Gathering Evidence in Aid of Foreign Litigation Guide |
|
Malaysia |
|
| (Asia Pacific) Firm Skrine Updated 22 Mar 2022 | |
| Does your jurisdiction permit gathering evidence in aid of foreign litigation? | Yes. Pursuant to Order 66 of the Rules of Court 2012 (“ROC 2012”), the High Court has the power to make an order that evidence is taken in Malaysia, for the purposes of foreign proceedings. Further, evidence may also be taken for the purpose of criminal matters pursuant to Section 22 of the Mutual Assistance in Criminal Matters Act 2002 (“MACMA 2002”) as well as Section 50 of the Extradition Act 1992. |
| Is your jurisdiction a party to the Hague Evidence Convention? Are there other statutory requirements for obtaining evidence in aid of foreign litigation? Please indicate the relevant statutes. | Malaysia is not a party to the Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters (the “Hague Evidence Convention”). ROC 2012, MACMA 2002 and Extradition Act 1992. |
| Do requests for gathering evidence require approval by a court or administrative body? Please indicate the appropriate forum for making such requests. | In furtherance of our response to "Does your jurisdiction permit gathering evidence in aid of foreign litigation?" above in relation to Order 66 of the ROC 2012, an application for an order shall be made by ex parte originating summons. The affidavit supporting the application must be by a person who is duly authorized by the foreign court or tribunal to make the application on its behalf. The supporting affidavit must exhibit the letter of request, certificate or other document evidencing the desire of the foreign court or tribunal to obtain the evidence sought for proceedings pending before it. In certain cases, the application is to be made by the Attorney General pursuant to Order 66 Rule 3 of the ROC 2012. For criminal matters in relation to Section 22 of the MACMA 2002, a request shall be made to the Attorney General and the Attorney General shall authorize the taking of such evidence. |
| What types of information can be sought? Requests for Documents? Written questions? Depositions? | All oral evidence and documentary evidence which include documents, written questions, and depositions. |
| Who bears the burden of showing whether any privileges apply? | The party claiming that such privilege applies to them. Where a witness claims he is privileged from answering questions by the law of the state to whom the request is made, its determination is a matter for the court of the state to whom the request is made. In A-G of Hong Kong v Lorrain Esme Osman [1993] 2 MLJ 347, where a claim to legal professional privilege was made under Section 126 of the Evidence Act 1950, the witness was ordered to answer. Section 132 of the Evidence Act 1950 excludes the application of the common law doctrine of privilege against self-incrimination. |
| Does there need to be any showing that the information sought is allowable in the foreign jurisdiction in which the action is pending? | No, apart from the letter of request, certificate or other document evidencing the desire of the foreign court or the tribunal to obtain such evidence. |
| If your jurisdiction allows depositions, may they be conducted remotely (by videoconference, Zoom etc.) | Yes, pursuant to Order 39 Rule 1 of the ROC 2012. |
| Has your jurisdiction adopted any “blocking statutes” that limit the extent to which residents in your jurisdiction may give evidence in a foreign court’s civil or criminal proceedings? | Yes. Section 20 of the MACMA 2002 provides a list of matters where Malaysia may refuse to provide assistance inter alia evidence in a foreign court’s criminal proceedings. |
| May citizens residing in your jurisdiction voluntarily give evidence in a foreign proceeding? If not, what procedure must be followed before they can give evidence? If such restrictions exist, are they enforced in practice? | Yes. Evidence used for foreign proceedings may be taken in Malaysia without the need for an order from the High Court under Order 66 of the ROC 2012 if the witness is willing to give evidence or produce documents voluntarily in this country. In such a situation, the person before whom the evidence is to be taken and the manner it is taken will be as directed by the foreign court. |
| Would your answers differ materially if the foreign proceeding is arbitration, and if so how? | Similar to our response to "Does your jurisdiction permit gathering evidence in aid of foreign litigation?" to take evidence for arbitration, an application to the High Court is required, with the approval of the arbitral tribunal pursuant to Section 29 of the Arbitration Act 2005. |
Gathering Evidence in Aid of Foreign Litigation Guide
Yes. Pursuant to Order 66 of the Rules of Court 2012 (“ROC 2012”), the High Court has the power to make an order that evidence is taken in Malaysia, for the purposes of foreign proceedings.
Further, evidence may also be taken for the purpose of criminal matters pursuant to Section 22 of the Mutual Assistance in Criminal Matters Act 2002 (“MACMA 2002”) as well as Section 50 of the Extradition Act 1992.
Malaysia is not a party to the Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters (the “Hague Evidence Convention”).
ROC 2012, MACMA 2002 and Extradition Act 1992.
In furtherance of our response to "Does your jurisdiction permit gathering evidence in aid of foreign litigation?" above in relation to Order 66 of the ROC 2012, an application for an order shall be made by ex parte originating summons. The affidavit supporting the application must be by a person who is duly authorized by the foreign court or tribunal to make the application on its behalf. The supporting affidavit must exhibit the letter of request, certificate or other document evidencing the desire of the foreign court or tribunal to obtain the evidence sought for proceedings pending before it. In certain cases, the application is to be made by the Attorney General pursuant to Order 66 Rule 3 of the ROC 2012.
For criminal matters in relation to Section 22 of the MACMA 2002, a request shall be made to the Attorney General and the Attorney General shall authorize the taking of such evidence.
All oral evidence and documentary evidence which include documents, written questions, and depositions.
The party claiming that such privilege applies to them.
Where a witness claims he is privileged from answering questions by the law of the state to whom the request is made, its determination is a matter for the court of the state to whom the request is made.
In A-G of Hong Kong v Lorrain Esme Osman [1993] 2 MLJ 347, where a claim to legal professional privilege was made under Section 126 of the Evidence Act 1950, the witness was ordered to answer.
Section 132 of the Evidence Act 1950 excludes the application of the common law doctrine of privilege against self-incrimination.
No, apart from the letter of request, certificate or other document evidencing the desire of the foreign court or the tribunal to obtain such evidence.
Yes, pursuant to Order 39 Rule 1 of the ROC 2012.
Yes. Section 20 of the MACMA 2002 provides a list of matters where Malaysia may refuse to provide assistance inter alia evidence in a foreign court’s criminal proceedings.
Yes. Evidence used for foreign proceedings may be taken in Malaysia without the need for an order from the High Court under Order 66 of the ROC 2012 if the witness is willing to give evidence or produce documents voluntarily in this country. In such a situation, the person before whom the evidence is to be taken and the manner it is taken will be as directed by the foreign court.
Similar to our response to "Does your jurisdiction permit gathering evidence in aid of foreign litigation?" to take evidence for arbitration, an application to the High Court is required, with the approval of the arbitral tribunal pursuant to Section 29 of the Arbitration Act 2005.