Na'im bin Brundage v Datuk Dr. Mohamed Sulaiman Sultan Suhaibuddeen (WA-25-262-06/2024)

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1 IN THE HIGH COURT OF MALAYA AT KUALA LUMPUR IN THE FEDERAL TERRITORY OF KUALA LUMPUR, MALAYSIA (SPECIAL POWERS DIVISION) JUDICIAL REVIEW NO: WA-25-262-06/2024 Dalam Perkara Akta Komunikasi dan Multimedia 1998 dan Akta Suruhanjaya Komunikasi dan Multimedia 1998 Dan Dalam Perkara Aturan 53 Kaedah-Kaedah Mahkamah 2012 Dan Dalam Perkara Seksyen 25(2) dan Perenggan 1

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Jadual Akta Kehakiman Mahkamah 1964 Dan S/N vXt/JxUx3Em2Iep7mgzmRA Dalam Perkara 5, 8 dan 10 Perlembagaan Persekutuan BETWEEN NA’IM BIN BRUNDAGE ….. APPLICANT AND 1. DATUK DR MOHAMED SULAIMAN SULTAN SUHAIBUDDEEN 2. PENGERUSI SURUHANJAYA KOMUNIKASI DAN MULTIMEDIA 3. SURUHANJAYA KOMUNIKASI DAN MULTIMEDIA 4. AHMAD FAHMI BIN MOHAMED FADZIL, MENTERI KOMUNIKASI 5. KERAJAAN MALAYSIA …… RESPONDENT(S) GROUNDS OF JUDGMENT [ENCLOSURE 38] A. INTRODUCTION [1] This is an application by the Applicant for leave to amend the Application for leave for Judicial Review dated 24.6.2024 (“JR S/N vXt/JxUx3Em2Iep7mgzmRA Application”) in the manner specified in Enclosure A of the amendment application; [2] The Applicant is given leave to amend the Statement According to Order 53 Rule 3(2) of the Rules of Court 2012 dated 24.6.2024 (“O53 Statement”) in the manner specified in Enclosure B of the amendment application; and [3] The costs of and ancillary to the amendment application are costs in the cause. B. BRIEF FACTS [4] The Applicant is the owner of the following accounts on the social media site, TikTok, bearing the following addresses : (a) https://www.tiktok.com/@naimbrundage2; and (b) https://www.tiktok.com/@naimbrundage3 collectively referred to as “TikTok accounts”. [5] The Applicant regularly uploaded videos on the TikTok accounts, in which he spoke about his views and opinions on current issues and/or matters of public interest. The subject matter of the S/N vXt/JxUx3Em2Iep7mgzmRA Applicant’s videos may encompass social and/or political and/or economic concerns or questions. [6] Sometime in March 2024, the Applicant discovered that the TikTok accounts had been restricted and/or censored and/or blocked. On 28.3.2024, the Applicant sent an email to the Second and Third Putative Respondents and the Fourth Respondent asking for an explanation for the restriction of the TikTok accounts and removal of the same. [7] On 1.4.2024, the First Putative Respondent replied to the said email, the purport to which was an admission that the Third Putative Respondent had restricted and/or blocked and/or censored the said TikTok accounts (“1st letter”). The Applicant then filed the application for Judicial Review herein. [8] However, in the midst of the proceedings, the 1st, 2nd and 3rd Putative Respondents produced a letter dated 20.6.2024 in their Affidavit in Reply dated 12.8.2024 (“2nd letter”). The contents of the 2nd letter changed the previous position taken by the Respondents on the restriction of the TikTok accounts, directly contradicting the 1st letter. S/N vXt/JxUx3Em2Iep7mgzmRA On 7.10.2024, the 1st, 2nd and 3rd Putative Respondents served a copy of the 2nd letter to the Applicant’s solicitors. [9] The amendment application herein is necessitated by the Respondents’ change in position in the 2nd letter. C. THE 1st, 2nd AND 3rd PUTATIVE RESPONDENTS’ REPLY [10] The 1st, 2nd and 3rd Putative Respondents (“Respondents”) filed affidavits in Enclosure 13 on 12.8.2024, Enclosure 17 on 9.10.2024 and Enclosure 26 on 12.2.2025 to oppose Enclosure 1. The Respondents filed and served the Notice of Preliminary Objection in Enclosure 27 on 3.4.2025. [11] On 28.4.2025, the Applicant and the Respondents filed their respective submissions to address the Respondents’ Preliminary Objection in Enclosure 27. On 24.12.2025, the Applicant filed Enclosure 38 to amend the JR Application in Enclosure 1 and the Statement filed in Enclosure 2. [12] Enclosure 38 i.e to amend the JR Application in Enclosure 1 is made after a prolonged and unreasonable delay of approximately 18 months (1 ½ years) from the filing of the JR Application in S/N vXt/JxUx3Em2Iep7mgzmRA Enclosure 1. The Applicant has failed to provide any cogent reason, let alone any explanation for the filing of Enclosure 38. [13] The Applicant sought to blame the Respondents for the delay in filing the amendments as per his affidavit in Enclosure 41: “7. ………….. (b) In the Putative Respondent 1 and 3’s letter to my solicitors dated 20.6.2024 that was only brought to my attention on 9.10.2024 through Exhibit SSS-2 of the Putative Respondents 1, 2 & 3’s Additional Affidavit (“Second Letter”), the justifications for the restriction and/or censorship of my TikTok accounts which were raised are different to those alleged in the First Letter…. (c) This development necessitates the amendments that are sought in the Application to Amend to ensure that the Application for Judicial Review and in O53 Statement reflect the real question in controversy in this case. S/N vXt/JxUx3Em2Iep7mgzmRA (d) It lies ill in the mouth of the Putative Respondents 1, 2 & 3 to now object to an amendment which is necessitated by their own failure to be truthful and candid in the First Letter. …………. (e) The amendments proposed in the Application to Amend are to respond to the Putative Respondents 1, 2 & 3’s admission that they had communicated with TikTok regarding my TikTok accounts that were restricted and/or censored, which is a fact that was suppressed by them.” [14] If the Applicant claims (which is denied) that he had only received the Respondents letter dated 20.6.2024 stating the reasons for the restrictions and/or censorship of his TikTok accounts on 9.10.2024, why did the applicant not file the amendment application as early as 9.10.2024, why wait until 24.12.2025 to file the application for amendment. This is obviously an afterthought and not a bona fide application. [15] The Respondents filed their Notice of Preliminary Objection in Enclosure 27 on 3.4.2025 and the basis of the PO is that : S/N vXt/JxUx3Em2Iep7mgzmRA (i) The 1st Respondent and/or the 2nd Respondent had merely alerted to TikTok the Applicant’s breach of Tik Tok’s Community Guidelines. (ii) The decision to restrict or block the Applicant’s TikTok Accounts was made by TikTok and not the Respondents. (iii) Thus, the JR application is incompetent and a non-starter as there was no “decision” made by the Respondents, which is capable of being judicially reviewed by the High Court. [16] Parties were ready to proceed for the hearing of the PO including the leave for JR application as all affidavits, cause papers and submissions have been exhausted and filed; however the date was vacated by the Court on (2) occasions for official reasons. [17] On 24.12.2025, the Applicant filed Enclosure 38 to amend the JR application in Enclosure 1 and the Statement filed in Enclosure 2, to include a relief of certiorari to quash, inter alia the Respondents’ request or direction to TikTok to suspend the Applicant’s TikTok accounts. This is as per their proposed amendments contained in S/N vXt/JxUx3Em2Iep7mgzmRA prayers 1(i) and (ii) of Enclosure 1 and paragraphs 3(i) and (ii) of Enclosure 2. [18] The amendment application containing the proposed amendments was only contemplated by the Applicant following the PO raised by the Respondents seeking to have the JR application dismissed in limine. The application for amendment at this belated stage is thus a tactical manoeuvre by the Applicant to inter alia, circumvent the PO raised by the Respondents in Enclosure 27 as well as to circumvent the fair disposal of Enclosure 1, which should be decided in favour of the Respondents. D. FINDINGS OF THE COURT [19] The Applicant filed Enclosure 38 for leave to amend the Application for leave for Judicial Review (hereinafter referred to as JR application”) dated 24.6.2024 in the manner specified in Enclosure “A”. The Applicant also seeks leave to amend the Statement According to Order 53 Rules 3(2) of the Rules of Court 2012 dated 24.6.2024 in the manner specified in Enclosure “B” of the amendment application. S/N vXt/JxUx3Em2Iep7mgzmRA [20] The said amendment as per Enclosure “A” is as follows: “Bahawa kebenaran diberikan kepada Pemohon untuk memulakan semakan kehakiman di bawah Aturan 53 Kaedah-kaedah Mahkamah 2012 dan/atau bidang kuasa Mahkamah yang mulia ini bagi relif-relif berikut: i. Suatu perintah bersifat certiorari untuk memindahkan ke Mahkamah yang Mulia ini dan membatalkan keputusan Responden Pertama sehingga Keempat yang terkandung di dalam surat bertarikh 1 April 2024 yang menapis dan/atau menghadkan akses dan/atau memohon dan/atau mengarahkan TikTok menyekat akaun-akaun TikTok Pemohon di bawah alamat https://www.tiktok.com/@naimbrundage2 dan https:www.tiktok.com/@naimbrundage3; ii. Suatu arahan bersifat mandamus mengarahkan Responden Pertama sehingga Keempat untuk membatalkan dan/atau menarik balik surat dan/atau permintaan kepada TikTok untuk penapisan dan/atau pengehadan akses dan/atau penyekatan akaun-akaun TikTok Pemohon di bawah alamat S/N vXt/JxUx3Em2Iep7mgzmRA https://www.tiktok.com/@naimbrundage2 dan https://www.tiktok.com/@naimbrundage3; iii. Suatu deklarasi bahawa penapisan dan/atau pengehadan akses dan/atau penyekatan akaun-akaun TikTok Pemohon adalah bercanggah dengan Perkara 10(1) dan (2) dan/atau Perkara 8(1) Perlembagaan Persekutuan; iv. Bahawa tiada perintah terhadap kos bagi permohonan ini; dan v. Relif-relif lain dan selanjutnya yang Mahkamah yang Mulia ini boleh membentuk sewajarnya dan bersesuai dengan fakta dan keadaan kes Pemohon.” [21] The rule and procedure for amendment of pleadings is settled. Under O. 20 r.5 (1) of the Rules of Court 2012, “…… the Court may at any stage of the proceedings allow the plaintiff to amend his writ, or any party to amend his pleading, on such terms as to costs or otherwise as may be just and in such a manner, if any, as it may direct”. (emphasis by Court) S/N vXt/JxUx3Em2Iep7mgzmRA [22] However, this discretion is subject to certain criteria or circumstances as laid out in Yamaha Motor Co Ltd v Yamaha Malaysia Sdn Bhd & Ors [1983] 1 MLJ 213 and Hong Leong Finance Bhd v Low Thiam Hoe and another appeal [2016] 1 MLJ 301. [23] In Yamaha Motor Co Ltd (supra), Federal Court laid the criteria to be considered before the court allows such amendment as to ensure no injustice is caused to the other parties. The 3 basic questions that the court should ask itself before allowing the amendment is :- (a) whether the application was bona fide; (b) whether the prejudice caused to the other side can be compensated by costs; and (c) whether the amendments would not in effect turn the suit from one character into a suit of another and inconsistent character. [24] In Hong Leong Finance Bhd (supra), the Federal Court has expanded the above criteria laid by Yamaha Motor by giving the court a steering power by virtue of Order 34 of the Rules of Court 2012, to ensure that parties and /or litigants to comply with the directions given by the court in case management so that parties will not use amendment to delay trials. S/N vXt/JxUx3Em2Iep7mgzmRA [25] In Hong Leong Finance Bhd, the Federal Court had observed that in some cases, there were delays in making an amendment application by parties. Therefore, the Federal Court decides that when there was a delay in making an amendment application, the onus was on the applicant to furnish a reasonable explanation for such a delay and the Federal Court views this as an additional factor to be considered besides the Yamaha Motor rules. Also in Hong Leong Finance Bhd, the Federal Court added another factor to be considered ie whether the amendment application was made as a tactical manoeuvre. [26] The Respondents submit that the amendment application was not filed in good faith and is a tactical manoeuvre as the Applicant had waited for approximately 18 months from the filing of the JR 38. Application in Enclosure 1 to file the amendment as per Enclosure The Applicant’s reasoning for the delay is prior to the filing of the application for JR and by way of the 1st letter dated 1.4.2024, the Applicant was led to believe that the Respondents restricted and/or censored his TikTok accounts. In the midst of the proceedings, the Respondents then produced a letter dated 20.6.2024 (“2nd letter”) which had purportedly been sent to the Applicant. The 2nd letter S/N vXt/JxUx3Em2Iep7mgzmRA directly contradicts the previous position of the Respondents in the 1st letter, as it indicates that it “alerted” TikTok of the Applicant’s TikTok accounts, which allegedly breached the Communications and Multimedia Act 1998 and TikTok itself had conducted the restriction and/or censorship of said accounts. [27] The Applicant denied receiving the 2nd letter prior to the filing of the application for JR. The proposed amendments are not cosmetic or frivolous but were in fact necessitated by the 2nd letter which has changed the position of the Respondents regarding the restriction and/or censorship of the Applicant’s TikTok accounts. [28] According to the Applicant, he relied on the 1st letter to file the application for JR and he never received the 2nd letter prior to that. The amendment application is crucial to ensuring that this Court is made aware of the actual disputes that will be material in arriving to its decision on whether or not leave for judicial review should be granted. [29] There is no doubt a delay of 18 months from the date of the filing of application of JR by the Applicant on 24.6.2024. The Applicant had sight of the 2nd letter dated 20.6.2024 as early as 13.8.2024 when S/N vXt/JxUx3Em2Iep7mgzmRA the said letter was exhibited in the Respondents’ affidavit (Enclosure 13). The Applicant had replied to the said affidavit on 10.9.2024 (Enclosure 15). The Applicant vide paragraph 7 of the said affidavit only denied having received the 2nd letter as exhibited as per “SSS-1” but now vide Enclosure 38 which was filed on 24.12.2025, the gist of the amendment that the Applicant is seeking involving the said letter, which he denies ever received. [30] The discretion whether to allow the said application to amend the prayers in the JR and its statement lie solely in the hands of this court (refer to Hong Leong Finance and O. 20 rule 5(1). In exercising its discretion this court will look at the criteria that was laid down both in Yamaha Motor and Hong Leong Finance Bhd. [31] The Court in this case had perused the minutes of the proceedings and take note that parties had prepared to proceed with the JR application hearing when the leave application was fixed on 16.1.2025, 27.5.2025, 8.10.2025 and 6.1.2026 but unfortunately these dates were vacated by the Court for official reasons. Be it as it may, the Applicant had as on 13.8.2024 and 10.9.2024 to make the necessary application to amend the JR application if the 2nd letter dated 20.6.2024 which the Applicant believed had changed S/N vXt/JxUx3Em2Iep7mgzmRA the position of the Respondents regarding the restriction and/or censorship of the Applicant’s TikTok accounts. However, the Applicant did not take the necessary steps until almost 18 months later to file Enclosure 38. [32] The Applicant had failed to provide any cogent reason let alone any explanation for the late filing of Enclosure 38 except that he was not aware of the 2nd letter dated 20.6.2024 (which now shows that this is not true since the said letter was exhibited in the Respondents’ affidavit dated 13.8.2024 and the Applicant replied on 10.9.2024). The Applicant had slept on his right for 18 months to make good his relief so the Court can decide on the actual issues in dispute as claimed by him; and this Court will not be in his favour for something that he failed to do the moment he was made aware of it. [33] Order 53 Rules 7(1) of the Rules of Court 2012 allows for the Statement to be amended : “(1) The Judge may allow the statement to be amended, and may allow further affidavits to be used if they deal with new matters arising out of any affidavit of any party to the application, and where the applicant intends to amend his S/N vXt/JxUx3Em2Iep7mgzmRA statement or use further affidavits, he must immediately give notice of his intention and of any proposed amendment of his statement to every other party.” As per the Federal Court decision in Hong Leong Finance Bhd (supra), amendment to any pleading or statement in JR applications to be done at any proceeding or new matters arising out of any affidavit of any party to the application is to ensure all issues be rightfully put before the Court so that no injustice is caused to any party. Be as it may, does it mean the applicant can take for granted or choose as to their convenient to file the application to amend and the Court by virtue of Or. 20 rule 5 or Or. 53 Rule 7(1) ROC 2012 had to entertain such application even if it is made when the application had already been set for hearing and had past few hearing dates. This triggers the Federal Court in Hong Leong Bank Bhd (supra) to make the applicant who delay in making the amendment to explain the delay. [34] The kind of explanation that is required from the Applicant who caused the delay is a reasonable explanation and must advance some cogent reasons. This is what the Federal Court in Hong Leong S/N vXt/JxUx3Em2Iep7mgzmRA Finance Bhd (supra) said about giving reasons for delay at pages 312, 313 and 314: “The Courts in Malaysia have consistently held that where there is a delay in making an amendment application, the onus is on the applicant to furnish a reasonable explanation for such a delay. They seem to have considered this as an additional factor to the Yamaha Motor’s rules. The need to show ‘some material and advance some cogent reasons’ was applied in Taisho Co Sdn Bhd v Pan Global Equities Bhd & Anor [1999] 1 MLJ 359; [1999] 1 CLJ 703, Haidar JCA (as he then was) held: “The learned judge intimated that the application was made after the appellant failed on appeal to this court to affirm the judgment entered by it initially. Further, he said that the appellant had knowledge of the ‘acknowledgment’ as late as April 1987, that is four years before the action was filed. Furthermore, the application was filed four years after the commencement of this action. We would add further that no reasons were given for the delay in filing the application even before filing the proceedings. As rightly opined by the learned JC in Multi-Pak S/N vXt/JxUx3Em2Iep7mgzmRA Singapore Pte Ltd and correctly followed by the learned judge, the appellant did not place some material and advance some cogent reasons to impel the court to lean on its side. We would further add the application borders on lack of bona fides, one of the basic question set out in Yamaha Motor Co. Ltd ….. It is noted in the present case the defendant’s affidavit in support failed to adduce an explanation for the delay in filing the said application… The defendant’s affidavit also did not discharge the ‘heavy onus ’imposed on the amending party as the defendant did not disclose any ‘material and cogent’ reasons to explain the inordinate delay.” Is the Amendment Application (Enclosure 38) made bona fide? [35] The Respondents submit that the said amendments are not made bona fide and also made as a tactical manoeuvre to circumvent Respondents’ preliminary objection. [36] The Respondents had on 3.4.2025 vide Enclosure 27 filed their Notice of Preliminary Objection on the basis : S/N vXt/JxUx3Em2Iep7mgzmRA i. The 1st Respondent and/or the 2nd Respondent had merely alerted to TikTok the Applicant’s breach of TikTok Community Guidelines. ii. The Decision to restrict or block the Applicant’s TikTok Accounts was made by TikTok and not the Respondents. iii. Thus, the JR Application is incompetent and a non-starter, as there is no “decision” made by the Respondents which is capable of being judicially reviewed by the High Court. [37] This Court is in agreement with the Respondents’ solicitors that if the amendment is allowed, it will circumvent the preliminary objection of the Respondents and it is clear from the proposed amendment seek by the Applicant vide prayer 1(i) and (ii) Enclosure 38 to include the relief of certiorari and mandamus inter alia the Respondents’ request or direction to TikTok to suspend the Applicant’s TikTok accounts. This is not a bona fide and a straight forward amendment. This would transform the JR Application from one character to another of a different and inconsistent character. The Applicant should not be allowed to make good his application after he had sighted the preliminary objection by the Respondents’ S/N vXt/JxUx3Em2Iep7mgzmRA solicitors because it can be said as a tactical manoeuvre which can be construed as an abuse of the process of the Court. D. CONCLUSION [38] Based on the reasons above, I hereby dismissed Enclosure 38 with costs of RM 2000 to be paid to Respondent 1, 2, 3 and Respondent 4, 5 respectively. Dated: 12.6.2026 tt Norliza binti Othman High Court Judge Bahagian Kuasa-Kuasa Khas 1 Mahkamah Tinggi Kuala Lumpur Solicitors for the Applicant : Messrs. Daim & Gamany Solicitors for the First, Second and Third Respondents : Messrs. Sitham & Associates Solicitors for the Fourth and Fifth Respondents : Attorney General’s Chambers S/N vXt/JxUx3Em2Iep7mgzmRA