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MALAYSIA
IN THE HIGH COURT OF MALAYA SITTING AT MUAR
[CIVIL SUIT NO. JB-22NCVC-74-12/2018]

BETWEEN

1. GOH KIEN KIEN

[as a trustee for the Nam Hai Thian Choon Terng Chinese
Temple]
2. GOH LIAN PHENG
[as a trustee for the Nam Hai Thian Choon Terng Chinese
Temple] … PLAINTIFFS

AND

1. TAY SIEW HWA

[sued in the personal capacity and as the Deputy Chairman and
on behalf of PERSATUAN PENGANUT AJARAN THIAN
CHOON TONG MUAR, JOHORE
(Certificate of Registration No. PPM-004-01-04072018)]
2. TAN MENG LOON
[sued in the personal capacity and as the
Secretary and on behalf of PERSATUAN PENGANUT AJARAN
THIAN CHOON TONG MUAR, JOHORE
(Certificate of Registration NO. PPM-004-01-04072018)]
3. WOO NAM HOONG
[sued in the personal capacity and as the a Committee Member
and on behalf of PERSATUAN PENGANUT AJARAN THIAN
CHOON TONG, MUAR, JOHORE
(Certificate of Registration NO. PPM-004-01-04072018)]
… DEFENDANTS

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CORAM:
AWG ARMADAJAYA AWG MAHMUD
JUDICIAL COMMISSIONER

GROUNDS OF JUDGMENT (ENCLOSURE 93)

INTRODUCTION

[1] This is an application for discovery of documents pursuant to

Order 24 Rule 3 & 7 Rules of Court 2012 by the Defendant for the
documents purportedly in the possession of the Plaintiff.

[2] The Orders sought are as follows:

a. The Plaintiffs are hereby ordered to make and served on

the Defendant a list of documents that are currently or
have been in their control, custody or possession in
relation with or in connection to this action pursuant to Or.
24 R. 3 Rules of Courts 2012.

b. That the Plaintiffs are hereby ordered within 14 days from

the date of the Order file and served on the Defendants’
solicitors a copy of the following documents :

(i) OCBC Bank (Malaysia) Bhd (295400-W) Fixed

Deposit account No. 711-314743-8;

(ii) OCBC Bank (Malaysia) Bhd (295400-W) Savings

account 711-250459-8;

(iii) OCBC Bank (Malaysia) Bhd (295400-W) current

account 711-118585-5;

(iv) OCBC Bank (Malaysia) Berhad (295400-W) Unit

Trust account no. 711-500664-5;

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(v) Public Islamic Bank Bhd (14328-V) Fixed Deposit

account 1801685908;

(vi) Public Islamic Bank Bhd (14328-V) Current account:

3989853326;

(vii) Public Bank Berhad (6463-H) Fixed Deposit Account

No.: 1135255601;

(viii) Public Bank Berhad (6463-H) Fixed Deposit Account

No. 4228752830;

(ix) Public Mutual Berhad (23419-A) Investment account

no. 031640887;

(x) Public Mutual Berhad (23419-A) Investment account

no. 890063125;

(xi) Public Mutual Berhad (23419-A) Investment account

no. 031671333;

(xii) Public Mutual Berhad (23419-A) Investment account

no. 041453903;

(xiii) Bank of China (Malaysia) Berhad (511251-V) Fixed

Deposit Account : 100000400159532);

(xiv) Bank of China (Malaysia) Berhad (511251-V) Fixed

Deposit Account : 100000400192343;

(xv) Bank of China (Malaysia) Berhad (511251-V)

Current Account : 100000400159521;

(xvi) Hong Leong Bank Berhad (97141-X) Fixed Deposit

Account No.: 06660012250; and

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(xvii) Hong Leong Bank Berhad (97141-X) Current account

number: 06600071732.

c. Copies of the Statement of Joint Accounts of the Plaintiffs

in Hong Leong Berhad account no. 33301035764 from 3
March 2020.

d. Cost in the Cause.

e. Other reliefs that the Court deems fit and just.

[3] The Cause Papers for the Application pursuant to Enclosure 64

are as follows :

i. The Writ of Summons dated 16 April 2019 (Enclosure 1).

ii. The Statement of Claims dated 16 April 2019 (Enclosure

2).

iii. The Statement of Defence of the 1 st Defendant dated 21

May 2019 (Enclosure 6).

iv. The Reply to the Statement of Defence of the 1 st Defendant

dated 4 June 2019 (Enclosure 7).

v. The Notice of Application dated 17 December 2020

(Enclosure 93).

vi. Affidavit-in-support dated 17 December 2020 (Enclosure

94).

vii. Affidavit-in-reply dated 5 January 2020 (Enclosure 95).

viii. Affidavit-in-response dated 18 January 2020 (Enclosure

96)

BACKGROUND FACTS

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[4] The 1 st Plaintiff is an individual whose address of service is at

No. 32-C, Jalan Bakri, 84000 Muar, Johor and is currently a trustee to
the Nam Hai Thian Choon Terng Chinese Temple (hereinafter is
known as “the said Temple”).

[5] The 2 n d Plaintiff is an individual whose address for service is

No. 4, Jalan Abdul Rahman, 84000 Muar, Johor and also a current
trustee for the said Temple.

[6] On the 13 th July 2018, one Goh Siew Huay (National

Registration Identity Card no. 390310-01-5272 / 0067424) passed
away (“the deceased trustee”) leaving a purported Will dated 10 July
2018 (“the Will”) which is the subject matter of the dispute.

[7] The Temple is a House of Worship built on or about 1936 by an

Upasika Zhang Hui-De with the assistance of a group of Bhuddist
devotees, who aim (among others) is to spread the Teachings of
Buddhism.

[8] On 24 January, the Temple was registered as a member of the

Buddhist Association of Malaysia whose registration number is PPM-
002- 07-13091957 with the membership number J28/2882.

[9] The Temple has and / or is a Temple Building which was built
on the land which is held under the Title 50529 Lot 4722, Bandar
Maharani, District Muar, Negeri Johore, (“Lot 4722”), Title 50530
Lot 4723, Bandar Maharani, District Muar, Negeri Johore (“Lot
4723”) and Title 60208 Lot 56, Bandar Maharani, District Muar,
Negeri Johor (“Lot 56”) whose address for service is at No. 32-C,
Jalan Bakri, 84000 Muar, Johor.

[10] According to the Will, the Plaintiffs along with the 1 st

Defendant were purportedly made the beneficiaries and trustees of the
estate of the deceased Trustee.

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[11] Further according to the Will, all the estate of the Deceased
Trustee include Trust Properties held in trust by the Deceased Trustee
for the Temple is bequeath to the Association of the Followers for the
Teachings Thian Choon, Muar, Johor (“the Association”) whose
registration number is PPM-004-01-04072018, which is also the
subject matter of the dispute.

[12] Association of the Followers for the Teachings Thian Choon,

Muar, Johor (“the Association”) whose registration number is PPM-
004-01- 04072018, is a registered organisation under the Societies Act
1966 on 4 July 2018 and has the registered and business address at
No. 32-C, Jalan Bakri, 84000 Muar, Johor and the mailing address is
at No. 4, Jalan Junid Perdana, Taman Junid Perdana, Jalan Abdul
Rahman, 84000 Muar, Johor.

[13] The 1 st Defendant is an individual whose address for service is

at 200-10, Jalan Mawar 11, Taman Mawar, Jalan Abdul Rahman,
84000 Muar, Johor and is purportedly a committee member of the
Association and purportedly appointed as one of the beneficiaries and
trustee of the estate of the Deceased Trustee through the Will.

[14] The 1 st Defendant is sued in this action as an office bearer of the

Association which is said to be the beneficiary of the estate of the
Deceased Trustee as well as himself a beneficiary and a trustee of the
estate of the Deceased Trustee.

[15] The 2 nd Defendant is an individual whose address of service is at

No. 4, Jalan Perdana 6, Taman Junid Perdana, Jalan Abdul Rahman,
84000 Muar, Johore, and is purportedly holding the post of Secretary
of the Association as well as a practising as an Advocate and Solicitor
at the firm Messrs Alan Tan & Associates whose address for service is
No. 4, Jalan Perdana 6, Taman Junid Perdana, Jalan Abdul Rahman,
84000 Muar, Johore and / or No. 9B, Jalan Omar, 83000 Batu Pahat,
Johore.

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[16] The 2 nd Defendant is being sued in his personal capacity and as

an office bearer of the Association which is a beneficiary for the
estate of the Deceased Trustee and a partner of Messrs Alan Tan &
Associates. Messrs Alan Tan & Associates has been purportedly as the
solicitors through the will to assist and guide the Plaintiffs and the 1 st
Defendant as beneficiaries and / or Trustees in obtaining the Letters
of Probate and to execute the wishes of the Deceased Trustee as stated
in the Will.

[17] On or around 29 April 1999 the Plaintiffs and the Deceased

Trustee were registered as the lawful Trustees for the Temple and the
lands on which the Temple is situated and in accordance with the
Court Order dated 29 April 1999 in the Muar High Court Summons
No. 24(L)-8-1999 (“the 29/4/1999 Order”) followed by a Declaration
of Trust dated 8 June 1999 and registered on 9 July 1999 with the
Serial Number 5805/99 (“the 1999 Trust Declaration”).

[18] At all material times, the Temple and all religious functions
were conducted, administered, organised, held and / or preserved
through the contributions and / or donations of devotees and or
Buddhist followers and / or the public through the Donation Box at
the Temple. All the contributions and / or donations were received
and kept by the Trustees of the Temple whereby all accounts and / or
records were also kept within the vicinity of the Temple.

[19] The Deceased Trustee had, at all material times with the
concurrence of the Plaintiffs, held the donations and / or contributions
and / or funds for the Temple, and kept them in the following bank
accounts which are held in trust for the Temple as follows :

(i) OCBC Bank (Malaysia) Bhd (295400-W) Fixed Deposit

Account No. 711-314743-8;

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(ii) OCBC Bank (Malaysia) Bhd (295400-W) Savings Account

711- 250459-8;

(iii) OCBC Bank (Malaysia) Bhd (295400-W) Current Account

711- 118585-5;

(iv) OCBC Bank (Malaysia) Berhad (295400-W) Unit Trust

Account No. 711-500664-5;

(v) Public Islamic Bank Bhd (14328-V) Fixed Deposit

Account 1801685908;

(vi) Public Islamic Bank Bhd (14328-V) Current Account:

3989853326;

(vii) Public Bank Berhad (6463-H) Fixed Deposit Account No.:

1135255601;

(viii) Public Bank Berhad (6463-H) Fixed Deposit Account No.

4228752830;

(ix) Public Mutual Berhad (23419-A) Investment Account No.

031640887;

(x) Public Mutual Berhad (23419-A) Investment Account No.

890063125;

(xi) Public Mutual Berhad (23419-A) Investment Account No.

031671333;

(xii) Public Mutual Berhad (23419-A) Investment Account No.

041453903;

(xiii) Bank of China (Malaysia) Berhad (511251-V) Fixed

Deposit Account : 100000400159532);

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(xiv) Bank of China (Malaysia) Berhad (511251-V) Fixed

Deposit Account: 100000400192343;

(xv) Bank of China (Malaysia) Berhad (511251-V) Current

Account: 100000400159521;

(xvi) Hong Leong Bank Berhad (97141-X) Fixed Deposit

Account No.: 06660012250; and

(xvii) Hong Leong Bank Berhad (97141-X) Current Account

Number: 06600071732.

[20] Copies of the Statement of Joint Accounts of the Plaintiffs in

Hong Leong Berhad account no. 33301035764 from 3 March 2020.

[21] Prior to the issue of the Will, all Trust Properties or Monies
were held in Trust by the Plaintiffs and the Deceased Trustees in
accordance with the 1999 Trust Declaration.

THE LAW PURSUANT TO OR. 24 R. 3 & 7 RULES OF COURTS

2012

[22] I reproduced the rules for ease of reference –

Order for discovery (Order 24 Rules 3)

(1) Subject to the provisions of this rule and of Rules 4 and

8, the Court may at any time order any party to cause or matter
(whether begun by writ, originating summons or otherwise) to
give discovery by making and serving on any other party a list
of the documents which are or have been in his possession,
custody or power and may at the same time or subsequently
also order him to make and file an affidavit verifying such a
list and to serve a copy thereof on the other party.

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(2) (There is no paragraph 2)

(3) (There is no paragraph 3)

(4) The documents which a party to a cause or matter may be

ordered to discover under paragraph (1) are as follows:

(a) the documents on which the party relies or will rely;

and

(b) the documents which could

(i) adversely affect his own case;

(ii) adversely affect another party’s case; or

(iii) support another party’s case

Order for discovery of particular documents (Order 24 Rules 7)

(1) Subject to Rule 8, the Court may at any time, on the

application of any party to a cause or matter, make an order
requiring any other party to make an affidavit stating whether
any document specified or described in the application or any
class of document so specified or described is, or has at any
time been, in his possession, custody or power, and if not then in
his possession, custody or power when he parted with it and
what has become of it.

(2) An order may be made against a party under this rule

notwithstanding that he may already have made or been
required to make a list of documents or affidavit under Rule 3.

(3) An application for an order under this rule shall be

supported by an affidavit stating the belief of the
deponent that the party from whom discovery is sought

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under this rule has, or at some time had, in his

possession, custody or power the document, or class of
document, specified or described in the application, and
that it falls within one of the following descriptions:

(a) a document on which the party relies or will rely;

(b) ) a document which could;

(i) adversely affect his own case;

(ii) adversely affect another party’s case; or

(iii) support another party’s case; and

(c) a document which may lead the party seeking

discovery of it to a series of inquiry resulting in his
obtaining information which may:

(i) adversely affect his own case;

(ii) adversely affect another party’s case; or

(iii) support another party’s case; and

(4) An order under this rule shall not be made in any cause or
matter in respect of any party before an order under Rule 3 has
fist been obtained in respect of that party, unless, in the opinion
of the Court, the order is necessary or desirable.

[23] In YEKEMBARAN MARIMUTHU v. MALAYAWATA STEEL BHD

[1994] 2 CLJ 581; [1993] 4 MLRH 380, his Lordship Justice Edgar
Joseph Jr (as he then was) held that there are three essential elements
for all order to discover:

“The essential elements for an order for discovery are

threefold; namely, first there must be a “document”; secondly,

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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”.

[24] In short, the Court held there are three essential elements for an
order for discovery

(a) There must be a “document”.

(b) The document must be relevant.

(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.

[25] The other cases that are of assistance are;

[26] In NGUANG CHAN aka NGUANG CHAN LIQUOR TRADER &

ORS v. HAI-O ENTERPRISE BHD & ORS [2009] 5 MLJ 40 where the
Court of Appeal ruled that the document sought must be by way of
direct relation to a document or class or document sought for
discovery and not of the inference arise merely by inference.

[27] In FABER MERLIN MALAYSIA BHD v. BAN GUAN SDN BHD

[1980] 1 MLRA 341, the Federal Court ruled, “…Order 24 rule 13(1)
Rules of the High Court 1980 provides that the court will order
the production for inspection of any documents which in its
opinion are necessary for disposing fairly of the cause or matter or
for saving costs: see also Chai Yen v Bank of America, etc. [1980]
2 MLJ 142. (Compare Order 31 rule 18 Rules of the Supreme
Court, 1957 where the same words are used). If it be the case that
discovery is tied to the question whether it is relevant to any issue
or question raised on the pleadings, then the court may order the
determination of that issue or question before deciding on the
extent of the order for discovery: Order 24 rule 4(1) Rules of the

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High Court 1980. But where the issue or question is clearly raised
in the cause or matter, then equally clearly the order for discovery
must be determined by the consideration whether it is necessary at
the stage of the application…”

[28] In FUNNIGAN v. ELLIS [2017] NZHC [1397], the New Zealand

High Court ruled that;

Fishing expeditions are a popular pastime for many people.

The fisher does not know, of course, what he or she might reel
in-trout, salmon, or nothing at all. Nonetheless, the line is
thrown out in the hope, and the expectation, that something
will bite. And then there is the alluring possibility that today,
or maybe tomorrow, the hook will find that ‘perfect catch’.

[29] In KUAH KOK KIM & ORS v. ERNST & YOUNG (a firm) [1997]
1 SLR 169, the Court of Appeal in Singapore held that :

As long as the Appellants described the type or class of

documents with reasonable precision, and that class of
documents were relevant to the cause of intended cause of
action, that would be enough. They need not go on to describe
and name each and every such document specifically. Indeed,
it would be unreasonable and impossible for the Appellants to
do so.

[30] For any documents to be relevant, it must fall within section 5-

15 Evidence Act 1950.

[31] In KERAJAAN NEGERI KELANTAN v. PETROLIAM NASIONAL

BERHAD & OTHER APPEALS [2014] 7 CLJ 597, the plaintiff applied
for and having been granted leave to appeal posed the following
questions of law for the determination of the Federal Court, namely:
(i) whether, in view of the decisions of the Federal Court in Dream

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Property Sdn Bhd v. Atlas Housing Sdn Bhd, Bato Bagi & Ors v.
Kerajaan Negeri Sarawak and Another Appeal and Thein Hong Teck
& Ors v. Mohd Afrizan Husain and Another Appeal, the applicable
test for an O. 14A application as propounded in the Terengganu case
still applies; (ii) whether the O. 14A procedure as adopted by the
courts below was (in)appropriate; and (iii) whether the courts below
were correct in relying on O. 24 rr. 4 and 8 of the RHC when
dismissing the discovery application at that stage of the proceeding,
and in any case, whether the O. 14A applications should only be
determined after the parties had completed discovery of the
documents.

[32] The Federal Court ruled, inter alia,

[44] With regard to discovery, O. 24 r. 4(1) of the Rules of the

High Court 1980 (now O. 24 r. 4 of the Rules of Court 2012)
empowers the court to make an order that any issue or
question in a cause or matter to be determined first before any
discovery of documents is made by the parties. This is so
because if discovery is resisted on the ground that the
documents or particular documents are not relevant to the
issue or question in the cause or matter, the determination of
such issue has essentially to take place first before deciding on
whether or not to order for discovery. Other instances are
where the issue of illegality arises, the court may order that the
said question be determined first; or similarly, if the defence is
limitation, the court may determine the issue of limitation first
before ordering discovery. In these circumstances, it is possible
that the action may stand or fall on the determination of the
threshold issue or question itself. Further, O. 24 r. 8 also gives
the court discretionary power to dismiss or adjourn discovery if
it is found that it is not necessary, or not necessary at that
stage or to the cause or matter.

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….

[47] In our considered view, these documents do not relate

and would not throw any light towards establishing or deciding
the core issue in question. In view of the O. 14A application in
this case, the learned trial judge of the High Court was right in
holding that discovery is not necessary at this stage of the
proceedings. In holding so, the learned judge had identified
the core issue in the O. 14A application and found that the
documents sought for by the plaintiff are not relevant in
determining the said issue and gave her reasons in finding so,
more so if the O. 14A application was decided against the
plaintiff. In our view, the learned judge’s decision in
dismissing discovery at that stage of proceedings is in line with
the underlying principle under O. 24 r. 4 which underscores
that the discovery process is predicated on the issues involved
in a particular case and therefore, in this case, the
determination of the core issue in the O. 14A application ought
to, and had rightly been decided to precede the discovery.

[33] The gist of Order 24 Rule 7 is this. The application is to be

supported with an affidavit as required under r. 7(3) and of course the
court under r. 7(4) could make an order if the court is of the opinion,
it is necessary or desirable or otherwise dismiss the same if such
discovery is not necessary either for disposing fairly of the cause or
matter or for saving costs.

[34] It has been held that “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.” (see Wong Hou
Liang & Anor v. Wong Kie Yik & Ors [2015] MLRHU 719; at para

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[17] and Licvem Shipping & Trading Aps & Anor v. JLM Logistics (M)
Sdn Bhd & Ors [2016] MLRHU 280; [2016] 10 MLJ 247).

[35] But the documents must also be necessary or desirable. As to

what is necessary (see Faber Merlin Malaysia Bhd v. Ban Guan Sdn
Bhd [1980] 1 MLRA 341; [1981] 1 MLJ 105 FC, Goh Hooi Yin v. Lim
Teong Ghee & Ors [1975] 1 MLRH 472; [1977] 2 MLJ 26).

[36] It has also been held that discovery must be refused, even if the
documents are relevant, if it is not necessary either for disposing
fairly of the cause or matter or for saving costs (see Kenwood
Electronics (Malaysia) Sdn Bhd v. Peoples’ Audio Sdn Bhd & 3 Ors
[2002] 3 MLRH 877; [2003] 5 MLJ 276; [2003] 5 CLJ 436 HC; [2003]
2 AMR 70).

THIS APPLICATION PURSUANT TO ENCLOSURE 93

[37] The Defendant has enumerated the documents that they are
seeking which I have listed above. I have taken the liberty of
comparing the application made much earlier pursuant to Enclosure 64
which was filed on 3 March 2020 and which judgment this Court have
delivered on 20 October 2020.

[38] I found that only (viii) Public Bank Berhad (6463-H) Fixed
Deposit Account No. 4228752830 is not found in that Application.

[39] I shall not make a second judgment on what I have ruled earlier.

[40] In respect of the Public Bank Berhad (6463-H) Fixed Deposit

Account No. 4228752830, the conditions-precedent of (a) There must
be a “document”, (b) The document must be relevant, (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, as per
YEKAMBARAN MARIMUTHU (supra) have been fulfilled.

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[41] I shall grant the Order pursuant to Enclosure 93 only in respect

of Public Bank Berhad (6463-H) Fixed Deposit Account No.
4228752830. Cost in the Cause.

Dated this 29 th March 2021 at Muar in the State of Johore.

Date of Hearing: 22 FEBRUARI 2021

Date of Decision: 29 MARCH 2021

(AWG ARMADAJAYA AWG MAHMUD)

Judicial Commissioner
High Court of Malaya
Muar
Johore Darul Ta’zim

Curia Advisari Vult

COUNSEL:

For the plaintiffs - Ng Li Kian; M/s Ng, Gan & Partners

Advocates & Solicitors
D6-6-7, Bangunan Perdagangan D6
801, Jalan Sentul
51000 Kuala Lumpur.
[RUJ.: NGP/L/0121/03/2019(GLP)]

For the defendants - Leong Yeen San; M/s San Leong

Advocates & Solicitors
Room 403, 4 th Floor, Bangunan Loke Yew
No. 4, Jalan Mahkamah Persekutuan
50050 Kuala Lumpur.
[RUJ.: SL/TML/219]

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Case(s) referred to:

Yekembaran Marimuthu v. Malayawata Steel Bhd [1994] 2 CLJ 581;

[1993] 4 MLRH 380

Nguang Chan Aka Nguang Chan Liquor Trader & Ors v. Hai-o
Enterprise Bhd & Ors [2009] 5 MLJ 40

Faber Merlin Malaysia Bhd v. Ban Guan Sdn Bhd [1980] 1 MLRA
341; [1981] 1 MLJ 105 FC

Funnigan v. Ellis [2017] NZHC [1397]

Kuah Kok Kim & Ors v. Ernst & Young (a firm) [1997] 1 SLR 169

Kerajaan Negeri Kelantan v. Petroliam Nasional Berhad & Other

Appeals [2014] 7 CLJ 597

Wong Hou Liang & Anor v. Wong Kie Yik & Ors [2015] MLRHU 719;
at para [17]

Licvem Shipping & Trading Aps & Anor v. JLM Logistics (M) Sdn Bhd
& Ors [2016] MLRHU 280; [2016] 10 MLJ 247

Goh Hooi Yin v. Lim Teong Ghee & Ors [1975] 1 MLRH 472; [1977]
2 MLJ 26

Kenwood Electronics (Malaysia) Sdn Bhd v. Peoples' Audio Sdn Bhd

& 3 Ors [2002] 3 MLRH 877; [2003] 5 MLJ 276; [2003] 5 CLJ 436
HC; [2003] 2 AMR 70

Legislation referred to:

Evidence Act 1950, ss. 5, 15

Rules of Court 2012, O. 14A, O. 24 rr. 3 & 7

Rules of the High Court 1980, O. 24 rr. 4(1), 8, 13(1)

Rules of the Supreme Court 1957, O. 31 r. 18

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