The Court of Appeal in Malaysia in the case of Microsoft Corporation v Yong Wai Hong [2008] 3 MLJ 309, recently overturned the decision of the High Court and granted relief to Microsoft Corporation in the form of a perpetual injunction on a summary judgment application. The High Court's decision, from which this appeal stems from, had in fact disallowed Microsoft's application for a perpetual injunction on the basis that the respondent had raised triable issues in good faith and that a perpetual injunction ought not to be granted summarily.

In this case, Microsoft Corporation asserted ownership of certain computer software programs created by its employees and/or agents in the US. It also asserted ownership of six trade marks. The discovery by Microsoft that the a website was offering unauthorized copies of its computer programs for sale had led them to lodge a report with the Ministry of Domestic Trade and Consumer Affairs of Malaysia which then proceeded to conduct a raid on two private limited companies wherein pirated goods and products evidencing copyright infringement was discovered.

During the raid at one of the companies, a car registered in the defendant's name was found outside the premises. In the car were 100 CD-ROMs bearing one of the titles of Microsoft Corporation computer programs. It was later discovered that these disks did in fact contain Microsoft computer programs. Other pieces of evidence such as documents showing the relationship of the defendant with the two private limited companies where the raid was conducted, invoices that were addressed to the defendant for the printing of CD covers, as well as copies of sales records for specific periods bearing the defendant's name were discovered.

Based on the above evidence, Microsoft applied for a perpetual/final injunction by way of an application for summary judgment. However this application was dismissed by the High Court. On appeal, the Court of Appeal the panel of three judges disagreed with the decision of the High Court. The Court of Appeal held that the issues raised by the respondent in opposing Microsoft's application for permanent injunction being a challenge of Microsoft's copyright and a denial of being involved in the infringement, delay and that no permanent injunction should be granted by summary judgment were not accepted and the Court found that there were no triable issues.

The Court of Appeal went on to state that the defendant's assertions in his affidavit were contradicted by independent documentary evidence, demonstrating a lack of good faith in the points raised by him as to the triable issues raised. The Court of Appeal went a step further to state that the acts of the defendant in fact lend support to Microsoft's assertion that the defendant was the mastermind in acts of copyright piracy against Microsoft's IP. A permanent injunction was thus granted to Microsoft Corporation injuncting the Respondent from carrying out its trade.

It is therefore clear that in matters where there are no triable issues the Malaysian Courts can and will grant a permanent injunction upon a successful summary judgment application.