Sit Chew Yee v Maxis Broadband Sdn Bhd (WA-24NCvC-2443-07/2024)

High Court of Malaysia23 Sept 2024

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1 DALAM WILAYAH PERSEKUTUAN KUALA LUMPUR, MALAYSIA NO. SAMAN PEMULA: WA-24NCvC-2443-07/2024 Dalam perkara berkenaan suatu tindakan guaman yang dicadangkan terhadap Lam Chan Fai (No K/P: 860822-56-6143 dan/atau Looi Chai Yeing (No K/P: 850826- 14-6278) dan/atau Teoh Eu Jin (No K/P: 870210-38-5359). Dan Dalam perkara berkaitan dengan Aturan 24, Kaedah 7A Kaedah-kaedah Mahkamah 2012 dan/atau bidangkuasa sedia ada Mahkamah yang Mulia ini. ANTARA SIT CHEW YEE (NO K/P: 851106-06-5730) …PLAINTIF DAN MAXIS BROADBAND SDN BHD (NO. SYARIKAT: 199201002549 [234053-D]) …DEFENDAN GROUNDS OF JUDGMENT Introduction [1] By way of an Originating Summons (Enclosure 1), the Plaintiff has filed a pre-action discovery application against the Defendant pursuant to 13/02/2025 22:27:29 WA-24NCvC-2443-07/2024 Kand. 12 Order 24 rule 7A Rules of Court 2012 to require the Defendant to produce and deliver to the Plaintiff documents that show the location of mobile phone number 011-11114648 on 15th November 2018 between 7.00am and 7.00pm.

The Plaintiff’s application sought an order for discovery, for an affidavit to be affirmed by the Defendant to verify and enclose the documents sought about the location of the mobile phone on a date which is about 6 years ago. For reference, a clear screenshot of the prayers in the Originating Summons is set out below:

Upon reading the affidavits and hearing respective counsel for the two parties, it was obvious to me that discovery was not necessary. In fact, the Plaintiff had no basis to file the said application. Therefore, I decided that this Court ought to dismiss it. My grounds are as set out below. Background Facts [4] The Plaintiff is stated to be simply as the user of mobile phone number 011-11114648.

The Defendant does not need introduction in Malaysia as it is one of the few telecommunication companies that is a service provider of various mobile telecommunication services.

It was not stated in the affidavit as to whether the Plaintiff is the account holder for mobile number 011-11114648. Upon my questioning the Plaintiff’s counsel, it was disclosed that the said mobile number is registered in the name of the Plaintiff’s husband. The Plaintiff’s Application [7] The Plaintiff’s affidavit stated her purpose for filing the application. The exact words are as follows:

In paras 7, 8 and 12 of her affidavit, the Plaintiff mentioned that she was sued by Hong Leong Bank Berhad : Analysis of the Facts and Law [9] At the outset, I would point out that Order 24 rule 8 Rules of Court 2012 is worded in the negative. It states that such an application under rule 7A ought to be dismissed if the court is satisfied that discovery is not necessary. Thus, though there is power under Order 24 rule 7A Rules of Court 2012 for this Court to issue a pre-action discovery order, such power must be exercised subject to rule 8 which states as follows: “On the hearing of an application for an order under rule 3, 7 or 7A, the Court, if satisfied that discovery is not necessary, or not necessary at that stage of the cause or matter, may dismiss or adjourn the application and shall in any case refuse to make such an order if and so far as it is of the opinion that discovery is not necessary either for disposing fairly of the cause or matter or for saving costs.”

First, the Plaintiff does not have any nexus with the Defendant. Her husband – who was orally stated by the learned counsel for the Plaintiff to be the account holder of the said phone number – is not even named as a co-plaintiff. In fact, there is no evidence as to who is the subscriber of that mobile phone number, i.e. the person registered with the Defendant as the account holder for the said mobile phone number. It is not difficult to imagine the chaos that would ensue if any Tom, Dick or Harry can simply apply to a court for an order compelling telecommunications companies to disclose the location of mobile phones of third parties. On this ground alone – there being no nexus between the Plaintiff and the Defendant regarding the said mobile phone number – this Court would be justified to dismiss the Plaintiff’s application in limine.

Further, the Plaintiff’s purpose for seeking the discovery order is purportedly to prove the physical locations of the Plaintiff between 7.00am and 7.00pm on 15th November 2018 – the date which Hong Leong Bank has alleged to be the date when she allegedly signed some banking documents. In other words, the Plaintiff is hoping to use the location of the said mobile phone as fresh evidence to state that she could not have been at the bank premises on that date. I have stated it “as fresh evidence” Counsel for the PLAINTIFF: Ho Yi Hun SOLICITORS FOR THE PLAINTIFF: MESSRS RICHARD KOK Advocates & Solicitors M-2-7 & M-3-7, Plaza Damas, 60, Jalan Sri Hartamas 1, 50480 KUALA LUMPUR Counsel for the Defendant: Himin Ng SOLICITORS FOR THE DEFENDANT: MESSRS SANJAY MOHAN Advocates & Solicitors Unit 5.01, Level 5, WORK@Clearwater, Jalan Changkat Semantan, 50490 KUALA LUMPUR. LEGISLATIONS REFERRED TO:

Order 24 rule 7A & 8 Rules of Court 2012.

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Malaysian judgment

Case metadata

Court: High Court of Malaysia
Decision date: 23 Sept 2024
Case number: WA-24NCvC-2443-07/2024
Coram: YA Tuan Gan Techiong
Practice area: Pre-action discovery application – Order 24 rule 7A Rules of Court 2012 – Application for telecommunications company to produce documents showing the location of a mobile phone bearing a specific number – Plaintiff was not subscriber of that phone number – No nexus between Plaintiff and Defendant – No cause of action against the Defendant – Location of a mobile phone does not prove the location of the subscriber or owner of the mobile phone – A Subscriber Identity Module card (SIM card) may be inserted into any mobile phone, not permanently implanted in the head or body of the subscriber – Order 24 rule 8 Rules of Court 2012 – Applications for discovery order that are unnecessary ought to be dismissed
Version: Alasan Penghakiman 1
Published: 13 Feb 2025
Source ID: 6ffea1e4-9073-4a40-850d-7894d7d11c2a

Catchwords

Pre-action discovery application – Order 24 rule 7A Rules of Court 2012 – Application for telecommunications company to produce documents showing the location of a mobile phone bearing a specific number – Plaintiff was not subscriber of that phone number – No nexus between Plaintiff and Defendant – No cause of action against the Defendant – Location of a mobile phone does not prove the location of the subscriber or owner of the mobile phone – A Subscriber Identity Module card (SIM card) may be inserted into any mobile phone, not permanently implanted in the head or body of the subscriber – Order 24 rule 8 Rules of Court 2012 – Applications for discovery order that are unnecessary ought to be dismissed

Parties

SIT CHEW YEE - applicant - ejudgment_parties
MAXIS BROADBAND SDN BHD - respondent - ejudgment_parties

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