Judicial review allows for discovery of documents if they are relevant and necessary for fair disposal, particularly when actions are taken under external instructions without proper discretion.

JUDGMENT

Amarjeet Singh Serjit Singh J:

Introduction

[1] This judgment concerns an application for discovery dated 25 September 2023 made in judicial review proceedings pursuant to O 53 r 6 of the Rules of 2012 (encl 22). For brevity, all rules hereinafter stated refer to the Rules of 2012 unless otherwise stated.

[2] On 15 April 2024, I allowed the application to make the orders in the following terms:

(1) That the respondent, the Malaysian Communications and Multimedia Commission ("MCMC") is required, within 14 days from the date of this order:

(a) to serve on the applicant, Wee Choo Keong, a list of documents ("the list") which are or have been in their possession, custody, power, or control and to file an affidavit verifying such list and to serve a copy of the affidavit verifying such list on the applicant; and

(b) to serve on the applicant, a notice of inspection stating the date, time, and place at which the documents stated in the list are to be inspected or such manner of inspection as may be mutually agreed between the parties, and copies to be made and taken by the applicant within 14 days after the service of the list.

(2) That the MCMC is required, within 14 days from the date of this order:

(a) to serve on the applicant, an affidavit stating whether any documents as described in Appendix A annexed in this application ("the documents sought") are or have, at any time, been in their possession, custody, power, or control, and if not in their possession, custody, power or control; then when did they part with the documents and what has become of the documents ("discovery affidavit"); and

(b) to permit inspection of and copies to be made and taken by the applicant of the documents sought within 14 days of the service of the discovery affidavit.

Background Facts

[3] The facts that led to the filing of the notice of application for discovery are as follows. The applicant is the owner of a blog website, having his web address at weechookeong.com ("the blog"). The applicant has been operating the said blog for the past 18 years. On 24 July 2023, the applicant discovered that access to the blog was restricted. On 25 July 2023, the company hosting the blog confirmed that the blog was blocked on the instructions of the MCMC. On 27 July 2023, the applicant's solicitors issued a letter demanding the MCMC to immediately restore access to the blog.

[4] On 30 July 2023, the MCMC's solicitors responded to the letter of demand stating that the MCMC acted on the request/instructions of the Royal Malaysian Police ("RMP") to provide technical assistance against the applicant in an investigation under s 500 of the Penal Code and s 233 of the Communications and Multimedia Act 1998 ("the CMA"). On the stalemate, the applicant immediately, on 3 August 2023, filed an application for leave to commence judicial review proceedings for the following principal reliefs:

(a) an order of certiorari to quash the decision and/or act of the MCMC to restrict/block access to the blog known as weechookeong.com, which is owned by the applicant;

(b) an order of mandamus to compel the MCMC to immediately restore access to all Internet users to the blog known as weechookeong.com owned by the applicant; and

(c) a declaration that the decision and/or action of the MCMC to restrict/block access and/or to instruct/order the restriction/ blocking of access to the blog is null and void for illegality and/or ultra vires the laws of Malaysia and the Federal Constitution.

[5] The grounds in support of the application were stated in the O 53 statement as follows:

(i) the action and/or decision by the MCMC was illegal, being in violation of s 3(3) of the CMA, which states that the MCMC does not have the right to conduct Internet censorship;

(ii) the action and/or decision by the MCMC was illegal, being in violation of s 70 of the CMA, which provides the applicant with the right to be heard;

(iii) the MCMC acted illegally and ultra vires to the applicant's fundamental liberties, name