Tan Sri Dato' Kam Woon Wah v Dato' Sri Andrew Kam Tai Yeow (WA-29NCC-48-01/2022)

This is the Judgment Debtor’s (“JD”) application in Encl. 11 for an order to examine the Judgment Creditor (“JC”) upon oath under rule 47 of the Insolvency Rules 2017.

Parties filed their respective affidavits in Encl(s). 15, 19, 20 and 21 and their written submissions were in Encl. 22 and Encl. 23. Oral submissions by the parties via Zoom during the hearing on 29.6.2022 and subsequently, the decision date was fixed on 1.7.2022. S/N ihNbLi69p0a7kj3I/qqSjA **Note : Serial number will be used to verify the originality of this document via eFILING portal 2

The JC obtained a final judgment in relation to the preliminary issue in Kuala Lumpur High Court vide Suit No. WA-22NCC-306-06/2019 (“Suit 306”) against the JD on 9.12.2021.

The JC commenced the present bankruptcy proceedings against the JD based on the final judgment dated 13.1.2022 and the present application in Encl. 11 was filed on 7.3.2022.

JC raised (2) preliminary objections (“PO”) to Encl. 11, however, during the hearing/oral submission on 29.6.2022, an election was made by the JC in not pursuing the PO and was in preference to another alternative and thereby the JC Counsel informed the Court that–

JC would not be pursuing the PO in relation to ‘Defective enclosure 7 – non-compliance of rule 17 of the Insolvency Rules 2017’ in the present application (Encl. 11), nevertheless will instead pursue the matter in Encl. 7; and

JC would not be pursuing the PO in relation to ‘Willful violation of Order 41 rule 1(4) of the Rules of Court 2012’. S/N ihNbLi69p0a7kj3I/qqSjA Issue [6] We shall now turn to the main application in Encl. 11. Upon careful scrutiny and consideration of the application in Encl. 11, affidavits and submissions, this Court finds that the following one issue is most relevant and pertinent:

Whether this Court may exercise the discretion to grant an order for examination of JC upon oath under rule 47 of the Insolvency Rules 2017. Findings of this Court [7] The justifications for making the present application are set forth in the affidavits and the submissions of the JD as follows:

the Judgement dated 9.12.2021 in relation to Preliminary Issue is not a final judgement under section 3(1)(i) of the Insolvency Act 1967; and

no prejudice to the JC and this would provide an opportunity for the JC to explain its position. [8] Rule 47 of the Insolvency Rules 2017 (“IR”) provides that– S/N ihNbLi69p0a7kj3I/qqSjA

The court may in any matter make an order for the examination upon oath of any person at any place in Malaysia.

The examination may be ordered to take place before the court, or an officer of the court, as the court may direct.

The deposition shall be taken down in writing and, with the leave of the court, may be used in evidence on such terms, if any, as the court may direct. [9] That provisions are general in its terms, but in regard to the provisions in its entirety, one must recollect what the practice/intention is it intended to meet. [10] I do not intend to cut down the generality of its terms, but I must say that, on the face of it, which I rightly think so and may appear to be straightforward, that provisions are confined to cases in which it appears necessary for the purposes of justice and the discretion of which ought to be exercised with care. [11] The reason is that, to order any person to be examined on oath before the court or the officer of the court at any place in Malaysia and allowing the deposition so taken to be afterwards given in evidence, the whole scope of the order is confined to cases where testimony is to be obtained for the S/N ihNbLi69p0a7kj3I/qqSjA purposes of a bankruptcy action, cause or matter in which it appears to be necessary for the purposes of justice. [12] And it really cannot be necessary to examine a person in a bankruptcy action, as in the present case, the JC who did not even refuse to depose affidavits and/or cannot attend to the present action. [13] To have such an order granted by this Court, there must be evidence to satisfy this Court that the person sought for examination has refused to depose affidavits and/or attend to the action, going abroad, or from age, or illness, or other infirmity, is likely to be unable to attend to the action. [14] This is because the power/discretion given to order an examination under rule 47 IR is a power, as it seems to me, not to summon a person merely as a witness, but to summon that person for the purpose of examination on oath, and that person is treated in a totally different way from just a witness as it is akin to compelling that person to give testimony. [15] I must further add that, this is a very grave power to entrust to this Court or any officer of this Court to order any person whom to be capable of giving testimony/information and to get any testimony/information from that person at any place in Malaysia. It is a very extraordinary power indeed, and it ought to be very carefully exercised only when it is necessary for the purpose of justice. S/N ihNbLi69p0a7kj3I/qqSjA [16] As I further consider rule 47 IR, it seems to me that it is framed for the purpose of procuring beforehand where necessary, the testimony of any person which under ordinary circumstances, would be given viva voce at the hearing of a cause or matter of a bankruptcy action. And it contemplates an occasion on which there is a likelihood that the deposition may be used in evidence with the leave of the Court. [17] Having considered the provisions in rule 47 IR, this Court now turns to the provisions in Order 39, rule 1 of the Rules of Court 2012 in which this Court opines that the said provisions correspond to the provisions in rule 47 IR. And for clarity, Order 39, rule 1 provides as follows: 39 Evidence by deposition: Examiners of the court

Power to order depositions to be taken (O. 39 r. 1)

The Court may, in any cause or matter where it appears necessary for the purposes of justice, make an order in Form 69 for the examination on oath before a Judge or the Registrar or some other person, at any place, of any person.

An order under paragraph (1) may be made on such terms (including, in particular, terms as to the giving of discovery before the examination takes place) as the Court thinks fit. S/N ihNbLi69p0a7kj3I/qqSjA [18] In Citibank Bhd v Pembangunan Cahaya Tulin Sdn Bhd & Ors [2012] 1 LNS 416; [2012] 9 MLJ 181, the HC, inter alia, held that: "An order of a court pursuant to Order 39 rule 1 of the RHC is a prerequisite to the admission of evidence by deposition. Such an order may be made by the Court upon application by the Defendants through summons to the registrar, or in very exceptional situations through ex parte summons. [19] In Lai Poh Choo v Yap Suet Lay & Ors [1999] 1 LNS 133; [1999] 3 MLJ 380 at 382, his Lordship, Lopes LJ made reference to the case of Ehrmann v Ehrmann [1896] 2 Ch 611 at p 616, held as follows: “In my opinion, a commission to examine witnesses ought not to be lightly issued. I think that in order to justify the issue of a commission, it ought to be clearly made out that the evidence abroad which it is sought to obtain is material, and directly material, to the case in hand — not merely evidence which incidentally might be useful,..." [20] In the case Izzap Ltd v Yeoh Jin Beng & Ors [2007] 3 CLJ 71 at paras. 6 and 7, per Kang Hwee Gee J, applying Order 39, rule 1 RHC, held that this was a proper case for a request for assistance to be issued under O. 39 RHC. The letters exhibited by the plaintiff's director demonstrated in clear terms the unwillingness on the part of the witness to appear to give evidence at the trial despite having assured the plaintiff that he would turn up to give evidence. A failure on his part to give evidence with respect to the S/N ihNbLi69p0a7kj3I/qqSjA issues mentioned in the affidavit would cause injustice to the plaintiff as the witness may be in possession of a critical document on which the plaintiff's case may stand or fall. [21] Further, in Arul Arulanendhu v Manickam Angamuthu [1992] 2 CLJ Rep 101, the High Court allowed the application for the original plaintiff evidence to be taken by deposition on oath on the ground that the plaintiff to the action had instituted the action in December 1986 and thereafter his health began to deteriorate and a request was made to the Court to take his evidence under O 39, r 1 RHC. [22] In Maria Yusof v Abdullah Gendak [2015] 9 CLJ 243 at para. 50, the defendant in the case was very reluctant to call her own aunt as a witness to be examined on oath under O 39, r 1 ROC 2012 because her aunt was very elderly and illiterate. [23] In the premises, taking into consideration of the JD’s justifications in making the present application, this Court is of the view that this is definitely not a case where JC in the present bankruptcy action has been reluctant and/or refused to depose affidavits, attend to the present bankruptcy action and/or going abroad, or from age, or illness, or other infirmity, is likely to be unable to attend the present action or depose affidavits. [24] If those facts are made out, then, under the power/discretion given to this Court pursuant to rule 47 IR, such an order for JC to be examined upon oath may be given. But in the present instance, this Court is not convinced S/N ihNbLi69p0a7kj3I/qqSjA that such an order is necessary for the purposes of justice. This Court further finds the such order is unnecessary for the reasons as follows:

if the JD is not happy and/or disputing the truthfulness of the affidavits deposed by JC with regards to the finality of the Judgment dated 9.12.2021, strict compliance to the provisions of the Insolvency Act 1967 (“IA”) and Insolvency Rules 2017 is required, whereby an application for cross-examination of affidavits shall be made properly under the relevant rules and sections;

as rightly pointed out by the JC, the issue as to whether the bankruptcy notice is premised on a final judgment or order is purely a question of law;

the supporting affidavit evidence put forward before this Court does not bear out the justification to have the JC examined on oath as nothing in the affidavits satisfy this Court that an order for examination is necessary; and

there is a flaw in the present application in that the JD fails to specify the place in Malaysia in which the examination is to take place and be recorded. S/N ihNbLi69p0a7kj3I/qqSjA Stay Application [25] Finally, as for the stay application as prayed by the JD in Encl. 11, it bears reiterating that bankruptcy action requires strict compliance to the provisions of the IA and IR, and therefore, a proper application for a stay of proceedings has to be made under the relevant provisions and in accordance with the relevant procedures of the IA and IR. As such an application is not so made, therefore this Court is constraint to allow a stay. Conclusion [26] Based on the above reasons, and after careful scrutiny and judicious consideration of the parties’ affidavits, written submissions and oral submissions, the application in Encl. 11 is dismissed with costs subject to allocatur. Dated: 1.7.2022 t.t (CHAI GUAN HOCK) Senior Assistant Registrar High Court of Malaya Kuala Lumpur S/N ihNbLi69p0a7kj3I/qqSjA Counsel/Solicitors For the Judgment Creditor: Y.C. Wong (Lai Wing Ee with him) Messrs. Y. C. Wong Advocates & Solicitors Suite 13A-3A, Level 13A, Menara 1MK, No. 1 Jalan Kiara, 50480 Mont Kiara, Kuala Lumpur For the Judgment Debtor: Pang Li Xuan Messrs. Chellam Wong Unit L-06-08, No. 2, Jalan Solaris Solaris Mont' Kiara 50480 Mont Kiara, Kuala Lumpur S/N ihNbLi69p0a7kj3I/qqSjA