At one extreme, questions will clearly be directed at discovering information about a debtor’s property and means. Those should be within the bounds of O 48. At the other end of the spectrum, questions will be so obviously S/N YfuuquMz1EKeruht6ScUkg 10 January,2025 18 unconnected with a debtor’s assets, as to be outside the purpose of O 48. In between will inevitably fall a large grey area of topics. Whether a particular course of inquiry in the grey area falls within or without O 48 should be left to the discretion and good sense of the tribunal hearing the examination to decide. [emphasis added]” [46] After all, as I have mentioned above, Section 4 of the Debtors Act, 1957 provides for the discovery of any disposal that the judgment debtor has made of such property that could have been applied to pay off the judgment debt. [47] This section concerns the discovery of the JD’s property and a remedy for recovery of the judgement debt. More often than not, recovery of a judgement debt itself is difficult. Therefore, in my judgement a benevolent interpretation must be given to Order 48 ROC 2012 and Section 4 of the Debtors Act, 1957 provided the requirement of relevancy is met. This is to ensure the administration of justice is kept up to date and in harmony with new ideas or conceptions of what constitutes justice and proper human conduct. Furthermore, a construction which improves the administration of justice should be favoured over one which perpetuates wrong. [48] In arriving at this conclusion, I find support from what was said by His Lordship Sri Ram JCA in Leong Khum Whay v QBE Insurance (M) Sdn Bhd & Ors [2006] 1 CLJ 1 in giving section 44A of the Insurance Act 1963 a benevolent interpretation as follows: - “There can be no doubt that s. 44A targeted the reversal of the common law. That is the way in which the section was construed in the carefully written judgment of Abdul Malik Ishak J in Syarikat Uniweld Trading v. S/N YfuuquMz1EKeruht6ScUkg 10 January,2025 19 The Asia Insurance Co Ltd [1996] 3 CLJ 142 with which I agree. The section is remedial. Hence it must be “given a benevolent interpretation” (per Aitken J in Willis v. Willis & Hodgson [1941 MLJ 169. Crawford in his authoritative work “The Construction of Statutes” (1978 reprint) at p. 494 says this about remedial statutes: To understand the reason for giving remedial statutes a liberal construction, it is necessary that we know what statutes fall within this category. While they have been defined in a preceding section, for the sake of convenience, some slight repetition will be valuable. For our discussion here, however, it will be sufficient to define a remedial statute as one which remedies a defect in the common law or in the pre-existing body of statute law. Such statutes play an important part in the jurisprudence of an advancing society. They supply the defects and abridge the superfluities in pre-existing law, which arise from the general imperfection of all human laws, from change of time and circumstances, from the mistakes and unadvised determinations of judges, and from any other cause. They serve to keep our system of jurisprudence up-to-date and in harmony with new ideas or conceptions of what constitute justice and proper human conduct. Their legitimate purpose is to advance human rights and relationships. Unless they do this, they are not entitled to be known as remedial legislation nor to be liberally construed. Manifestly, a construction which promotes improvement in the administration of justice and the eradication of defects in our system of jurisprudence, should be favoured over one which perpetuates wrong. It seems proper to assume that the lawmakers intended to advance our laws forward as far as our conceptions of justice and proper conduct extend. For this reason, if no other, remedial legislation is entitled to a liberal construction.” [49] In the foregoing, there is merit in the JC’s contention that the JD ought to produce the bank statements from the year 2018 till the S/N YfuuquMz1EKeruht6ScUkg 10 January,2025 20 date of the hearing of the JDS based on the provisions already been made by the JD in their Annual Reports to settle their potential liability to pay the judgement sum. It relates to the recovery of the judgement sum. [50] My views are fortified by the remarks made by His Lordship Abdul Malik Ishak J in Kwek Seow Kee & Anor v KT Packaging Sdn Bhd (No 2) [1998] MLJU 77 as follows: - “An examination under O. 48 of the RHC is quite severe and at times thorough. It is said that an examination under this rule “is not only intended to be an examination, but to be a cross-examination, and that of the severest kind”. The judgment debtor too will not be spared an inch; for he will be grilled and questioned not to a simple question of “what debts are owing” but rather extending to answer all questions which are said to be “fairly pertinent and properly asked”. All these questionings would, in the final analysis, lead to ascertaining what debts are owing to him. For a good exposition on the subject reference should be made to the case of Republic of Costa Rica v. Strousberg [1880] 16 Ch D 8 particularly the judgments of James LJ and Jessel MR at p. thereof. The questioning would also establish whether the judgment debtor “has any and, if so, what other property (Hamilton v. Brogden [1891] WN 14). The sting of O. 48 of the RHC is to provide a process for the examination of the judgment debtor so as to gather information as to his means of paying the judgment and flowing from it the judgment creditor will be able to determine the appropriate mode of enforcement. The process of examination would certainly come in handy as it would confirm and supplement any existing information which the judgment creditor might have by allowing him to obtain additional or new information which may be available for the sole purpose of enforcement. [emphasis added]” S/N YfuuquMz1EKeruht6ScUkg 10 January,2025 21 [51] Hence the inherent flexibility under Order 48 ROC 2012 allows questions that are fairly pertinent and properly asked to the JD to establish what other property the JD has to settle the judgment debt. In my opinion, questions relating to the provisions made by the JD in their Annual Reports to settle their potential liability to pay the judgement sum are fairly pertinent and therefore the bank statements sought by the JC are relevant. [52] However, since the JDS was never disposed on merits before the SAR, therefore it will be within the discretion of the SAR who hears the examination to decide on this matter upon a proper application made by the JC as discussed above and not for me. [53] In the final analysis, it’s my finding that the JDS herein has not been validly commenced under Order 48 ROC 2012. Whether the JDS ought to have been commenced in the Court of first instance [54] The JC had commenced the JDS proceeding in the High Court based on the Judgment entered by the High Court on appeal. [55] However, Section 2 of the Debtors Act 1957 defines “courts” means the court in which the original proceedings were commenced. [56] In this circumstance, the original Court would be the Sessions Court in Segamat. Therefore, in my view, it is only appropriate for the JC to commence the JDS’s proceeding in Segamat Sessions Court. In Top Forest Wood Sdn Bhd v Vimix Concrete Sdn Bhd [2021] 1 LNS S/N YfuuquMz1EKeruht6ScUkg 10 January,2025 22 953, it was held by Her Ladyship Norliza Othman JC (as she then was): - “[7] Isu kedua yang dibangkitkan adalah JC sepatutnya memfailkan Saman Penghutang Penghakiman ini di Mahkamah Tinggi Shah Alam kerana Mahkamah Tinggi Shah Alam yang mengawardkan penghakiman tersebut. Hakim Mahkamah Sesyen telah khilaf apabila memutuskan sedemikian. Seksyen 2 Debtors Act 1957 mentakrifkan “courts” means the court in which the original proceedings were commenced; being the High Court, a Sessions Court or a Magistrate Court”. Oleh tindakan JC memfailkan Saman Penghutang Penghakiman di Mahkamah Sesyen adalah betul kerana asas kepada Saman Penghutang Penghakiman adalah satu penghakiman yang tuntutannya difailkan di Mahkamah Sesyen.” [57] Please also see the case of Ang Teck Wang v Big Sdn Bhd [2020] 1 LNS 793 where the facts reveal a JDS which was commenced in the Sessions Court where the civil suit was filed and ended up in the Court of Appeal on appeal. [58] Furthermore, a Judgement Debtor Summons is not an Originating process. It may be issued only in a pending cause or matter. Please see the decision by Mills J in Re Sassoon Ezekiel [1933] CLJU 74. This further supports my view that the JC has to make the application for JDS in the civil suit filed in the Segamat Sessions Court. Whether the decision of the SAR is appealable [59] In my judgment the learned SAR’s decision is merely a ruling made prior to commencement of the JDS hearing. S/N YfuuquMz1EKeruht6ScUkg 10 January,2025 23 [60] Hence it is an interlocutory procedural order which is not appealable It did not dispose of the examination under the JDS. [61] The Court of Appeal in Bank Pertanian Malaysia Bhd v Gagnar Corporation Sdn Bhd & Ors [2021] 8 CLJ 434 held an appeal does not lie against a decision in an amendment application made in the course of a trial when such a decision does not finally dispose of the rights of the parties. The Court of Appeal was of the view that it was a ruling made in the course of a trial and since the trial was yet to be completed, the High Court has yet to finally dispose of the rights of the parties. [62] Whereas in ECM Libra Investment Bank Berhad v Foo Ai Meng & 8 others [2013] CLJU 99; [2013] 1 LNS 99, the Court of Appeal was faced with an appeal concerning an application to set aside a subpoena issued by Plaintiff to a witness to produce documents that was filed by the said witness through Defendant’s solicitors. The High Court allowed the application and the Plaintiff in that case dissatisfied with the said decision and appealed to the Court of Appeal. The Court of Appeal was of the view that the nature of the application was procedural and or interlocutory as it involved the exercise of discretion of the trial court in the course of the trial. [63] In my judgment, the effect of the decision by SAR in refusing the JC’s application for the production of the documents is a ruling in the course of the JDS proceeding and is not appealable. [64] In the foregoing, it’s my finding that the Plaintiffs are not entitled to appeal against the decision of the SAR since it is an interlocutory procedural ruling. S/N YfuuquMz1EKeruht6ScUkg 10 January,2025 24 [65] For completeness based on my above stated reasons, I find that the SAR had correctly exercised her discretion to uphold the objections taken by the JD and there are no reasons for me to interfere with her exercise of discretion. In ECM Libra Investment Bank Berhad vs Foo Ai Meng & 8 others [2013] CLJU 99; [2013] 1 LNS 99 it was held by the Court of Appeal as follows: - “After having given much consideration to the submission of the learned counsel for the appellant, we take the view that the appeal must be dismissed. Our reasons, inter alia, are as follows: