The court clarified that a prisoner's presence in court under O 38 r 21 ROC 2012 is necessary solely for the purpose of testimony, not merely for observation or instruction.

[1] This judgment concerns the application of the 1st Defendant, Datuk Seri Hj Najib bin Tun Abdul Razak, in encl 201 pursuant to O 38 r 21 Rules of 2012 ("ROC 2012") against the 1st Plaintiff, 1Malaysia Development Berhad and the 5th Plaintiff, Global Diversified Investment Company Limited, for an order for the Commissioner General of Prisons to produce the 1st Defendant before this Court for the hearing of certain interlocutory applications.

[2] Enclosure 201 was dismissed by the Court after hearing the application on 10 November 2022. These are my grounds of judgment.

Background

[3] The action of the plaintiffs in this action against the 1st Defendant, who held the position of the Prime Minister and Minister of Finance of Malaysia, is primarily for breach of duty as a shadow director and public officer in relation to the misappropriation of the plaintiffs' funds. The plaintiffs contend that the 1st Defendant, by virtue of his position and power, exercised control over the plaintiffs' directors and management and directed them to act in a manner detrimental to the plaintiffs' interests. It was further contended that the 1st Defendant abused his power and position to facilitate fraud, unlawful misappropriation, and sham agreements resulting in the unlawful dissipation of the plaintiffs' funds.

[4] The 1st Plaintiff and 5th Plaintiff (together, "the Plaintiffs") filed an application in encl 92 for a Mareva Injunction against the 1st Defendant, principally to prevent him from disposing of assets worth up to US$681,000,000 in Malaysia and abroad pending the disposal of the Plaintiffs' action.

[5] On 8 February 2022, this Court granted an ex parte Mareva Injunction on the terms of encl 92 save for amount the 1st Defendant was allowed to draw per month. The first inter partes hearing date was fixed on 21 February 2022.

[6] On 18 February 2022, an application to set aside the ex parte Mareva Injunction was filed in encl 114 by the 1st Defendant via his solicitors. On 21 February 2022, this Honourable Court granted an ad interim order mainly on the same terms of the ex parte Mareva Injunction until final disposal of encl 92.

[7] This Court fixed the inter partes hearing on 17 August 2022, where encl 92 and Enclosure 114 will be heard together. This hearing was adjourned to 11 November 2022 upon the request of the 1st Defendant. On 23 August 2022 the 1st Defendant began serving a 12 year prison sentence for charges related to funds belonging to SRC International Sdn Bhd.

[8] On 9 November 2021 the 1st Defendant through his solicitors, filed encl 201 to apply for an order for the Commissioner General of Prisons to produce the 1st Defendant before this Court for the hearing of encls 92 and 114.

This Application

[9] The 1st Defendant, in his application in encl 201, mainly seeks the following orders:

a) An order against the Commissioner General of Prisons and the officers in charge of the 1st Defendant to produce the 1st Defendant before this Court on 11 November 2022 at 2.30 pm, and on any other date and time as may be fixed by this Court, for the hearing of encls 92 and 114 fixed for hearing on 11 November 2022 at 2.30 pm before this Court.

b) That the officer in charge of the Kajang Prison where the 1st Defendant is currently serving his sentence shall cause the Plaintiff to be brought to this Court on the date and time set in paragraph (a) above and shall ensure the safety of the 1st Defendant throughout the period he is outside of the prison.

[10] The 1st Defendant's affidavit in support of encl 201, affirmed by the 1st Defendant's solicitor, Alaistair Brandah Norman, states that the 1st Def