Rediscovering discovery: Case analysis of the recent CA decision of Chin Tong Lim v DBKL [Civil Appeal No.:W-01(IM)-87-03/2025]
Discovery: Part deux
Chin Tong Lim v DBKL [Civil Appeal No.:W-01(IM)-87-03/2025] (CTL) is a must-read for anyone thinking of a discovery application. It has refined the test is Yekambaran and one must carefully peruse these grounds before moving ye olde O. 24 ROC 2012.
It is also pertinent to note that CTL was decided against the backdrop of a JR application; this was the overarching subject matter and the CA was careful to outline this in the preamble (para. 1).
The facts
CTL involved a JR brought by the residents of a housing development which has a lake. The lake served as a water catchment area.
DBKL (R1) granted Astana Setia (R2) a Development Order (DO) pertaining to a plot of land adjacent to the lake. The DO also encompassed a bridge across the lake.
The residents took-out JR to essentially quash the DO. They obtained leave to commence JR.
The application for discovery
Post-leave, the residents wrote to the Respondents and asked for documents. Their letters went unanswered (para. 7).
The residents then filed for specific discovery for 6 categories of specific documents.
The HC dismissed their application. The HC cited Yekambaran and determined that CTL had failed to satisfy the requirements for the grant of discovery (para. 12).
Setting-out the test for ordering discovery
The CA then set-out the distinction between the RHC 1980 and ROC 2012, specifically identifying (paras. 14-17) that:
a. Yekambaran utilised the relevance test;
b. Case law however, suggested the lower “Document’s relation to the case” test.
The CA specifically observed that the test set-out by Wrenbury LJ in O’Rourke v Darbishire [1920] AC 581 had not been followed:
(b) in O’ Rourke v Darbishire & Ors [1920] AC 581 , at 629 to 630, Lord Wrenbury in UK’s House of the Lords (its highest court then) adopted a wide meaning of the term “relate” with regard to the UK court’s power to order discovery of documents –
“The second question for consideration is whether privilege has rightly been claimed by the defendants on the ground that the documents relate solely to the defendants’ case and not to the case of the plaintiff, and do not tend to support the plaintiff’s case, and do not contain anything impeaching the defendants’ case. Upon this the plaintiff has advanced a contention which is startling to me, that privilege under those words can only be claimed for documents which the defendants could put in evidence at the trial. The words are to be understood, he says, as if they ran “relate solely to and could be used by the defendants in support of their case.” My first observation upon this is that these are not the words, and it would have been easy to require these words if this were the meaning. The second observation is that this cannot be the meaning of the words, and for this reason. The verb used is “relate.” The same word is used in defining the whole class of the documents as to which the affidavit of documents is to be made. They are all the documents which “relate” to the matters in question in the action, whether they be capable of being given in evidence or not. The documents to which the affidavit is to extend are not confined to documents which somebody could use in evidence. The same meaning must be attributed to the word in the language under consideration.” (emphasis added).
Regrettably, the above judgment of Lord Wrenbury regarding the application of the Test (Document’s Relation to the Case) in O’ Rourke, was not brought to the attention of the High Court in Yekambaran
Consideration as to ROC 2012
Having made the observations above, the CA went on to hold that BOTH Yekambaran (Relevancy) and O’Rourke (Document’s Relation to the Case) would be inapplicable as O. 24 ROC 2012 has already provided a clear and comprehensive framework:
[20] Secondly, the court can order a discovery of specific documents which fall within the purview of O 24 r 7(3)(a), (b)(i) to (iii) and (c)(i) to (iii) RC. It is to be noted that O 24 r 7(3)(c)(iii) RC empowers the court to order discovery of “a document which may lead the party seeking discovery of it to a series of inquiry resulting in his obtaining information” which may –
(1) adversely affect his own case;
(2) adversely affect another party’s case; or
(3) support another party’s case.
It is clear that O 24 r 7(3)(c)(i) to (iii) RC is based on Brett LJ’s judgment in Compagnie, at p. 63 (a discovery of documents “which may fairly lead him to a train of inquiry, which may have either of these two consequences”, namely, to advance the case of the party applying for discovery or to weaken the case of the party’s adversary).
[21] I am of the respectful view that since the enforcement of O 24 rr 3(4)(a), (b)(i) to (iii), 7(3)(a), (b)(i) to (iii) and (c)(i) to (iii) RC, neither the Relevancy Test (Yekambaran) nor the Test (Document’s Relation To The Case) are applicable now. To apply the Relevancy Test (Yekambaran) and/or the Test (Document’s Relation To The Case) for the court’s discovery of documents, would render nugatory the intention of the Rules Committee in expressly providing for O 24 rr 3(4)(a), (b)(i) to (iii), 7(3)(a), (b)(i) to (iii) and (c)(i) to (iii) RC.
From my reading of the above, the Court is now required to focus on those documents contained in the rules above alone. Neither relevance and/or possession (Yekambaran) are the sole criteria.
The Evidence Act 1950
The Court then considered the Evidence Act and “facts in issue” and “relevant facts” (paras. 22-24). Applying Thyssen Hunbeck v TTJ Civil Engineerin [2003] 1 SLR 75, the Court declined to limit itself:
[24] In view of the express provisions in O 24 rr 3(4)(a), (b)(i) to (iii), 7(3)(a), (b)(i) to (iii) and (c)(i) to (iii) RC, the concepts of “fact in issue” and “relevant fact” in EA, do not apply in an application for discovery of documents under O 24 RC.
On “fishing expeditions”
The Court also observed that the term “fishing expedition” was a loaded term. The CA maintained that as O. 24 doesn’t use the term “fishing expedition”, it cannot be the basis for dismissal of an application (paras. 25-26).
Discovery in the context of Judicial Review
The Court then went on to consider discovery in the context of JR. Firstly, the Court observed that the decision of Rekapacific [2005] 2 MLJ 269 was decided under the RHC 1980 regime.
The CA then declined to apply Tan Sri Khalid [2015] 1 LNS 15 (which applied Rekapacific). Although it was a decision rendered under the ROC 2012 regime, the Court there failed to apply O. 24 ROC 2012 (paras. 27-31).
The CA then set-out this handy guideline (para. 33):
a. Discovery in JR is available after leave;
b. Both Applicant and Respondent may apply for discovery;
c. General discovery is not available. However, specific discovery is;
d. An affidavit for discovery must satisfy O. 24, r. 7 ROC 2012;
e. A public authority may resist discovery on the grounds of public injury.
Perusal of the documents in the event a public interest exception is raised
In the event the public authority refuses to disclose citing public interest, that does not settle the matter.
The CA laid down that the Court can still peruse the document (in the presence of counsel for the public authority alone) and rule on the admissibility (paras. 34-35):
(2) Y, the respondent in a JRA, has the evidential burden to persuade the court to refuse a Specific Discovery Application on the ground that the Public Interest Exception applies to the document(s) in question [Alleged Document (Public Interest Exception)]. In this regard, the court has the following powers –
(a) the court may request Y or Y’s learned counsel to hand over the Alleged Document (Public Interest Exception) to the court only [without handing the Alleged Document (Public Interest Exception) to X and X’s learned counsel] for the court to –
(i) peruse the Alleged Document (Public Interest Exception) in the presence of Y’s learned counsel only (in the absence of X’s learned counsel); and
(ii) be satisfied that Y had discharged the evidential onus that the Alleged Document (Public Interest Exception) falls within the Public Interest Exception. For this purpose, the court may seek the assistance of Y’s learned counsel [Court’s Power to Peruse Alleged Document (Public Interest Exception)].
The Court’s Power to Peruse Alleged Document (Public Interest Exception) is necessarily implied in O 24 r 15 RC (Implied Power). If there is no Implied Power, how can the court decide whether Y has discharged the evidential burden to prove lawful reliance on the Public Interest Exception?
The decision
Having set-out the law extensively and widened the ambit of discovery significantly, the Court then turned to the facts at-hand.
The Court noted that the public authority (DBKL) held all the cards. It was under a duty of candour to be frank and honest with the Court (paras. 39-40).
In the circumstances, the Court directed that discovery be done.
Observations on the Judgment
Having perused the grounds, I am of the view that Yekambaran has not been supplanted. Possession, custody and power are still relevant (as is the requirement for a document, O. 24, r. 3(1) or 7(3) ROC 2012) but the document itself will now be of a much wider scope, encompassing documents that:
a. Will be relied upon;
b. Will adversely affect/support another’s case;
c. Will be a document that will lead one to a train of inquiry.
My reading of Chin Tong Lim also demonstrates that the Court has given specific powers to peruse and check a document before it’s redacted for public interest reasons.
The CA has widened the scope of discovery (as per ROC 2012) and also provided an effective tool for obtaining discovery against public authorities. Rather a useful toolkit when going up against the Government, I would say.
GAVIN JAYAPAL
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