MALAYSIA Trends and Developments Contributed by: Dato’ Brian Law, Suaran Singh Sidhu, Chen Yun Jin and Ashwinathan Selvanathan, LAW Partnership
Modern Litigation – Do we still need Anton Piller Orders in Malaysia? Introduction: a remedy that refuses to retire Few interlocutory remedies provoke as much debate as the Anton Piller Order (APO). Whilst it has been lauded for its power to preserve evidence that is at imminent risk of destruction, and criticised for its inva - siveness, it remains seated on the knife-edge between the interests of justice and the protection of individual privacy. In Malaysia, judges and practitioners alike still describe the APO as a “draconian” measure and one of the nuclear powers afforded to the courts. However, such a remedy continues to be used where nothing else will prevent the dissipation of crucial evidence before a trial. That enduring reliance begs the ques - tion: Is there still a genuine need for an APO in Malay - sia today? We would argue, through this article, that the simple answer is yes, so long as the court contin - ues to enforce strict safeguards and considers other proportionate alternatives when feasible. To provide greater insight on this topic, we will explore the origins of the APO, examine modern risks to evi - dence (especially where it concerns digital evidence that can be deleted with a click of a button), recent case trends, including the rise of the “Doorstep Deliv - ery Order” (DDO), and set out practical reasons why this remedy remains essential – alongside proposed safeguards to mitigate any abuse. Our conclusion is that APOs remain necessary in Malaysia, not as rou - tine instruments but as exceptional measures when the preservation of evidence is otherwise impossible. Brief origin: not a warrant, but a compulsion The order itself takes its name from the seminal Eng - lish Court of Appeal case of Anton Piller KG v Manu- facturing Process Ltd [1976] Ch 55, where the English court crafted a civil mechanism allowing the plaintiffs to compel the defendants to permit entry into their premises to inspect and preserve specified materials. Although there was a misconception that an APO is akin to a search warrant, Lord Denning himself made one thing abundantly clear in the aforementioned case; that APO is not a criminal search warrant – there can be no breaking down of doors nor forced entries into the premises. Instead, a defendant is ordered by the court to grant permission for the entry into their premises, failing which, they risk being found liable
for contempt of court. The distinction remains true in Malaysia where the Malaysian courts, practitioners and even academicians alike echo the words of Lord Denning as a means of ensuring that the execution of such orders remain within civil boundaries. The test for granting such a relief remains stringent, an applicant (more often than not, the plaintiff) will need to: • show a strong prima facie case; • that there would be serious irreparable harm to the applicant if the order was not granted; • that the defendant possesses incriminating evi - dence (such as confidential information of the applicant); and • that there is a real risk of destruction of the evi - dence. In Malaysia, the test laid down in the English Court of Appeal case has been applied, overlaying it with Malaysian’s own procedural laws. The Malaysian framework – high bars, strong safeguards Unlike a Mareva injunction, where the power of the court to grant such an injunction – ie, for the interim preservation of property – is derived from paragraph 6 of the Schedule to the Courts of Judicature Act 1964, the precise source of the court’s power to grant an APO is somewhat less clearly delineated. It is often suggested that such orders stem from the court’s inherent jurisdiction, although this position is not definitively settled. At the same time, APOs have also been treated, at least procedurally, as falling within the broader family of interlocutory injunctions under the Rules of Court 2012, with applications commonly initiated on an ex parte basis. As the judge deciding an ex parte application is only hearing from one party, the applicant is required to adhere to its duty of full and frank disclosure where the supporting affidavit will need to candidly set out, amongst other things, facts giving rise to the claim, reasons for proceeding with an application without notice, likely answers the defendant may assert, whether any prior similar applications were made and the precise relief being sought. In the event an appli -
309 CHAMBERS.COM
Powered by FlippingBook