Definition (Hanbury & Martin 758)

an order by the court to a party to the effect that he shall do or refrain from
doing a particular act. Originally the Court of Chancery alone had jurisdiction to
grant an injunction.
Definition (Pettit 521)
an order of the court directing a person or persons to refrain from doing some
particular act or thing or, less often, to do some particular act or thing. It is an
equitable remedy which originally could only be obtained in the Court of
Chancery
Definition (Snell 625)
an order of the court directing a party to the proceedings to do or refrain from
doing a specified act. It is granted in cases in which monetary compensation
affords an inadequate remedy to an injured party.

Rimbunan Hijau Sdn. Bhd. V. Sarawak Plywood (M) Sdn. Bhd. [1985] CLJ 275 FC
An injunction is a form of judicial relief whereby the Court orders a party
to the proceedings either to refrain from doing specified acts or to do
certain specified acts.
Niino & Co. Ltd. V. Kow Lup Kai [1992] 1MLJ 463 HC
What is an injunction? Strouds Judicial Dictionary defines an injunction as
a judgment, or order, to do or refrain from doing a particular thing. It is
either (1) interlocutory or interim, ie an order until the hearing of the
action or further order; or (2) perpetual, ie a judgment determining and
concluding the right in litigation; it is also (a) restraining, ie when it
inhibits the doing of anything; or (b) mandatory, ie when it commands the
doing, or restoring, of anything.
The order to do a specific act refers to the performance / doing of either :

A positive act Mandatory injunctions (Section 53 - Specific Relief Act

1950); or

A negative act Prohibitory injunctions (Section 4(c) Specific relief Act

1950 Preventive Relief)

TYPES OF INJUNCTIONS
a.
b.
c.
d.
e.

Mandatory injunctions ;
Prohibitory injunctions;
Perpetual injunctions Section 51 (2);
Interlocutory injunctions Section 51 (1), Order 29 RHC 1980;
Interim injunctions Order 29 RHC 1980;

f. Ex parte injunctions O. 29 r. 1(2) RHC 1980;

g. Quia Timet injunctions.
Mandatory Injunction
Involves the performance of a positive act;
Granted where the injury of the P cannot be estimated and sufficiently
compensated for by damages or is so serious & material that the
restoration of things to their former condition is the only way whereby
justice can be restored;
E.g. - an order directing a building to be pulled down.
Similar to SP diff. SP a remedy for breach of contract injunction not
necessarily involves a contract.
Sky Petroleum Ltd v. VIP Petroleum Ltd [1974] 1 WLR 576

Prohibitory Injunction
Negative act prohibits the performance of certain acts (restrain the
performance)
E.g.
1. In nuisance case the most common type of remedy is injunction;
2. Prohibition to continue building a particular building.
Perpetual Injunction
Granted after final determination of the rights of the parties / after hearing
the merits of the case / after judgment on the merits of the case;
perpetual not necessarily mean that the injunction remains in force
forever after final hearing on the merits of the case.
Interlocutory Injunction
As oppose to perpetual, interlocutory granted before final determination;
Only effective during the trial or before final judgment given;
Serves as a provisional measure taken at an earlier stage in the
proceedings before court has had an opportunity to hear and weigh fully
the evidence on both sides;
OBJECT to preserve Status Quo pending trial;
May be granted ex parte;
Non permanent in nature / temporary;
Interlocutory granted not necessarily mean perpetual will be granted.
Interim Injunction
Temporary in nature (similar to interlocutory);
To restrain NOT until the trial over but until some specified period;
Shorter period / length than interlocutory;
E.g.:
If notice of hearing of an interlocutory injunction has been served on the
defendant but he is not given sufficient time to prepare his case, then an interim

injunction until the next motion day is more likely to be granted than a full
interlocutory injunction.
Ex parte Injunction (Interlocutory)
Ex parte one party court hears one side only;
Injunction granted to one party but the court had no opportunity to hear
the other side;
Why? granted to a P who needs a remedy urgently or if the other party
knows of the application will do injustice to the P and associated with
interlocutory.
E.g.
Mareva Injunction : P applies to court for an order to freeze the assets of the D
for fear that the D will remove his assets and leave the P with no remedy;
Anton Pillar Order : an order by the court directing the D to allow the P to enter
the Ds premise so as to inspect and make copies of relevant documents and
other appropriate material.
Quia Timet Injunction
Issued to prevent an infringement of the Ps rights where the infringement
is threatened, but has not yet occurred;
There is usually an act wh. is threatened (by the D) and if performed would
cause a party (the P) irreparable or considerable damage for wh. monetary
damages would not be an adequate remedy;
Morris v. Redlands Bricks Ltd. (1970) AC 652;
1. A strong probability of grave damage occurring to him in future as a result
of the apprehended mischief; and
2. Damages is not an adequate remedy.
PERPETUAL INJUNCTIONS
(INJUNKSI KEKAL)
Section 51(2) SRA
Section 52 SRA
General Principles (Prinsip Am)
Discretionary power of the court
Discretionary power must be exercised in accordance with the rule of
precedence
Continuous injury / Irreparable damage
Continuous : purpose to prevent / relieve the P from the necessity of
bringing a series of actions to protect his right each time it is infringed.
Irreparable damage : protect the Ps right from being infringed to the
extent that it could not be compensated by damages.
IOW, damages inadequate as a remedy
How do you determine damages adequate / not?

1. If damages not quantifiable . IOW, the damages (kerosakan) suffered by

the P cannot be quantified in terms of monetary compensation for eg.
Nuisance cases or
2. Where damages as a remedy would be ineffective for eg. In cases where
the D could not pay the P Hodgson v. Duce.
3. BUT Nominal damages recoverable (Express Newspaper Ltd. V. Keys
[1980] IRLR 247)

INTERLOCUTORY INJUNCTIONS
Lian Keow Sdn Bhd & Anor v Overseas Credit Finance (M) Bhd & Ors [1982] CLJ
350 FC
An interlocutory injunction is a temporary and discretionary remedy. To
consider whether to grant it or to refuse it the Court is not concerned with
the chances of success or failure of the civil suit or to evaluate the
evidence and materials before it for that purpose. It is simply concerned
with what it has to do in the meantime in order to protect the right of the
parties so that no irreparable injury would be caused to either of them
OBJECT
Hoffman La Roche (F) & Co. v. Secretary of States For Trade & Industry [1975]
AC 295 at p. 355 :
Lord Wilberforce, it is to prevent a litigant who must necessarily suffer the laws
delay from losing by that delay the fruit of his litigation

If an interlocutory injunction is not granted upon application by the P, this

does not mean that the P will fail to obtain a final injunction (perpetual)
and vice versa .

Principle : Development Pre 1975 & Post 1975

Pre 1975 : J.T. Stratford & Sons Ltd. v. Lindley
1. P had to show a strong prima facie case that his rights had been infringed;
an then
2. Show that damages would not be an adequate remedy if he succeeded at
the trial and therefore the balance of convenience favoured the grant of
the injunction.

IOW, an interlocutory injunction would not be granted unless the P could

show that it was more likely than not that he would succeed in obtaining a
perpetual injunction.

Post 1975 : American Cyanamid Co. v. Ethicon Ltd.

1. Ps case is not Frivolous and Vexatious and that there should be a serious
question to be tried;
2. Balance of Convenience;
3. Special Factors to be considered.
Principles Laid Down by American Cyanamid :
1. Plaintiffs case is not Frivolous or Vexatious;
Ps intentions is genuine NOT an attempt to harass D;
IOW, serious question to be tried / substantial questions between P & D to
be determined at final hearing;
Once this is established BOC.

2. Balance of Convenience (BOC);

M: balance of the risk of doing injustice court looks at the position of
each of the party and balance who will suffer greater if the injunction is
granted;
How? Factors :
I)
Adequacy of damages:
a. P succeed damages adequate YES > no injunction;
b. P succeed damages adequate NO > look at whether D adequately
compensated by P should D succeed at the trial if YES injunction granted.
II)
Preservation of Status Quo if BOC not clearly favour either party;
III)
Relative Strength (last resort) strength of each party but only
consider this if strength of one party is disproportionate to that of the
other.
IV)
Special Factors.
it is where there is doubt as to the adequacy of the respective remedies in
damages available to either party or to both, that the question of balance of
convenience arises. It would be unwise to attempt even to list all the various
matters which may need to be taken into consideration in deciding where the
balance lies, let alone to suggest the relative weight to be attached to them.
These will vary from case to case
-? does special factors form part of BOC or not.

Two cases after American Cyanamid

Fellows & Sons v. Fisher

i.
ii.

SF as loophole to justify departure;

2 escapes routes :
SF to be considered in individual cases;
Relative Strength.
Hubbard v. Pitt
SF means SF affecting BOC and NOT SF enabling the ct to depart;
COA not to depart from HOL;
Special factors an aspect of BOC.
Malaysian Case
Sivaperuman v. Heah Seok Yeong Realty Sdn. Bhd. [1978] FC - adopted
ACY;
Hong Kong Vegetable Oil Co. Ltd v Malin Sirinaga Wicker & Ors [1977] HC
explained serious question to be tried
Kuantan Express[1986] there existed serious question to be tried;
Tan Ah Kwee [1988] damages adequate remedy therefore injunction
discharged;
Cocoa Processors Sdn Bhd [1988] no serious question to be tried;
Yeop Mah Ee v. Kuan Kum Chiew & Anor [1988] 2 MLJ 389 serious
question to be tried, damages not an adequate remedy, boc favours
granting the injunction;
Collings Hui Sdn. Bhd v. United Estate Projects Bhd & Anor [1988] 3 MLJ
234 there is a serious question to be tried but damages adequate
remedy therefore ex-parte injunction set aside;
Medlux Overseas (Guernsey) Ltd v Faber Medi-Serve Sdn Bhd & Ors (COA)
[2001] 4 CLJ 192;
Kings Confectionery Sdn Bhd v. KT Sytem Protection Sdn Bhd [2002] 6 CLJ
265
MAREVA INJUNCTION
Name : Mareva Compania naviera S.A. v. International Bulkcarriers S.A.
First Case : Nippon Yusen Kaisha v. Karageorgis
Bank Mellat v. Nikpour [1985] F.S.R. 87 : Donaldson LJ described Mareva &
APO as one of the laws two nuclear weapons.
Object : to freeze the Ds assets so as to ensure that they are not disposed
before the judgment leaving nothing for the P;
A Prohibitory Injunction;
Interlocutory applied ex-parte due to its urgent nature.

Principle before Nippon Yusen

Lister & Co. v. Stubbs (1890) 45 Ch D 1 CA

P is prevented from obtaining an injunction restraining the D from

removing or disposing out of the jurisdiction property that would otherwise
be available to satisfy the judgment that the P would obtain against him.
Mareva Compania naviera S.A. v. International Bulkcarriers S.A
The shipowners let vessel Mareva to the charterers on a time charter-party
for a trip to the Far East and back. Mareva was delivered to the charterers

on May 12, 1975, and they sub-chartered it on a voyage charter to the

President of India.
Hire was payable half monthly in advance and the charterers paid the first
two instalments. The 3rd instalment was due on June 12, 1975 but was not
paid. An exchange of telexes between the shipowners and the charteres
made it plain that the charteres were unable to pay.
The shipowners treated the charteres conduct as repudiation of the
charter and issued a writ claiming USD 30, 800 of unpaid hire and
damages. The shipowner also applied for an ex-parte injunction to
restrain the charteres from removing or disposing of any of the moneys
( which they may have received from previous charter voyage) out of
jurisdiction
The court granted injunction until 17:00 on June 23, 1975 and refused to
extend it. The shipowners appealed
Court allowed the appeal. Extending the injunction until trial of action or
judgment or until further order.
BBMB v. Lorrain Osman [1985] 2 MLJ 236

Essential requirements of Mareva :

1. P must sow that they have a good arguable case;
2. P must produce evidence that the D has assets within jurisdiction, and
3. There is a risk of the assets being removed before judgment is satisfied.

Third Chandris Shipping Corp v. Unimarine SA

1. The P should make a full and frank disclosure of all matters in his
knowledge which are material for the Judge to know;
Full and frank disclosure of all material facts in support of his application
Ali Fahd Shobokshi Group Ltd v. Moneim & Ors, The Times, 8 March 1989.
where a P who had obtained an ex-parte Mareva without proper disclosure,
the Ct would on an inter partes motion, refuse to continue the order if the
non-disclosure could not be regarded as innocent.
Bir v. Sharme , The Times, 7 December 1988 a P who obtained a Mareva
order on the basis of fabricated evidence will have to bear the costs of the
application for the injunction and the subsequent application for its discharge.
2. P should give particulars of his claim against the D, stating the grounds of
his claim and the amount thereof, and fairly stating the points made
against it by the D;
Must have good arguable case - Rasu maritima SA v. Perusahaan
Pertambangan Minyak Dan Gas Bumi Negara (The Pertamina case) [1977] 3
All ER 324 and The Niedersachsen [1984] 1 All ER 398
What this means?

Not required to show that would obtain a summary judgement under O.14
RHC but show could make a more than bare assertion of fact.
Not necessary to show prima facie case, or establish his case on balance of
probabilities, nor show that he is likely to win
Serious argument but not necessarily on which the Judge believes to have a
better than 50% chance of success.
3. P should give some grounds for believing that the D has assets within the
jurisdiction; and
Evidence P must give grounds for believing that the D has assets within the
jurisdiction and to assist him the court has power to order discovery of
documents under O.24 r. 7(1) or interrogatories under O. 26 r. 1(1) to locate
the whereabouts of the Ds assets but not to be used to discover whether the
D has assets within the jurisdiction
World Wide Extension of Mareva freezing the Ds overseas asstes. Babanaft
Proviso
Babanaft International Co. v. Bassatne (Babanaft Proviso) An express
proviso that the injucntion is a n order directed on to the D himself as
Mareva injunction is an order made in personam and had no effect on third
parties except to the extent the order is enforced by the cts of states in
which the Ds assets are located.
Republic of Haiti & Others v. Duvalier & Ors
The Ct garnted a Mareva injunction pending trial over assets worldwide of the
former dictator of Haiti, Duvalier.
The Ct stressed that pre-judgment Mareva was most unusual and should very
rarely be granted
Derby & Co. v. Weldon (Derby Proviso)
PROVIDED THAT, in so far as this order purports to have any extraterritorial
effect, no person shall be affected thereby or concerned with the terms
thereof until it shall be declared enforceable or to be enforced by a foreign
Court and then it shall only affect them to the extent of such declaration or
enforcement UNLESS they are: (a) a person to whom this order is addressed
or an officer of or an agent appointed by a power of attorney of such a person
or (b) persons who are subject to the jurisdiction of this Court and (I) have
been given written notice of this order at their residence or place of business
within the jurisdiction, and (ii) are able to prevent acts or omissions outside
the jurisdiction of this Court which assist in the breach of the terms of this
order.
Conclusion Worldwide Extension of Mareva
1. World-wide Mareva order can now be ordered but only against the D
himself and not any 3rd parties;

2. Babanaft Proviso should make it clear that the Court was not seeking to
exercise an exorbitant jurisdiction, or the Derby proviso could now be
adopted.
3. A P must give an undertaking that he will not seek to enforce the order in
a foreign Ct without first obtaining leave from the first Ct (original country)
4. Judge should take into account the application of ordinary principles of
international law before granting world wide Mareva relief.
4. P must give and undertaking as to damages, in case he fails in his claim or
the injunction turns out to be unjustified.

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Jurisdiction to Grant Mareva
UK Section 45 Judicature Act 1925 and later section 39 of the Supreme
Court Act;
Malaysia
Paragraph 6 Schedule of the CJA 1964 (Zainal Abidins case
later confirmed in Aspatra Sdn. Bhd. & 21 Ors v. BBMB & Anor : additional
provision in O.92 r.4 RHC and Article 121 FC)
Limitation
Max. sum frozen to be specified (Z Ltd. v. A and Others)
Ordinary living expenses and other legitimate expenses to be allowed.
Add reading
Mareva Injunction (Roger Tan Kor Mee) [1989] 2 CLJ 764;
The Mareva Injunction Position Of Bankers as Innocent Third Parties Of
Mareva And Ruritania (Philip Koh Teng Ngee) [1982] CLJ 143;
Dynasty Rangers (M) Sdn Bhd v. SBSK Plantation Sdn Bhd [2001] 7 CLJ 168

Perintah mahkamah membekukan aset atau harta defendan supaya pihak

defendan tidak
mengalihkan asetnya keluar dari bidangkuasa mahkamah.
Tujuan Pelihara status quo pihak2 perbicaraan dan kepentingan mahkamah
dlm membuat keputusan.
Bertindak secara in personam bukan secara in rem.
- Hanya arahkan defendan tak lakukan perubahan aset, TETAPI tidak
mengikat harta/aset.
Dapat memastikan prosedur serta perjalanan perbicaraan berlaku tanpa
sebarang kesulitan yang boleh pengaruhi keputusan yang bakal diberikan
oleh mahkamah.
ELEMEN ( Third Chandris Chipping Corp v Unimarine S.A)
1. Pendedahan penuh plaintif

2.
3.
4.
5.

Butir-butir dan alasan tuntutan jumlah dan perkara dibuat defendan

Alasan untuk percaya defendan miliki aset
Alasan untuk percaya ada risiko jika aset dikeluarkan
Plaintif beri aku janji ganti rugi jika gagal

TUJUAN DIWUJUDKAN
1. Memastikan bahawa defendan mempunyai dana dalam milikannya
dan mampu diberi kepada plaintif jika plaintif memohon
mahkamah untuk berikan apa-apa aset daripada defendan.
THE SISKINA
Senarai muatan kapal mengandungi satu klausa yang telah memberikan
bidang kuasa eksklusif kepada mahkamah Genoa.Kargo yang dibawa
telah ditangkap di Cyprus. Mahkamah memutuskan bahawa pemberian
injuksi tidak dapat diteruskan sekiranya tidak wujud suatu tindakan
sebenar, dan perlu menuntut substanstif relief dimana ia dalam
bidangkuasa mahkamah untuk memberi injuksi mareva.
2. Melindungi integriti dalam keadilan sistem sivil untuk memastikan
mahkamah tidak memutuskan kes dengan tidak adil terhadap
mangsa.
3. Menghalang seseorang defendan bertindak diluar bidang kuasa
mahkamah (Cth : Mengelakkan hartanya dari dilesapkan atau
disembunyikan daripada pengetahuan bidang kuasa mahkamah.)
4. Tidak mengecewakan plaintif yang bawa tindakan terhadap
defendan untuk mendapatkan keadilan.

Bidangkuasa Injunksi Mareva

Kedudukan Injunksi Mareva di England
Lister & Co v Stubbs satu amalan untuk menghalang defendan daripada
melupuskan harta.
Mareva Injunction Sa v International Bulkcarriers SA dan Nippon Yusen
Kaisha v Karageorgis - perintah injunksi Mareva tidak patut dihalang
S.37(1) Supreme Court Act 1981 (Senior Courts Act 1981)
Kedudukan Injunksi Mareva di Malaysia
S.25(2) Akta Mahkamah Kehakiman 1964 bawah perenggan 6 (Jadual
kuasa tambahan Mahkamah Tinggi)*
Aspatra Sdn Bhd & 21 Ors v Bank Bumiputra Malaysia Bhd & Anor - * dan
S.50 Akta Relief Spesifik memberikan bidang kuasa yang cukup untuk
memberikan injunksi Mareva walaupun pada masa hadapan.
Persoalan lain

Limitasi
in personam
tidak beri hak milik kepada plaintif terhadap aset yang telah dibekukan
Jumlah maksimum yang akan dibeku

 Z Ltd v. A and Ors - mahkamah tidak akan memasukkan apa-apa jumlah

maksimum yang akan dibekukan (jumlah tuntutan yang dipohon P)
Cara bekukan aset
Memasukkan jumlah maksimum serta membuat injunksi secara
keseluruhan terhadap aset yang dimiliki oleh pihak defendan
Notis diberikan kepada pihak bank atau pihak ketiga menyatakan akaun D
dikenakan limitasi

Kedudukan pihak ketiga

Injunksi hanya mengikat kepada orang yang dialamatkan
Pihak ke-3 yang membantu dan bersubahat boleh dihukum
(mengganggu/menghalang pentadbiran keadilan)
Bank Mellat v Kazmi bukan pelanggaran ; menyerahkan aset kepada
orang yang dikenakan perintah pembekuan. Syarat: orang tersebut tidak
diberi notis kebarangkalian aset akan dilupuskan atau ditangani
Galaxia Maritim SA v Mineral Import Export injunksi tidak boleh
mengganggu kemudahan pihak ke-3
KES

Lister & Co. v Stubbs

Mareva Compania Naviera SA v International Bulkcarriers SA

Zainal Abidin Hj Abdul Rahman lwn. Century Hotel Sdn. Bhd

ANTON PILLER ORDER

Lord Denning quoted a passage in the case of United Company of

Merchants of England, Trading to the East Indres v. Kynaston :

It is an order operating on the person requiring the defendants to permit

inspection.

E.M.I Ltd v. Pandit :

Held: The Court has power to make an order ex-parte for discovery and
inspection of documents in exceptional circumstances where justice required it.
Anton Piller KG v Manufacturing Processes Ltd
Facts:

P claimed that D were in secret communication with other German

manufacturers & giving them confidential information about the Ps power
units & details of a new converter.

P applied ex parte for an interim injunction to restrain the D from

infringing their copyrights & disclosing confidential information & for an
order for permission to enter the Ds premises to inspect all such
documents and to remove tthem into the Ps solicitors custody.

Brightman J granted the interim injunction but refused to order inspection

or removal of documents.

Held:

On the Ps ex parte appeal, the court allowed the appeal.

P had a very strong prima facie case, actual or potential damage to them
was very serious & there was clear evidence that the D possessed vital
material which they might destroy or dispose of so as to defeat the ends
of justice before any application inter partes could be made.

The Court inherent jurisdiction to order D to permit Ps representatives to

enter D premises to inspect & remove such material

Disobedience of the order to permit entry inspection will be a contempt of

court.

Condition for granting APO

Bell Expressvu Limited Partnership v Morgan
A strong prima facie case against the defendant
The potential or actual damage done to the plaintiff by the defendant
must be very serious
There must be convincing evidence that the defendant has in its
possession incriminating documents or things
It must be shown that there is a real possibility that the defendant
may destroy such material before the discovery process can do its work
Discretion of Court to grant APO
Yousif v Salama

BRIGHTMAN LJ

In my view the order sought in this case is justified if, but only if, there is prima
facie evidence that essential documents are at risk. If essential
documents are at risk, then it seems to me that this court ought to permit the
plaintiff to take such steps as are necessary to preserve them
Position APO in Malaysia
LIAN KEOW SDN BHD v C PARAMJOTHY & ANOR
Facts :

In this case the plaintiffs sought a declaration that they were beneficial
owners of a piece of land in Johore Bahru and that the first defendant was
holding the said land in trust for the benefit of the plaintiffs. The plaintiffs applied
ex parte for an "Anton Piller" order to authorise the plaintiff's representatives to
enter the premises of the first defendant and to take into custody those
documents which were essential evidence in the action.
Held :
Allowing the plaintiffs' application in this case as the plaintiffs had proved
a strong prima facie case against the first defendant that he held the said land in
trust for the plaintiffs, that there was a serious danger of the first defendant
destroying the trust deed and files relating to the said land and that the first
defendant was in possession of such trust deed and files, the court would issue
the order applied for.
ASPATRA SDN BHD & 21 ORS v BANK BUMIPUTRA MALAYSIA BHD &
ANOR

The learned trial judge has dismissed the interveners' application for
dissolution of the Mareva injunction as well as Aspatra's application for
dissolution of the Anton Piller order made against them

That there was no authority for the proposition that it could be granted in
respect of documents which did not form the subject matter of the claim?

In Yousif v Salama [1980] 3 All ER 405, the English Court of Appeal held
that the court had a discretion to grant an Anton Piller order to enable the
preservation of a document which did not itself form the subject matter of
the action.

CMA CGM v Ban Hoe Leong Marine Supplies Sdn Bhd & Ors
Facts :
Plaintiff, a shipping company had entered into a contract for the sale and
supply of marine fuel with the 1st defendant. The other defendants are the
directors to the 1st defendant. The plaintiff filed an action against the defendants
on the grounds that the defendants have jointly and/or severally defrauded and
conspired to defraud or had knowingly assisted to defraud the plaintiff by
delivering marine fuel to the plaintiff for an amount less than what has been
confirmed to have been delivered by the 1st defendant. With this, the plaintiff
applied for the Anton Pillar order.
Held:
The judge is of the view that the plaintiff has a strong prima facie case and
there are grounds to say that the documents sought were essential to the
plaintiffs case and that there was a danger that the defendants would destroy
the evidence in their possession. In fact, the risk of the defendants destroying

evidence had materialized during the execution of the Anton Piller order as can
be seen from the affidavits filed.
Privilege against self-incrimination
Common Law
Blunt v Park Lane Hotel
"...the rule is that no one is
bound to answer any question if the
answer thereto would, in the opinion of
the judge, have a tendency to expose
the deponent to any criminal charge,
penalty or forfeiture which the judge
regards as reasonably likely to be
preferred or sued for."
Rank Film Distributors Ltd & Others v
Video Information Centre & Others
In this case, the respondent assert
that, if they are compelled to
disclose the information mentioned
in the parts of the orders to which
they object, they will run a real risk
of providing evidence tending to
show that they been guilty of
criminal offences.
the English Court of Appeal held that
part of the Anton Piller order
requiring the disclosure of certain
incriminating evidence was
contrary to well established
principle of privilege against selfincrimination and would
accordingly be expunged.

Malaysia
Television Broadcast Ltd & Ors v
Mandarin Video Holding Sdn Bhd
Held :
That a person is not entitled to claim
such privilege. The court held that in
Malaysia, the privilege against self
incrimination had been withdrawn by
section 132 of the Evidence Act 1950.
According to section 132, the witness
must be informed that the answer
given by them in response to the order
will not subject them to the risk of
arrest or prosecution and that, their
evidence will not be use in any criminal
proceedings except a prosecution for
giving false evidence by their answer.
Is privilege remains applicable?
PMK Rajah v Worldwide
Commodities Sdn Bhd
Facts:
The first, second, sixth and seventh
defendants sought for
an order of the court to discharge an
Anton Piller order
granted. They contended on two basis:
the plaintiff had misled the court by
stating in his affidavit in support of
the ex parte application that the
first defendant was required by law
to keep a segregated bank account
in respect of the plaintiff.
that it was not possible to show the
trading statements to solicitors of
the plaintiff without disclosing
particulars of other clients which
were confidential in nature.
Held by Zakaria Yatim J,
The defendants were entitled to the
privilege not to give discovery of
documents, the disclosure of which

would incriminate them.

The court discharged the order
requiring the defendant to disclose
trading statements to the plaintiffs
solicitors on the ground that such
disclosure would incriminate the
defendants on a charge of
conspiracy to defraud.

Privilege remains applicable

Riedal-de Haen AG v Liew Keng Pang
The court viewed that before the privilege against self-incrimination (the
privilege) can be claimed successfully, it must be shown that that there is
a real risk that incriminating answers would expose the person concerned
to arrest or prosecution for any criminal offences.
In this case, the plaintiffs obtained an Anton Piller order against the
defendant ordering the defendant inter alia to disclose the names of their
suppliers and customers of goods bearing the plaintiffs trademarks. The
defendant applied to discharge the order on the ground that it infringed
the privilege against self-incrimination.
Arjunan A/L Ramasamy & 9 Ors v Kesatuan Kebangsaan Pekerja-pekerja Ladang
& 12 Ors

Fact

Plaintiffs wrote and asked for the minutes of the NUPW meeting because
unhappy with how the NUPW conducted the affairs. When they were not forthcoming, the plaintiffs filed a writ and applied for Anton Pillar Order to the
defendants. Defendants refused to obey the said order and instead applied to
court seeking to set aside the Anton Pillar Order and also to set aside the writ
and statement of claim filed.

Held

The urgency that the evidence will be destroyed or dissipated if an Anton

Piller Order was not given was absent in this particular instance and the
defendants were entitled to have the Anton Piller Order discharged.
The court viewed that the defendants were entitled to the privilege not to
give discovery of documents because such disclosure would incriminate
them.
In this case, one the issues before the court was whether the defendants
must give discovery documents which might subject them to prosecution.
*followed PMK Rajah case where the plaintiff cannot take certain evidence that
would incriminate defendant.

THE PRIVILEGE NO LONGER EXISTS

Television Broadcasts & Ors v Mandarin Holdings

N.S Chan J : In Malaysia there is no privilage against self-incrimination

Because of Sec. 132 Evidence Act 1950