DALAM MAHKAMAH TINGGI DI KUALA LUMPUR DALAM WILAYAH PERSEKUTUAN KUALA LUMPUR, MALAYSIA GUAMAN NO. WA-22IP-45-06/2019 BETWEEN ULTRA RACING (M) SDN. BHD. «PLAINTIFF (NO. SYARIKAT: 801601-W) AND BLUETACT SDN. BHD. (NO. SYARIKAT: 946891-M) .. DEFENDANT GROUNDS OF JUDGEMENT BACKGROUND [1] The Plaintiff's action against the Defendant in this Suit is for the Defendant's tort of passing off the Plaintiffs business and/or the Defendant's stabilizer bars as the Plaintiffs and copyright infringement under s. 36 of the Copyright Act 1987 for infringing the Plaintiff's drawings of stabilizer bars. The Defendant filed a counter-claim against the Plaintiff for defamatory publication of a video by the Plaintiff on the Plaintiff's social media accounts.40 45 50 35 [2] The full trial of this Suit began on 21/9/2020 until 24/9/2020. During the cross-examination of one of the Plaintiff's witness, Kaw Lap Kun (“PW KLK"), on 24/9/2020, PW KLK testified that on a date before the trial began he had called one of the Defendant's witness, Tan Soon Hoong (‘DW TSH’), to ask whether DW TSH will appear as a Defendant's witness in this trial. When DW TSH confirmed he will do so, PW KLK informed DW TSH that due to that, the Plaintiff will temporarily cease DW TSH’s and his company's dealership of the Plaintiff's stabilizer bars. [3] Upon hearing the said evidence, the Defendant's counsel stood up and made an oral application for this Court to exercise its powers under O. 52 r.2 and O. 52 r. 2A of the Rules of Court 2012 (“ROC”) to cite PW KLK for contempt committed in the face of the Court as his acts of threatening DW TSH, a witness which would be called by the Defendant, tantamount to his interference with the administration of justice. [4] No ruling was made at that point in time. Instead, | had instructed counsels to prepare written submissions and argue before me on 18/11/2020. [5] Apart from complying with this Court’s instruction to file written submissions, the Defendant's counsel chose to also file an ex parte 260 65 70 15 application in Enclosure 93 for leave to commence a committal proceeding against PW KLK and the Plaintiff, through its directors Tong Kam Yew and Cheah Pei Yee. The Defendant moved this application for leave on the ground that on 12/9/2020 PW KLK, on the instructions of those Plaintiff's directors, had impeded, obstructed and/or interfered with the administration of justice by his action of making a telephone call on DW TSH, and threatened to take legal action against DW TSH for his agreement to appear as the Defendant's witness. DW TSH had also affirmed an affidavit to support Defendant's Enclosure 93 where he confirmed the telephone conversation that he received from PW KLK on 12/9/2020. DW TSH further averred that PW KLK, among others, had threatened that as DW TSH has agreed to be the Defendant's witness in this case, the Plaintiff will suspend DW TSH's dealership for the Plaintiff's products. Further, the Plaintiff will not supply its stabilizer bars to DW TSH and his shop, and that the Plaintiff will take legal action against DW TSH for selling both the Plaintiff's and the Defendant's stabilizer bars at his shop. [6] | On 9/11/2020, | had dismissed the Defendant's Enclosure 93 as | found the application was premature. | recalled this Court's instruction on 24/9/2020 for both Counsels to provide me with their written submissions ‘on the merit of the Defendant's committal application and that | will hear 380 85 90 95 oral submissions of both Counsels on 18/11/2020. | further ruled that notwithstanding the dismissal of the Defendant's Enclosure 93, the decision of this Court to hear oral submissions of both Counsels as scheduled on 18/11/2020 would mean that this Court is keeping alive the Defendant's application for PW KLK’s committal. [7] _ Inthe meanwhile, apart from filing its written submission, the Plaintiff had taken the liberty to append to the submission an affidavit by PW KLK affirmed on 23/10/2020 (Enclosure 111). In this affidavit, PW KLK averred that when he was cross-examined by the Defendant's counsel during the trial on 24/9/2020, he had testified that he informed DW TSH that the Plaintiff's company will temporarily suspend the supply of its products to DW TSH. However, he explained that the suspension decision has nothing to do with DW TSH giving evidence in Court as the Defendant's witness. Neither was it meant as a threat. Instead, the Plaintiff had taken a position that it was left with no choice but to take the action of the temporary suspension to avoid any conflict of interest in this case as DW TSH and his company cannot continue to sell both the Plaintiff's and the Defendant's products - which are the main subject of the dispute between the parties in this case - when DW TSH chose to be the Defendant's witness. In support of that averment, PW KLK exhibited to his affidavit (exhibit D-2) what was purported to be an audio recording of the 4conversation between him and DW TSH that occurred on 12/9/2020, together with its transcription in Cantonese and its English translation. 105 [8] Consequentially, the Defendant's counsel filed an application in enclosure 112 pursuant to 0.38 r. 2(2) and/or O. 92 r. 4 of the ROC to cross-examine PW KLK on his affidavit in Enclosure 111. [9] Torecapitulate, at that stage there were the following matters before 110 me: (a) (b) 11s (c) (4) the continued trial of the main Suit; the hearing of oral submissions of both Counsels on the Defendant’s application for this Court to cite PW KLK for contempt committed in the face of the Court, scheduled on 18/11/2020; the status of PW KLK's affidavit in Enclosure 111; and the Defendant's application in Enclosure 112. 120 PW KLK’s Contempt [10] As scheduled, on 18/11/2020 | heard the submissions of both learned Counsels on the Defendant's application for this Court to cite PW 5125 130 135 140 KLK for alleged contempt committed in the face of the Court. At the outset, the Defendant's counsel objected to PW KLK’s affidavit in Enclosure 111 and had asked that this Court to expunge Enclosure 111 and to disregard the audio recording and what was perceived by the Plaintiff as the unauthorised transcriptions of the audio recording. At the same time, the Defendant's counsel had asked that this Court to make a ruling on the Defendant's application in Enclosure 112 first before this Court decides on the issue of contempt. The Plaintiff's counsel argued that PW KLK is entitled to depose his affidavit in Enclosure 111 to shed light to this Court on his version of the incidence that brought him to be cited a proposed contemnor for a very serious charge of contempt in the face of the Court. [11] On 27/11/2020, | decided that before | could make a ruling on the existence or otherwise of the alleged contempt, | shall be appraised of all available facts and evidence. | decided that the issue of contempt shall be postponed until this Court is exhausted with all available and relevant evidence and documents. With that ruling, this Court will return to the determination on PW KLK’s contempt after | have decided on the fate of the Plaintiff's Enclosure 111 and the Defendant's Enclosure 112.150 160 165 The continued trial of the main Suit [12] In the meanwhile, the main trial of the Plaintiff's Suit continued as scheduled and concluded on 2/3/2021. During the continued trial on 24/12/2020, when DW TSH was giving evidence, the Plaintiffs counsel applied for this Court to cite DW TSH and Ng Chee Wah (DW4) for contempt committed in the face of the Court, on grounds that they had affirmed false affidavits, an act which interfered with the administration of justice. Those impugned affidavits were affirmed by DW TSH and Ng Chee Wah in support of the Defendant's ex parte application for leave in Enclosure 93. | had instructed both counsels to file written submissions and had scheduled 24/2/2021 to hear their arguments. Enclosures 111 and 112 [13] Back to the interlocutory applications. On 24/2/2021 | heard the counsels’ arguments on Enclosures 111 and 112. On the Plaintiff's counsel's application under O. 52 r. 2A for two of the Defendant's witnesses, DW TSH and Ng Chee Wah (DW4) to be cited for contempt committed in the face of the Court for having affirmed false affidavits, | ruled that | would postpone the hearing of this contempt application until after | made my ruling on Enclosures 111 and 112. 7170 175 180 185 [14] On 22/3/2021, | decided on Enclosures 111 and 112. Whilst | agree with the Defendant's counsel that the manner in which the Plaintiff introduced Enclosure 111 was rather unprecedented, in that PW KLK gave his evidence in Enclosure 111 consequent to his completion of providing evidence before this Court in the course of a full trial. However, | found that PW KLK’s evidence in Enclosure 111 is separate from his evidence and testimony at the main trial. PW KLK’s evidence in Enclosure 111 is crucial for PW KLK to oust the Defendant's allegation of his alleged act of contempt at prima facie stage. | ruled that Enclosure 111 was not to be used for purposes of the main Suit but for this Court's consideration whether the Defendant has proved a prima facie case against PW KLK for his alleged contempt. | found that that evidence, therefore, can be admitted and considered by this Court in making such determination. On such ground, | granted leave for the Plaintiff to file Enclosure 111. [15] Consequent to that finding, | allowed the Defendant's application in enclosure 112 to cross-examine PW KLK for his deposition in Enclosure 111. The Plaintiff was aggrieved by this decision and filed the current appeal. My reasons for coming to such decision are as below.190 195 200 205 [16] Both the Plaintiff and Defendant has agreed for a stay of the cross- examination of PW KLK, pending the Plaintiff's appeal. FINDING [17] The Plaintiff placed a preliminary objection to the Defendant's application as it argued that O. 38 r. 2(2) is only applicable and limited for “any cause or matter begun by originating summons and on any application made by notice of application.” [18] | dismissed this preliminary objection on the ground that the Plaintiff counsel's reading that led to a restrictive application of O. 38 r. 2(2) is completely misplaced. [19] There are two limbs in O. 38 r. 2(2) ROC. The first is to set a procedural rule that evidence in any matter begun by OS and in any application made by notice of application shall be given by affidavit. The second limb sets out that “ ... the Court may, on the application of any party, order the attendance for cross-examination of the person making any such affidavit, and where, after such an order has been made, the person in question does not attend, his affidavit shall not be used as evidence without the leave of the Court.”. It is this 2™ limb that provides 9215 230 this Court with the discretion to allow the Defendant's application in Enclosure 112 to cross-examine PW KLK for his averments in Enclosure 111 [20] In essence, the powers granted to this Court to decide whether or not cross-examination of a deponent of an affidavit should be allowed is a totally discretionary one. Once an order to be cross-examined is made and the deponent chose not to allow himself to go through that process, his affidavit evidence will be disregarded. But the law states that even in such circumstances, the Court may decide to allow that affidavit evidence. Such was the wide discretion provided to Courts in dealing with affidavit evidence. The main objective of the law granting Courts with such wide discretion is to ensure justice is fully administered to the benefits of all parties before it [21] The law is trite that once a power is set as discretionary, no legal precedent can fully govern the exercise of that discretion, except when the exercise of that discretion can be shown to have impeded the advancement of the cause of justice. This is the principle laid down in many decisions, in particular the seminal decision of the Federal Court in Leisure & Allied Industries Pty Ltd v Udaria Sdn Bhd [1980] 1 MLJ 189 where Salleh Abas FJ (as he then was) said: 10235 240 245 250 255 “To allow or not to allow the respondent's application to cross-examine the appellant's witness upon their affidavits, | take it, is a matter of discretion. In appropriate circumstances, there is no reason why such application should be refused .... It is really a matter of common sense and an elementary legal principle that a party who swears an affidavit must be prepared to stand up to it by cross-examination unless the application to cross-examine him is without just cause, vexatious or motivated by desire to delay the proceedings (Allen v Allen [1894] P 239).” [22] This principle was followed by the Court of Appeal in Structural Concrete Sdn Bhd v Wing Tiek Holdings Bhd [1997] 1 CLJ 300 where it was held: “Exercise of judicial discretion are not judicial precedent because they are only authority for the facts of the particular case.” [23] Apart from O. 38 r. 2(2), the Defendant also relied on this Court's inherent jurisdiction in O. 92 r. 4. Here, | echoed the decision of my learned brother Wong Kian Kheong JC (as he then was) in Charles Khoo Ho- Tung & Ors v Koo Lin Shen & Ors [2015] 1 LNS 755 where His Lordship held: “As cross-examination of a deponent of an affidavit has been expressly provided by Order 28 rule 4(3) and (4) and Order 38 rule 2(2) RC, there need not be any resort to the court's inherent jurisdiction or Order 92 rule 4 RC. The following 2 judgments of our apex court have decided that there should not be any reliance on the court's inherent jurisdiction when there is an express statutory provision: (a) the Supreme Court's judgment delivered by Syed Agil Barakbah SCJ in Permodalan MBF Sdn Bhd v. Tan Sri Datuk Seri Hamzah bin Abu Samah & Ors [1988] 1 CLJ Rep 244; [1988] 1 MLJ 178, at 181; and u265 270 275 280 285 (b) the judgment of Zulkefli FCJ (as His Lordship then was) in the Federal Court case of Majlis Agama Islam Selangor v. Bong Boon Chuen [2009] 6 CLJ 405; [2009] 6 MLJ 307, at 320.” [24] The Plaintif’s counsel persuaded this Court not to grant the Defendant's application to cross-examine PW KLK, relying on the prerequisites as set out by the Court of Appeal's decision in Tetuan Kumar Jaspal Quah & Aishah v The Co-Operative Central Bank Ltd [2007] 4 CLJ 487 and KC Vohrah J's decision in Indrani a/p Rajaratnam v Fairview Schools Bhd [2002] 1 CLJ 1 that cross-examination of an affidavit deponent shall be refused- () ti) i) (iv) ) where it has little relevance or little weight to the issue to be decided; when the Defendant failed to challenge the truth of the averment in the affidavit; if the disputed fact is relevant to the issue to be decided; when the cross-examination would not advance the cause of justice; if there is sufficient affidavit evidence or contemporaneous documents to enable the Court to properly decide without the need for cross-examination.300 305 [25] | accept the correctness of the applicable principles as set out by the Plaintiffs counsel based on Tetuan Kumar Jaspal Quah (supra) and Indrani a/p Rajaratnam (supra) that must be taken into consideration by me in determining the Defendant's application. But those set of principles cannot be overly emphasised and cannot eclipse the unfettered discretionary powers granted to this Court by law. This is the legal foundation clearly decided by Raja Azlan Shah J (as His Royal Highness then was) in Gomez v. Gomez [1969] 1 LNS 217; [1969] 1 MLJ 228: “This case raises the singularly important question as to whether a person other than the deponent to an affidavit can be cross-examined. Order 38ised rule 1 [RSC] provides that a judge may, on the application of either party, order the attendance for cross-examination of the person making any such affidavit." These cases [on cross-examination of deponents] are not to be read as laying down rules of universal application. If once it were taken as settled, then there is no room for the exercise of discretion but a rule of law is substituted for it The power given by Order 38 rule 7 is obviously a matter of discretion to be exercised in accordance with well-known judicial principles." [26] | am further mindful of the fact that this discretionary powers not only must be exercised judiciously and that this Court should be slow in granting leave for cross-examination of a deponent in an interlocutory matter. In SAP (M) Sdn Bhd & Anor v. | World HRM Net Sdn Bhd & Anor [2006] 2 MLJ 678, Balwant Singh Purba v. R. Rajasingam [1995] 4 CLJ 491; [1996] 2 MLJ 549 and Syarikat Tungaring Kilang Papan B325 335 Sdn Bhd v. Sabah Forest Industries Sdn Bhd [1989] 1 LNS 143; [1990] 2 MLJ 38, the Courts held that leave to cross-examine a deponent of affidavit in interim injunction applications should be sparingly granted as it would allow the parties to have a rehearsal before the trial and such rehearsals could have an oppressive effect. This is understandable as in an application for interim injunction, the court is only required to determine whether there are serious issues to be tried, and not required at that stage to make a decision on the merits of the case. Whilst this Court must exercise caution, but the consideration as in the case pertaining to interim injunction differs with the situation and considerations this Court would make as | am facing with a serious contempt allegation against the very deponent. [27] | am further guided by the principle laid down by the Court of Appeal decision of Tetuan Kumar Jaspal Quah & Aishah (supra) that the burden is on the Defendant to satisfy this Court to allow its application to cross-examine PW KLK. Tengku Baharudin Shah JCA in reading out the majority judgment of the Court of Appeal held: "[18] It was the appellant's contention, relying on an extract from the High Court judgment in Gomez v. Gomez [1969] 1 LNS 217; [1969] 1 MLJ 228, that the onus is on the respondent to show why cross-examination should not be allowed which in this case the respondent has failed to do. it was also contended that only in exceptional cases should the judge refuse an application to cross-examine a deponent on his affidavit - see Collin LJ in Comet Products UK Ltd v. Hawkex Plastics Ltd & Anor [1971] 2 QB 67 at p 77.[19] With respect, I do not think these are correct statements of the law in this 340 country.” [28] | am further satisfied that the Defendant's application in Enclosure 112- (a) was made in good faith; 345 (b) was not for an improper or collateral purpose to delay the proceedings or to harass, intimidate and/or oppress the Plaintiff; and (c) for the deponent of Enclosure 111 to be cross-examined would advance the cause of justice to both the deponent and 350 the Defendant. CONCLUSION [29] Based on the above considerations, and having considered the 355 affidavits, and the written and oral submissions of the learned counsels, it was my decision that the Defendant had discharged its legal onus to360 365 370 375 persuade this court to exercise its discretion to grant leave to cross- examine PW KLK. | therefore allowed Enclosure 112. DATED 13 AUGUST 2021 — (MOHD RADZI BIN HARUN) Judge High Court (Commercial Division (Intellectual Property)) Kuala Lumpur Parties: Counsel for the Plaintiffs: Foong Cheng Leong (Low Li Qun with her) Messrs Foong Cheng Leong & Co. Advocates and Solicitors Lot 1.3.26, 3° Floor Pearl Point Shopping Mall Old Klang road Tel. No.: 03-7987 9495 58000 Kuala Lumpur Fax No.: Ruj. Tuan: FCL/D/1490/2019) (Email: mail@fcl-co.com)390 395 400 Counsel for the Defendant: Wendy Lam Mei Kuan (Wong Jia Ee with her) Messrs V Chong W Lam & Co. Advocates and Solicitors Suite 14-3A, Level 14 Wisma UOA II 21 Jalan Pinang Tel. No.:03-2166 6655 50450 Kuala Lumpur Fax No.:03-2166 9655 (Ruj. Tuan: VW687(49)) (Email: general@vowl.com)