Tutorial class: 4-5pm Thursday
Group members: Aina (2215140), Iffah (2216922), Nur Dini Qistina (2216620)
Question 1
Company X suspects that its former employee, Mr. Y, has stolen sensitive trade secrets and
confidential client information. Company X fears that Mr. Y is planning to share these details
with a rival company and may destroy all evidence if notified. Company X intends to apply
for an Anton Piller Order to prevent the destruction of these documents.
Advise Company X on the requirements for obtaining an Anton Piller Order in Malaysia.
Problem:Company X fears Mr. Y may share confidential information with a rival company
and may destroy evidence if [Link] prevent destruction,Company X intends to seek APO
Issue: Whether Company X can obtain APO to prevent the destructions of all evidence by
Mr. Y by fulfilling the requirements for obtaining APO in Malaysia before applying
Rules:
Intro. - APO is an order of the court that allows the plaintiff or representatives to enter
premises to inspect , copy or retain safekeeping of anything described in the order;Applicable
pending trial, order made ex parte. Nature: only grant APO in a very extreme relief.
- Anton Piller KG v Manufacturing Processes [1976] case further elaborates on the
nature to grant the relief and requirements to obtain APO. Plaintiff wished to restrain
the defendant who has the information of the plaintiff however fears that the
defendant would destroy the documents. It was held that the court had a mandatory
injunction to make ex parte order however the it must be in extreme case where there
was a grave danger of property being smuggled away or being destroyed.
- Omrod LJ has highlighted three essential pre-conditions in the above case:
a) an extremely strong prima facie case
b) damage potential are actual, must be very serious for the applicant
c) the existence of incriminating documents in possession of the defendant
- Position in Malaysia, formally came into 1982. The case of Lian Keow Sdn Bhd v
Paramjothy & Anor [1982] 1 MLJ 217 has highlighted the requirements to obtain
APO in Malaysia. The court allowed plaintiff’s application when Plaintiff as the
beneficial owner of the land feared that Defendant (trustee) holding custody of all the
documents would destroy and therefore it was proven there was a strong prima facie
case and indeed a serious danger to all documents relating to the said land.
Application: If Company X intends to apply APO, they will have to prove three essential
pre-conditions in the case of Anton Piller. Company X will need to prove there is a strong
prima facie case that Mr. Y has all possibilities to destroy once notified. In the light of Lian
Keow Sdn Bhd’s case, the damage is extremely serious especially this involves Company X’s
client confidentiality and sensitive trade if it was shared to a rival company or destroyed.
Company X also can show evidence of Mr Y had stolen the sensitive trade and confidential
client information as required in Anton Piller case
Conclusion: Company X can apply for Anton Piller order on the grounds of fulfillment of
the requirements by virtue of Omrof LJ that there is a strong prima facie case, extremely
serious damage and existence of incriminating documents in possession of the defendant.
Question 2
Compare the application of the privilege against self-incrimination in Malaysia and the
UK. Provide a table (1 page) highlighting the key differences and similarities in their legal
positions, with specific reference to statutory provisions and case law. Provide its impact on
Anton Piller Orders in both jurisdictions.
Malaysia UK
Statutory Provision Section 132 of Evidence Act Section 14 (1) of the Civil
1950 Evidence Act 1968
-a witness shall not be excused -right to refuse to answer any
from answering any question question or produce any
in any suit. documents or thing which tend to
expose that person to proceedings
for an offence or recovery of a
penalty.
Scope of Privilege A witness is compelled to The privilege allows refusal to
answer questions, even if it answer questions or produce
incriminates them, in civil and documents that may incriminate.
criminal cases
Case Law judgement Television Broadcasts Ltd v Rank Film Distributors v Video
Mandarin Video Holdings Information Centre.
- Section 132 applies to - The Court of Appeal and
affidavit evidence, so House of Lords held that
no privilege. the person may rely on the
privilege against
PMK Raja v Worldwide self-incrimination.
Commodities
- Section 132 does not
apply to affidavit
evidence, so privilege
applies.
Limits on Privilege Privilege cannot be invoked in Section 72 of the Supreme Court
cases of affidavit evidence 1981
(still uncertain) - Privilege cannot be
invoked in certain cases
where an Anton Piller
Order has been granted.