Endau Gemilang Sdn Bhd v 1. ) Kementerian Kewangan Malaysia (WA-21NCvC-83-11/2023)

Content

1 DALAM MAHKAMAH TINGGI MALAYA DI KUALA LUMPUR DALAM NEGERI WILAYAH PERSEKUTUAN, MALAYSIA GUAMAN SIVIL NO.: WA-21NCVC-83-11/2023 ANTARA ENDAU GEMILANG SDN BHD [NO. SYARIKAT: 201101041920 (970043-M)] …PLAINTIF

Preamble

Pursuant to that, the Plaintiff paid the earnest money to D1 on 27.12.2011. The Plaintiff then, appointed Messrs. Zul Rafique & Partners to prepare the draft sale and purchase agreement. [5] However, D1 cancelled the sale of the Land in a letter dated 17.2.2014. S/N oDCvkdUu80qmtUet/bY3Wg [6] Subsequently, the Plaintiff filed an action against the Defendants (Kuala Lumpur Court Civil Suit No.: WA-21NCvC-13-02/2017) and judgment was entered against the Defendants on 28.12.2018 (Judgment) that contains-

Schedule

SCHEDULE [Section 2A] Cabinet documents, records of decisions and deliberations including those of Cabinet committees; State Executive Council documents, records of decisions and deliberations including those of State Executive Council committees; S/N oDCvkdUu80qmtUet/bY3Wg Documents concerning national security, defence and international relations.”. (emphasis added) [18] Thus, the Defendants contended that the Documents sought by the Plaintiff are official secrets as they fall under the documents specified in the Schedule of the OSA, which include Cabinet documents, records of decisions and deliberations including those of Cabinet committees and document concerning international relations. ANALYSIS AND FINDINGS [19] The law on discovery applications have been established in the cases of Yekambaran Marimuthu v. Malayawata Steel Berhad [1993] 4 MLRH 380; [1994] 2 CLJ 581 and ABX Logistics (Malaysia) Sdn Bhd v. Overseas Bechtel (Malaysia) Sdn Bhd [2003] 2 MLRH 725; [2003] 7 CLJ 357. The cases set out the following essential criteria for obtaining an order for discovery- (a) The document must exist. Thus, there must be a specific, identifiable document. (b) The document must be or have been in the "possession, custody, or power" of the opposing party. S/N oDCvkdUu80qmtUet/bY3Wg (c) The document must relate to the matter in question, meaning it must be relevant to the issues in dispute. (d) An order for discovery must be necessary to fairly resolve the case or to reduce costs. (e) The document sought must be clearly identified, as overly broad or vague orders may lead to significant injustice. [20] In addition, Order 24 Rule 8 of the ROC 2012 provides “Discovery to be ordered only if necessary”. [21] In Protasco Bhd v. Tey Por Yee & Anor and Other Appeals [2021] 6 MLRA 370; [2021] 9 CLJ 349; [2021] MLJU 1751, the Federal Court held- “[80] 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. Order 24 r. 8 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.” [22] Apparently, on hearing an application for discovery, if the Court is satisfied that discovery is not necessary, or not necessary at that stage of the cause or matter, the Court may dismiss or adjourn the application and shall in any case refuse to make such an order if and so far, as it is of the S/N oDCvkdUu80qmtUet/bY3Wg opinion of the Court that discovery is not necessary either for disposing fairly of the cause or matter or for saving costs. [23] Thus, in exercising the discretion whether to allow discovery of the documents, the applicant must convince the Court that the discovery is necessary and essential at the current stage of the proceedings to ensure a fair disposal of the case or to reduce cost. The applicant must also prove that the discovery is necessary even before the action is filed as it would enable the applicant to decide whether the action should be filed in the first place. If information obtained from the discovery is capable in resolving this, then the Court should grant the order. However, if the applicant fails to satisfy these requirements the Court must dismiss the application. [24] Accordingly, this Court finds that an order for discovery can only be granted if the documents are relevant. As such, the documents sought must be identifiable and specific. At this stage, it is crucial to emphasise that documents requested in a discovery application must be clearly and specifically identified to ensure that the process remained fair and did not impose an undue burden on the opposing party. [25] Furthermore, it is trite that an applicant must be specific about the documents requested for disclosure so as not to render the application as S/N oDCvkdUu80qmtUet/bY3Wg a fishing expedition. Where the document sought are wide and lacking of specificity, it is more difficult to establish that discovery is necessary to dispose of the proceedings fairly or to save costs. [26] In this regard, the Court in Tiow Weng Theong v. Melawangi Sdn Bhd & Other Cases [2016] 2 MLRH 248; [2015] 8 CLJ 470; [2015] MLJU 368, held- “[10] Secondly, an essential criterion that the applicant for discovery has to satisfy is that the document has to be identified specifically and its importance to the applicant's case or defence has to be satisfactorily shown. Otherwise, the discovery exercise would be regarded as a 'fishing exercise' to prop up the claim or defence of the applicant that would be unjust or oppressive to the opposing party and accordingly, should not be permitted. This proposition was expressed clearly by the Court of Appeal in Nguang Chan Aka Nguang Chan Liquor Trader & Ors v. Hai-O Enterprise Bhd & Ors [2009] 5 MLRA 631; [2009] 5 MLJ 40 as follows: The court would dismiss a ... 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.” [27] Additionally, in Kenwood Electronics (Malaysia) Sdn Bhd v. People's Audio Sdn Bhd & Ors [2002] 3 MLRH 877; [2003] 5 MLJ 276; [2003] 5 CLJ 436; [2003] 2 AMR 70, the Court held that “compelling disclosure of documents would improperly shift the legal burden of proving conspiracy from the party making the allegation”. In that case, Kenwood sought documents to establish its claim of conspiracy to defraud, but the S/N oDCvkdUu80qmtUet/bY3Wg court held that it is the plaintiff's duty to prove its case, and it would be improper to compel the defendants to provide the evidence that the plaintiff needed to substantiate its claims. [28] Likewise, in Ng Pik Lian v. United Eastern Resources Sdn Bhd & Ors [2022] MLRHU 3191; [2022] CLJU 1078; [2022] MLJU 2676, the High Court dismissed a discovery application on the grounds that it would improperly shift the burden of proof. In that case, the plaintiff sought documents to support her claim of misappropriation of funds. The Court then held that it is the plaintiff's responsibility to prove such allegations and that discovery cannot be used as a way to reverse the burden of proof and that "A discovery application cannot be a backdoor way of reversing the burden of proof." [29] It is apparent that the Court must be vigilant against attempts to use discovery as a means to conduct a general investigation in the hope of uncovering helpful evidence. [30] Clearly, the burden of proof for discovery application lies on the applicant (in this case, it is the Plaintiff) to show that the Court should exercise its discretion to grant a discovery order. However, this Court is of the view that the Plaintiff has failed to show that the Documents sought S/N oDCvkdUu80qmtUet/bY3Wg are relevant and are core documents to the Plaintiff's claim except for the Valuation report. [31] Even assuming the Documents sought are relevant as contended by the Plaintiff, this Court finds that the Plaintiff has failed to satisfy the requirement that the disclosure of the Documents as necessary to fairly dispose and cost saving, as provided under Order 24 Rule 8 of the ROC 2012. [32] In Lim Hui Jin lwn. Inspektor Muhammad Noorarif Shah & Yang Lain [2022] MLRHU 680; [2022] CLJU 845, Abdul Wahab Mohamed J held: "Mahkamah boleh menolak permohonan penzahiran jika Mahkamah berpuas hati bahawa permohonan tersebut tidak diperlukan sama ada untuk menyelesaikan secara adil atau menjimatkan kos dengan membuat rujukan kepada A 24 k 8 KKM 2012. Selain daripada itu, di dalam membuat keputusan keperluan penzahiran sesuatu dokumen, Mahkamah perlu melihat pada aspek keperluan (necessity) penzahiran dokumen tersebut dilakukan. Dalam kes ABX Logistics (Malaysia) Sdn Bhd v. Overseas Bechtel (Malaysia) Sdn Bhd [2003] 2 MLRH 725; [2003] 7 CLJ 357 telah diputuskan seperti berikut: "In light of the fact that the defendant had not to date tendered any credible, cogent or even plausible evidence to support their allegations of the plaintiff overcharging, this court is inclined to the irresistible conclusion that the defendant had embarked on a fishing expedition with the view to formulate their counterclaim. The law on discovery is well settled; that in the absence S/N oDCvkdUu80qmtUet/bY3Wg of proper basis for an order for discovery, disclosure should not be allowed.",” [33] Furthermore, this Court is guided by the Federal Court’s case of Malaysian Trade Union Congress & Ors v. Menteri Tenaga, Air dan Komunikasi & Anor [2014] 2 MLRA 1; [2014] 2 CLJ 525; [2014] 3 MLJ 145 which was referred by the Defendants, where it was held- “[68] Under s. 2 of the Act "official secret", inter alia, means any document specified in the Schedule and any information and material relating thereto. The documents specified in the Schedule include Cabinet documents, record of decisions and deliberations including those of Cabinet committees. On the facts of this case we agree with the majority's view that the audit report was an official secret document on the ground that it was tabled before and deliberated by the Cabinet in its meeting on 11 October 2006. It was a Cabinet document under the Schedule to the Act. We are therefore unable to agree with the minority's view that the audit report would not automatically become an official secret document the moment it was tabled before the Cabinet.”. (emphasis added) [34] This Court also agrees with the Defendants’ submission on section 2C of the OSA, that the Documents have not been declassified, and as such, the Documents remain as “official secrets”, citing the case of Menteri Tenaga, Air dan Komunikasi (supra) that held- “[33] These documents can only be disclosed if they had been declassified under s 2C of the Act which, states as follows: S/N oDCvkdUu80qmtUet/bY3Wg 2C A Minister or public officer charged with any responsibility in respect of any Ministry, department or any public service … may, at any time, declassify any document specified in the schedule or any official document, information or material as may have been classified and upon such declassification, the said document, information or material shall cease to be official secret. [34] The well established principles expounded by the Court of Appeal in See Kok Kol @ See Liong Eng v Chong Kui Seng & Ors [2009] MLJU 1098; [2010] 2 CLJ 481 where Low Hop Bing JCA referred to Datuk Haji Dzulkifli bin Datuk Abdul Hamid v Public Prosecutor [1981] 1 MLJ 112; [1980] 1 LNS 91 where LP Salleh Abbas said in: It if the originator or the owner of the document treats it and the information contained in it as an official secret and clearly marks it and keeps it as such, it is not open to anyone to regard it as otherwise; and the law must give protection to such document or information even though it contains information generally known to the public. [35] The powers and the duties to declassify the documents under Act 88 have been given to the relevant parties, not to the courts. The court should not usurp the power of the Minister concerned or public officer charged with the responsibility of such declassification.”. (emphasis added) [35] Based on the above findings, and upon perusal of all the available evidence, this Court is of the view that the Plaintiff had failed to reasonably justify how this application could assist in its claim. It was also observed that the Plaintiff was only adamant to have sight of the S/N oDCvkdUu80qmtUet/bY3Wg documents to secure evidence of what transpired during the Cabinet meetings. [36] Thus, this Court agrees with the contention of the Defendants that the nature of the Plaintiff's application in Enclosure 14 infers a fishing expedition. [37] Obviously, the Documents sought by the Plaintiff which include Cabinet documents, records of decision and minutes are clearly an official secret as its falls under the documents specified in the Schedule of the OSA and to avail such documents, section 2C of the OSA is applicable for de-classification. The Federal Court case of Datuk Haji Dzulkifli bin Datuk Abdul Hamid v Public Prosecutor [1981] 1 MLJ 112; [1980] 1 LNS 91 is reiterated herewith where LP Salleh Abbas held- “It if the originator or the owner of the document treats it and the information contained in it as an official secret and clearly marks it and keeps it as such, it is not open to anyone to regard it as otherwise; and the law must give protection to such document or information even though it contains information generally known to the public.”. [38] Additionally, Malaysian Trade Union Congress & Ors (supra) held– “[67] The majority was of the view that the audit report was an 'official secret'. On the other hand, the minority held that the audit report was not S/N oDCvkdUu80qmtUet/bY3Wg protected by the Act. The respondents asserted that the audit report was tabled and deliberated in the Cabinet meeting on 11 October 2006 and as such it is a 'Cabinet document' within the meaning of the Schedule and by virtue thereof the document was an 'official secret' pursuant to section 2 of the Act. [68] Under section 2 of the Act 'official secret', inter alia, means any document specified in the Schedule and any information and material relating thereto. The documents specified in the Schedule include Cabinet documents, record of decisions and deliberations including those of Cabinet committees. On the facts of this case we agree with the majority's view that the audit report was an official secret document on the ground that it was tabled before and deliberated by the Cabinet in its meeting on 11 October 2006. It was a Cabinet document under the Schedule to the Act. We are therefore unable to agree with the minority's view that the audit report would not automatically become an official secret document the moment it was tabled before the Cabinet.”. (emphasis added) [39] Accordingly, this Court is of the view that the valuation report is adequate in regards to the issue pertaining to the purchase price and the reason for the revaluation of the Land. CONCLUSION [40] Therefore, after a thorough and careful evaluation of all the evidence presented, including the written and oral submissions by learned S/N oDCvkdUu80qmtUet/bY3Wg Counsels, this Court allows Enclosure 14 in part by allowing only the Valuation Report dated 19.05.2020. -SGD- (Y.A DR. SUZANA BINTI MUHAMAD SAID) Judicial Commisionner Civil High Court NCVC1 Kuala Lumpur Dated: 10 APRIL 2025 COUNSELS FOR THE PLAINTIFF Tetuan Kumar Partnership Peguambela & Peguamcara Suite 12.01-12.02, 12th Floor, Wisma E & C No. 2, Lorong Dungun Kiri Damansara Heights 50490 Kuala Lumpur FOR THE DEFENDANTS Jabatan Peguam Negara Bahagian Guaman No. 45, Persiaran Perdana Presint 4, 62100 Putrajaya S/N oDCvkdUu80qmtUet/bY3Wg