List S.P.A. v Yong Chee How (WA-24NCC-311-06/2025)

YONG CHEE HOW

SURUHANJAYA SYARIKAT MALAYSIA …DEFENDAN-DEFENDAN

The Plaintiff filed this Originating Summons to apply for pre-action discovery orders against the Defendants in connection with an alleged unauthorized transfer of its 150,000 shares in List Sdn Bhd (“Shares”) to Robert Jaya Kumar and Abdul Hafiz Adli Bin Abdullah (“Transferees”). Prior to the transfer, the Transferees were the minority shareholders and directors of List Sdn Bhd.

This Court allowed the Originating Summons on 24-11-2025 and ordered the Defendants to give discovery of the documents or those falling within the class of documents described in the application, and file an affidavit within 14 days to verify whether the documents are in their possession, custody or power and, if not, when they parted with them and what has become of them.

The 2nd Defendant, Companies Commission of Malaysia (“CCM”) did not oppose the application. The 1st Defendant, who was the Company Secretary of List Sdn Bhd at the material time, opposed the application and has now appealed to the Court of Appeal against the orders made by this Court. Background facts

The following is a brief chronology of events based on the corporate records of List Sdn Bhd as disclosed in the affidavits: Date Event 29-03-2024 Plaintiff requisitioned an EGM to remove the Transferees as directors of List Sdn Bhd 13-05-2024 Plaintiff’s corporate representative issued a Notice of Convene EGM 10-06-2024 EGM dissolved due to the absence of the Transferees as shareholders 13-09-2024 Plaintiff issued OS No. WA-24NCC-447-09/2024 for a Court Convened EGM 24-01-2025 Court granted orders for a Court Convened EGM 21-02-2025 Plaintiff issued Notice of Court Convened EGM 07-03-2025 1st Defendant notified the Plaintiff of his termination as Company Secretary. The Court Convened EGM proceeded and resolved to remove the Transferees as directors. 07-03-2025 Plaintiff discovered that a Notification of Change in the Register of Members to reflect the transfer of the Shares to the Transferees had been lodged with CCM on 10-7-2024.

Arising from the above facts, the Plaintiff investigated the alleged unauthorised transfer of its Shares and contemplated legal redress. To this end, the Plaintiff identified and requested the following documents from the 1st Defendant (“Requested Documents”): a) A copy of the Form of Transfer of Securities (Section 105 of the Companies Act 2016) for the transfer of the Plaintiff’s 150,000 units of shares in List Sdn Bhd to the Transferees on 10-07-2024 (“Transfer Forms”); b) Letters, emails, instructions, and any form of written correspondences between the 1st Defendant and the Transferees in connection with the 1st Defendant’s confirmation, verification, and the lodgement of the Notification of Change of Particulars to the Register of Members of List Sdn Bhd for the Transfer / Cessation / Update of Profile on 10- 07-2024, for the transfer of the Plaintiff’s 150,000 units of shares in List Sdn Bhd to the Transferees on 10-07-2024 (“Correspondence”); c) Instantaneous messages exchanged between the 1st Defendant and the Transferees over any mobile platform, including WhatsApp, Telegram, Short Message Service (SMS), or any other platform between 29-03-2024 to 7-03- 2025 (“Messages”); and d) Documents and records submitted by the Transferees to the 1st Defendant in support of the transfer of the Plaintiff’s 150,000 units of shares in List Sdn Bhd to the Transferees on 10-07-2024 (“Supporting Documents”).

In the course of affidavit exchanges, the 1st Defendant furnished the 2 executed Transfer Forms and a directors’ written resolution (“DWR”) authorising the Company to approve the transfer of the Shares, but did not furnish the other Requested Documents.

The principal objections of the 1st Defendant were that the request for the Messages is a fishing expedition, invasive (of privacy and/or confidentiality), oppressive and unnecessary, and that the Correspondences and Supporting Documents requested do not exist. Analysis and findings

This Court is empowered by Order 24 Rule 7A of the Rules of Court 2012 (“RC”) to grant a pre-action order for discovery in favour of a plaintiff who suspects that he has a case, to compel a person to produce documents for purpose of ascertaining if he has a viable claim and identifying the possible parties to any intended proceedings (Infoline Sdn Bhd v. Benjamin Lim Keong Hoe [2017] 8 CLJ 554 (“Infoline”)).

The power is discretionary and in order to justify its invocation, the Plaintiff must state in its affidavit, per Order 24 Rule 7A(3) and Rule 8 of the RC:

the grounds of application, the material facts pertaining to the intended proceedings and whether the person against whom the order is sought is likely to be a party;

the specification or description of the documents in respect of which the order is sought;

that the documents are relevant to an issue arising or likely to arise, out of a claim made or likely to be made or the identity of the likely parties to the proceedings, or both;

that the person against whom the order is sought has possession, custody or power over the documents sought; and

why pre-action discovery, and not discovery in the course of an action or proceeding, is necessary for the saving of costs, resources and time. Material facts, cause of action and parties

In this case, the material facts pertaining to the intended proceedings against the Transferees are encapsulated in the narration of the background facts above. Prima facie, a wrong appears to have been perpetrated. Still, the Plaintiff asserts that it does not know the full facts to frame its causes of action against the Transferees or if it has a cause of action against the 1st Defendant or any other party to the wrongdoing.

This Court agrees that it is not obvious that the 1st Defendant is culpably involved in the transfer of the Shares. If the Requested Documents show that the 1st Defendant had facilitated the transfer of the Shares innocently, the Plaintiff’s concerns about possible negligence or conspiracy may be unfounded and litigation against the 1st Defendant can be avoided.

Even if the 1st Defendant is not himself a wrongdoer but was involved in the illegal acts of others so as to facilitate their wrongdoing through no fault of his own, the common law principle established in Norwich Pharmacal Co v. Customs & Excise Commissioners [1974] AC 133 is premised on a duty to assist the person wronged.

To illustrate the utility of pre-action discovery, the Transfer Forms dated 18-6-2024 disclosed by the 1st Defendant turned out to have been signed by Enrico Dameri as the Plaintiff’s corporate representative although Dameri had resigned on 30-6-2019, and the DWR dated 18-6-2024, by Alessandro Casali, Carlandrea Simonelli and Girolamo Alessandri, all of whom had resigned as directors in 2018 and 2020.

The involvement and roles of these other parties are unclear at this stage. The 1st Defendant played a pivotal role in the transfer of the Shares and pre-action discovery of the Requested Documents would serve to identify all potential defendants and fully particularize the potential claim. This is a legitimate purpose of an order for pre-action discovery Order 24 Rule 7A of the RC. Specificity, existence, relevance, and necessity Specificity of documents

This Court found that the Requested Documents have been identified with reasonable precision (Kuah Kok Kim & Ors v Ernst & Young (a firm) [1997] 1 SLR 169). Save in respect of the Messages, the 1st Defendant does not contend otherwise. The contention of the 1st Defendant in respect of the Messages is that it is a fishing expedition, invasive (of privacy and/or confidentiality) and oppressive.

This Court found that the Messages are an identified class of communications confined only to those between the 1st Defendant and the Transferees, over a specified period between 29-03-2024 (notice of removal of the Transferees as directors) and 7-03-2025 (date of Court Convened EGM and discovery of the transfer). This is not an ambiguous class of documents.

On the related argument that an order for discovery of the Messages would be oppressive, it is unclear if this was related to the volume of such Messages. If so, the Federal Court in Faber Merlin Malaysia Bhd v Ban Guan Sdn Bhd [1981] 1 MLJ 105 observed that documents must be produced if they are relevant, even if they are voluminous: “Therefore, if as a matter of pleadings, the issue is the quantum of the claim, then the documents, “the tens of thousands” of them in the defendant's possession notwithstanding, must be produced for its proper ascertainment because they are relevant to it. The complexity or immensity of the task should not be a deterrence. Sooner or later, it will have to be undertaken and it should be done as a pre-trial measure rather than at the trial itself.”

The 1st Defendant also contended that discovery of the Messages is invasive in the sense that it violates the confidentiality and privacy of messages involving the 1st Defendant and are unnecessary in law. This Court disagreed as no factual basis was given by the 1st Defendant that led this Court to believe that the order for the disclosure of the Messages will be invasive as the 1st Defendant is not in any known personal relationship with the Transferees.

This Court did not recognize any expectation of privacy between a Company Secretary and his client without more information on the nature of their relationship. Furthermore, it is trite that if a document is necessary for the fair disposal of the proceedings or is required by the demands of justice, discovery can be ordered notwithstanding any claim to confidentiality (Obnet Sdn Bhd v Telekom Malaysia Bhd [2019] 6 MLJ 707).

The question of relevance is addressed further down in this Judgment, but to close out this section, discovery of relevant documents that have been described with reasonable precision cannot be regarded as a “fishing expedition.” Existence of documents

As noted, the 1st Defendant played a pivotal role in the transfer of the Shares as he would have, in the ordinary course of his function as the Company Secretary of List Sdn Bhd, taken instructions from some person or persons and: a) prepared the paperwork; b) confirmed information against some reference; c) liaised with signatories; d) changed the entries in the register of members; and e) lodged the notification of change at the CCM.

Records maintained at CCM revealed that he is still the Company Secretary of List Sdn Bhd and consistent with that, the 1st Defendant has furnished the Transfer Forms and DWR. The Correspondences, Messages and Supporting Documents are such that they were also expected to exist and to be within the possession, custody or power of the 1st Defendant.

In respect of the Correspondence and Supporting Documents that the 1st Defendant claims do not exist because he was allegedly given all instructions verbally, the Court evaluated the claim based on its inherent probability, considering the nature of the documents as described, and the ordinary function of a Company Secretary in effecting a share transfer. In this evaluation, this Court considered that they probably do exist.

A bare assertion that documents requested do not exist does not rule out an order for discovery, pre-action or otherwise. In such circumstances, the party ordered to give discovery risks swearing a false affidavit if the documents exist but are claimed otherwise. In the usual form, the 1st Defendant was also ordered to affirm an affidavit to state whether the Requested Documents are in his possession, custody or power or not. Relevance of documents

No serious arguments were made by the 1st Defendant about the relevance of the Requested Documents other than that they are not corporate records maintained by a Company Secretary. This is not a test of relevance. The test for relevance is set out in Order 24 of the RC and in respect of Rule 7A, the Plaintiff need only show the relevance of requested documents to a likely issue to the identity of the likely parties to the proceedings, or both.

For the reasons set out under the heading of material facts, cause of action and parties above, this Court considered that the Requested Documents are relevant to shed light on: a) who instructed the transfer of Shares; b) the content of that instruction; c) questions and answers why the signatories of strangers were accepted in the documentation prepared; and d) the identity and role of all the actors in the execution of the transfer of Shares.

Cited in Yekambaran Marimuthu v Malayawata Steel Berhad [1994] 2 CLJ 581, the classic authority on what is relevant in discovery is Compaignee Financiere du Pacifique v. Peruvian Guano Co. [1882] 11 QBD 55 where Brett LJ said: “….a document can properly be said to contain information which may enable the party requiring the affidavit either to advance his own case or to damage the case of his adversary, if it is a document which may fairly lead him to a train of inquiry, which may have either of these two consequences...”

To fortify the view that the Requested Documents are relevant in pre-action discovery, this Court also considered that its discovery would be compellable if a speculative action had already been filed against the 1st Defendant for say, conspiracy with the Transferees as a likely claim. Necessity of discovery

Ultimately, this Court considered that the pre-action discovery order was necessary to dispose of the cause or matter fairly and for saving costs, by obviating the filing of speculative suits or the discovery of relevant evidence only at the trial under pain of a subpoena duces tecum when joinder of fresh parties and any amendment of the claim may well be too late to pursue.

Without speculating on any other reasons for the 1st Defendant’s strident objection to giving discovery of the Messages, it is clearly no answer to an action for pre-action discovery that it may actually incriminate and expose him to a suit.

For the reasons set out above, this Court allowed the Originating Summons with costs of RM5,000.00 to be paid by the 1st Defendant to the Plaintiff. Bertarikh: 31 Disember 2025 ELAINE YAP CHIN GAIK PESURUHJAYA KEHAKIMAN MAHKAMAH TINGGI MALAYA KUALA LUMPUR Peguam Untuk Plaintif: Melvin Ng Yet Ting Tetuan Rahmat Lim & Partners Untuk Defendan Pertama: Andrew Navin a/l Anthony John