Gt-Max Plastic Industries (M) Sdn Bhd v 1. Lau Sou Hoon (BA-22NCvC-372-08/2019 (Encl. 150))

LAU SOU HOON ...... DEFENDAN- (NO K/P : 790930-14-5126)

VISTA PACKAGING INDUSTRIES (M) SDN BHD (NO. SYARIKAT 555688-P) GROUNDS OF JUDGMENT (Enclosure 150)

Enclosure 150 is the 1st Defendant’s application for orders on examination and disposal of her Pendrive said to contain information including information which is allegedly relevant to the issues in dispute in the present case.

The Plaintiff has been carrying on the business of manufacturing and sale of plastic products. 2

The 1st Defendant was an ex-employee of the Plaintiff, and she was one of the Sales Executive of the Plaintiff until she resigned from her employment on 11.3.2019.

After the 1st Defendant left her employment with the Plaintiff, the 1st Defendant joined the 2nd Defendant as Senior Sales Resources Manager.

In August 2019, the Plaintiff commenced this Suit against the 1st and 2nd Defendants.

In the Plaintiff’s Statement of Claim and/or the Plaintiff’s Affidavit in support injunction, the Plaintiff pleads inter alia that –

the 2nd Defendant was a reseller of plastic packaging products and / alleged by had been the Plaintiff’s customer before 2019, purchasing mostly stretch films in jumbo rolls to be re-manufactured and resold under the 2ndDefendant’s own brand names;

allegation that the 2nd Defendant entirely stopped purchasing from the Plaintiff after April 2019;

allegations that the 1st Defendant divulged confidential information of the Plaintiff to the 2nd Defendant;

allegations that the 1st Defendant still kept confidential information of the Plaintiff; 3

allegations that the 1st Defendant acted in breach of express or implied terms in the contract of employment and breach of fidelity;

allegations that the 2nd defendant induced the 1st Defendant’s breach of contract for the 2nd Defendant’s benefits;

allegations that the 1st Defendant acted in breach of obligation of confidentiality and the 2nd Defendant used such confidential information for their benefit by poaching or attempting to poach customers to the Plaintiff’s detriment;

allegations that the 1st and 2nd Defendants committed the tort of unlawful interference with the Plaintiff’s trade;

allegations that the 1st and 2nd Defendants colluded or conspired to carry out overt acts in pursuance and in furtherance of the conspiracy causing damage to the Plaintiff;

allegations that the Defendants committed offences under Computer Crimes Act 1997.

In the application for interim injunction, the Plaintiff relied on the report of its IT expert to argue that there was prima facie evidence or serious triable issue that the 1st Defendant allegedly took confidential information from the Plaintiff over and beyond her scope of work or which had no necessity for her work in the course of her employment with the Plaintiff. 4 8 Upon the ex parte application of the Plaintiff, the Court on 4.9.2019 granted an ex parte Order in the following terms :

Suatu injunksi bahawa Defendan Pertama dan/atau Defendan Kedua sama ada melalui mereka sendiri, agen, servants, pekerja, pengarah mereka atau sebaliknya yang lain dihalang sehingga penghakiman dalam tindakan ini atau perintah selanjutnya daripada menggunakan, mengkomunikasikan, mendedahkan, memaklumkan, menyebarkan, dan/atau menggunakan atau membenarkan penggunaan, komunikasi, pendedahan, pemakluman, penyebaran dan/atau penggunaan kepada atau untuk manfaat Defendan Pertama dan Defendan Kedua atau mana-mana pihak, sama ada secara langsung atau tidak langsung, Maklumat Sulit Plaintif seperti yang dinyatakan di Jadual 1 di sini dan/atau mana-mana bahagiannya;

Suatu injunksi bahawa Defendan Pertama dan/atau Defendan Kedua sama ada melalui mereka sendiri, agen, servants, pekerja, pengarah mereka atau sebaliknya yang lain dihalang sehingga penghakiman dalam tindakan ini atau perintah selanjutnya daripada membuat semula atau membuat semula sebahagian besar dalam mana-mana bentuk Maklumat Sulit Plaintif seperti yang dinyatakan di Jadual 1 di sini dan/atau mana-mana bahagiannya untuk apa-apa tujuan;

Suatu injunksi bahawa Defendan Pertama dan Defendan Kedua, dalam masa tujuh (7) hari daripada tarikh Perintah ini, menyerahkan atau menyebabkannya diserahkan kepada 5 jagaan peguamcara Plaintif semua Maklumat Sulit Plaintif seperti yang dinyatakan dalam Jadual 1 di sini dan/atau mana-mana bahagiannya termasuk external drives yang mengandungi maklumat tersebut dan bahawa Defendan Pertama dan Defendan Kedua dalam masa tujuh (7) hari selepas serahan kepada jagaan peguamcara Plaintif memfailkan suatu Afidavit yang lengkap dan komprehensif untuk mengesahkannya;

Plaintif diberi kebebasan untuk memohon.

Pendengaran inter partes bagi Permohonan Plaintif dalam Kandungan 4 diadakan pada 17.9.2019.

In the Statement of Defence of the Defendants, the Defendants have denied the Plaintiff’s allegations in the Statement of Claim. It is the 1st Defendant’s case that she has not wrongfully taken or used the Plaintiff’s confidential information. The Defendant has denied any breach of the terms of her contract of employment or any implied duty under the common law. It is also the case of the Defendants that they have not committed any tortious wrong against the Plaintiff.

After exchange and filing of affidavits and submissions, the inter partes application for injunctive orders was heard on 13.01.2020.

On 17.01.2020, this Court took into consideration mainly the report of the Plaintiff’s IT expert and held that there are serious triable issues in the Plaintiff's action, that monetary compensation is inadequate, and that the balance of convenience is in favour of preserving the 6 status quo by granting interim injunction pending the full trial of the action. Interim injunction was granted as per Enclosure 2 prayers with amendment that the interim injunction does not extend to information which the Plaintiff has made available to the general public.

The Suit has gone through many interlocutory applications and full trial dates have still not been set down.

Since the commencement of the Suit herein, the 1st Defendant has left the employment with the 2nd Defendant and, according to her sworn evidence in her affidavit, she is now working in a sector or industry which has nothing to do with the types of business which the Plaintiff is engaged.

One of the hotly disputed issues in this Suit relates to the 1st Defendant’s Pendrive which the Plaintiff alleged as containing the Plaintiff’s confidential information but which the 1st Defendant alleged as containing her own private information of personal nature and some information she obtained from the Plaintiff in the course of her previous employment with the Plaintiff.

By Enclosure 150 the 1st Defendant applied to this Court for the following orders under the inherent jurisdiction of the Court for the verification of the contents of the Pendrive and for disposal of the Pendrive. The orders prayed for by the 1st Defendant are in the following terms: 7

Mahkamah dibenarkan menggunakan budibicara untuk meneliti keadaan dan butiran kandungan utama Pendrive bernama ‘MAY LAU’ dengan kehadiran Defendan Pertama, dan/atau bersama Plaintif seperti berikut:- i) menyemak kandungan Folder utama Pendrive tersebut; ii) mengesahkan kandungan Folder utama Pendrive tersebut; dan iii) melupuskan Pendrive tersebut dengan cara yang bersesuaian. 2 Kos ditanggung oleh pihak masing-masing; dan

Lain-lain perintah yang padan dan sesuai mengikut budibicara Mahkamah Mulia ini.

After having read and considered the cause papers and the parties’ respective submissions in connection with this application in Enclosure 150, this Court on 11 September 2020 made the decision that this Court has no power to order destruction of evidence and ordered that the Plaintiff’s appropriate IT expert is allowed to examine the contents of the Pendrive in the presence of the 1st Defendant and the 1st Defendants solicitor, on condition that the Plaintiff and its IT expert are under the obligation of confidentiality regarding any personal data and information that may be contained in the Pendrive. After such examination, parties are to discuss and mutually agree on which parts of the contents are relevant to issues in the case and which parts are not relevant, and failing such agreement, either party is to apply to the Court to view them and rule 8 on the disputed part. Any further or ancillary directions on the use and production of the Pendrive in the evidence can be applied for subsequently. Costs in the cause. The case was also fixed for management before the Registrar on 12.10.2020.

By Notice of Appeal dated 9.10.2020, the Plaintiff appealed against the entirety of the interlocutory decision dated 11 September 2020 in connection with Enclosure 150. The appeal has been filed notwithstanding the appellate courts’ reported judgments that an interlocutory decision which does not finally dispose of a party’s rights is not appealable: see the Federal Court’s judgments in Asia Pacific Higher Learning Sdn Bhd v. Majlis Perubatan Negara [2020] 1 MLRA 683, Kempadang Bersatu Sdn Bhd v. Perkayuan OKS No. 2 Sdn Bhd [2019] 2 MLRA 429 and the Court of Appeal’s judgments in Datuk Seri Tiong King Sing v. Datuk Seri Ong Tee Keat [2014] MLRAU 313 (dismissal of discovery application) and Syarikat Tingam Timber Sdn Bhd Takang Sdn Bhd [2003] 1 MLRA 90 (ruling on inadmissibility of evidence).

As the application in Enclosure 150 relates to a manner in which the 1st Defendant has proposed to adduce or deal with an item of evidence in this Suit, it is also pertinent to note that there was also an earlier application in Enclosure 8 by the Plaintiff under the inherent jurisdiction of the Court for orders relating to how a substantial part of the Plaintiff’s documentary evidence was to be dealt with. The Plaintiff’s application in Enclosure 8 prayed for confidentiality treatment of several bundles of the Plaintiff’s bundles of documents comprising of data and information which the Plaintiff described as “Confidential Information” including the full lists of the Plaintiff’s 9 customers’ names, addresses, contact numbers, prices and other details. The orders prayed for by the Plaintiff in Enclosure 8 were in the following terms:

the bundle(s) of documents marked as “Confidential Bundle”, the contents thereof and the information contained therein shall be confidential to the Plaintiff and they:-

shall be used only for the limited purposes of these proceedings;

shall be placed in the custody of the Honourable Judge hearing these proceedings and shall be maintained in such custody until further Order;

shall not be copied, used or disclosed by the parties and/or counsel for the parties herein for any purpose whatsoever other than for the purpose of this action, including any appeal arising hereof.

The parties and/or counsel for the parties herein shall not disclose or permit the disclosure of any information contained in the “Confidential Bundle” to any third person or entity except as set forth below. Subject to these requirements, the following categories of persons may be allowed to review the information contained in the “Confidential Bundle” strictly for the sole purpose of this action:-

The parties, the counsel for the parties and employees of counsel who have responsibility for the action; 10

The Honourable Judge hearing this action and the

The Counsel for the parties shall make reasonable efforts to prevent unauthorised or inadvertent disclosure of the Confidential Bundle.

The Confidential Bundle and this Confidential Order applied for shall not be electronically filed and shall not be subject to review, search or copy to any party.

Unless otherwise agreed or ordered, this Order shall remain in force after the disposal of this action, which includes any appeal arising thereof.

Within three (3) days after the trial of this action, all copies of the “Confidential Bundle” shall be returned to the Plaintiff’s solicitors.

This Order shall take effect when granted and shall be binding on the Parties.

As Enclosure 8 application would have the effect of disclosing the whole lot of the Plaintiff’s data and information which the Plaintiff in this Suit argued as Confidential Information and the extent of the information in the proposed “Confidential Bundles” is very much more than what the Plaintiff complained in this Suit as having been allegedly obtained by the 1st Defendant, it would be disastrous for the Plaintiff’s business competitiveness if such bundles of documents 11 were to fall into wrong hands. There is no foolproof way of maintaining the “confidentiality” of such bundles of documents after they are tendered in evidence with copies supplied to the Defendants and to the Court. Any future leakage of the information included in the bundles would most probably lead to accusation and finger-pointing directed at the Defendants, the Defendants’ solicitors, and also the court staff. As such, this Court voiced this concern to the parties when Enclosure 8 came up for case management and/or hearing. This Court also suggested that the parties’ respective counsel should take further instructions from their respective clients and come up with a way of tendering the Plaintiff’s bundles of documents in evidence without being faced with the aforesaid risks and complications.

After having taken instructions from their respective clients, parties’ counsel arrived at a rather peculiar consent order in respect of Enclosure 8. The terms of the consent order dated 21.7.2020 on Enclosure 8 are as follows:

Plaintif diberi kebenaran untuk menutup (redact) bahagian-bahagian dokumen-dokumen yang mengandungi maklumat sulit Plaintif (“Dokumen-Dokumen Redacted”) untuk tujuan perbicaraan penuh.

Plaintif diberi kebenaran untuk memfailkan, menyampaikan da mengemukakan Dokumen-Dokumen Redacted sebagai keterangan semasa perbicaraan penuh tindakan ini. 12

Tiada perintah terhadap kos.”

As it shall be noted later, the 1st Defendant’s application in Enclosure 150 is also for a peculiar order for tendering of evidence. However, in terms of the extent or degree of uniqueness, this Court considers the consent order dated 21.7.2020 obtained by the Plaintiff to be more peculiar or unique than the order prayed for by the 1st Defendant in Enclosure 150.

After having read and considered the cause papers in connection with Enclosure 150 application and having heard counsel, this Court on 11 September 2020 granted the application in part and ordered as follows: 1) Pakar IT yang diperuntukkan oleh Plaintif adalah dibenarkan untuk memeriksa kandungan Pendrive tersebut dalam kehadiran Defendan Pertama dan Peguamcara beliau, di bawah suatu kewajipan kerahsiaan terhadap data peribadi Defendan Pertama dalam Pendrive tersebut untuk sebarang data peribadi dan maklumat yang mungkin terkandung di dalamnya; 2) Setelah Pemeriksaan tersebut, pihak-pihak hendaklah berbincang dan mencapai persetujuan bersama dalam mengenal pasti bahagia nkandungan yang relevan dan tidak relevan kepada isu-isu guaman ini. Sekiranya pihak-pihak gagal mencapai persetujuan bersama, mana-mana pihak bebas untuk memohon kepada Mahkamah untuk mendapatkan 13 arahan selanjutnya bagi mana-mana bahagian yang dipertikaikan; 3) Pihak-pihak adalah bebas untuk memohon dan sebarang arahan “ancillary directions” mengenai penggunaan dan pengemukaan Pendrive tersebut dalam perkara pembuktian; dan 4) Kos dalam kausa.

In essence, the 1st Defendant submits to the following effects regarding Enclosure 150 application:

that it is within the jurisdiction and discretion of the Court to grant the orders prayed for in Enclosure 150.

that the Pendrive contained personal and private information of the 1st Defendant and some other information which are not Confidential Information of the Plaintiff;

that the 1st Defendant is prepared in good faith to allow the court to do a pre-trial inspection and examination of the Pendrive although there is protection under Personal Data Protection Act; 14

that the relevant information in the Pendrive was already provided to the Plaintiff previously;

that although the Plaintiff has done a foresic report, such forensic report is not relevant to the 1st Defendant’s Pendrive;

that the Pendrive was used by the 1st Defendant in the course of her employment with the Plaintiff;

that the 1st Defendant wants to make the Pendrive available for inspection and examination as the 1st Defendant has nothing to hide;

that the 1stDefendant is no longer working in the industry to which the Plaintiff’s business relate; and

that it is unreasonable for the Plaintiff to compel the 1st Defendant to surrender the Pendrive to the Plaintiff because it contains the 1st Defendant’s personal and private data.

On the other hand, the Plaintiff opposed the 1st Defendant’s Enclosure 150 application on the following grounds:

that the Pendrive is relevant to the matter in issue at the trial, namely (a) whether the 1st Defendant had copied the Plaintiff’s Confidential Information into the Pendrive; (b) if yes, what confidential information were copied into the Pendrive and when; (c) whether any confidential information were deleted from the Pendrive, what were they and when were they deleted; and (d) whether any of the confidential information 15 were transferred out, what were they and to where they were transferred out;

that the Pendrive and the aforesaid information are necessary to be produced and verified as they will enable the Plaintiff to prove its case;

that the Plaintiff is opposing the Enclosure 150 application on 3 grounds, namely –

there is no inherent powers to grant these orders which go against one of the tenets of litigations – parties must preserve and disclose relevant documents;

(ii) the Court has no expertise to do what was sought by the 1st Defendant; and

(iii) the prayers in Enclosure 150 are uncertain, unclear and imprecise.

On the issue on inherent jurisdiction of the Court, the Plaintiff submitted as follows: “21. One of the tenets of litigation is preservation and disclosure of relevant documents. A litigant cannot pick and choose the documents it wants to produce and leave out those unfavourable to its case. In short, even documents damaging to a party's case should not be withheld under any circumstances. In T & K Synergy (L) Sdn. 16 Bhd. v Tuv Nord (Malaysia) Sdn. Bhd. [2020] MLJU 1094 [TAB 12] for discovery and to produce for inspection:- “[35] Further, under Order 24 Rule 3(4) Rules of Court, 2012, the Plaintiff is under a duty to disclose for discovery and to produce for inspection when required, all documents not only that the Plaintiff relied or will rely whether they would support the Plaintiff’s own case or have adverse effect of the Defendant’s case but also all documents which could adversely affect Plaintiff’s own case or support the Defendant’s case. Under Order 24 Rule 8A of the Rules of Court 2012, such duty to make disclosure continues until conclusion of the action.” [Emphasis added]

There are provisions in the Rules of Court 2012 to preserve evidence, such as Order 29 on interim preservation orders, etc. but there are no provisions in law, whether in substantive or adjective evidence.

Whilst the court could examine and evaluate evidence that are formally admitted during the trial or perhaps choose the expert evidence that verified matters outside its learnings, the are no laws empowering when it is incumbent on the litigants to preserve and disclose evidence relevant to the subject matter of the dispute.

It is not open to the 1st Defendant to rely on Order 92 rule 4 of the Rules of Court 2012 to ask the court to destroy evidence relevant for the trial for 2 reasons. The courts are not empowered to do so and doing so goes against the parties substantive rights to seek discovery of documents. 17

In Lee Lai Cheng (suing as the next friend of Lim Chee Zheng and herself) v Lim Hooi Teik [2017] 10 MLJ 331 [TAB 8] Lim Chong Fong J held as follows: [70] Generally, the powers of the High Court are contained in the Courts of Judicature Act 1964 and the Rules of Court 2012 made pursuant thereto. I took time to examine the provisions therein but am unable to find one that clearly empowers me to order the defendant to undergo DNA testing in the circumstances here. [71] Moreover the parties are unable to point to me a statute that so empowers me. The closest one is the Deoxyribonucleic Acid (DNA) Identification Act 2009 but that applies to criminal proceedings only. [72] I am mindful that Zamani bin A Rahim J (now JCA) had previously in his decision ordered the defendant to do so pursuant to the inherent power of the court. Though I share his sentiments but I am, with respect, doubtful if I can properly so order. This is because the court’s inherent jurisdiction and power is a limited one to prevent injustice or to prevent abuse of process of the court; see O 92 r 4 of the Rules of Court 2012 and I H Jacob’s article ‘The Inherent

Jurisdiction of the Court’ Current Legal Problems (1970) 23(1): 23- It seems to me that the provision is only defensive in nature to abate procedural injustice. In other words, the inherent power cannot be utilised to invoke or facilitate a substantive right, albeit unjustly denied. [73] In the premises, I am constrained to conclude that I do not have the power to order the defendant to undergo DNA testing whether 18 through the taking of blood, intimate or non intimate samples even where hurt would not be inflicted on to the person.

Further, the inherent powers of the court cannot be invoked to take away the substantive rights of a party. It cannot be exercised to deny a party a legal right vested in him and/or override any express statutory provisions and rules. To order the destruction of the pen discovery to the same.

In Tan Beng Sooi v Penolong Kanan Pendaftar (United Merchant Finance Bhd, Intervener) [1995] 2 MLJ 421 [TAB 5], the High Court held as follows when considering the inherent jurisdiction of the court in “In my considered opinion, the inherent jurisdiction of the court under O 92 r 4 cannot be used to deny the plaintiff of any legal right that may be vested in him under r 7(b). Inherent jurisdiction under the rules of court is a procedural rule and is not intended to alter substantive rights.” [Emphasis added]

In SBSK Plantations Sdn Bhd v Dynasty Rangers (M) Sdn Bhd [2002] 1 MLJ 326 [TAB 6], the defendant obtained a summary judgment against the plaintiff. The plaintiff appealed and filed the suit to restrain the defendant presenting a winding up petition against the plaintiff held at page 340 that:- “Therefore, the defendant is entitled as of right to present a winding up petition against the plaintiff. This right is a substantive right conferred upon the defendant by s 217(1)(b) of the Act, a substantive law, and neither O 92 r 4(2) of the RHC, a procedural law, nor the inherent jurisdiction of the court can 19 deprive the defendant of that right or reduce the extent of that right as the question of abuse of process ought not to arise at all in such a context. As was said by Edgar Joseph Jr J in the R Rama Chandran case, O 92 r 4 of the RHC and the inherent powers of the court cannot 'take away or alter or diminish any existing jurisdiction or any existing rights...'. In my view, the presentation of a winding up petition is an existing right under s 218(1)(e) of the Act…” [Emphasis added]

On the issue of lack of clarity or precision in the prayers sought, the Plaintiff submitted as follows: “28. It is uncertain and unclear what was being sought by the 1st Defendant. When one looks at the prayers in Enclosure 150, one cannot help but to ponder, what should the court examine, what should and why these exercise should be done in the absence of any IT Expert or third party.

In Dr Leela Ratos & Ors v Anthony Ratos s/o Domingos Ratos & Ors [1996] 3 MLJ 167 [TAB 9], the 1st respondent filed an application to strike out certain paragraphs in a petition filed against him. Nonetheless, the 1st respondent had failed to list down in the application the exact paragraphs which were sought to be struck out. The Court dismissed the application on the ground that it is vague and ambiguous:- “…The prayers sought in both cases have been reproduced earlier. It is most unfortunate that the first respondent had failed to specify with clarity the exact paragraph that the first respondent required this court to strike out. If a party wishes the court to do an act such as to 20 strike out or expunge or amend any passage or paragraph in the pleadings before the court, then it is the duty of the party seeking the court's indulgence to so act to place before the court in clear, unambiguous terms the exact requirement, namely whether to strike out or expunge or amend. Next, the exact words or passage or lines in the pleadings that are sought to be struck out or expunged or amended ought to be clearly spelt out. Any application that lacks such precision ought to be struck out for uncertainty. The court must not be put in a position to circumspect… It does not behove an applicant to be vague and ambiguous in his application as to the prayers he wants, and to rely on such prayers on matters averred to in his affidavit. An affidavit is to support the application, not vice versa. An affidavit can contain very many prayers. I could thus be opening the proverbial Pandora's box if I were to accept the first respondent's arguments that I ought to look for the prayers he wants not in his application, but in his supporting affidavit. Such a dangerous precedent could be used with impunity by any applicant who, having failed to specify what exactly he is asking for, could rely on some statement or paragraph of his affidavit to infer any prayer that he wants. In the circumstances, since the application (enclosure 10) was vague and imprecise, I disallowed that limb of the application that related to the seventh respondent.” [Emphasis added]

These ambiguity, vagueness and imprecision cannot be remedied by affidavit. Nevertheless, the 1st In TS Land Management Sdn Bhd v Pengarah, Pejabat Tanah dan Galian Shah Alam Selangor Darul Ehsan [2016] 10 MLJ 740 [TAB 10], the Court dismissed the originating summons on, inter alia, the ground that the prayers asked for in the originating summons were unclear:- 21 “[3] The prayers asked for in the originating summons however are unclear. The first prayer seeks a declaration from the court to direct the Administrator of Land and Mines Shah Alam Selangor (‘the defendant’) to accept any instrument under s 292 of the NLC without giving further details of the transaction or the land. [4] The second prayer is seeking order from court directing the defendant to accept transfer Form 14A for a transfer of land from Maika Holdings to Lee Chee How and Lee Chee Jieh. There is no mention how are this parties are connected to the plaintiff which is TS Land Management Sdn Bhd. [5] The third prayer is similarly seeking order from the court directing the defendant of accepting the transfer Form 14A from Maika Holdings to MC Client Management Service Sdn Bhd. … [9] The flaws apparent on the originating summons cannot be corrected by explanation and facts affirmed in the supporting affidavit. Here even the supporting affidavit is unclear as to what is the actual grievance of the plaintiff which has led to the filing of this originating summons.” [Emphasis added]

The courts also could not grant what were not prayed for by the applicant. In Lim Siaw Ying v Wong Seng & Anor [2009] 4 MLJ 409 [TAB 11] the Family Court could not grant general damages as it was not prayed for by the petitioner. At paragraph 68 the High Court held; “[68] On the evidence in this case, I find that the first respondent is abusive of the petitioner and has inflicted injury physically and mentally on the petitioner. Therefore, I shall grant the injunction restraining the first respondent from assaulting, molesting or interfering with the petitioner after this order. However, I could not 22 grant the prayer for the sum of RM100,000 as damages for assault, battery and cruelty claimed by the petitioner… the claim for general damages for assault and battery is not prayed for in the petition.” [Emphasis added]”

On the question regarding matters outside the learning of the Court, the Plaintiff submitted as follows: “32. It is clear that it was outside the learning of the Court to ‘verify’ the contents of the pen drive as well as to ascertain the questions in paragraph 17 above. These are essentially matter for an IT forensic expert.

When faced with the matters which is outside the learning of the court, the role of the court is restricted to electing or choosing between conflicting expert evidence or accepting or rejecting the proffered expert evidence. The role of the court to draw its own inferences without the assistance of experts.

In Hotel Sentral (JB) Sdn Bhd v Pengarah Tanah dan Galian Negeri Johor, Malaysia & Ors [2016] MLJU 1894 [TAB 1], Mohd Nazlan Ghazali JC (as his Lordship then was) held as follows when considering expert evidence in relation to the architectural fields:- "[54] Furthermore, the applicant itself is not in possession of the crucial approved building plans, and in the absence of the same, it is difficult to determine whether access to the car park had actually been approved to be through the said land. Much reliance is placed by the applicant on the affidavit containing the expert report in the architect’s professional opinion, and the 23 fact that the respondents did not produce their own experts to challenge the former, citing the case of Saeng-Un Udom v. PP [2001] 3 SLR 1, which the relevant parts of the judgment of the Singapore Court of Appeal state as follows: The duties of a judge in dealing with expert opinion are succinctly stated in Vol 10 of Halsbury’s Laws of Singapore (2000) at [120. 257]: As to reception of the evidence, the court may, if there is no definite expert evidence to the contrary, agree with the expert (Official Administrator Federated Malay States v. State of Selangor [1939] MLJ 226) but it must not blindly accept the evidence merely because there is no definite opinion to the contrary (Re Choo Eng Choon, decd (1908) 12 SSLR 120). Apart, however, from that duty, the duty of the court is largely negative. Ex hypothesis, the evidence is outside the learning of the court. Therefore, the role of the court is restricted to electing or choosing between conflicting expert evidence or accepting or rejecting the proffered expert evidence, though none else is offered (Muhammad Jefrry bin Safii v. PP [1997] 1 SLR 197). The court should not, when confronted with expert evidence which is unopposed and appears not to be obviously lacking in defensibility, reject it nevertheless and prefer to draw its own inferences. While the court is not obliged to accept expert evidence by reason only that it is unchallenged (Sek Kim Wah v. PP [1987] SLR 107), if the court finds that the evidence is based on sound grounds and supported by the basic facts, it can do little else than to accept the evidence.” [Emphasis added] 24

In Aventis Farma Sa (M) Sdn Bhd & Anor v Rohibul Sabri bin Abas @ Megat (t/a as Dabur Enterprise) &Anor [2008] 3 MLJ 451 [TAB 2], Vincent Ng J (as his Lordship then was) made it clear that it is not the function of the court to assume the role of an expert to resolve the conflicting claims before the court. Expert evidence from both sides during the trial is necessary. “[20] Surely, the defendants' claim that 'step 2 of our process does not use any condition for controlling or regulating humidity', that 'our method involves precipitation from mixture of acetonitrile and water rather than the plaintiffs' process of crystallisation from the mixture of C1–3 alcohol and water' and that the defendants 'use acetonitrile to dissolve purified docetaxel whereas MY'481A use aliphatic alcohol as the solvent' could, in my view, only be (firstly) verified and (secondly) differentiated only through the assistance of expert evidence from both sides at the trial. It is not the function of this court to assume the role of an expert in chemistry to resolve such conflicting claims now before the court. Trite law enjoins this court not to go into a mini trial on the aforesaid precise details of production of the active ingredient DT, as such issues are for trial where expert evidence would be entirely essential.” [Emphasis added]

In Bank Negara Indonesia 1946 v Lariza (Singapore) Private Limited [1988] 1 MLJ 205 [TAB 3], the Privy Council held that it would be unsafe Practice for evidence on the relevant banking practice. “Held (1) support for the appellants' first contention is to be found in the terms of paragraphs (b) and (f) of article 46 25 of the UCP, but it would be unsafe to form a concluded opinion in favour of such contention without the assistance of expert evidence on relevant banking practice. No such evidence was placed before the trial judge. In the circumstances, the best course to take is to assume, without deciding, that the appellants' first contention fails and to examine their second contention on that assumption” [Emphasis added]

In Ikechukwu Innocent Obi v Pendakwa Raya [2017] MLJU 1969 [TAB 4], the Court of Appeal referred to and adopted the decision of the Singaporean Court in Saeng-Un Udom v Public Prosecutor [2001] 3 SLR 1 which set out the test in relation to acceptance of expert evidence. “[23] Kaedah dalam menerima keterangan pakar juga dibincangkan dalam kes Saeng-Un Udom v Public Prosecutor [2001] 3 SLR 1 yang memutuskan seperti berikut… [24] Selanjutnya di mukasurat 10 kes tersebut, mahkamah memutuskan: “… Therefore, the role of the court is restricted to electing or choosing between conflicting expert evidence or accepting or rejecting the proferred expert evidence, though none else is offered (Muhammad Jefry bin Safii v PP [1997] 1 SLR 197). The court should not, when confronted with expert evidence which is unopposed and appears not to be obviously lacking in defensibility, reject it nevertheless and prefer to draw its own inferences. While the court is not obliged to accept expert evidence by reason only that it is unchallenged (Sek Kim Wah v PP [1987] SLR 107), if the court finds that the evidence is based on sound grounds and supported by the 26 basic facts, it can do little else than to accept the evidence.” [Emphasis added]

By applying for this court to and without the presence of an IT Expert, the questions in paragraph 17 will never be ascertained”

After having considered the decided authorities cited by the Plaintiff as summarised in paragraphs 25 and 26 above, this Court agrees with the Plaintiff’s submission that the Court has no inherent power to order destruction of documentary evidence in a civil case or to make any order of disposal which has the effect of destroying any documentary evidence in a civil case. This court finds no reason to disagree with or distinguish the decided cases summarised in paragraphs 25 and 26 above. In the premises, this Court will not make any order of disposal of the Pendrive prayed for by the 1st Defendant here.

As regards the need for certainty or precision in the prayers sought by an applicant, this Court agrees generally with the Plaintiff’s submission that the applicant’s prayers should be carefully worded to avoid uncertainty or ambiguity insofar as it is practically possible. However, this Court has taken note that just like many other languages, neither the English language nor the Malay language is a language which is of mathematical precision and is free from any possibility of different interpretations by different persons. Law reports are replete with reported judgments wherein words used in 27 statutes and court judgments have been the subjects of different interpretations by different lawyers and also by different judges at various hierarchy of the Courts. The degree of certainty and precision in the wording of the prayers in applications is that the words used should be sufficiently clear and precise to properly convey their meaning and effect to a reasonable reader. This Court does not find it necessary for the words used in an application to be of absolute certainty or perfect precision so long as the intended meaning and effect is reasonably conveyed with sufficient clarity. By a stretch of imagination, such general proposition cannot be carried to the excessive extent as to deprive the Court of the power to make orders on terms or with amendments or modifications to the words used in the prayers, subject to the proviso that such terms, amendments or modifications should not alter the nature or character of the order prayed for. In the premises, this Court has taken into consideration the general proposition submitted by the Plaintiff viewed in light of the foregoing factors when deciding on whether or not Enclosure 150 prayers should be allowed, and if so, on what terms or amendments to the wording. In this connection, it is to be noted that the Consent Order dated 21.7.2020 is also on terms including significant amendments and modifications to the wording of prayers in the Plaintiff’s Enclosure 158 application.

As regards the Plaintiff’s submission that the Court has no expertise to do what was sought by the 1st Defendant and the specific arguments and case authorities summarised in paragraph 27 above, this Court finds it premature for this Court to express its decision or opinion on such issues at this interlocutory stage. Such issues are to be dealt with and decided at the full trial of the action after all the 28 witnesses, including the expert(s), have given their evidence and in light of the entirety of the evidence to be adduced. Any premature expression of this Court’s decision or opinion of such issues is likely to be misunderstood as prejudging the issues. Suffice it be said that for the purposes of dealing with Enclosure 150 application at this stage, it is neither necessary nor appropriate for the Court to examine the contents of the Pendrive or to make any factual conclusion on the contents of the Pendrive.

In the premises, bearing in mind that both the Plaintiff and the 1st Defendant take the common position that the contents of the Pendrive should be made available for inspection and examination at this stage, this Court on 11 September 2020 made the interlocutory orders in respect of Enclosure 150 application for the examination of the contents of the Pendrive and dealing with the manner of adducing evidence of the said contents.

Item 1 of the Order dated 11 September 2020 mentions examination by the Plaintiff’s IT expert because the Plaintiff counsel clarified on 11 September 2020 that the Plaintiff’s staff or solicitors are not experts who could properly examine and verify the contents of the Pendrive and that an IT expert should do the job. As the Plaintiff has previously engaged an IT expert to prepare an expert report in support of its interim injunction application, this Court acceded to the Plaintiff’s counsel’s request to amend it to the effect that the examination and verification of the contents of the Pendrive was to be done by the Plaintiff’s IT expert. The item on obligation of confidentiality was included to address the 1st Defendant’s concern regarding her privacy and confidentiality of her personal data which 29 she averred is also included in the Pendrive. In as much as there are triable issues on the Plaintiff’s claim for confidentiality to its “Confidential Information”, there are also triable issues as to the 1st Defendant’s claim for confidentiality or privacy of her “personal data” said to be contained in her Pendrive. This Court finds the terms of the Order dated 11 September 2020 to be a fair and reasonable balance between the parties’ respective claims as to confidentiality at this interlocutory stage of the proceedings in the present Suit.

Wherefore, this Court on 11 September 2020 granted the following interlocutory orders in connection with Enclosure 150 application: 1) Pakar IT yang diperuntukkan oleh Plaintif adalah dibenarkan untuk memeriksa kandungan Pendrive tersebut dalam kehadiran Defendan Pertama dan Peguamcara beliau, di bawah suatu kewajipan kerahsiaan terhadap data peribadi Defendan Pertama dalam Pendrive tersebut untuk sebarang data peribadi dan maklumat yang mungkin terkandung di dalamnya; 2) Setelah Pemeriksaan tersebut, pihak-pihak hendaklah berbincang dan mencapai persetujuan bersama dalam mengenal pasti bahagian kandungan yang relevan dan tidak relevan kepada isu-isu guaman ini. Sekiranya pihak-pihak gagal mencapai persetujuan bersama, mana-mana pihak bebas untuk memohon kepada Mahkamah untuk mendapatkan 30 arahan selanjutnya bagi mana-mana bahagian yang dipertikaikan; 3) Pihak-pihak adalah bebas untuk memohon dan sebarang arahan “ancillary directions” mengenai penggunaan dan pengemukaan Pendrive tersebut dalam perkara pembuktian; dan 4) Kos dalam kausa. Dated : 2nd November 2020. Signed ............................................................. TEE GEOK HOCK JUDICIAL COMMISIONER HIGH COURT OF MALAYA AT SHAH ALAM (NCVC 10) To the parties’ solicitors:

For the Plaintiff : Richard Kok and Tan Ko Xin Messrs Rhiza & Richard

For the 1st Defendant : Tan Ah Loon, Messrs Syazwani Awang& Co For the 2nd Defendant : Kevin Chung, Messrs T K Wong Tan & Associates