Muhammad Amin Bin Anuar (Beramal Sebagai Peguambela & Peguamcara DI Firma Guaman Tetuan Amin Chambers) v Seow Jing Hui (BA-22NCvC-11-01/2021)

THAM CHEE FAI (NRIC No: 800611-14-5061)

TETUAN LING & THENG BOOK (Sued as a Firm)

SEOOW JUIN HERNG (Advocate and Solicitor

NORIDYANTI BINTI SHAMSUDDIN (NRIC No: 851015-08-5840) 27/05/2024 17:04:44

THENG BOOK [Practicing as an Advocate and Solicitor at the Law Firm of Messrs Ling & Theng Book] …DEFENDANTS GROUNDS OF JUDGEMENT

This is the Plaintiff’s Notice of Application in Enclosure 190 for discovery under Order 24 rule 7A and/or Order 24 rule 7A (2) and/or Order 24 rule 8 and/or Order 92 rule 4 of the Rules of Court 2012 (ROC 2012), against the Defendants and three (3) other non-parties, namely, Messrs Tan Norizan & Associates (TNA), Pengarah Lembaga Perumahan & Hartanah Selangor (LPHS) and Biz Smile Capital Sdn. Bhd. (No. Syarikat: 131840-K) (Biz Smile).

Prior to this discovery application, the Plaintiff had sought both a Mareva Injunction and an Anton Piller order to secure certain similar documents. However, on 17 April 2023, and 5 October 2023, respectively, this Court dismissed the Plaintiff's applications for these orders, as specified in enclosures 12 and 20. Following that, on 10 October 2023, the Plaintiff filed this discovery application, seeking, among others, the disclosure of original documents as stated in the Notice of Application for discovery. The Plaintiff contended this is necessary for assessing the documents' validity, existence, and obtaining a forensic comparison from the Department of Chemistry and/or expert reports, as the original documents are not in the Plaintiff's possession.

The Plaintiff contended that disclosing the original documents would support the validity of their case, allowing the Court to make a comprehensive decision in this matter. These original documents, essential to the Plaintiff’s claim, are relevant due to alleged document falsification and misuse of the Plaintiff’s or Messrs Amin Chambers' identity in dubious conveyancing transactions.

In a nutshell, the Plaintiff’s allegations in the Statement of Claim against the Defendants involve conspiracy, fraud, forgery, misconduct, and criminal offences.

The Plaintiff is an advocate and solicitor of the High Court of Malaya. In December 2018, the Plaintiff was hired by the First Defendant as a Legal Assistant in the First Defendant’s firm, Messrs Jing Wani & Co, which subsequently merged with the Third Defendant. The Plaintiff alleged that the Defendants had induced and deceived him into establishing a law firm in Shah Alam under his name, with the understanding that he would be the sole proprietor. The Defendants informed him that his employment would be terminated if he failed to establish the firm. Consequently, on 20.11.2019, the Plaintiff established his law firm known as Tetuan Amin Chambers.

The Plaintiff claimed that despite the establishing Tetuan Amin Chambers, the Plaintiff received regular payments from the Third Defendant till September 2020. The Third Defendant had continued to make contributions to the Plaintiff’s Employment Provident Fund (EPF) and the Third Defendant also persisted in giving the Plaintiff instructions as if he was still employed by the Third Defendant.

The Plaintiff contended that the First and Second Defendant orchestrated a deceptive plan by instructing him to establish his firm. According to the Plaintiff’s claim, this plan was a ploy to transfer clients and litigation files from the First and Second Defendants to the Plaintiff’s firm while maintaining control over the files. The alleged purpose of this manoeuvre was to protect the reputation of the Third Defendant, which represented 14 banking institutions, including moneylenders among its clients. The Plaintiff asserted that he was promised commission for handling the litigation and conveyancing files through his firm, but the Defendants reneged on this promise. Consequently, the Plaintiff was not compensated as agreed for the services rendered by his firm.

The Plaintiff also claimed that there was unlawful interference in the management of his firm and the Defendants unlawfully misused his firm’s name on their documents. The Plaintiff alleged that these actions constitute fraud and a conspiracy to injure the Plaintiff.

Amongst others, the Plaintiff alleged that the Defendants had abused the Plaintiff’s firm’s identity, including the Plaintiff’s email, e-filling system account, letterhead, and signature, in relation to a civil suit known as “MyGPS case” (No.BA-A72NCVC-1375- 08/2020).

The Plaintiff also alleged that the Defendants had misused the Plaintiff’s firm’s identity, signature, and rubber stamp to forge transactions related to conveyancing, which were purportedly co-managed by all the Defendants.

Hence, the Plaintiff in his claim had sought reliefs including declarations, injunctions, orders for account, and damages.

The Plaintiff filed this application in Enclosure 190 for the following orders: - “1. Defendan-Defendan yang dinamakan diatas hendaklah dalam tempoh masa tujuh (7) hari dari tarikh Perintah ini membuat dan menyampaikan kepada Plaintif menzahirkan dan menyerahkan kepada Plaintif dokumen-dokumen berikut: a. Salinan asal Perjanjian Pinjaman Jadual K Akta Pemberi Pinjam Wang 1951 bertarikh 27.09.2019 yang disaksikan oleh Defendan Pertama iaitu perjanjian pinjaman diantara BIZ SMILE CAPITAL SDN BHD (1318430-K) dengan OTHMAN BIN MOHD SOM, ISMAIL BIN MOHD SOM & SHAHRUDIN BIN MOHD SOM bagi pinjaman sebanyak RM575,000.00; b. Salinan asal Perjanjian Pinjaman Jadual K Akta Pemberi Pinjam Wang 1951 bertarikh 18.11.2019 yang telah disetem yang menggunakan identiti nama dan firma Plaintif bagi Perjanjian Pinjaman diantara BIZ SMILE CAPITAL SDN BHD (1318430-K) dengan OTHMAN BIN MOHD SOM, ISMAIL BIN MOHD SOM & SHAHRUDIN BIN MOHD SOM bagi pinjaman sebanyak RM1,700,000.00; c. Salinan Geran / Hakmilik Pajakan Mukim No. Hakmilik 3805, Lot 13663, Kampung Sungai Kayu Ara, Pekan Kayu Ara, Daerah Petaling, Negeri Selangor; d. Perjanjian Jual Beli yang disetem dan disaksikan bagi hartanah PM 3805, Lot 13663, Kampung Sungai Kayu Ara, Pekan Kayu Ara, Daerah Petaling, Negeri Selangor; e. Dokumen Pindahmilik Borang 14A Kanun Tanah Negara yang disempurnakan bagi hartanah PM 3805, Lot 13663, Kampung Sungai Kayu Ara, Pekan Kayu Ara, Daerah Petaling, Negeri Selangor; dan f. Gadaian yang didaftarkan terhadap Hartanah PM 3805, Lot 13663, Kampung Sungai Kayu Ara, Pekan Kayu Ara, Daerah Petaling, Negeri Selangor. (“Dokumen-Dokumen Hartanah 1”).

Defendan-Defendan yang dinamakan diatas hendaklah dalam tempoh masa tujuh (7) hari dari tarikh Perintah ini membuat dan menyampaikan kepada Plaintif menzahirkan dan menyerahkan kepada Plaintif dokumen-dokumen berikut: a. Salinan asal Perjanjian Pinjaman Jadual K Akta Pemberi Pinjam Wang 1951 yang telah disetem dimana Peminjam GEETHE @ZAITHON BINTI MOHAMAD KASSIM yang meletakkan cagaran Hartanah yang dipegang dibawah PN21006/M1/8/143, Lo43149 Seksyen 14, Bandar Ampang, Daerah Hulu Langat, Negeri Selangor; dan b. Perjanjian Jual Beli bertarikh 12 Oktober 2020 yang disetem pada 13 Oktober 2020 untuk Hartanah Apartmen Kos Rendah yang dikenali sebagai PN 21006/M1/8/143, Lot No. 43149 Seksyen 14, Bandar Ampang, Daerah Hulu Langat, Negeri Selangor yang beralamat PC1-07- 23E, Permai Court 1, Jalan 16A, Taman Desa Permai, Taman Dato’ Ahmad Razali, 68000 Ampang, Selangor diantara penjual bernama Geethe@Zaithon Binti Mohamad Kassim (No. K/P: 640225-10-6566) dan pembeli Law Kong Yew (No. K/P: 970226-14-5761). (“Dokumen-Dokumen Hartanah 2”)

Defendan-Defendan yang dinamakan diatas hendaklah dalam tempoh masa tujuh (7) hari dari tarikh Perintah ini membuat dan menyampaikan kepada Plaintif menzahirkan dan menyerahkan kepada Plaintif dokumen-dokumen berikut: a. Salinan asal Perjanjian Pinjaman Jadual K Akta Pemberi Pinjam Wang 1951 bertarikh 18.10.2019 yang telah disetem yang menggunakan identiti nama atau firma Plaintif bagi Perjanjian Pinjaman diantara BIZ SMILE CAPITAL SDN BHD (1318430-K) dengan MOHAN SUNDARAM A/L ARUMUTHU yang meletakkan cagaran hartanah HSD 138692, Lot 69236, Mukim Kapar, Daerah Klang, Negeri Selangor dan/atau PM 262, Lot 8533, Mukim Bukit Raja, Daerah Petaling Negeri Selangor yang beralamat No. 9, Jalan Astana 4B, Bandar Bukit Raja 2, 41500 Klang, Selangor bagi pinjaman sebanyak RM245,000.00; dan b. Perjanjian Jual Beli untuk Hartanah hartanah HSD 138692, Lot 69236, Mukim Kapar, Daerah Klang, Negeri Selangor dan/atau PM 262, Lot 8533, Mukim Bukit Raja, Daerah Petaling Negeri Selangor yang beralamat No. 9, Jalan Astana 4B, Bandar Bukit Raja 2, 41500 Klang, Selangor. (“Dokumen-Dokumen Hartanah 3”)

Defendan-Defendan yang dinamakan diatas hendaklah dalam tempoh masa tujuh (7) hari dari tarikh Perintah ini membuat dan menyampaikan kepada Plaintif menzahirkan dan menyerahkan kepada Plaintif dokumen-dokumen berikut: a. Salinan asal surat yang dialamatkan kepada Tetuan R.Y. Nanthan & Partners, termasuk tetapi tidak terhad kepada surat-surat bertarikh 21.10.2020,

04.11.2020 (serahan borang mediasi),

04.11.2020 (serahan Notis Permohonan & Afidavit Sokongan) (“Surat-surat tersebut”); dan b. Salinan asal Borang Mediasi bagi kes Tham Chee Fai & Ors v MYGPS (M) Sdn Bhd No. Guaman: BA-A72NCvC-1375-08/2020 yang mengandungi tandatangan palsu Plaintif yang diserahkan kepada Pusat Mediasi Mahkamah Negeri Selangor melalui emel di alamat “pmmsa@kehakiman.gov.my” pada 22.12.2020.

Bahawa Tetuan Tan Norizan & Associates hendaklah dalam tempoh masa tujuh (7) hari dari tarikh Perintah ini membekalkan dan/atau menzahirkan kepada peguamcara Plaintif dokumen-dokumen (seterusnya akan dirujuk sebagai “dokumen-dokumen asal”) jual beli hartanah dan pinjaman/fasiliti bagi kegunaan perbicaraan dan juga membuat analisa perbandingan yang berada atau pernah berada dalam milikan, jagaan atau kuasanya berkaitan dengan apa-apa perkara yang berkenaan dalam tindakan ini; Dokumen-dokumen asal adalah seperti berikut: i. Perjanjian Jual Beli bertarikh 12 Oktober 2020 yang disetem pada 13 Oktober 2020 untuk Hartanah Apartmen Kos Rendah yang dikenali sebagai PN 21006/M1/8/143, Lot No. 43149 Seksyen 14, Bandar Ampang, Daerah Hulu Langat Negeri Selangor yang beralamat PC1-07- 23E, Permai Court 1, Jalan 16A, Taman Desa Permai, Taman Dato’ Ahmad Razali, 68000 Ampang, Selangor diantara penjual bernama Geethe@Zaithon Binti Mohamad Kassim (No. K/P: 640225-10-6566) dan pembeli Law Kong Yew (No. K/P: 970226- 14-5761); (“Perjanjian Jual Beli 1”) ii. Dokumen Pinjaman Home Equity Financing-i/HOME VR (Redraw) berjumlah RM159,473.00 dan/atau fasiliti dan/atau kemudahan, pinjaman wang terutama yang melibatkan Perjanjian Jual Beli 1 di mana nama Plaintif atau Tetuan Amin Chambers digunakan dalam sebarang dokumen tersebut, sama ada kononnya sebagai pihak yang menyediakan (allegedly prepared by), dilihat sebagai disediakan ataupun disaksikan Plaintif atau Tetuan Amin Chambers; (“Dokumen Pinjaman Perjanjian Jual Beli 1”) iii. Perjanjian Jual Beli bertarikh 24 September 2020 dan disetem pada 25 September 2020 untuk hartanah yang dikenali sebagai GM 4950, Lot 2023 Seksyen 1 & GM 4951, Lot 204 Seksyen 1, Bandar Jenjarum, Daerah Kuala Langat, Negeri Selangor yang beralamat No. 60, Jalan Bayam 3, Taman Desa Jarum, 42600 Jenjarom, Selangor diantara penjual Gonasigran A/l Periasamy (No. K/P: 540329-10-5121) dan pembeli Adrian Lee Wen Jian (No. K/P: 910306-05- 5171); (“Perjanjian Jual Beli 2”) iv. Dokumen Pinjaman I Wish Home Financing-i (Finance Entry Cost) berjumlah RM263,245.00 dan/atau fasiliti dan/atau kemudahan, pinjaman wang terutama yang melibatkan Perjanjian Jual Beli 2 di mana nama Plaintif atau Tetuan Amin Chambers digunakan dalam sebarang dokumen tersebut, sama ada kononnya sebagai pihak yang menyediakan (allegedly prepared by), dilihat sebagai disediakan ataupun disaksikan Plaintif atau Tetuan Amin Chambers; dan (“Dokumen Pinjaman Perjanjian Jual Beli 2”) v. Sebarang surat-menyurat yang wujud bagi kedua-dua hartanah di atas di mana nama Plaintif atau Tetuan Amin Chambers digunakan dalam surat-menyurat tersebut, sama ada kononnya sebagai pihak yang menyediakan allegedly prepared by), dilihat sebagai disediakan ataupun disaksikan Plaintif atau Tetuan Amin Chambers.

Bahawa Pengarah Lembaga Perumahan & Hartanah Selangor hendaklah dalam tempoh masa tujuh (7) hari dari tarikh Perintah ini menzahirkan dan menyerahkan kepada Plaintif dokumen-dokumen berkaitan dengan hartanah-hartanah yang dinyatakan di dalam Perjanjian Jual Beli 1 dan 2 di perenggan 5(i) dan 5(iii) tersebut di atas yang berada dalam milikan, jagaan atau kuasanya berkaitan dengan apa-apa perkara yang berkenaan dalam tindakan ini seperti berikut; a. Salinan asal Permohonan kebenaran pindah milik yang menggunakan identiti firma guaman Plaintif iaitu Tetuan Amin Chambers bertarikh 11.11.2020 bagi hak milik PN 21006/M1/8/143, No Lot No. 43149 Seksyen 14, Bandar Ampang, Daerah Hulu Langat, Negeri Selangor yang beralamat PC1-07-23E, Permai Court 1, Jalan 16A, Taman Desa Permai, Taman Dato’ Ahmad Razali, 68000 Ampang, Selangor yang dinyatakan di dalam perenggan 4(i) di atas; dan b. Dokumen-dokumen lain dan/atau surat-menyurat yang wujud bagi hartanah di atas di mana nama Plaintif atau Tetuan Amin Chambers digunakan dalam surat-menyurat tersebut, sama ada kononnya sebagai pihak yang menyediakan (allegedly prepared by), dilihat sebagai disediakan ataupun disaksikan Plaintif atau Tetuan Amin Chambers.

Bahawa Biz Smile Capital Sdn Bhd (No. Syarikat: 131840-K) hendaklah dalam tempoh masa tujuh (7) hari dari tarikh Perintah ini membuat dan menyampaikan kepada Plaintif menzahirkan dan menyerahkan kepada Plaintif dokumen-dokumen berikut: a. Salinan asal Perjanjian Pinjaman Jadual K Akta Pemberi Pinjam Wang 1951 bertarikh 27.09.2019 yang disaksikan oleh Defendan Pertama iaitu perjanjian pinjaman diantara BIZ SMILE CAPITAL SDN BHD (1318430-K) dengan OTHMAN BIN MOHD SOM, ISMAIL BIN MOHD SOM & SHAHRUDIN BIN MOHD SOM bagi pinjaman sebanyak RM575,000.00; b. Salinan asal Perjanjian Pinjaman Jadual K Akta Pemberi Pinjam Wang 1951 bertarikh 18.11.2019 yang telah disetem yang menggunakan identiti nama dan firma Plaintif bagi Perjanjian Pinjaman diantara BIZ SMILE CAPITAL SDN BHD (1318430-K) dengan OTHMAN BIN MOHD SOM, ISMAIL BIN MOHD SOM & SHAHRUDIN BIN MOHD SOM bagi pinjaman sebanyak RM1,700,000.00; c. Salinan asal Perjanjian Pinjaman Jadual K Akta Pemberi Pinjam Wang 1951 yang telah disetem dimana Peminjam GEETHE @ZAITHON BINTI MOHAMAD KASSIM yang meletakkan cagaran Hartanah yang dipegang dibawah PN21006/M1/8/143, Lo43149 Seksyen 14, Bandar Ampang, Daerah Hulu Langat, Negeri Selangor; d. Salinan asal Perjanjian Pinjaman Jadual K Akta Pemberi Pinjam Wang 1951 bertarikh 18.10.2019 yang telah disetem dan menggunakan identiti nama dan firma Plaintif bagi Perjanjian Pinjaman diantara BIZ SMILE CAPITAL SDN BHD (1318430-K) dengan MOHAN SUNDARAM A/L ARUMUTHU yang meletakkan cagaran hartanah HSD 138692, Lot 69236, Mukim Kapar, Daerah Klang, Negeri Selangor dan/atau PM 262, Lot 8533, Mukim Bukit Raja, Daerah Petaling Negeri Selangor yang beralamat No. 9, Jalan Astana 4B, Bandar Bukit Raja 2, 41500 Klang, Selangor bagi pinjaman sebanyak RM245,000.00; dan e. Bukti transaksi wang pinjaman daripada pemberi pinjam wang kepada peminjam wang.

Bahawa Plaintif diberikan kebenaran untuk membuat analisa kesahihan, kewujudan dan mendapatkan perbandingan forensik dan/atau Jabatan Kimia dan/atau laporan pakar bagi dokumen-dokumen yang dizahirkan;

Bahawa kos yang munasabah berhubung pemerolehan dokumen-dokumen asal tersebut dan yang diakibatkan oleh Permohonan ini bagi membuat analisa kesahihan, kewujudan dan mendapatkan perbandingan forensik dan/atau Jabatan Kimia dan/atau laporan pakar bagi dokumen-dokumen yang dizahirkan dijadikan kos di dalam kausa; dan

Relif lanjut atau lain yang Mahkamah yang Mulia ini anggap patut dan wajar.”

Upon perusal of the cause papers and having considered the written and oral submissions by parties, I find that the Plaintiff had failed to fulfill the requirements stipulated under Order 24 rule 7A and rule 8 of the ROC 2012 and the conditions set out for the discovery of documents against the Defendants, TNA and LPHS. My reasons are elucidated below.

The Plaintiff’s application against Biz Smile was allowed. Despite being served with all relevant cause papers, Biz Smile did not file any affidavit to oppose the Plaintiff’s application.

The law pertaining to the discovery of documents is provided under Order 24 of the ROC 2012. The essential elements for an order for discovery were explained in the case of Yekambaran s/o Marimuthu v Malayawata Steel Berhad [1994] 2 CLJ 581, as follows: “The essential elements for an order for discovery are threefold; namely, first there must be a "document", secondly, the document must be "relevant" and thirdly, the document must be or have been in the "possession, custody or power" of the party against whom the order for discovery is sought. ...... As to "relevance", our Rules of the High Court limit discovery to documents which are "relevant to" or "relate" to the factual issues in dispute. More particularly, the discovery obligation applies to documents "relating to matters in question in the action" [Rules of the High Court, O. 24, r. 1(1)] or "relating to any matter in question in the cause or matter" [O. 24, r. 3(1)]. In practice, relevance is primarily determined by reference to the pleadings but there need not be a pleading for a matter to be said to be in issue. (See Phillips v. Phillips [1879] 40 LT 815, 821. In this context, relevance is defined broadly. It does not extend to documents relevant merely to a party's credibility unless that itself is a fact in issue. (See George Ballantine & Sons Ltd. v. Dixon & Son Ltd. [1974] 1 WLR 1125). If, however, the document's relevance is to a fact in issue, not simply to credibility, it has long been settled that relevance of an indirect kind suffices.” [emphasis added]

Therefore, the three elements for an order for discovery are: a. there must be a "document"; b. the document must be "relevant"; and c. the document must be or have been in the "possession, custody or power" of the party against whom the order for discovery is sought.

Further, the Court shall refuse the application for discovery if it is of the opinion that discovery is not necessary either for disposing fairly of the cause or matter or for saving costs as provided under Order 24 rule 8 of the ROC 2012.

The discovery of documents against persons who are not a party to the proceedings is provided under Order 24 rule 7A (2) of the ROC 2012 and further Order 24 rule 7A (3) provides that- “(3) An originating summons under paragraph (1) or a notice of application under paragraph (2) shall be supported by an affidavit which shall-

in the case of an originating summons under paragraph (1), state the grounds for the application, the material facts pertaining to the intended proceedings and whether the person against whom the order is sought is likely to be party to subsequent proceedings in Court; and

in any case, specify or describe the documents in respect of which the order is sought and show, if practicable by reference to any pleading served or intended to be served in the proceedings, that the documents are relevant to an issue arising or likely to arise out of the claim made or likely to be made in the proceedings or the identity of the likely parties to the proceedings, or both, and that the person against whom the order is sought is likely to have or have had them in his possession, custody or power.’ [emphasis added]

Hence, in an application for discovery against a non-party, the Plaintiff must fulfill the following requirements: a. to specify or describe the documents in respect of which Enclosure 190 is sought; b. to show that the documents sought to be discovered from the non-parties are relevant to issue(s) arising or likely to arise from the claim herein; c. to show that the non-parties against whom the order is sought are likely to have or have had the documents sought for in their possession, custody or power; and d. to show that the documents sought in Enclosure 190 are necessary to fairly dispose of this suit or for saving costs.

Furthermore, the court’s discretion to order discovery against a third party or non-party is clearly established in the case of Billion Prima

Sdn. Bhd. & Anor v. Nutech Company Ltd & Anor [2017] 1 CLJ The court stated that: “[1] From a reading of O. 24 rr. 7A and 8 of the RC, an applicant in a discovery application against a third party must fulfil six conditions before the court may exercise its discretion to order discovery against a third party:

the applicant’s affidavit in support of the discovery application the against third party (supporting affidavit) shall “specify or describe the documents in respect of which the order is sought” (documents) as required by O. 24 r. 7A(3)(b) of the RC;

(ii) the supporting affidavit shall “show, if practicable by reference to any pleading served” that the documents were “relevant to an issue arising or likely” to arise out of the claim made (relevancy requirement);

(iii) the supporting affidavit shall show that the “person against whom the order is sought is likely to have or have had the documents in his possession, custody or power”;

(iv) an applicant bears the legal onus to satisfy the court that a discovery application against third party is necessary to fairly dispose of the pending suit;

the documents are not privileged and the third party can be compelled by an order under O. 24 r. 7A(5) of the RC to produce the documents; and

(vi) the discovery application against third party and supporting affidavit shall be served personally on the third party. (para 10)” [emphasis added]

In support of the Plaintiff’s application in Enclosure 190, the Plaintiff relied on, inter alia, the following grounds: a. the original documents requested by the Plaintiff are reasonable and essential to be provided and/or disclosed to prove the authenticity of the signature. b. and that comparative forensic findings from the Department of Chemistry and/or an expert report could save time and dispose of the case fairly. c. the documents sought are purportedly relevant, necessary for the pleaded issues during trial, and contain allegedly relevant and important information. d. the original documents sought by the Plaintiff are within the Defendants’ knowledge, possession, and custody. e. the disclosure of the documents sought by the Plaintiff would facilitate a fair trial relating to the issues that were raised in the pleadings; and f. these original documents sought for, if permitted to be disclosed, could be referred directly to the Court and/or Department of Chemistry to undergo comparative analysis of signatures contained in the Sale and Purchase Agreement.

The Defendants’ case in opposing this application for discovery against the Defendants are, among others, the following: a. The Plaintiff has expressly admitted that the MyGPS Case was jointly handled by his firm and the Third Defendant's firm on behalf of the First and Second Defendants. The Plaintiff willingly granted access to his firm's email, EFS account, and letterhead to the Fourth Defendant, who represented the First and Second Defendants in the MyGPS Case, following the clients' instructions. Contrary to the Plaintiff's frivolous allegations, the First, Second, Third, and Fourth Defendants were not involved in handling any of the Plaintiff's personal conveyancing files. b. Instead, the items listed in the Plaintiff's application for discovery pertain to the Plaintiff's personal conveyancing files involving an individual named David. The Fifth Defendant managed these files in her personal capacity, unrelated to her role at the Third Defendant's firm, to earn additional income. However, these files are no longer active, as David has discontinued them and intends to engage other solicitors. The Plaintiff is also aware that the conveyancing files have been returned to David. c. The Plaintiff has failed to establish any reasonable grounds for this Court to grant an order for the discovery against the Defendants. d. The Plaintiff's application for discovery is merely a vexatious tactic intended to unjustly portray the Defendants as criminals before this Court. e. The Plaintiff's Affidavit in Support merely repeats the baseless allegations made in the Statements of Claims, Mareva Injunction, and Anton Piller Order's Affidavit in Support. It does not reflect the Plaintiff's stated intentions as outlined in the Notice of Application in Enclosure 190. f. The documents requested by the Plaintiff for discovery are irrelevant. g. The Plaintiff failed to demonstrate that the documents requested for are in the custody, ownership, or possession of the Defendants. h. The documents requested by the Plaintiff for discovery are protected under the solicitor-client privilege. i. The Plaintiff's application for discovery is nothing more than a fishing expedition, with the relief sought being vague, broad and oppressive.

Against the non-party, TNA, the Plaintiff sought for discovery of the following documents, namely: a. First SPA and Loan Documents for the First SPA; b. Second SPA and Loan Documents for the Second SPA; and c. Any letters regarding the property in the First SPA and Second SPA where the name of the Plaintiff or Messrs Amin Chambers were used or shown.

Regarding the First SPA and Loan Documents pertaining to it, TNA argued that, as the loan solicitor for the First SPA, they received only the original copy of the stamped First SPA from Messrs Amin Chambers upon TNA's request for the loan application for the purchaser of the First SPA.

Upon the Plaintiff’s request, TNA returned the stamped First SPA to the Plaintiff, who personally collected it on 4 December 2020.

Upon returning the original copy of the stamped First SPA to the Plaintiff, and adhering to the client's instructions, the entire transaction associated with the First SPA was cancelled.

Consequently, any subsequent progress regarding the First SPA and its corresponding loan documentation has halted after the return of the original copy of the stamped First SPA to the Plaintiff.

Regarding the Second SPA and its corresponding Loan Documents, TNA stated that initially, Messrs Amin Chambers acted as the solicitor representing the purchaser for the Second SPA. However, TNA, acting as the loan solicitor for the Second SPA, subsequently received instructions from the client, who is the purchaser of the Second SPA, expressing a preference for a different solicitor to oversee the entire transaction. The newly appointed solicitor is from Messrs Kuah, Lim, Chin & Ooi.

In accordance with the client’s instructions, Messrs Kuah, Lim, Chin & Ooi managed the ongoing progress regarding the loan documentation for the Second SPA.

With Messrs Kuah, Lim, Chin & Ooi now managing the Second SPA, TNA did not request nor receive any documents related to the loan documentation from Messrs Amin Chambers, the initial solicitors for the Second SPA.

Regarding the letters concerning the SPAs, TNA argued that during the loan documentation process for both SPAs, TNA sent two letters to the Plaintiff and Messrs Amin Chambers. Both letters have been presented to the Plaintiff, as Exhibit MAA-2 in the Plaintiff's Affidavit in Support and as Exhibit TKC-1 in TNA’s Affidavit in Reply.

The Plaintiff argued that the affidavits filed provide strong circumstantial evidence indicating that the documents sought are in the possession, custody, or control of the Defendants and/or non-parties. The Plaintiff referenced emails and correspondence with various stakeholders, highlighting a letter dated 6 January 2021 from the police, which stated that the Defendants had violated the practice and ethics of the profession under the Legal Profession Act

Consequently, the Plaintiff claimed that the Defendants' denial of possessing the documents is a mere bare denial. Furthermore, the Plaintiff argued that the assertion that the requested documents are the Plaintiff's personal conveyancing files is illogical, as the Plaintiff is not a conveyancing lawyer.

The Plaintiff asserted that, due to misrepresentation and/or undue influence by the First and Second Defendants, he established Messrs Amin Chambers under the belief that they would refer litigation files to him, given that the Defendants lacked expertise in litigation. However, unbeknownst to the Plaintiff, the Defendants had been secretly impersonating both the Plaintiff and Messrs Amin Chambers in multiple dubious land and loan transactions.

The Plaintiff alleged that the documents in question exist and are relevant to the cause of action, as they serve as evidence of the Defendants' wrongdoing. Given that the Defendants, acting as lawyers, oversaw the transactions, these documents should be in their possession or that of the non-parties.

The Plaintiff stated that his application for the disclosure of documents is reasonable and crucial, considering that the Defendants possess the conveyancing documents in question, which have allegedly used the name of the Plaintiff's law firm in dubious transactions. The Plaintiff asserted that he has detailed and specifically described these documents in Paragraphs 4.1(c), 4.1(d),

4.1(e), 4.1(f), 4.2(b), and 4.3(b) and disclosure of these documents is essential to ensure the case can be fairly disposed of.

The Plaintiff alleged that there are numerous errors and irregularities in the Sale and Purchase Agreement, including, but not limited to, the absence of the Purchaser’s initials on each page, the falsification of the Plaintiff’s signature, and the misuse of the law firm’s identity, such as a forged certified true copy stamp and a forged round stamp.

The Plaintiff indicated that, following a conversation with the Fifth Defendant, he was made to believe that the listed conveyancing cases had been dismissed. However, a letter from TNA revealed that these cases were still ongoing without the Plaintiff's knowledge. The Plaintiff maintains that the original documents listed in this application are in the possession and control of the Defendants, either individually, jointly, or with the non-parties (TNA), based on the evidence currently presented to the Court.

The Plaintiff emphasised that obtaining an analysis of the validity, existence, and comparison of forensics and/or reports from the Department of Chemistry and/or experts for the requested documents would significantly benefit their case. Additionally, the Defendants could present their own expert report in response, which would bolster their case. This discovery application is not skewed towards either party; rather, it will assist the Court in reaching a thorough and impartial decision.

Having perused all the cause papers, this Court finds that the Plaintiff has failed to sufficiently prove that the documents sought from the Defendants, TNA, and LPHS are relevant and necessary for disposing fairly of the cause or matter or saving costs.

Order 24 rule 13(1) of the ROC 2012 states: “An order for the production of any documents for inspection or to the Court shall not be made under any of the foregoing rules unless the Court is of the opinion that the order is necessary either for disposing fairly of the cause or matter or for saving costs.” [emphasis added]

In support of the above rule, the Court of Appeal in the case of Nguang Chan aka Nguang Chan Liquor Trader & Ors v Hai-O Enterprise Bhd & Ors [2009] 5 MLJ 40 interpreted the concept of "necessity" within Order 24 rule 13(1) of the ROC 2012 as follows: “Under r 13(1) an order for the production of documents for inspection is not to be made unless the court is of opinion that such order is necessary either for disposing fairly of the case or matter or for saving costs. It is for the party seeking production to satisfy the court that such production is necessary for the purpose specified in r 13(1) per Parker LJ in Dolling-Baker v Marrett & Ors [1991] 2 All ER 890 and Ventouris v Mountain [1991] 1 WLR 607. And in considering the application the court should bear in mind the words of Sir Thomas Bingham MR in Taylor v Anderton [1995] 1 WLR 447 at p 462 that 'the purpose of the rule is to ensure that one party does not enjoy an advantage or suffer an unfair disadvantage in the litigation as the result of a document not being produced for inspection.” [emphasis added]

Apart from asserting that the documents sought are relevant and necessary for a fair disposal of this suit and cost-saving measures, the Plaintiff has not sufficiently proven how all the documents requested in the Notice of Application are essential for achieving these objectives. The Plaintiff has not provided satisfactory explanations to this Court regarding the necessity of the requested documents for a fair disposal of the suit and cost-saving purposes. While the Plaintiff has stated that these documents are relevant to the issues raised in its claim, it is crucial for the Plaintiff to convincingly demonstrate to this Court that these documents are not only relevant but also necessary for a fair disposal of the suit and cost-saving purposes. Failure to do so may lead to the Court's refusal of the discovery, under Order 24 rule 8, if the Court is convinced that the discovery is not necessary either for fair disposal of the matter or for cost-saving, especially when the Plaintiff has failed to demonstrate the necessity of the requested documents for these purposes. This principle was elucidated in the Court of Appeal case of Malaysia Debt Ventures Berhad v Platinum Techsolve Sdn. Bhd. & Ors [2020] MLJU 1421, where S. Nantha Balan JCA explained that: [198] Further, it is also imperative for the respondents to establish that the DSA is necessary. Relevance cannot be conflated with necessary, as what is relevant may not be necessary. [199] In our view, the question as to whether the document for which disclosure is sought is necessary is an important and we might, add pivotal component for the order of discovery under Order 24 Rule 7 ROC. Indeed, Order 24 Rule 8 ROC also makes it imperative that the Court to refuse discovery if it is satisfied that discovery was not necessary. [202] In our view, the proper approach to the question of whether discovery is “necessary” may be gleaned from the case of Bayerische Hypo-und Vereinsbank AG v Asia Pacific Breweries (Singapore) Pte Ltd and other applications [2004] SGHC 155; [2004] 4 SLR (R) 39 (“Bayerische”) where the High Court of Singapore at paragraph [37] stated as follows: “The ultimate test is whether discovery is necessary for disposing fairly of the proceedings or for saving costs. An assertion that the documents are relevant will not be good enough. Equally, an assertion that the documents are necessary because they are relevant will not be enough.” [203] Further, in paragraph [38] of the judgment, the Singapore High Court had considered Order 24 Rule 7 which is pari. materia with our Order 24 Rule 8 and stated that: “The court is, by O. 24 r. 7, concerned with the discretion to refuse disclosure of a document unless the necessity for disclosure is clearly demonstrated.” [emphasis added]

I agree with the Defendants' argument that the Plaintiff has not shown how these documents are relevant to his claim. Therefore, requiring the Defendants to produce conveyancing and litigation files or documents unrelated to the Plaintiff's case is unreasonable and unfair.

I find merit in TNA's assertion that the subsequent loan documentation process conducted by the newly appointed SPA solicitor, Messrs Kuah, Lim, Chin & Ooi, is unrelated to the discovery application between the Plaintiff and TNA and is irrelevant to any issues in the Plaintiff’s claim.

It is evident from the Plaintiff’s discovery application that he has requested numerous similar documents from both the Defendants and non-parties, indicating uncertainty regarding the custody, ownership, or possession of these documents. The Defendants have denied having custody, ownership, or possession of the documents listed in paragraphs 2(a), 2(b), 3(a), 3(b), 4(a), and 4(b) of the Notice of Application. Meanwhile, documents listed in paragraphs 1 to 3 of the Notice of Application pertain to personal conveyancing files involving the Plaintiff and an individual named David. It appears that the Plaintiff was already aware of these documents, as evidenced by exchanges in WhatsApp texts between the Plaintiff and David, demonstrating their close collaboration on these transactions. These messages indicate that the Plaintiff had knowledge of these documents dating back to February 2020, as further supported by the evidence provided in the Plaintiff’s Affidavit in Support.

Accordingly, considering the evidence submitted to this Court, it appears that the Plaintiff is pursuing documents listed in paragraphs 1 to 3 of the Notice of Application, which ought to be under the Plaintiff’s personal possession.

In response to the requested documents from TNA, they have indicated that both the SPAs and loan documentation sought by the Plaintiff are not within their custody, ownership, or possession, a fact already known to the Plaintiff.

This Court finds that the Plaintiff has failed to prove that the documents sought are within the possession, custody, and control of either the Defendants or the non-parties. Additionally, both the Defendants and TNA have refuted the Plaintiff’s assertion regarding the possession, ownership, or control of the documents. The burden of proof rests with the Plaintiff.

In the case of Pangsapuri Anda Management & Ors v Pembinaan Safilo Sdn Bhd [2021] 1 LNS 175, the court held that: “Discovery or disclosure should be conducted on relevant documents only and with the intention to determine certain issues. There shall be no fishing expedition or discovery of unrelated documents… Thus, in seeking for discovery, the parties must ensure that documents listed in the List of Documents (Form 38 of the Rules of Courts 2012) are in the other parties’ possession, custody or power and they are not privileged documents. These are the requirements for discovery process.” [emphasis added]

The Defendants and TNA have also opposed the discovery application, arguing that the documents sought are protected under solicitor-client privilege and, therefore, cannot be disclosed.

The Defendants asserted that Biz Smile Capital Sdn. Bhd. is a client of both the Plaintiff and the Third Defendant, meaning all related cases and files are protected under solicitor-client privilege. Therefore, the Plaintiff is not entitled to access these specific cases or files.

Regarding the documents mentioned in Paragraph 4 of the Notice of Application, the Defendants contended that they do not possess these documents. The First and Second Defendants appointed Messrs Kuah, Lim, Chin & Ooi as their legal representatives for this particular case. Consequently, Messrs Kuah, Lim, Chin & Ooi hold all related documents, which are protected by solicitor-client privilege.

TNA contended that the Second SPA and Loan Documents handled by Messrs Kuah, Lim, Chin & Ooi pertain solely to the client's loan application. These documents involved only the client, TNA, and Messrs Kuah, Lim, Chin & Ooi.

Throughout the loan application process, the Second SPA and related loan documents entailed confidential communication between the client and the respective solicitors: Messrs Kuah, Lim, Chin & Ooi as the SPA solicitor and TNA as the loan solicitor.

TNA asserted that the Second SPA and related loan documents cannot be disclosed to any third party due to the privileged nature of the communications involved.

Under Section 126 of the Evidence Act 1950, the protection surrounding the Second SPA and Loan Documents for Second SPA will only be lifted if the documents are found to be illegal or if they reveal the commission of any crime or fraud, neither of which applies in this case.

In this context, TNA argued that the Second SPA and Loan Documents for Second SPA do not involve any illegality falling under the exception of Section 126 of the Evidence Act 1950. Therefore, communication regarding the execution of the Second SPA and Loan Documents for the Second SPA is to be protected and not disclosed in any manner.

Order 24 rule 13 (2) of ROC 2012 provides as follows: - “Where on an application under this Order for production of any document for inspection or to the Court, privilege from such production is claimed or objection is made to such production on any other ground, the Court may inspect the document for the purpose of deciding whether the claim or objection is valid.”

In Westminster Airways LD. v Kuwait Oil Co. LD. [1951] 1 K.B. 134 (CA), the English Court of Appeal established that if, upon initial examination through affidavit evidence, the claim to privilege appeared justifiable on its face, the court would refrain from inspecting the document in question to ascertain whether it indeed falls under the protection of privilege. Jenkins LJ who agreed with the judgment of Singleton LJ said as follows on pp 145–146: “The claim for further discovery, as developed in argument before us, was not to the effect that the claim to privilege was wholly bad on the face of it, with the result that the whole of the documents to which that claim related should be disclosed, but was argued on the lines that here was a dubious claim to privilege which might, or might not, be justified, and that the proper course, in the circumstances, was for the court itself to inspect the documents and decide how far, if at all, they were privileged documents. It is not open to doubt that under the R. S. C, Ord. 31, r 19A

(2), the court has power, in a proper case, to inspect documents where a claim of privilege is set up against a claim for inspection of documents by the opposite party. Birmingham and Midland Omnibus Company Ld v London and North Western Ry Co (26) affords an illustration of a case in which the court did take that course, and, as it happened, having done so, held that the claim to privilege was well founded. But there is nothing in the rule, or in the authorities, to constrain the court to hold that, in every case where a claim to privilege is made and disputed, the party seeking production is entitled to come to the court and (as it were) demand as of right that the court should go behind the oath of the opposite party and itself inspect the documents. The question whether the court should inspect the documents is one which is a matter for the discretion of the court, and primarily for the judge of first instance. Each case must depend on its own circumstances; but if, looking at the affidavit, the court finds that the claim to privilege is formally correct, and that the documents in respect of which it is made are sufficiently identified and are such that, prima facie, the claim to privilege would appear to be properly made in respect of them, then, in my judgment, the court should, generally speaking, accept the affidavit as sufficiently justifying the claim without going further and inspecting the documents.” [emphasis added]

Reference is also made to Section 126 of the Evidence Act 1950 which states as follows: “(1) No advocate shall at any time be permitted, unless with his client’s express consent, to disclose any communication made to him in the course and for the purpose of his employment as such advocate by or on behalf of his client, or to state the contents or condition of any document with which he has become acquainted in the course and for the purpose of his professional employment, or to disclose any advice given by him to his client in the course and for the purpose of such employment: Provided that nothing in this section shall protect from disclosure –

any such communication made in furtherance of any illegal purpose;

any fact observed by any advocate in the course of his employment as such showing that any crime or fraud has been committed since the commencement of his employment.”

In the case of Tan Thian Wah v. Tan Tian Tiok & Ors [1998] 2 CLJ SUPP 300 the court held: “[2] By virtue of s. 126(1)(a) and (b) of the Act, any papers including any correspondence, communication or matters relating to them would be privileged from discovery. Thus, disentitling strangers from inspecting them.”

What are the documents protected under privilege was explained in the Court of Appeal case Tenaga Nasional Bhd v Bukit Lenang Development Sdn Bhd [2016] 10 CLJ 164, which held as follows: “[26] In this connection, it is also pertinent to refer a passage in Wheeler v Le Marchant [1881] 17 Ch D 675 at 681 where Jessel MR said: In the first place, the principle protecting confidential communications is of a very limited character. It does not protect all confidential communications a man must necessarily make in order to obtain advice, even when needed for the protection of his life, or of his honour, or of his fortune. There are many communications which, though absolutely necessary, because without them the ordinary business of life cannot be carried on, still are not privileged... Therefore, it must not be supposed that there is any principle which says that every confidential communication which it is necessary to make in order to carry on the ordinary business of life is protected. The protection is of a very limited character, and in this country is restricted to the obtaining the assistance of lawyers, as regards the conduct of litigation or the rights to property. It has never gone beyond the obtaining legal advice and assistance, and all things reasonably necessary in the shape of communication to the legal advisers are protected from production or discovery in order that legal advice may be obtained safely and sufficiently.” [emphasis added]

The Federal Court in the case of Dato' Anthony See Teow Guan v See Teow Chuan & Anor [2009] 3 CLJ 405 emphasised the following: - “(1) The Court of Appeal, in taking the 'loss of confidentiality' approach to determine loss of privilege, had failed to recognise the common law maxim “once privileged, always privileged” as embodied in ss 126 to 129 of the Act…

….Hence, I hold that the legal professional privilege under s 126 of the Act is absolute and it remains so until waived by the privilege holder, ie the client.” [emphasis added]

The burden of proof lies with the Plaintiff to demonstrate the presence of fraud, as decided in the case of Lim Keong Yew & Anor v. Tan Sri Lim Kok Thay & Anor [2017] 1 LNS 1791 where the court stated: “[32] In the circumstances, the only way for the plaintiffs to lift the privilege is for them to show to this Court that this case falls within one of the provisoes in subsections (a) or

in that such communication was in furtherance of an illegal purpose or that any crime or fraud has been committed…..”

Having perused the Defendants and TNA’s Affidavit in Reply, I agree with the Defendants and TNA’s argument that the documents sought are privilege documents as these are documents and communication in the cause of legal advice provided by the Defendants and TNA, i.e. loan documentation, sales and purchase agreement, communication pertaining to the loan documentation, prove of loan transaction etc.

Hence, in the absence of evidence from the Plaintiff to support claims of document forgery by the Defendants and/or the non-parties, compelling the Defendants and the non-parties to disclose such documents is unjustified. Furthermore, the Plaintiff has failed to prove that the documents are in the possession of the Defendants and non-parties, aside from being protected by solicitor-client privilege.

It is observed that the Plaintiff's Notice of Application and Affidavit in Support are drafted vaguely and broadly. Consequently, granting this discovery application under these conditions would place an unfair burden and disadvantage on the Defendants.

It is a well-established legal principle that Court orders, especially those pertaining to discovery applications, must be clear and unambiguous. Non-compliance with Court orders could lead to contempt of court charges.

I agree with the Defendants’ assertion that the documents listed in Paragraphs 1(d), 2(a), 3(b), 4(a), and 4(b) of the Plaintiff’s Notice of Application are broad, vague, and unclear. This lack of specificity makes it challenging, if not impossible, for the Defendants to accurately identify and produce the requested documents in compliance with the order.

In the case of Datuk Amar James Wong Kim Min & Anor v Pendaftar Pertubuhan [2004] 6 MLJ 235; [2004] 1 LNS 2011, the court held that: - “To me, the applicants must be specific to the documents they are requesting for disclosure, Otherwise, their application will turn out to be mere fishing expedition. This court, is not going to issue the applicants the fishing licence.”

Furthermore, in the case of M Wealth Corridor Sdn. Bhd. v BJ Properties Sdn. Bhd. & Ors [2022] 9 MLJ 721 the court held: “This court could not allow a discovery application on the basis of presumption. The attempt to ask for the documents in such a wide spread and range of time, duration and a ‘catch-all’ manner was nothing but a fishing expedition. A safety net was thrown and placed to catch as much information as possible. This went against the requirement of ‘specific’. Also, as mentioned by the defendants in their affidavits in reply, many of the documents were not within their custody, possession, or power. The financial records requested in items 1, 2, 3 and 5 of Schedule ‘A’, for instant, were not within the custody, possession, or power of the third defendant. Likewise, the other documents too. To prove their case on conspiracy the burden was on the plaintiff to prove. The plaintiff had not produced an iota of evidence to support their contention and justify the necessity of discovery of these documents at this juncture. The court agreed with the submission of third defendant that the request was premature. Unless and until the plaintiff proved its case and established liability against the defendants, the application for discovery of the financial records was premature and intrusive” [emphasis added]

Upon careful examination of the evidence and arguments tendered by the Plaintiff, this Court finds itself unable to ignore the unmistakable semblance of a fishing expedition within the Plaintiff's application. Indeed, the Plaintiff endeavours to cast their net wide, seeking to gather information, facts, and evidence to fortify their case, akin to an intrepid seeker unravelling enigmatic riddles. It is a fundamental tenet of legal doctrine that the Court cannot condone such fishing expeditions, particularly when they lack substantive merit or purpose.

For the reasons stated above, I therefore order that the Plaintiff’s application in Enclosure 190 be dismissed against the Defendants, TNA, and LPHS. The Plaintiff is to pay costs of RM5000 to the Defendants and RM5000 to the non-party TNA. No order as to costs for LPHS. The Plaintiff’s application against Biz Smile is allowed. No order as to costs. Dated: 27 May 2024. -sgd-JAMHIRAH ALI JUDICIAL COMMISSIONER High Court of Malaya at Shah Alam (NCVC 1) To the parties’ solicitors: For the Plaintiffs : Muhammad Amin Bin Anuar (Messrs Amin Chambers) For the Defendants : Lekha Muralidharan & Donesh (Messrs David Gurupatham & Koay) For the 3rd Party : Vincent Ong & Carmene Tan (Messrs Tan Norizan & Associates)