MALAYSIA Trends and Developments Contributed by: Dato’ Brian Law, Suaran Singh Sidhu, Chen Yun Jin and Ashwinathan Selvanathan, LAW Partnership
relevant evidence and information before it in order to provide a resounding decision on the matter. The doorstep delivery order (DDO): a welcome, but not universal alternative The Malaysian courts have recently highlighted an alternative means to preserve evidence by virtue of a DDO, which is aimed to be a less intrusive ex parte measure that authorises an applicant’s representative, in usual cases together with a supervising solicitor, to attend at a defendant’s premises and receive speci - fied items such as laptops, storage devices and docu - ments, rather than entering a defendant’s premises and searching for items. In the High Court case of Dimerco Express (M) Sdn Bhd v Patricia Lee Siew Mei & Ors [2024] 11 MLJ 773, the High Court emphasised that a DDO is not an APO – a DDO is purposefully nar - rower and limits any possible intrusion to the delivery- up of specifically identified materials. Such constructive development in the law shows that the courts are still willing to provide an order to pre - serve the integrity of evidence. In this regard, DDOs reduce any intrusion of privacy and limit any risks on the execution of the order where items/materials/ devices can be enumerated and handed over without the need to rummage through a defendant’s belong - ings. However, such orders are not without limits. • Unknown locations or concealed materials: If cru - cial evidence is hidden, scattered across devices, or embedded in cloud accounts, a DDO’s “hand-it- over” approach will inevitably fail; a defendant may simply omit the most incriminating assets from being delivered to the supervising solicitor. • Need for forensic searching: While targeted digital imaging and use of keyword/time-frame searches will be able to preserve evidence (akin to that of an APO), the DDO mechanism lacks the onsite search-and-review flexibility a properly supervised APO provides for – which can prevent any delays and ensures only relevant evidence is seized. • Risk of selective compliance: Without the ability to search, DDOs can devolve into a trust-based regime, which is counterproductive where the very concern is bad faith on the part of the defendant. In this regard, the threat of contempt of court will
not be sufficient in the grand scheme of achieving justice. Accordingly, while the DDO does provide a valuable addition to the relief available to a litigant, it does not obviate the need for an APO, especially in cases of genuine risk of destruction, concealed storage and complex digital footprints. The case for continued use: five practical reasons Evidence preservation is a pre-condition to justice It goes without saying that the outcome at trial will heavily depend on evidence produced. Where there is a credible risk of destruction, the court’s duty to uphold justice often requires immediate preservation. We recognise that the interests of the applicant will need to be balanced against the interest of the defend - ant. However, APOs still remain one of the most effec - tive ways to stop the destruction of evidence before adversarial proceedings can be convened. Digital spoliation outpaces conventional procedures Encryption, deletion and remote wiping technologies exploit the gap between the date of filing and the date of the hearing. In such scenarios, even hours can mat - ter. The fact that an APO remains available for a litigant in Malaysia reflects this reality and the need for a rem - edy proportionate to a world where data can vanish without a trace. Alternative tools don’t always reach hidden truth DDOs and targeted delivery-up orders work only if items are known, listed and are likely to be handed over in good faith. Where devices must be imaged and searched or when data is in cloud accounts with complex access paths, the Malaysian courts will still need a tool that permits supervised search and pres - ervation of evidence. APOs are already tempered by strong safeguards With the provisions of the Malaysian Rules of Court 2012 governing ex-parte applications, supervisory roles of independent parties such as a supervising solicitor, protocols governing any privileged infor - mation, execution of such orders during reasonable hours (unless an extension is agreed between all par - ties), undertakings given by the applicant and an inter partes hearing to review the ex parte order all pre -
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