The court clarified that production of documents for forensic examination is permissible under the Rules of Court 2012, interpreting the necessity requirement broadly to ensure fair trial conditions.

JUDGMENT

Adlin Abdul Majid JC:

(Enclosure 59)

A. Introduction

[1] The Plaintiff filed an application by way of encl 59, for an order for the production of documents pursuant to O 24 rr 12 and 13 of the Rules of 2012 (" ROC ").

[2] I allowed the application. The reasons for my decision are as set out below.

B. Background Facts

[3] The Plaintiff is a non-profit charitable organisation. It has an account with the Defendant, where it maintains funds for charitable activities ("Bank Account").

[4] The Plaintiff and the Defendant agreed that funds kept in the Bank Account are only to be paid out upon receipt of cheques bearing signatures of Abu Khalil bin Akasah ("Trustee"), Tina Fadzlita binti Fadzil and another two directors and trustees of the Plaintiff. The official chequebook of the Plaintiff was at all material times in the custody of Tina Fadzlita binti Fadzil.

[5] On 21 January 2017, it was discovered through a review of the Plaintiff's monthly bank statements between the years 209 and 2012 that a total of 417 cheques of the Plaintiff had been unlawfully used to withdraw monies from the Bank Account by forgery of the Trustee's signature. 144 cheques of the Plaintiff and documents bearing signatures of the Trustee were then delivered to Jabatan Kimia Malaysia for examination. Upon comparison, it was found that the 144 cheques showed significant differences in handwriting characteristics from the specimen of the Trustee's signature.

[6] The Plaintiff filed an action in this Court, claiming that the Defendant had unlawfully, improperly and/or negligently paid out monies from the Bank Account upon receipt of the forged cheques. The Plaintiff further claimed that the Defendant had acted in breach of its duty of care owed to the Plaintiff.

[7] On 11 November 2020, the Plaintiff filed an application for discovery against the Defendant, for 282 cheques from the total of 417, pursuant to O 24 rr 3 and 7 of the ROC ("Discovery Application"). The Discovery Application was allowed and an order for discovery dated 13 January 2021 was granted against the Defendant ("Discovery Order"). By the Discovery Order, the Defendant was ordered to do the following:

a. make and serve on the Plaintiff a list of all cheques in Annexure A of the Discovery Application, which are or have been in the possession, custody, or power of the Defendant;

b. file an affidavit verifying the list, and serve a copy of the affidavit on the Plaintiff; and

c. serve a notice on the Plaintiff pursuant to O 24 rr 7 and 9 of the ROC , stating a time and place within seven days after service at which the Plaintiff shall be allowed to inspect the cheques referred to in the list.

[8] The Defendant complied with the Discovery Order. The affidavit verifying the list of documents specified that the Defendant only had 41 physical cheques out of the 282 cheques, in its possession. The Plaintiff's solicitors inspected the 41 cheques, as per the Discovery Order, and took copies of the cheques.

[9] The Plaintiff filed this application in encl 59, for an order for the production of the 41 original physical cheques, pursuant to O 24 rr 12 and 13 of the ROC . Enclosure 59 also included a prayer that the cheques, once produced, are to be sent for forensic examination by an expert and/or a document examiner, for the purpose of identifying fake signatures on the cheques.

C. Considerations

The Relevant Provisions On Discovery

[10] I shall first consider the provisions which encl 59 relies on, namely O 24 rr 12 and 13 of the ROC . The relevant provisions are as follows:

"12. Order for production to Court

(1) At any stage of the proceedings in any cause or matter the Court may, subject to r 13(1), order any party to produce to the Court any document in his possession, custody or power relating to any matter in question in the cause or matter that falls within one of the following descriptions:

(a) documents on which the party relies or will rely;

(b) documents which could-

(i) adversely affect a party's case: or