A subpoena must be specific and relevant; failure to demonstrate materiality can lead to its being set aside as an abuse of process.

JUDGMENT

(Enclosure 239)

Suzana Muhamad Said JC:

Introduction

[1] This is an application by Dato' Low Wan Cheong (Applicant) to set aside the Plaintiffs' Subpoena to Testify and Produce Documents dated 22 November 2023 (encl 221) against the Applicant (encl 239).

Cause Papers

[2] The relevant cause papers are:

Cause Papers	Enclosure
Writ of Summons (21 March 2019)	1
Amended Statement of Claim (5 December 2019)	26
Issues to be Tried (2 July 2021)	123
Plaintiffs Amended List of Witnesses (30 August 2023)	203
Praecipe for Subpoena (22 November 2023)	216
Subpoena to Testify and Produce Documents (22 November 2023)	216
Notice of Application to set aside encl 221 (8 December 2023)	239
Affiavit in Support affimed by the Applicant (22 December 2023)	246
Affiavit in Reply by the Applicant (21 January 2024)	250

[3] At the time of the hearing of encl 239, there was no affidavit in reply, filed in this Court, by the Plaintiffs.

Brief Facts

[4] The Plaintiffs sought in encl 221 for the Applicant to produce the following:

(a) Declaration and/or documents relating to the Applicant's appointment as the architect to the subsidiaries of the 2nd Plaintiff;

b) Declaration and/or documents relating to the Applicant's appointment as the architect of Top 2 Global;

c) Letters informing the Board of Architects Malaysia in respect of the developments of relevant parties;

d) All final accounts that were duly completed between Top 2 Global and all related contractors;

e) Architect certificates relating to projects for work done that were issued by the Applicant to Top 2 Global's developer;

f) Work certificates for the works that have been completed perfectly and defect liability that is fully complied with for the purpose of issuing the remaining 2.5% after 2 years of defect liability period;

g) All work certificates for works that have been completed for subsidiaries of the 2nd Plaintiff for work done in the years 2006 to 2009;

h) Confirmation of the works carried out for Pioneertech Sdn Bhd and Pioneercrete Sdn Bhd, together with pictures that prove the works carried out have been completed; and

i) All progress reports and site photographs as evidence of work done during each production notice.

Documents

[5] The Applicant, in encl 239, contended that the Documents:

(a) have not been specifically identified and are very wide in nature. It was not clear of what were the exact projects;

b) some of the Documents relate to work that may have been done from 2006 to 2009 - this is more than 18 years ago. It is unreasonable to expect the Applicant to keep any sort of records from almost 2 decades ago;

c) Top 2 Global, Pioneertech Sdn Bhd and Pioneercrete Sdn Bhd are not even parties to the present suit yet the Plaintiffs are seeking for documents relating to such companies;

d) the Documents sought to be produced have no relevance to the issues for determination as set out in the Statement of Issues to be Tried in encl 123;

e) the Applicant is not a material witness that can give evidence regarding a "fact in issue" or "relevant fact" in respect of any issues set out in the Statement of Issues to be Tried;

f) the Plaintiffs seek the Documents after more than 2 years since this suit was filed and after 11 days of trial have taken place. No explanation has been provided for the long delay; and

g) the Kuala Terengganu High Court Civil Suit No: TA- 22NCvC-31-11-2022 (KTHC Suit No. 31) against the Applicant is pending and it appears that the Plaintiffs (some of whom are the Plaintiffs in KTHC Suit No. 31) are attempting to do a backdoor discovery via this suit instead of applying for discovery in KTHC Suit No 31. This is clearly a fishing expedition and amounts to an abuse of process.

[6] The Applicant further contended that the Plaintiffs' conduct is tainted with mala fide as encl 221 was served on the Applicant less than fourteen (14) days prior to the trial date of 11 December 2023, which was in breach of O 38 r 23 of the Rules of 2012 ( ROC 2012).

[7] It was not disputed that the 1st, 2nd, 3rd, 4th, 5th, an