YAP CHOO @ YAP GEOK YEE THE PERSONAL REPRESENTATIVE OF THE ESTATE OF NEO CHWEE YEEN & 3 ORS

IN THE HIGH COURT OF MALAYA AT KUALA LUMPUR (COMMERCIAL DIVISION) SUIT NO: WA-22NCC-194-05/2020 BETWEEN 1. YAP CHOO @ YAP GEOK YEE (NRIC NO.: 370703-10-5369) ...PLAINTIFF AND 1. THE PERSONAL REPRESENTATIVE OF THE ESTATE OF NEO CHWEE YEEN 2. NEO LAY HOONG (NRIC NO.: 620106-10-5730) 3. NEO MING LEE (NRIC NO.: 750525-14-5441) 4. SYARIKAT AGENT E.N.E (JALAN KELANG) SDN BHD (COMPANY NO.: 68318-X) ...DEFENDANTS GROUNDS OF DECISION 1 Introduction [1] The Plaintiff vide enclosure 10 applied for a discovery order under O. 24 r. 7A(2), (3), (4) and O. 24 r. 9 of the Rules of Court 2012 (“ROC 2012”) to be made against a non-party to the suit. The non- party being one Lik Ho Sdn Bhd. [2] This court dismissed the application on the basis that the Plaintiff failed to establish valid reasons for the discovery order and that the Plaintiff was embarking on a fishing expedition. [3] These are the reasons for the court’s dismissal of the application. The Application [4] The Plaintiff’s application in enclosure 10 seeks the following discovery orders: (i) That Lik Ho Sdn Bhd shall, within fourteen (14) days from the date of this Order serve on the Plaintiff the List of Documents detailed in "Schedule A1' and file an Affidavit verifying such a List; (ii) That the Plaintiff and/or his solicitors be at liberty to inspect and peruse the documents within fourteen (14) days of the service of the List or filing of the Affidavit, and make notes of its content, and be entitled to be supplies with a copy thereof on payment of reasonable charges; 2 (iii) Costs; (iv) Plaintiff be given liberty to further apply, and (v) Such further orders and/or other consequential reliefs which this Honourable Court does fit and just. Background facts [5] Sometime in the year 1969, the late Neo Chwee Yeen ("late Neo") obtained an agent licence to operate a number forecast betting games business issued by the Ministry of Finance ("Agent Licence"). The 2nd Defendant is the daughter of the late Neo. [6] After the procurement of the Agent Licence, the late Neo then offered to the Plaintiff and eight (8) other individuals, Wong Kok Sing, Heng Chew Hoong, Tan Boon Thiam, Peh Boon San, Chai Chin Kim, Yong Chow Fatt, Ong Teng Pui and Mr Lim (hereinafter collectively referred to as "the said Partners") to form a partnership in the business named Syarikat E.N.E Jalan Klang, Kuala Lumpur ("the said Partnership”). [7] Subsequently, the Empat Nombor Ekor (Selangor) Sdn Bhd offered Magnum Shares to the late Neo as one of the pioneer agents. After the late Neo accepted the offer by Empat Nombor Ekor (Selangor) Sdn Bhd, the late Neo then offered the ownership of the said Magnum Shares to the 4th Defendant and later registered in the name of the late Neo and Wong Kok Sing. 3 [8] In 1981, two individuals of the said Partnership, i.e. Ong Teng Pui and Mr. Lim voluntarily exited the said Partnership. [9] The 4th Defendant was incorporated on 12.3.1981. The principal activity of the 4th Defendant was to act as an agent of M4D (Selangor) Sdn Bhd. The 4th Defendant took over the business of the said Partnership with effect from 13.03.1981. Thereon all commission obtained from the 4D forecast betting business was deposited into the 4th Defendant’s banking account and formed as the principal revenue of the 4th Defendant. [10] In 1983, the 4th Defendant's Board of Directors offered and granted ordinary shares of RM1 each to former Partners to the said Partnership (except the two (2) individuals who had exited from the said Partnership). The Plaintiff’s case [11] The Plaintiff disputes the sole ownership of the Agent Licence as he contends that the Agent Licence was held on a trust arrangement. [12] In essence, the Plaintiff claims that the trust arrangement refers to an agreement between the said Partners to operate the 4D forecast betting business. [13] The material terms of the trust arrangement are that the late Neo will secure the Agent Licence in his name and the profits obtained from the business will be then distributed to the all the said Partners. 4 [14] It was further contended that the Agent Licence cannot be transferred to any third party unless with the consent of the said Partners. [15] On or about 2004, the Plaintiff alleged that there was a significant drop in the commission received from the 4D forecast betting business and which was deposited into 4th Defendant’s banking account. [16] The Plaintiff subsequently discovered the following: a) The transfer of the Agent Licence from the late Neo to the 2nd Defendant; and b) The diversion of the profits received from the 4D forecast betting business to Lik Ho Sdn Bhd (“Lik Ho”). [17] The crux of the application rests on the ownership of the Agent Licence. The Plaintiff alleged that the said Partners entered into a trust arrangement to obtain a licence. It was contended that: (a) All members of trust arrangement contributed equally to pay the necessary fee to procure the Agent Licence; (b) The shares issued by Empat Nombor Ekor (Selangor) Sdn Bhd were registered in the name of both the late Neo and another member, namely Wong Kok Sing. 5 (c) All agent commission received pursuant to the utilisation of the Agent Licence was distributed equally between the members of the trust arrangement. The Defendant’s case [18] The Defendants however, maintained that the trust arrangement alleged by the Plaintiff is an “imagination and creation” of the Plaintiff and flatly deny the existence of any such trust arrangements. The Law [19] A discovery exercise must relate to matters that must either fairly dispose of the suit or result in savings in costs. [20] The law pertaining to discovery against non-party is provided under O.24 r.7A (2), (3), (4) and (5) and/or r.9 of the ROC 2012. [21] A useful guide was laid down by the High Court in in the case of Billion Prima Sdn Bhd & Anor V Nutech Co Ltd & Anor [2017] 10 MLJ 213 at paragraph 10 (“Billion Prima”), where Wong Kian Kheong JC sets out six (6) conditions for the discovery application against non-party which are: i. The applicant shall ‘specify or describe the documents in respect of which the order is sought’; ii. The document must be ‘relevant’ to an issue which is ‘likely to arise out of the claim made or likely to be 6 made in the proceedings’ pursuant to O.24 r.7A (3)(b) ROC 2012; iii. The document must be likely to have or have been in the “possession, custody or power” of the person against whom the order for discovery is sought. iv. The said discovery must be necessary to fairly dispose of the pending suit and to save costs; v. The documents sought are not ‘privileged documents’; and vi. The application must be duly served to the non-party and on every party in the pending suit. Analysis [22] The Plaintiff claims to be entitled to the list of documents stated in the application. However, lest it be forgotten, the cause of action against the Defendants is one that revolves on the ownership of the Agent Licence. The Plaintiff’s main argument is the existence of a trust arrangement between the late Neo and the founding Partners of the partnership. The claim of the Plaintiff is unsubstantiated [23] It is the finding of this court that the claim made by the Plaintiff is unsubstantiated by any proof. It was highlighted to this court that the 7 two documents that the Plaintiff argues to show proof of the trust arrangement that existed between the Plaintiff and the Defendant. The two documents relied on were: (i) The 4th Defendant’s resolution (“Resolution”) dated 1.4.1989; and (ii) The Letter of Indemnity (“LOI”) dated 8.6.1989 [24] The court is of the considered view that the two documents relied on by the Plaintiff have no bearing to the ownership of the Agent Licence. The said documents do not show the existence of a trust relationship with regards to the ownership of the said licence. [25] The Resolution was a director’s resolution of the 4th Defendant. It pertained to an arrangement entered between Empat Nombor Ekor (Selangor) Sdn Bhd and the 4th Defedant. The resolution merely authorized Empat Nombor Ekor (Selangor) Sdn Bhd to release share certificates for the ordinary shares in the 4th Defendant for security purposes. In lieu of the share certificate, the 4th Defendant deposited a sum of RM 20,000.00 with Empat Nombor Ekor (Selangor) Sdn Bhd. The late Neo was the trustee for the 4th Defendant and one of the two named directors authorized to deal with Empat Nombor Ekor (Selangor) Sdn Bhd. [26] The LOI dated 8.6.1989 was issued by the late Neo to the 4th Defendant acknowledging the sum RM 20,000.00 was held on trust for the 4th Defendant. 8 [27] It is clear to the mind of this court that the two documents did not have any evidential value to support the contention that that the Agent License was in fact held in trust for any of the founding partners. [28] The LOI on the other hand, was a pure administrative arrangement between the 4th Defendant and the late Neo for the usage of the certificates as security. It does not any manner relate to the trust arrangement as alleged by the Plaintiff. [29] In short, the documents relied on by the Plaintiff does not in any manner convince this court that they support the Plaintiff’s contention that a trust arrangement exists. Onus on the Plaintiff [30] The onus is on the Plaintiff to satisfy this court that the documents sought against Lik Ho is necessary to fairly dispose of the suit and it will result in costs saving in the upcoming trial (Billion Prima principles). [31] This court is persuaded by the argument of the Defendant that if the Plaintiff was of the serious belief that Lik Ho was a party to the Defendants’ grand plan to deny Plaintiff the profits from the gaming business, Lik Ho should have been named as a Defendant in the suit. However, this was not done. The reason is simply because Lik Ho cannot be implicated in the issue of the trust arrangement that the Plaintiff is alleging. 9 [32] It is the view of this court that there is no basis to support the Plaintiff’s supposition that Lik Ho is part of the purported scheme used by the late Neo or the 2nd to the 4th Defendants to deny the Plaintiff to the profits or the right to the license. It cannot therefore demand the said document from Lik Ho in a discovery application under O.24 r.7A simply because it wants to probe the financial relationship between the Defendants and Lik Ho. [33] Even if this court were to grant the orders, it would not dispose of the suit against the Defendants as the documents sought by the Plaintiff does not resolve the suit. This court fails to see the bona fides of this application. [34] What this court sees is in fact an attempt by the Plaintiff to build up its case by going to Lik Ho and filtering the documents it hopes to obtain for use in the main trial against the Defendants. Put it in another way, the Plaintiff is seeking to investigate the affairs of Lik Ho in the hope of discovering information in the form of documents, to strengthen its case against the Defendants. [35] The extensive documents sought for namely documents from 2004 to the date of any order by this court covers a very wide time frame and is highly exploratory in nature. Such an exercise is clearly a fishing expedition and cannot be countenanced by this court. [36] In the case of Nguang Chan aka Nguang Chan Liquor Trader & Ors v Hai-O Enterprise Bhd & Ors [2009] 5 MLJ 40, it was held that : 10 “[11] Under r 13(1) an order for the production of documents for inspection is not to be made unless the court is of opinion such order is necessary either for disposing fairly of the case or matter or for saving costs. It is for the party seeking production to satisfy the court that such production is necessary for the purpose specified in 13(1) per Parker LJ in Dolling-Baker v Marrett & Ors [1991] 2 AN ER 890 and Ventouris v Mountain (1991) 1 WLR 607. [12] And in considering the application the court should bear in mind the words of Sir Thomas Bingham MR in Taylor v Anderton (1995) 1 WLR 447 at p 462 that the purpose of the rule is to ensure that one party does not enjoy an advantage or suffer an unfair disadvantage in the litigation as the result of a document not being produced for inspection. [13] Finally the court would dismiss a plaintiff's application for discovery if it is of the view that the plaintiff was 'merely fishing for evidence to prop up his case' and to allow him discovery would be unduly oppressive to the party giving discovery-see Leslie S Holmes v Engineering Service Inc (1993) 1 AMR 27 at p 36." (Emphasis added) [37] This application is clearly an excuse to prop up the Plaintiff’s case. Conclusion [38] It is on this basis that the Plaintiff has failed to convince this court to exercise its discretion to allow discovery to be made on the extensive list provided by the Plaintiff. The documents required will 11 not in any manner assist in disposing fairly the case or result in savings costs. In the foregoing, enclosure 10 is dismissed. (AHMAD FAIRUZ BIN ZAINOL ABIDIN) Judge High Court of Malaya Kuala Lumpur Dated: 5th March 2021 12 Counsels S. Janagasutha, Tan Chong Lii & Siow Chan Wai for Plaintiff Messrs Tan Chong Lii & Co Unit 720, Level 7 Block A, Lobby A, Damansara Intan No. 1, Jalan SS20/27 47400 Petaling Jaya Selangor PH Goh & Soh LL for Defendants Messrs Lai Goh & Associate B-3A-4, Level 3A Block B, Megan Avenue 2 No. 12, Jalan Yap Kwan Seng 50450 Kuala Lumpur Vivian Oh for 3rd party (ENE Selangor Bhd) 13