this enclosure 53. This, S/N W5vWfzXpy0W8cgSfeomlog despite the averment by the Defendants that some of the documents required by the Plaintiff such as the AIA agreement are within the Plaintiffs custody.

It was also the stand of the Defendants that opportunity is open to the Plaintiff to view those documents listed when direction to file Bundles of Documents are given by the Court. It is the finding of this Court that there is a real likelihood on the part of the Defendants not to produce all the requested documents as evidenced from the Defendants own admission that the Plaintiff’s termination arose from the Plaintiff’s own wrongdoing but yet the basis for this decision in the form of evidence relied by the Defendants in arriving at this decision was not conveyed to the Plaintiff.

The Defendants also took the position that some of these documents are confidential. The denial by the Plaintiff of the confidentiality of the said documents, to this Court is correct and rightly so, as the documents sought by the Plaintiff are those which prove towards the performance by the Plaintiff, of the AIA agreement and the fulfillment of the Plaintiff’s sale target the Plaintiff was entitled under the Agency Compensation Handbook. Relevancy is therefore satisfied (see: Yekembaran s/o Marimuthu v. Malayawata Steel Berhad [1994] 2 CLJ 581, Malaysia Debt Ventures Bhd v Platinum Techsolve Sdn Bhd & Ors [2020] MLJU 1421).

This Court’s attention was also directed to enclosure 74 the Plaintiff’s Affidavit-In Respond to the Defendant’s Affidavit-In - Reply enclosure 69 particularly paragraph 10. The Plaintiff in enclosure 74 had deposed that the original contract document of agent is with the Defendant including the details of the sale. The sum pleaded by the Plaintiff in the Statement of Claim is merely an overall sum. Plaintiff, upon his termination has been barred from access to the Defendant’s system.

This Court agreed with what was said by Abdul Malik Ishak JCA referred to by the Plaintiff in Folin & Brothers Sdn Bhd v Wong Foh Ling & Wong Swee Lin & Ors [2001] 2 MLJ 23 as follows: “[24] The whole process of discovery is subject to the control of the court. Effectively applied and appropriately used, discovery is the surest way to appraise the strengths or weakness of the opponent’s case”.

For these reasons, enclosure 53 is allowed as per the prayers sought in para 7 above to be furnished within 30 days as these documents not only are relevant but are necessary to allow a more precise and details of facts be captured as evidence in the Plaintiff’s claim. It is not a fishing expedition. Without which, these evidence that are within the Defendants’ custody and control may not be furnished as proof at the pre-trial case management stage. These documents would without doubt, have a determining influence on the decision of this Court in the main suit. S/N W5vWfzXpy0W8cgSfeomlog Dated 29th August 2025 -signed- (NURULHUDA NUR’AINI BINTI MOHAMAD NOR) JUDGE HIGH COURT OF MALAYA JOHOR BAHRU For the Plaintiff : Lim Pang Kiat Messrs Pang Kiat, Yu Qi Law Chambers For the Defendant :

Latifa Haiqa binti Yusoff

Nurul Syafinas