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2021 MarsdenLR 2694
HIGH COURT MALAYA KUALA LUMPUR
RAUB MINING & DEVELOPMENT COMPANY SDN BHD & ANOR – Appellant
Versus
DATO SRI ANDREW KAM TAI YEOW – Respondent
[Originating Summons No: WA-24NCC-574-10/2019]
Tax documents classified under Section 138 of the Income Tax Act 1967 cannot be produced in court without exception; judicial extensions may allow procedural flexibility.
Headnote:(A) Income Tax Act 1967 – Section 138 – Fresh evidence – Application by Defendant to adduce fresh evidence disallowed due to statutory prohibition under Section 138(2) ITA, which defines classified materials to exclude certain documents from being produced in court unless exceptions apply – Court noted that the Defendant failed to establish that those exceptions applied. (Paras 26, 29).
(B) Judicial Discretion – Court has discretion to allow extensions of time for filing documents under Item 8 of the Schedule to the Courts of Judicature Act 1964 if justified, leading to the application being granted for filing the supplementary affidavit excluding prohibited documents. (Paras 30-31).
Facts of the case: The case involves the Defendant seeking to admit certain tax documents as evidence in a dispute over his status as director across various companies, following an initial injunction prohibiting his removal as director.
Findings of Court: The court found that the disputed documents were classified under s 138(2) of the ITA and thus could not be admitted as evidence. The court granted the Defendant's application to extend the time for filing his supplementary affidavit, permitting related non-classified documents to be included.
Issues: Whether the documents could be produced in light of ITA Section 138's prohibitions on classified materials.
Ratio Decidendi: The ruling emphasized the strict adherence to statutory provisions governing classified materials and the court's discretion regarding extensions of time, demonstrating its balance between procedural compliance and the pursuit of justice.
Result: Defendant's application disallowed for classified materials but granted for extension of time.
JUDGMENT
Brief Summary Of Case
Suit 352
[1] On 5 September 2017 the Defendant, Dato' Sri Andrew Kam Tai Yeow ("DSA"), filed a suit against his father, Tan Sri Dato' Kam Woon Wah ("TSK") and 12 other defendants [13 defendants in Suit 352 are: TSK; Raub Mining & Development Company Sdn Bhd; Raub Oil Mill Sdn Bhd; Wahbunga Realty Sdn Bhd; Yum Sdn Bhd; Berjaya Realty Sdn Bhd; Grandfoods Sdn Bhd; Lead Enterprises Sdn Bhd; Granny's Kitchen Sdn Bhd; United Raub Oil Palms Sdn Bhd; Coastal Realty Sdn Bhd; Ng Pui Kuen; Lee Siew Kin] vide KL High Court Civil Suit No WA-22NCC-352-09/2017 ("Suit 352") [[2017] MLRHU 1498]. In that Suit 352, DSA sought for specific performance of an agreement dated 16 January 2017 which he said was entered into between him and his father. DSA contended that the said agreement provides that 50% of TSK's interest in the 1st Plaintiff company belongs to DSA, with DSA having the option to buy out the remaining 50% of TSK's interest in the 1st Plaintiff. DSA further contended that TSK held the said remaining 50% interest on trust for DSA and TSK shall ensure that that remaining 50% shares are not utilised in any manner contrary to DSA's interest.
This OS 574
[2] Prior to the filing of Suit 352, Resolutions were proposed for shareholders' meeting of the 2nd Plaintiff company on 6 September 2017 to remove DSA as the 2nd Plaintiff's director and to approve the sale of the 2nd Plaintiff's assets (palm oil estate and palm oil mill).
[3] On 6 September 2017 DSA obtained an ad interim injunction to prevent the defendants named in Suit 352, inter alia, from holding the shareholders' meetings on 6 September 2017 or any shareholders' meeting, from removing DSA as a director and from disposing off the assets of the 2nd Plaintiff.
[4] The Plaintiffs filed the current OS 574 in October 2019 as they pleaded that the injunction obtained by DSA merely prevents DSA's removal as a director but not his retirement. The Plaintiffs contended that DSA was due for retirement as a director by rotation, in respect of the 1st Plaintiff at the 1st Plaintiff's AGM for year 2018, and vis-a-vis the 2nd Plaintiff at the 2nd Plaintiff's AGM for year 2017. But due to the injunction, no AGM could be held by the Plaintiffs. Thus, the Plaintiffs pleaded, DSA is deemed to have retired and vacated his office on the last day of the year when the AGM was to be held respectively by the Plaintiffs. The current OS 574 seek for a declaration as to the status of DSA's directorships with the 1st and 2nd Plaintiffs.
OS 609, OS 642
[5] Aside from the Plaintiffs, three other companies, Lead Enterprises Sdn Bhd ("Lead"), Grandfoods Sdn Bhd ("GSB") and Granny's Kitchen Sdn Bhd ("GKSB") filed OS 609 (Lead) and OS 642 (GSB and GKSB) to similarly seek for declarations as to the status of DSA's directorships in these companies citing almost mirror grounds as in this current OS.
OS 577, OS 579
[6] In May and October 2019 DSA had demanded for access to the accounts and other confidential information of the Plaintiffs. The Plaintiffs refused to allow such demands on ground, among others, that he is deemed to have ceased being a director by reason of his retirement. On 30 October 2019 DSA filed OS 577 (against the 1st Plaintiff) and OS 579 (against the 2nd Plaintiff) to inspect their respective accounts and records.
The Application
[7] This Court had given directions on the filing of affidavits by the parties in respect of this OS. The last affidavit was filed by the Plaintiffs on 19 December 2019. In the meantime, two interlocutory applications for recusal and transfer have been heard and decided.
[8] Vide encl 47 in this OS574, DSA filed an application pursuant to O 92 r 4, O 28 r 3C and O 3 r 5 of the Rules of 2012 ("ROC") for this Court to grant leave for him to file his Supplementary Affidavit affirmed on 7 August 2020 (Enclosure 48) and for that Affidavit to be ruled as valid, based on the following grounds:
(i) DSA had recently discovered fresh evidence in the
