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Refers toEvidence ActExternal
“t distinction — between the propriety of an affidavit in interlocutory proceedings and the admissibility of evidence at trial is fundamental. The admissibility of evidence at trial is governed by the Evidence Act 1950. An audio recording is a "document" within section 3 of that Act, the definition of which extends to "”
Cites[2025] MLJU 2366External
“sions: Samuel Naik Siang Ting v Public Bank Bhd [2015] 6 MLJ 1 (Tab A), HeCon Sdn Bhd v Bulyah bt Ishak & Anor [2020] 4 MLJ 662 (Tab B), and Mahendran a/l Suppiah v Gryphon Energy (SEA) Sdn Bhd & Ors [2025] MLJU 2366 (Tab C).”
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MA-22NCvC-3-01/2022 Kand. 170 18/06/2026 12:49:36 DALAM MAHKAMAH TINGGI MALAYA DI MELAKA DALAM NEGERI MELAKA, MALAYSIA GUAMAN SIVIL NO. MA-...
MA-22NCvC-3-01/2022 Kand. 170 18/06/2026 12:49:36 DALAM MAHKAMAH TINGGI MALAYA DI MELAKA DALAM NEGERI MELAKA, MALAYSIA GUAMAN SIVIL NO. MA-22NCvC-3-01/2022 ANTARA YEO GEOK BENG (No. K/P: 610218-04-5139) ... PLAINTIF DAN
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1. GOLDSAND JV SDN BHD (No. Syarikat: 201101020616 [948751-D])
1. GOLDSAND JV SDN BHD (No. Syarikat: 201101020616 [948751-D])
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2. DATO' SRI DANNY YIN YEW KUAN ... DEFENDAN-DEFENDAN (No. K/P: 740118-01-6803) GROUNDS OF RULING (Plaintiff's objection to the adducing of...
2. DATO' SRI DANNY YIN YEW KUAN ... DEFENDAN-DEFENDAN (No. K/P: 740118-01-6803) GROUNDS OF RULING (Plaintiff's objection to the adducing of the audio recording and transcription at trial) A. INTRODUCTION [1] At the trial of this action the Defendants intend to adduce and rely upon an audio recording of two conversations said to have taken place between the Plaintiff and one Yow Ming Loong on 20 February 2020 and 23 February 2020, together with the transcription of those recordings. The recording is contained in a DVD exhibited and marked "Eksibit YML-1", and the transcriptions are exhibited and marked "Eksibit YML-2", to the Affidavit of Yow Ming Loong affirmed on 19 July 2022 (Enclosure 36). I shall refer to that material compendiously as "the Recording and Transcription," and individually where the distinction matters. [2] The Plaintiff objects to their being adduced. By its written submission (Enclosure 163), the Plaintiff advances three grounds for the objection. The first is that the contents of the Recording and Transcription are not pleaded and are irrelevant. The second is that the Recording was made surreptitiously, without the Plaintiff's knowledge or consent. The third, and the principal ground upon which the objection is chiefly built, is that the Recording and Transcription are no longer available to the Defendants because they were expunged by the order of this Court dated 10 May 2023 (Enclosure 124). [3] The order of 10 May 2023 was made upon an interlocutory application and operated upon an affidavit then on the court file. Two questions are thereby raised: first, what that order in truth decided and against what it operated; and secondly, whether whatever it decided it reaches forward to the trial so as to prevent the Defendants from adducing the Recording and Transcription when the action comes to be tried. [4] It is convenient to delimit at the outset what this ruling addresses and what it does not. It addresses whether the order of 10 May 2023 operates as a bar to the Defendants tendering the Recording and Transcription at trial, and whether the further grounds raised by the Plaintiff that the contents are unpleaded and that the Recording was made without consent require their exclusion in advance of trial. It does not address whether they are admissible, nor what weight, if any, they ought to bear. As will appear, those are distinct questions which do not arise for decision at this stage. [5] I set out the material facts and procedural history, the issue for determination, the governing framework, and my analysis, in that order. B. MATERIAL FACTS AND PROCEDURAL HISTORY [6] The action is a civil suit commenced by the Plaintiff, Yeo Geok Beng, against the Defendants, Goldsand JV Sdn Bhd (the First Defendant) and Dato' Sri Danny Yin Yew Kuan (the Second Defendant). The Plaintiff's claim is principally a monetary one for sums said to have been advanced to the First Defendant together with a related claim concerning a motor vehicle, including the repayment of hire-purchase instalments. The Defendants deny the claim, and in particular deny that any loan was made to the First Defendant by the Plaintiff. [7] The conversations of 20 and 23 February 2020 first entered the record through the Affidavit of Yow Ming Loong affirmed on 21 June 2022 (Enclosure 31), filed by the Defendants. That affidavit is the deponent's narrative account of his meetings with the Plaintiff on those two dates 20 February 2020 in Kuala Lumpur and 23 February 2020 in the vicinity of Seri Kembangan. It carries no exhibits; in particular, it exhibits neither an audio recording nor any transcription. An affidavit in identical terms was subsequently filed as Enclosure 34; its status does not arise for determination on the present objection. [8] By Notice of Application dated 7 July 2022 (Enclosure 32), the Plaintiff applied under Order 41 rule 6 and Order 92 rule 4 of the Rules of Court 2012 for an order that the Affidavit of Yow Ming Loong affirmed on 21 June 2022 (Lampiran 31) be set aside and expunged from the record, on the grounds, among others, that it was scandalous, irrelevant and oppressive, that it contained hearsay and unpleaded matter, and that it had been filed without leave. The application was supported by the Plaintiff's affidavit affirmed by Yeo Geok Beng on 6 July 2022 (Enclosure 33). [9] The Defendants resisted that application. To that end two affidavits were affirmed and filed on their behalf. [10] The first is the Affidavit of Yow Ming Loong affirmed on 19 July 2022 and filed on 22 July 2022 (Enclosure 36). It is the deponent's answer to the Plaintiff's application to expunge Lampiran 31. Three features of it are presently material. First, the deponent states that he is a director and/or shareholder of Smart Auto Performance Sdn Bhd together with the Second Defendant, but maintains that this has no bearing on the truth of the facts he has deposed (paragraph 5). Secondly, he states that at both meetings — on 20 February 2020 at Lot B9, Jalan Kuda Emas, Kuala Lumpur, and on 23 February 2020 at a restaurant in the vicinity of Seri Kembangan — he recorded his conversations with the Plaintiff using a Sony PCM-A10 audio recorder, transferred the recordings to a computer, and copied them onto a DVD, which he exhibits as "Eksibit YML-1" (paragraphs 6 and 7). Thirdly, he states that both recordings were sent to a transcription company, Scribe, which produced transcriptions, exhibited as "Eksibit YML-2" (paragraph 8). [11] The second is the Affidavit in Reply of the Second Defendant, Dato' Sri Danny Yin Yew Kuan, affirmed and filed on 22 July 2022 (Enclosure 37), which answers the Plaintiff's supporting affidavit (Enclosure 33). In it the Second Defendant maintains that Yow Ming Loong's evidence is relevant and true; that Yow Ming Loong is not a director or shareholder of the First Defendant, so that the filing of his affidavit lay beyond the Defendants' control; and that the Plaintiff's application to expunge is, in substance, an attempt to keep the conversations from the Court, which he characterises as an abuse of process to be dismissed with costs. [12] The Plaintiff's application (Enclosure 32) was heard and determined by the order of this Court dated 10 May 2023 (Enclosure 124), made in chambers by YA Anselm Charles Fernandis. The order records that it was made upon the Plaintiff's Notice of Application dated 7 July 2022 (Kandungan 32). It ordered, first, that the application be allowed; secondly, that the Affidavit of Yow Ming Loong affirmed on 21 June 2022 (Lampiran 31), filed by the Defendants, be set aside and expunged from the record of the Court; and thirdly, that there be no order as to costs. The order makes no reference to Order 14 or to summary judgment. [13] Three features of the order require notice, because the present objection is advanced upon a footing that does not correspond with its terms. [14] First, the order has been characterised, in the Defendants' submission (Enclosure 159), as having been made in the course of the Plaintiff's application for summary judgment under Order 14 of the Rules of Court 2012 (Enclosure 9). The order of 10 May 2023 records otherwise: it was made upon the Plaintiff's separate Notice of Application dated 7 July 2022 (Enclosure 32), invoking Order 41 rule 6 and Order 92 rule 4, and makes no reference to Order 14 or to summary judgment. [15] Secondly, the order expunged an affidavit the Affidavit of Yow Ming Loong affirmed on 21 June 2022 (Lampiran 31). It did not, in its terms, address any recording or transcription. It was an order made upon, and confined to, the propriety of a filed affidavit in interlocutory proceedings. [16] Thirdly and this is decisive on the facts the Recording and Transcription which the Defendants now seek to adduce are not contained in the expunged affidavit at all. They are exhibits ("Eksibit YML-1" and "Eksibit YML-2") to a different affidavit, namely the Affidavit of Yow Ming Loong affirmed on 19 July 2022 (Enclosure 36). The order of 10 May 2023 neither named nor expunged Enclosure 36, nor the exhibits to it. On the record before me, Enclosure 36 and its exhibits stand. [17] It is upon this state of the record that the Plaintiff now objects to the Defendants adducing the Recording and Transcription at trial. Issue for Determination [18] The dispositive issue is whether the order dated 10 May 2023 (Enclosure 124), in expunging the Affidavit of Yow Ming Loong affirmed on 21 June 2022 (Lampiran 31), prohibits the Defendants from tendering and relying upon the Recording (Eksibit YML-1) and the Transcription (Eksibit YML-2) at the trial of this action. [19] Anterior to that issue is a question of characterisation: what the order of 10 May 2023 in fact decided, by what power, and against what it operated. The dispositive issue cannot be answered without first being clear upon that. [20] The objection is not, however, put upon the order alone. In its written submission the Plaintiff advances two further grounds that the contents are unpleaded and irrelevant, and that the Recording was made without consent each said independently to require the exclusion of the Recording and Transcription. These I address, after the expungement ground, in the analysis that follows. C. STATUTORY AND LEGAL FRAMEWORK [21] The principles engaged are settled and may be stated shortly. The centre of gravity of this ruling lies in their application rather than in their exposition. [22] An order made upon an interlocutory application is, in the ordinary course, directed to and confined to that application. It governs the material before the Court in that application and the relief sought in it, and does not determine questions reserved to the trial unless its terms expressly so provide. [23] The power exercised on 10 May 2023 confirms the confined character of the order. Order 41 rule 6 of the Rules of Court 2012 provides that "the Court may order to be struck out of any affidavit any matter which is scandalous, irrelevant or otherwise oppressive"; and Order 92 rule 4 declares that nothing in the Rules limits the inherent power of the Court "to make any order as may be necessary to prevent injustice or to prevent an abuse of the process of the Court." These are powers directed to the regulation of affidavit evidence and the integrity of the court file in the proceeding in which the affidavit is filed. An order striking out or expunging an affidavit under these provisions operates upon the affidavit as a filed document. It is not, and in its nature cannot be, an adjudication upon the admissibility at trial of the matters to which the affidavit relates. [24] That distinction — between the propriety of an affidavit in interlocutory proceedings and the admissibility of evidence at trial is fundamental. The admissibility of evidence at trial is governed by the Evidence Act 1950. An audio recording is a "document" within section 3 of that Act, the definition of which extends to "any matter embodied in a disc, tape, film, sound-track or other device" and to "any sound recording"; the illustrations to the definition treat a tape recording of a communication as a document. By section 62, Explanation 3, a document produced by a computer is primary evidence. Where, as the deponent here states, the recordings were stored on a computer and copied onto a DVD, their reception at trial engages section 90A, under which a document produced by a computer is admissible as evidence of a fact stated therein if produced in the course of the computer's ordinary use, provable by a certificate under section 90A(2) and attended by the presumption of proper working in section 90A(4). Whether that foundation is laid, and what weight the material bears, are questions for the trial court when the evidence is tendered. [25] The grounds on which an affidavit may be excised in interlocutory proceedings that it is scandalous, irrelevant, oppressive, or contains hearsay do not translate into a prohibition upon the leading of evidence at trial, where relevance and admissibility are assessed afresh against the issues joined on the pleadings and according to the law of evidence. The Rules of Court 2012 proceed on the same footing in relation to documents to be used at trial. Within the pre-trial case management regime of Order 34 rule 2, a document that is agreed is placed in Part A, and where agreement cannot be reached Order 34 rule 2(2)(e) directs that it be filed in a separate bundle Part B for "documents where the authenticity is not disputed but the contents are disputed," and Part C for "documents where the authenticity and contents are disputed." The scheme contemplates that a document whose authenticity or contents are in dispute is not, by reason of that dispute, excluded from trial; it is placed in the appropriate bundle and its status is resolved by the trial court. D. ANALYSIS AND DETERMINATION Characterisation of the order of 10 May 2023 [26] On its terms, the order of 10 May 2023 did two things and no more. It allowed the Plaintiff's interlocutory application (Enclosure 32) an application brought under Order 41 rule 6 and Order 92 rule 4, powers directed to affidavit evidence and the court file; and it expunged one specified filed affidavit, the Affidavit of Yow Ming Loong affirmed on 21 June 2022 (Lampiran 31), from the record of the Court. It did not purport to rule upon the admissibility of the Recording and Transcription, or indeed of any evidence, at the trial of the action. [27] The objection treats the order as having decided more than it did. It equates the removal of an affidavit from the interlocutory record with a determination that the conversations of 20 and 23 February 2020, in whatever form, are excluded from the action for all purposes. That equivalence does not hold. The order excised an affidavit on the ground that, as an affidavit, it offended Order 41 rule 6. It did not, and could not, decide that the underlying conversations may not be proved at trial by admissible means. The Recording and Transcription are exhibits to Enclosure 36, which the order did not touch [28] There is, in this case, a second and independent answer to the objection, dispositive on the facts. The premise of the objection is that the Recording and Transcription were expunged. That premise is mistaken. The order of 10 May 2023 expunged the Affidavit of Yow Ming Loong affirmed on 21 June 2022 (Lampiran 31). The Recording and Transcription are not exhibits to that affidavit. They are "Eksibit YML-1" and "Eksibit YML-2" to a separate affidavit — the Affidavit of Yow Ming Loong affirmed on 19 July 2022 (Enclosure 36) affirmed nearly a month after Lampiran 31, and filed in answer to the very application that sought to expunge Lampiran 31. [29] The order neither named Enclosure 36 nor purported to set it aside; nor did it name or expunge the exhibits to it. An order which, in its terms, expunges one identified affidavit does not, by implication, sweep away a different affidavit affirmed on a different date, still less the exhibits annexed to that different affidavit. On the record before me, Enclosure 36, together with Eksibit YML-1 and Eksibit YML-2, remains on the file undisturbed. [30] It follows that the objection fails at its root. Even if, contrary to my conclusion above, an order expunging an affidavit could reach forward to govern the admissibility of evidence at trial, there is here no order expunging the affidavit to which the Recording and Transcription are exhibited. The two grounds are independent, and either is sufficient; taken together, they are conclusive. The interlocutory order does not govern trial admissibility [31] I return, for completeness, to the first ground. The admissibility of the Recording and Transcription at trial like the admissibility of the oral testimony of Yow Ming Loong, should he be called is a matter for the trial court, to be decided under the Evidence Act 1950 when the evidence is tendered and the proper foundation laid. The deponent's account of how the recordings were made (a Sony PCM-A10 recorder), transferred to a computer and copied to a DVD, and how they were transcribed (by the company Scribe), bears directly upon the section 90A foundation, upon authentication, and upon accuracy and weight. These are quintessentially trial questions. They were not, and could not have been, decided by an order made under Order 41 rule 6. [32] I turn to the Plaintiff's two remaining grounds of objection. By them the Plaintiff contends that, quite apart from the order of 10 May 2023, the Recording and Transcription ought not to be received because their contents are unpleaded and irrelevant, and because the Recording was made without the Plaintiff's knowledge or consent. In support the Plaintiff placed before me a Bundle of Authorities (Enclosure 164) comprising three decisions: Samuel Naik Siang Ting v Public Bank Bhd [2015] 6 MLJ 1 (Tab A), HeCon Sdn Bhd v Bulyah bt Ishak & Anor [2020] 4 MLJ 662 (Tab B), and Mahendran a/l Suppiah v Gryphon Energy (SEA) Sdn Bhd & Ors [2025] MLJU 2366 (Tab C).
i
(i) The contents are said to be unpleaded and irrelevant [33] The Plaintiff invokes the cardinal principle that parties are bound by their pleadings, relying upon Samuel Naik and He-Con. In Samuel Naik the Federal Court, per Ramly Ali FCJ, stated the cardinal rule that parties are bound by their pleadings and are not allowed to adduce facts and issues which they have not pleaded. In He-Con, at paragraph [65], Abang Iskandar FCJ (as His Lordship then was) reaffirmed that it is trite that parties are bound by their pleadings, or the lack of them, and that a party cannot lead facts or issues on a matter he has not pleaded. The principle is settled, and I respectfully apply it. [34] But the principle does not carry the Plaintiff to the conclusion now sought. The rule that parties are bound by their pleadings governs the facts and issues that may be litigated, and the evidence that may ultimately be received in proof of those issues at trial. It is not a rule which authorises the Court, before trial, to strike a document from the trial documents on the footing that its contents are said to be unpleaded, before those contents have been examined and their relevance to the issues joined assessed by the trial court against the whole of the evidence. The Defendants' pleaded case includes a denial that any loan was made to the First Defendant; whether the conversations of 20 and 23 February 2020 bear upon that, or upon any other pleaded issue, is not a matter capable of determination in the abstract and in advance of trial. The pleading objection, like the question of admissibility, is for the trial court, where relevance will be assessed afresh against the issues on the pleadings and according to the Evidence Act 1950.
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(ii) The Recording is said to have been made without consent [35] The Plaintiff next submits that the Recording was made surreptitiously, w...
(ii) The Recording is said to have been made without consent [35] The Plaintiff next submits that the Recording was made surreptitiously, without its knowledge or consent, and ought for that reason to be excluded. It relies upon Mahendran, and in particular upon the observation of Arziah Mohamed Apandi JC, at paragraph [31], that modern legal systems increasingly employ proportionality tests which weigh the seriousness of the alleged conduct, the extent of the privacy intrusion, the availability of alternative evidence, and the wider public interest. [36] That authority, fairly read, does not assist a pre-trial exclusion; if anything, it confirms the course I have taken. Mahendran was itself a case in which a party sought to adduce covertly-made audio recordings, together with their transcripts. The learned Judicial Commissioner determined their admissibility at trial, upon the evidence, and ruled them inadmissible principally for noncompliance with section 90A of the Evidence Act 1950 (the absence of the mandatory certificate), the failure to produce the original recording, and the failure to satisfy the requirements of authentication and identification of the speaker. The passage at paragraph [31] upon which the Plaintiff relies forms part of a comparative survey of the manner in which different jurisdictions treat unlawfully obtained evidence; it is not a rule of Malaysian law mandating the exclusion of such recordings, still less their exclusion in advance of trial. What Mahendran demonstrates, on the contrary, is that the consequences of a covert recording including any want of consent are weighed by the trial court when the evidence is tendered and the statutory foundation is examined, as part of the assessment of admissibility under the Evidence Act 1950. [37] Two matters follow. First, whether the Recording was in truth made without consent is itself a disputed question of fact, capable of resolution only upon evidence at trial. Secondly, even on the assumption that it was, that does not of itself determine inadmissibility; it engages the very contextual balancing which Mahendran describes, and which is a task for the trial court and not for me upon the present objection. I would add that Mahendran is a decision of a court of co-ordinate jurisdiction and is therefore of persuasive force only; but to the extent that it persuades, it supports the reservation of these questions to the trial court rather than their summary determination now. The want-of-consent ground accordingly affords no basis for excluding the Recording and Transcription in advance of trial. E. THE ROUTE AT TRIAL [38] The Defendants' proper course is therefore plain. The Recording and the Transcription, their authenticity and contents being in dispute, fall to be included in the trial documents and placed in the appropriate bundle under Order 34 rule 2(2)(e) Part B if authenticity is admitted but contents disputed, and Part C if both are disputed. Their placement in such a bundle determines nothing as to their admissibility or weight; it preserves the dispute for resolution by the trial court. F. MATTERS RESERVED [39] To hold that the order of 10 May 2023 does not bar the adducing of the Recording and Transcription is not to hold that they are admissible, still less that they are to be admitted. Nothing in this ruling relieves the Defendants of the burden of proving the Recording and the Transcription by admissible means, or of laying the foundation that the law requires before such material may be received. The Plaintiff's objections as to authenticity, reliability, relevance and weight and any objection on the ground of hearsay are preserved in full and remain to be ventilated at trial. So too the deponent's relationship with the Second Defendant, raised in the affidavits, is a matter going to credit and weight for the trial court, and not to the present objection. [40] For completeness, I record that the authorities placed before me by the Plaintiff in its Bundle of Authorities (Enclosure 164] Samuel Naik, He-Con and Mahendran have been addressed above. None of them bears upon the central question, which is the effect and reach of the order of 10 May 2023: the first two concern the binding effect of pleadings, and the third the admissibility of covertly-made recordings at trial. The provision relied upon as to the conduct of the trial was Order 34 rule 2(2)(e) of the Rules of Court 2012. I have also had regard to the relevant provisions of the Rules of Court 2012 and the Evidence Act 1950, which are the instruments governing the question. It is, in truth, one of principle and of the construction of the order of 10 May 2023, and is capable of resolution upon that footing. G. CONCLUSION [41] The order dated 10 May 2023 (Enclosure 124) was an interlocutory order, made upon the Plaintiff's Notice of Application dated 7 July 2022 (Enclosure 32) under Order 41 rule 6 and Order 92 rule 4, and confined to that application. It expunged the Affidavit of Yow Ming Loong affirmed on 21 June 2022 (Lampiran 31) on grounds going to the propriety of that affidavit. It did not determine the admissibility at trial of the conversations of 20 and 23 February 2020 in any form; and it did not touch the Affidavit of Yow Ming Loong affirmed on 19 July 2022 (Enclosure 36), to which the Recording (Eksibit YML-1) and the Transcription (Eksibit YML-2) are exhibited. [42] The Plaintiff's objection, resting as it does upon a reach the order does not bear and upon a premise the record does not support, cannot be sustained. It is overruled. The further grounds advanced in the Plaintiff's submission that the contents are unpleaded and irrelevant, and that the Recording was made without consent likewise furnish no basis for excluding the Recording and Transcription in advance of trial; they raise questions of relevance, fact and admissibility which are reserved to the trial court. The Defendants are at liberty to include the Recording and the Transcription in the trial documents and to place them in the appropriate Part B or Part C bundle under Order 34 rule 2(2)(e). The admissibility, authenticity, reliability and weight of that material, and any objection on the ground of hearsay, remain open and are reserved to the trial court, to be determined upon the material being tendered and the proper foundation laid, in accordance with the Evidence Act 1950 and the Rules of Court 2012. Costs shall be in the cause. Dated 16 June 2026 (YA Dato' Sri Raja Segaran A/L S. Krishnan) (Judicial Commisioner) High Court Of Malaya Malacca High Court (MELAKA) Lawyer For Plaintiff : Cik Nurul Nasyira binti Mohd Haliemy bersama Encik Akmal Hakim bin Ahmad Zaharin Tetuan Adillah A. Nordin Peguamcara dan Peguambela No. 82, Jalan TU2, Tmn Tasik Utama, Ayer Keroh, 75450 Melaka. Lawyer For Defendant Encik Desmond Ho Chee Cheong Tetuan Richard Wee Chambers Peguamcara dan Peguambela No.19 & 19-1, Jalan TAKH 15, Taman Ayer Keroh Heights 1, 75450, Ayer Keroh, Melaka.
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