Lee Ah Nooi @ Saraswathy a/p Vello Yoganathan a/l Ramasamy

IN THE HIGH COURT OF MALAYA IN SHAH ALAM IN THE STATE OF SELANGOR DARUL EHSAN, MALAYSIA ORIGINATING SUMMONS NO.: BA-24NCvC-2060-11/2022 _________________________________________________________ Di dalam perkara mengenai seksyen 327 dan 329 Kanun Tanah Negara, 1965 Dan Dalam perkara Aturan 5 Kaedah 3 dan Aturan 7 Kaedah-Kaedah Mahkamah 2012 Dan Di dalam perkara mengenai hartanah yang dipegang di bawah PM 3816, Lot 17310, Kampong Bharu Pandamaran, Mukim Klang, Negeri Selangor Dan Di dalam perkara Kaveat Persendirian Perserahan No. 4728/2020 yang didaftarkan pada 5.10.2020 BETWEEN LEE AH NOOI @ SARASWATHY A/P VELLO [IDENTITY CARD NO. : 540815-08-5074] (AS ADMINISTRATOR OF THE ESTATE OF THE DECEASED, GOPAL A/L KUPPUSAMY) ….. PLAINTIFF AND YOGANANTHAN A/L RAMASAMY [IDENTITY CARD NO. : 710804-08-6337] ….. DEFENDANTS GROUNDS OF JUDGMENT 1 GROUNDS OF JUDGMENT (Amendment and Expungement) Introduction 1. Enclosure 6 is the Plaintiff’s application to make a very minor amendment to the Originating Summons by adding an alphabet “N” to the name of the Defendant named therein, and Enclosure 8 is the Defendant’s application to expunge the Affidavit of Nur Sazila affirmed on 3 January 2023 on the ground that it allegedly contains hearsay evidence. 2. On 30 March 2023 this Court allowed the Plaintiff’s application in Enclosure 6 for amendment of the Originating Summons and dismissed the Defendant’s expungement application in Enclosure 8. 3. Dissatisfied with the said decisions, the Defendant has filed two (2) notices of appeal to the Court of Appeal. Enclosure 6 amendment application 4. In the Originating Summons, the Plaintiff stated the Defendant as “YOGANATHAN A/L RAMASAMY (NO. KP 710804-08-6337)”. 5. In Enclosure 6, the Plaintiff applied to amend the name of the Defendant in the Originating Summons to “YOGANANTHAN A/L RAMASAMY (NO. KP 710804-08-6337)” by adding the alphabet “N” to the name. According to the Plaintiff, the error in the spelling of the Defendant’s name was caused by a typographical error or accidental slip. 6. The relevant provisions in the Rules of Court 2012 are as follows: “Amendment of other originating process (O. 20, r. 7) 7. Rule 5 shall have effect in relation to an originating summons as it has effect in relation to a writ Amendment of writ or pleading with leave (O. 20, r. 5) 5. (1) Subject to Order 15, rules 6, 6A, 7 and 8 and the following provisions of this rule, the Court may at any stage of the proceedings allow the plaintiff to amend his writ, or any party to amend his 2 pleading, on such terms as to costs or otherwise as may be just and in such a manner, if any, as it may direct. (2) Where an application to the Court for leave to make the amendment mentioned in paragraph (3), (4) or (5) is made after any relevant period of limitation current at the date of the issue of the writ has expired, the Court may nevertheless grant such leave in the circumstances mentioned in that paragraph if it thinks it just to do so. (3) An amendment to correct the name of a party may be allowed under paragraph (2) notwithstanding that it is alleged that the effect of the amendment will be to substitute a new party if the Court is satisfied that the mistake sought to be corrected was a genuine mistake and was not misleading or such as to cause any reasonable doubt as to the identity of the person intending to sue or, as the case may be, intended to be sued.” 7. In Enclosure 6 application, the proposed amendment is for correction of the typographical error in the spelling of the name of the Defendant and is a very minor amendment. 8. In our present case, there is no question of any allegation of expiry of the limitation period. Even if there is any question of expiry of limitation period, this Court is satisfied that the mistake sought to be corrected was a genuine mistake and was not misleading or such as to cause any reasonable doubt as to the identity of the person intending to sue or, as the case may be, intended to be sued. 9. In the circumstances, this amendment by adding alphabet “N” to the name of the Defendant stated in the Originating Summons is clearly permissible under O.20 of the ROC 2012. 10. Hence, this Court has allowed the Plaintiff’s amendment application in Enclosure 6. 11. As the Defendant has unreasonably or unjustifiably opposed the very minor amendment, the Court does not award the costs of amendment to the Defendant. In the premises, the costs of amendment are to be borne by the respective parties. 3 Enclosure 8 expungement application 12. Enclosure 8 is the Defendant’s application to expunge the Affidavit of Nur Sazila affirmed on 3 January 2023 on the ground that it allegedly contains hearsay evidence. 13. Nur Sazila is an advocate and solicitor who has affirmed the Affidavit-in-Support on 3 January 2023 to support the Plaintiff’s application for amendment in Enclosure 6. 14. Enclosure 6 is an interlocutory application to make a very minor amendment to the Originating Summons by adding an alphabet “N” to the name of the Defendant named therein. 15. O.42 r.5(2) of the Rules of Court 2012 provides as follows: “(2) An affidavit sworn for the purpose of being used in interlocutory proceedings may contain statements of information of belief with the sources and grounds hereof”. 16. It is trite law that hearsay evidence is admissible in interlocutory proceedings, though the weight of such hearsay evidence has to be assessed in light of the facts and circumstances of each case. 17. In the affidavit of Nur Sazila, the advocate and solicitor averred to the genuine typographical error or inadvertent slip in the course of preparing and typing the Original Summons. This Court finds that Nur Sazila in her affidavit was speaking from her own knowledge of what transpired in the course of the preparation and typing of the Originating Summons, a work which was in fact carried out in her law firm. As such there is nothing hearsay about the contents of Nur Sazila’s affidavit. 18. In the circumstances this Court has not found any irregularity or defect in Nur Sazila’s affidavit. 19. Even if there were any irregularity in the form of Nur Sazila’s affidavit, this Court would still have granted leave for it to be used in the amendment application based on the provisions of O.41 r. 4. 20. In court proceedings, there is a difference between striking out and expungement. A document which is struck out by order of court will 4 still remain in the court’s records and available to viewing by the general public, though it ceases to have any validity or legal effect. Expunging a document will, in addition to rendering the document to cease to have validity or legal effect, also result in the document been erased or obliterated from the court’s records and/or rendered unavailable to viewing by the general public. 21. Black's Law Dictionary defines "expungement of record" as the "Process by which record of criminal conviction is destroyed or sealed from the state or Federal repository." Oxford Dictionary defines it as expunge something (from something) is to remove or get rid of something, such as a name, piece of information or a memory, from a book or list, or from your mind. The American Bar Association describe the meaning and effect of expungement in these words: To “expunge” is to “erase or remove completely.” In law, “expungement” usually refers to the process by which a record of criminal conviction is destroyed or sealed from state or federal record. An expungement order directs the court to treat the criminal conviction as if it had never occurred, essentially removing it from a defendant’s criminal record as well as, ideally, the public record. 22. In the common law legal system, an expungement proceeding is a type of lawsuit in which an individual who has been arrested for or convicted of a crime seeks that the records of that earlier process be sealed or destroyed, making the records non-existent or unavailable to the general public. If successful, the records are said to be "expunged". 23. An affidavit filed in the court can only be expunged from the court’s records if it is irrelevant and also contains scandalous allegations. 24. If an affidavit does not contain any scandalous allegation, it cannot be expunged although it may be irrelevant or arguably irrelevant or arguably hearsay. 25. In Repco (M) Sdn Bhd v. Tan Tho Fatt & Ors [2003] 1 LNS 211; [2003] 6 MLJ 146; [2003] 6 CLJ 478 Abdul Malik Ishak J (as His Lordship then was) said: "The law is quite clear on this matter. The court will only strike out a matter that is scandalous, irrelevant and/or otherwise oppressive. The court will not strike out a matter which is scandalous but not 5 irrelevant, nor would the court strike out a matter which is irrelevant, but not scandalous." 26. Under the law, an affidavit should only be expunged from the Court's records where the affidavit is both irrelevant and scandalous. It is not the practice of the Court to expunge an affidavit or document filed in the Court merely on ground that the affidavit or document is irregular or defective: Casa Armada Sdn Bhd v. Shahpadu Energy & Engineering Sdn Bhd [2022] 1 LNS 328 para [9] (High Court). 27. The question of relevancy or irrelevancy and the question of the weight or admissibility in evidence in connection with the contents of the affidavit are to be addressed and submitted by the parties’ respective counsel when filing and presenting the submissions and cannot be the basis for a separate application for expungement of affidavit unless the contents of the affidavit are both irrelevant and scandalous. If the questions of relevancy were to form the sole basis for making an application for striking out or expungement as a matter of general practice, the Courts will be inundated with numerous interlocutory applications and interlocutory appeals in connection with such questions of relevancy. That would not be conducive to the smooth administration of justice and also would be inconsistent with the main policy of the court rules embodied in O.34 of the Rules of Court 2012 to facilitate “just, expeditious and economical disposal” of civil cases. 28. In our present case, the Plaintiff’s amendment application is grounded upon a genuine mistake or typographical error in the spelling of the Defendant’s name where the alphabet “N” was inadvertently left out in the course of preparing and typing the Originating Summons. Nur Sazila, being the advocate and solicitor involved in the typing and/or preparation of the cause papers, affirmed in her affidavit regarding the mistake or slip. The averments of Nur Sazali are relevant to the amendment application and are not in any way scandalous of the Defendant. 29. In the entire circumstances, there is no valid basis whatsoever for the Defendant to apply to expunge or strike out Nur Sazila’s affidavit here. 30. In the circumstances, the Defendant’s application in Enclosure 8 was dismissed with costs by this Court. 6 Dated this : 9th May 2023 Signed ..……................................................................. TEE GEOK HOCK JUDGE HIGH COURT OF MALAYA AT SHAH ALAM (NCvC 10) To the parties’ solicitors: 1. For the Applicant : Nur Sazila binti Abd Halim Chambers of Kanaga, Sazila & Moganah (Klang) 2. For the Respondent : Aqeeb Lizalman Nordin bin Zamery Messrs Aqeeb & Co. (Puchong) 7