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2025 MarsdenLR 1387
HIGH COURT MALAYA KUALA LUMPUR
LEMBAGA KEMAJUAN TANAH PERSEKUTUAN – Appellant
Versus
TAN SRI MOHD ISA DATO ABDUL SAMAD & ORS – Respondent
[Suit No: WA-22NCvC-843-11/2019]
The court ruled that physical presence is essential in trials involving serious allegations, prioritizing public interest and fairness over remote testimony requests.
Headnote:(A) Courts of Judicature Act 1964 - Section 15A - Rules of Court 2012 - O 33A and O 92 r 4 - Application for leave to testify via remote communication technology - The court emphasized the importance of physical presence in trials involving serious allegations of conspiracy and fraud, considering public interest and the efficiency of proceedings. (Paras 11, 33)
(B) Remote Communication Technology - The court retains discretion to allow testimony via remote means, weighing factors such as fairness, public interest, and potential prejudice to parties involved. (Paras 11, 33)
Facts of the case:
The 12th Defendant, residing in Maryland, USA, applied to testify remotely due to employment constraints and logistical challenges related to trial scheduling involving multiple parties and witnesses. The Plaintiffs opposed this application, citing concerns about trial integrity and effectiveness of cross-examination. (Paras 1, 5, 7)
Findings of Court:
The court ruled against the application for remote testimony, emphasizing the necessity of physical presence in the interest of justice and public interest, given the serious nature of the allegations involved. The 12th Defendant was ordered to testify physically. (Paras 33, 35)
Issues: The key issues included whether the 12th Defendant could testify remotely and the implications for trial fairness and public interest. (Paras 1, 33)
Ratio Decidendi: The court determined that allowing remote testimony would prejudice the other parties and undermine the integrity of the proceedings, thus prioritizing physical attendance for the testimony of the 12th Defendant. (Paras 33)
Result: Application dismissed with costs awarded to the Plaintiffs.
[Enclosure 717: Notice Of Application By The 12th Defendant For Leave To Give Evidence By Zoom]
Notice Of Application
[1] This is an Application by the 12th Defendant (filed by Messrs Azim, Tunku Farid & Wong) pursuant to s 15A Courts of Judicature Act 1964 , O 33A and O 92 r 4 of the Rules of Court 2012 for the following orders:
(a) that leave be granted for the 12th Defendant in the main suit, Amy Loh Shook Fun (sued as a partner of Messrs. Yeap, Yong & Amy) to testify via remote communication technology by way of Zoom (or any other platform of similar nature as may be directed by this Court) throughout the entire proceedings for the above-captioned suit;
(b) should prayer (a) be allowed, the parties in the above-captioned suit shall be at liberty to appoint an independent law firm in Maryland, USA of their choice as supervising solicitors, at their own costs and expenses for:
(i) the 12th Defendant to be present at the said law firm to give her testimony at the said law firm via remote communication technology as directed by this Court; or
(ii) alternatively, the supervising solicitors may be present at the location where the 12th Defendant will testify;
(c) notwithstanding (b) above, the parties in the above-captioned suit shall be at liberty to dispense with the appointment of supervising solicitors. In such a circumstance, the parties shall be at liberty to mutually agree on a 'protocol for testimony by way of remote communication technology';
(d) alternatively, and only in the event that (a) above is not allowed, specific trial dates be allocated for the 12th Defendant to testify physically;
(e) the costs of this Application be in the cause; and
(f) such further order or directions or relief that this Honourable Court deems fit and/or expedient be granted or ordered.
[2] The brief grounds of this Application are, inter alia, as follows:
(a) the 12th Defendant has relocated to Maryland, USA since year 2017 and she is currently working as a preschool teacher there;
(b) the 12th Defendant is dependent on her income from these preschool jobs for her living expenses;
(c) given the substantial number of parties, witnesses, and trial dates involved, it is difficult/impossible to estimate when the 12th Defendant's turn is to testify;
(d) even if specific trial dates have been allocated for the 12th Defendant to testify in person, there remains uncertainty that the cross-examination and re-examination will be completed within the allotted time;
(e) the nature of the 12th Defendant's employment as a preschool teacher makes it unfeasible for her to apply for continuous leave across all trial dates;
(f) it is unlikely that leave of such significant length will be granted. In addition, securing leave on short notice is unlikely given the demands of her role which involves pastoral and teaching responsibilities towards the children under her care;
(g) the justice of the case lies with allowing the 12th Defendant to testify remotely; and
(h) such further grounds for this Application are as set out in the Affidavit in Support affirmed by Amy Loh Shook Fun on 22 November 2024 (Enclosure 718).
Background Preceding The Notice Of Application
[3] When this matter was called for case management on 16 October 2024 before this Court, counsel for the 12th Defendant from Messrs. Azim, Tunku Farid & Wong has orally requested for the 12th Defendant's evidence to be conducted by Zoom. By encl 801 the Notice of Change of Solicitors dated 3 January 2025 was filed by Messrs. Wong Hok Mun Partnership solicitors/counsel for the 12th Defendant to the 15th Defendant.
[4] The concern of the Plaintiffs is about costs in respect of the different time zone and the appointment of supervising solicitors in the United States and there are more than 20 lawyers who will be going to cross-examine the 12th Defendant pertaining to the issue of conspiracy and fraud. This Court when dealing with this request, briefly outlined the reasons why Zoom is going to b
