Body 1: Anton Piller Order and Self-incrimination

1.1 Anton Piller

Anton Piller Order is one of the remedies provided under the common law.
The development of this order can be traced back to the judgment
presided by Lord Denning in the case of Anton Piller KG v Manufacturing
Processes Ltd.1 In this case, the applicant contended that they had reason
to believe that the defendants were giving confidential information of the
applicants power converter to the German manufacturer which is the
applicants competitor. In order to prevent the defendants from disposing
all the materials evidence about giving the confidential information to his
competitors, the applicant applied for ex-parte hearing to get an order
from the court to inspect the defendants premise before the defendants
disposed all the evidences. Even though the name of Anton Piller is
derived from this case, but the first recorded case that address this matter
is actually Templeman J in the case of EMI Limited v Pandit.2
In context of Malaysia, the definition of Anton Piller order also known as
search order can be seen in the Halsbury Law of Malaysia. Where it is
stated that the High Court have power to permit applicant to access the
intended premises for the purpose of looking into materials or documents
to be removed from the premises and place it in safe custody while
waiting for the trial to be completed.3 Thus, from the case of Anton Piller
KG v Manufacturing Processes Ltd and the definition given by Halsbury
Law of Malaysia, it can be concluded that the main purpose of Anton Piller
order is to inspect the defendants premises so that all the material
evidences can be kept in safe place first before the completion of trial for
purpose of protecting the evidence from being tempered or destroyed.

1 Anton Piller KG v Manufacturing Processes Ltd [1976] 2 WLR 162

2 EMI Limited v Pandit [1975] 1 All ER 418
3 Halsbury Law of Malaysia Vol 7(1), Civil Procedure, Para (190.5-049)

According to the case of Universal Thermosensors Ltd v Hibben, normally

the order will be obtained ex-parte which is without the defendant being
aware of the hearing to enable the applicant to exercise it before the
defendant realises the risk of having property seized.4
Naturally, Anton Piller order can be considered as a harsh remedy against
defendant because it will prejudice the very basic right of defendant such
as privacy and also possibility for his intellectual propertys right to be
infringed since the order will allow inspection for defendants property.
Since it involves serious inroads into basic liberties, the court laid down
three essential requirements in order for this order to be granted. The
requirements as laid down by Ormrod L.J in Anton Piller are;
First there must be an extremely strong case, second potential or actual
damage to claimant and third clear evidence that defendant has in its
possession the evidence.
Even if all the requirements are met, but the court still have to be satisfied
that there is a need for making an order against defendant without having
him to be heard. For example, the order will not be made against a person
with good standing who are likely to obey an order from the court as in
the case of Randolph M Fields v Watts.5
The recent application of Anton Piller Order in Malaysia can be seen in the
2012 High Court case of CMA CGM v Ban Hoe Leong Marine Supplies Sdn
Bhd & Ors.6 In this case, plaintiff is a shipping company and defendant is a
marine fuel supplier. Previously, the defendant had entered into a contract
with plaintiff to supply marine fuel for plaintiffs ship at agreed amount.
But later, plaintiff found out that the amount of fuel delivered to plaintiff is
lesser than what have been agreed. Because of this, the plaintiff made ex4 Universal Thermosensors Ltd v Hibben [1992] 3 ALL ER 257
5 Randolph M Fields v Watts (1985) 129 S.J 67
6 CMA CGM v Ban Hoe Leong Marine Supplies Sdn Bhd & Ors [2012] MLJU 818.

parte application, seeking for order search towards the plaintiff premises
to the high court of Shah Alam. The judge Tengku Maimun J, held that the
court is in 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.7 Due to these reasons, the court
granted the Anton Piller Order against the defendant since plaintiff has
satisfied all the required elements.
Even though plaintiff can be successfully apply for ex-parte Anton Piller
Order, but the defendant also has the right to make application to the
court for invalidation of the Anton Piller Order as granted by the previous
court against the defendant.
The application for invalidation of such order made by defendant can be
seen in one of latest case decided by Kota Kinabalu High Court in the case
of Fatimah Hiew Yen Won & Anor v Saroja A/P Palaniappan & Anor as
decided in 2011.8 In this case, court decided to put aside the ex-parte
order since the plaintiff failed to comply with 029 r 2A(d) in which he did
not state the likely defense of the in the affidavit as a support of the
application for the Anton Piller order. Since the affidavit for applying exparte Anton Piller was not properly entered, the court set aside the exparte application.9
1.2 Self-incrimination
According to the Wex Legal Dictionary, self-incrimination can be defined as
The act of implicating oneself in a crime or exposing oneself to criminal
prosecution.10 The self-incrimination normally occurs when suspect are
being interrogated or sometimes the person might disclosed the
7 Ibid, para 34.
8 Fatimah Hiew Yen Won & Anor v Saroja A/P Palaniappan & Anor [2011] MLJU
1168
9 Ibid, last para

information voluntarily. With regard to the context of this assignment, the

self-incrimination also probably might occur if the court granted Anton
Piller Order against the defendant. It is because when the plaintiff are
allowed to enter and search defendants premises, the plaintiff or any
other person who inspect the defendant premises might found something
which not related with the materials that they are looking for but could
give rise to criminal prosecution.
Throughout the cases, there are several privileges was developed as to
self-incrimination.

Basically,

there

are

main

privileges

of

self-

incrimination. Firstly, the privilege afforded to witnesses in criminal, civil

or non-judicial investigative proceedings, secondly, the defendant have
right not to give evidence at trial and lastly the suspect in criminal
investigation have right to remain silence.11
Since the privileges of self-incrimination protect person from exposing
himself to criminal convection, it can be argued that the Anton Piller Order
is actually contradict with these privileges of self-incrimination. It is
because under Anton Piller Order, the defendant are obliged to expose
himself to the criminal conviction since the order will allowed the plaintiff
to enter his premises and take into custody documents which might
exposed him. The defendant will not have choice since he will be charged
with contempt of court if prevent the plaintiff from entering the premises
after issuance of such order as mentioned by the Lord Denning in Anton
Piller.
The position of privileges of self-incrimination in Malaysia is not clear,
since there are some cases which upheld these privileges, 12 while there
10 Wex Legal Dictionary, < https://www.law.cornell.edu/wex/self-incrimination>
accessed on 23 January 2016
11 Mcinerney, 'The privilege against self-incrimination from early origins to
Judges' Rules: challenging the 'orthodox view'' [2014] 2(18) The International
Journal of Evidence & Proof
12 PMK Rajah v Worldwide Commodities Sdn Bhd [1985] 1 MLJ 86.

are some other cases which held that those privileges are no longer exist
in Malaysian context.13

13 Television Broadcast Ltd v Mandarin Video Holdings Sdn Bhd [1989] 2 MLJ.