MALAYSIA Trends and Developments Contributed by: Dato’ Brian Law, Suaran Singh Sidhu, Chen Yun Jin and Ashwinathan Selvanathan, LAW Partnership
vent any overreach. Although APOs have been openly labelled as a “draconian” measure, these safeguards assist to reduce any collateral harm, thus keeping any “draconian” measure to its bare minimum. This bal - ance supports the continued use and availability of APOs, especially in exceptional cases. Comparative practice confirms ongoing utility Looking to other Commonwealth jurisdictions such as the UK and Singapore, where both countries have specific practice directions on search orders/APOs respectively, reinforces why search orders remain vital for matters concerning infringement of intellectual property rights and breach of confidential information/ trade secrets, particularly in this modern digital age. While not binding, such references showcase the con - tinued need of the existence of such orders. Ensuring fairness for the defendant Whilst an applicant may solely be focused on the rights and remedies available to them, an APO must account for the rights of a defendant: • right to legal advice; • policing the Scope of the APO – the supervising solicitor should keep searches within the four cor - ners of the APO; any deviations from the param - eters allowed by the court can be a ground for setting aside the APO; and • setting aside/variation of the APO – in the event of any material non-disclosure, overbreadth of the terms of the APO or where the applicant delayed the filing of the APO, the defendant has the recourse available to set aside or vary the terms of the APO. The Malaysian courts do not shy away from granting such relief to a defendant. The bottom line: a necessary, not everyday instrument The need for APOs in Malaysia survives for one fun - damental reason: there remain cases where the truth (the evidence) will disappear or be destroyed unless the court acts to preserve it. The rise of DDOs is a welcome sign of proportionality – the court can secure identified items without authorising searches. How - ever, DDOs cannot replace APOs where a defendant may hide or take active steps to delete the evidence
or where forensic imaging and targeted searches are necessary to prevent spoliation. Crucially, Malaysian courts have already run this rem - edy through vigorous filters: demanding high merit thresholds, candid ex parte disclosures, supervising solicitors and even an inter partes hearing. Decisions by the Malaysian courts, especially at the appellate levels, have shown that misuse and abuse of APOs will be punished; material non-disclosure and delay could undo any ex parte relief. Potential impact on IP owners in Malaysia Looking forward, the continued availability of APOs will likely play an increasingly influential role in the enforcement landscape for intellectual property protection in Malaysia. In this modern day and age, infringement often involves digital files, counterfeit goods, sensitive trade secrets and even confidential manufacturing data that can be quickly hidden or erased. As such, the ability to secure evidence with - out notice remains crucial. APOs remain especially valuable where the wrong - doer exclusively controls the evidence of infringement. As piracy and counterfeiting operations evolve, such as moving into cloud storage, encrypted messaging and decentralised manufacturing, the standard inter - locutory relief may be inadequate. Jurisprudence on search orders (akin to an APO) further supports stronger evidentiary preservation in IP cases, reinforc - ing Malaysia’s compliance with international obliga - tions on right-holders’ protection. At the same time, the rise of the DDO encourages a more proportionate, tiered enforcement strategy whereby routine infringements may warrant a DDO while more sophisticated or evasive infringements justify a full APO relief. The net effect is a more flex - ible and adaptive enforcement ecosystem that pro - tects right-holders without normalising intrusive remedies. Ultimately, as Malaysia deepens its digital economy and creative industries, the strategic use of APOs could strengthen IP protection, deter organised infringement and signal a judiciary willing to preserve evidence critical to a fair trial.
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