1. ) Global Maritime Ventures Berhad v 1. ) Mohd Zafer Mohd Hashim (WA-22NCvC-242-04/2021)

Global Maritime Ventures Berhad (No. Syarikat: 264557-A)

GMV Borcos Sdn Bhd (dalam likuidasi sukarela) (No. Syarikat: 871370-H) …Plaintif-Plaintif

Izlin binti Ismail (selaku pentadbir harta pusaka Mohd Zafer Mohd Hashim) (No. Kad Pengenalan: 720526-02-5030) Mohd Zafer Mohd Hashim (No. Kad Pengenalan: 720704-71-5115)

Sidqi Ahmad Said bin Ahmad (No. Kad Pengenalan: 710718-02-5183)

AWH Equity Holding Sdn Bhd [No. Syarikat: 200401027888 (666396-V)] 08/04/2025 15:25:39

Wan Hamimie binti Wan Ariff (No. Kad Pengenalan: 710515-03-5306)

Tetuan Ram Reza & Muhammad (Didakwa Sebagai Sebuah Firma) …Defendan-Defendan

Malayan Banking Berhad [No. Syarikat: 196001000142 (3813-K)]

HSBC Bank Malaysia Berhad [No. Syarikat: 198401015221 (127776-V)] … Defendan-Defendan Penzahiran GROUNDS OF DECISION [Enclosure 140: Application for Discovery pursuant to Order 24 Rule 7A (2) Rules of Court 2012 and/or Section 7 of Bankers’ Book (Evidence) Act 1949] BACKGROUND [1] This is an Application for Discovery by the Plaintiffs against 3rd

that Malayan Banking Berhad (1st Discovery Defendant) and HSBC Bank Malaysia Berhad (2nd Discovery Defendant) do, to the best of their ability after making all reasonable enquiries, answer the questions set out in Schedule A;

that the 1st and 2nd Discovery Defendants do supply to the Plaintiffs’ solicitor copies of any and all the following documents in their control in Schedule D in relation to the 1st Acquisition, 2nd Acquisition and 3rd Acquisition;

that the costs of this application shall be borne by the

such other order or relief that this Court deems fit and proper. [2] The grounds of this Notice of Application are set out in the Affidavit in Support of Muhammad Azraini Bin Abdul Hamid filed in Enclosure 141. The brief grounds in support of this application are as follows:

the Plaintiffs have a bona fide cause of action or claim against the Defendants;

the documents and / or information sought are necessary for the fair and/or efficient disposal of the suit;

the 1st and 2nd Discovery Defendants are likely to have or have had the documents and/or information sought in their possession, custody or power;

the documents and/or information sought are relevant to an issue arising or likely to arise out of the Plaintiffs claim or likely to be made in these proceedings or both;

the Plaintiffs are willing to give an undertaking on the restriction on the use of the documents and/or information disclosed pursuant to this application as set out in Schedule B;

the Plaintiffs are willing to give an undertaking to the Court as set out in Schedule C; and

this is a fit and proper case warranting discovery. [3] Preceding submissions by parties, the Plaintiffs’ counsel informed Court of their intention to narrow the scope of reliefs sought under Enclosure 140 filed as Notes of Submissions (Encl. 193) and thereby limiting the reliefs within the span of one year from the date of the respective acquisition as follows:

Prayer 2 (i) (b) and (d): 1st year acquisition from 18.4.2011 -

4.2022;

Prayer 2 (ii) (b) and (d): 2nd year acquisition from 25.1.2013 -

1.2014;

Prayer 2 (iii) (i) and (k): 3rd year acquisition from 19.8.2013 –

8.2014; Prayer 4 Leave be given to the Plaintiffs to apply for further documents; and thereto for the 1st and 2nd Discovery Defendants to supply to the Plaintiffs’ solicitor copies of the following documents in their control the following:

All cheques drawn on any account at the 1st and 2nd Discovery Defendant in the name of the 1st to 5th Defendants or any of them or to which the 1st to 5th Defendants or any of them are to have been a signatory; and

All statements, credit vouchers, remittance advices and SWIFT (Society for Worldwide Interbank Financial Telecommunication) messages relating to any account at the 1st and 2nd Defendants in the name of the 1st to 5th Defendants or any of them are to have been a signatory. BRIEF FACTS [4] The Plaintiffs’ causes of actions concern inter alia breach of director duties, trustee duties, conspiracy and dishonest assistance, committed jointly and severally by all the Defendants. All causes of action arose from the respective three acquisitions outlined as follows:

the 1st acquisition involves the 3rd Defendant selling its 35% shares in Borcos to the 2nd Plaintiff, with the 1st Plaintiff funding for a price of RM146,540,000;

the 2nd acquisition involves the 3rd Defendant selling its 65% shares in Borcos to the 2nd Plaintiff, with the 1st Plaintiff funding for a price of RM190,450,000; and

the 3rd acquisition involves Restu Kuala, a company owned by two shareholders, the 2nd Defendant and the 4th Defendant selling its irredeemable convertible preference shares in Borcos entirely to the 2nd Plaintiff, with the 1st Plaintiff’s funding, for a price of RM50,000,000. [5] At this juncture, the Plaintiffs are aware that several bank accounts are involved in the 3 acquisitions, which the ones identified presently held by the Discovery Defendants as follows:

the 1st acquisition, the identified bank accounts of the 3rd Defendant account held in the 1st Discovery Defendant (Account No. 514020618726) which received an amount of RM10,390,500.00 on 18.4.2011;

the 2nd acquisition, the identified bank accounts of the 3rd Defendant account held in the 1st Discovery Defendant (Account No. 514020618726) which received an amount of RM74,370,000.00 on 31.1.2013; and

the 3rd acquisition, the identified bank accounts of the 2nd and 4th Defendants’ joint account held in the 2nd Discovery Defendant (Account No. 105-665491-108) which received an amount of RM5,000,000.00 on 19.8.2013 and RM45,000,000.00 on 3.9.2013. THE LAW & CASES RELATING TO DISCOVERY AGAINST 3RD PARTIES [6] The law relating to discovery against other person is provided for under Order 24 Rule 7A (2) & (3) (b) of the Rules of Court (“ROC”) 2012, which reads as follows: “(2) An application after the commencement of proceedings for an order for the discovery of documents by a person who is not a party to the proceedings shall be made by a notice of application, which shall be served on that person personally and on every party to the proceedings.

An originating summons under paragraph (1) or a notice of application under paragraph (2) shall be supported by an affidavit which shall – …

in any case, specify or describe the documents in respect of which the order is sought and show, if practicable by reference to any pleading served or intended to be served in the proceedings, that the documents are relevant to an issue arising or likely to arise out of the claim made or likely to be made in the proceedings or the identity of the likely parties to the proceedings, or both, and that the person against whom the order is sought is likely to have or have had them in his possession, custody or power.” [7] The High Court in the case of Folin & Brothers Sdn. Bhd. v. Wong Foh Ling & Ors (No. 2) [2001] 5 CLJ 476 at pp 491 & 492 dealt with the pre-requisite of the affidavit of discovery and the definition of possession, custody and power as follows: “The affidavit of discovery must be exhaustive and comprehensive. It must itemise and describe all the documents that are or have been in the opposite party’s possession, custody and power. It is a demand which is all encompassing, throwing its net wider and it calls for candour: frankness would be the touchstone for the affidavit of discovery.” [8] Section 7 of the Bankers’ Book (Evidence) Act 1949 (Revised 1971) (BBEA) confers the Court power to order inspection of the documents based on the Plaintiffs’ application. “7 Court or Judge may order inspection.

On the application of any party to a legal proceeding the Court or a Judge may order that such party be at liberty to inspect and take copies of any entries in a banker's book for any of the purposes of such proceedings.

An order under this section may be made either on or without summoning the bank or any other party, and shall be served on the bank three clear days before the same is to be obeyed unless the Court or Judge otherwise directs.” [9] What amounts to a banker’s book is defined in section 2 of the Bankers’ Book (Evidence) Act 1949 (Revised 1971) which provides that: “2 Interpretation “banker’s book” includes any ledger, day book, cash book, account book and any other book used in the ordinary business of a bank.” [10] The Federal Court in the case of Protasco Bhd. v. The Por Yee & Anor and other appeals [2021] 9 CLJ 349 provides a comprehensive explanation of discovery under ROC 2012 and BBEA 949 respectively: “[27] … This goes to show that the disclosure of the banking documents specified under the Act was meant to co-exist independently of the procedural requirements under the general civil procedure rules. Given that the Act is adopted almost wholesale from that of the United Kingdom, this historical perspective of interpreting the Act is relevant and it is even more so when in all the years before O. 24 r. 7A was enacted, there is no like provision in our civil procedural law which in any way impacted the power vested on the court by s. 7 of the Act. The oneness of discovery process with disclosure or production of documents and its inspection is even acknowledged by our Court of Appeal in Ong Boon Hua & Anor v. Menteri Hal Ehwal Dalam Negeri, Malaysia & Ors [2008] 5 CLJ 42; [2008] 3 MLJ 625 when it cited Teoh Peng Phe v. Wan & Co [2001] 5 CLJ 222; [2001] 5 MLJ 14 9 which held that “discovery” is often used to mean both disclosure and inspection. [44] … So it cannot be just any documents in the bank’s possession comes within that definition although, as I had said earlier, those very same documents produced or kept by the bank in accordance with advancement in technology such as computers and other forms of information technology should qualify. In other words, as rightly submitted by learned counsel for the respondents “other books” should be considered ejusdem generis. Doing so does not, in my view disentitle me from adopting the same approach taken in Wee Soon Kim’s case (supra) because recorded transactions between the customer and the bank indeed qualifies under record or entries kept in its “ledger, day book, cash book and account book”. As rightly noted in the judgment of the Court of Appeal at para. 76 thereof, “entry” is not defined in the Act but cross referencing it with s. 34 of the Evidence Act 1950, it should be the ones recorded in a book of account regularly kept in the course of the bank’s business, which is one of the conditions of admissibility under the said section as held by the Supreme Court in Sim Siok Eng & Anor v. Poh Hua

Transport And Contractor Sdn Bhd [1980] 1 LNS 70; [1980] 2 MLJ ” [11] Based on Protasco Bhd (supra), the Federal Court held that relevancy of the documents is the cornerstone of Section 7 of BBEA: “[29] I fully appreciate the existence of the Financial Services Act 2013 which makes it an offence to disclose a person's banking transactions or details and that safeguard is enhanced by s. 130(3) of the Evidence Act 1950 which I had reproduced earlier in para.

However, as is clear from the words "except as provided by the law of evidence relating to banker's books" in the said sub-section, i t is patently obvious that the law recognises a leeway and that "law of evidence relating to banker's book" definitely refers to the Act because it was enacted earlier than the Evidence Act 1950. This consideration is further justification for me to hold that s. 7 of the Act is not subject to O. 24 r. 7A as held by the Court of Appeal. Of course, as rightly found by the learned High Court Judge, the general rule of evidence, that is relevancy, is the cornerstone of s. 7 and all other discovery applications. His Lordship was equally right when he considered that from the pleaded claim of the plaintiff, the money trail is relevant to prove or disprove its allegation of the flow of funds to the respondents. SUBMISSIONS OF THE PLAINTIFFS (ENCLOSURE 161 & 169) [12] The Plaintiffs’ submissions in summary are as follows:

that the documents sought in Enclosure 140 are sufficiently described pursuant to O. 24 r. 7A (3) (b) ROC 2012;

the Plaintiff’s position that the documents requested in Enclosure 140 fulfil the relevancy test. There were serious issues to be tried in this suit with sufficient particulars raised by the Plaintiffs, this means that there is a good arguable case premised on the Plaintiffs’ causes of action, including breach of constructive trust. The Plaintiffs should be able to obtain necessary information on the trace of monies acquired by the 2nd, 3rd and 4th Defendants as they are relevant to the issues in this case;

the Plaintiffs submit that the documents requested are in the possession, custody or power of the Discovery Defendants;

the documents requested are necessary for the fair disposal of the Plaintiffs’ claim and it will save costs;

Neither the 2nd, 3rd and 4th Defendants nor the Discovery Defendants argued that the documents sought in Enclosure 140 are privileged;

Enclosure 140 has been personally served to all parties, including the Discovery Defendants; and

The questions posed in Enclosure 140 cannot be construed as a procedural effect. Enclosure 140 is a discovery application under O. 24 of the ROC 2012, the Plaintiffs have also invoked s. 7 of BBEA 1949. [13] The Plaintiffs in their submissions in reply outlined as follows:

the Plaintiffs have exhibited credible documents in showing common intention based on the events that lead to the 3 acquisitions;

if the Court finds that the span of the requested documents is too wide (which the Plaintiffs deny) the Court is empowered to exercise its discretion to limit the timespan of the documents to be discovered; and

Enclosure 140 cannot be construed as a fishing expedition as the Plaintiffs have listed the types and classes of the documents with sufficient details. SUBMISSIONS OF THE DEFENDANTS [14] The 1st Defendant’s counsel submits in Enclosure 179 as follows:

the Plaintiffs’ application is a fishing expedition, despite specifying the two accounts in MBB Account No. 514020618726 held by the 3rd Defendant and HSBC Account No. 105-665491-108 held by the 2nd and 4th Defendants, the application made by the Plaintiffs are seeking a host of other documents which are wide ranging and for an unspecified period of time;

the Plaintiffs have not even identified whether the 1st Defendant has any account with MBB and HSBC, much less which account the Plaintiffs are seeking discovery against;

the Plaintiffs did not offer any explanation as to why the application was only made 3 years after the commencement of proceedings; and

the Plaintiffs failed to explain how the documents is necessary in assisting the Plaintiffs in proving their case.

the documents sought by the Plaintiffs do not fall within the definition of ‘Banker’s Books’. [15] The 2nd Defendant’s counsel submits in Enclosure 163 outlining the grounds to oppose the Discovery Application as follows:

the Discovery Application is a fishing expedition;

the Discovery Application fails to identify with specificity the Application seeks blanket disclosure of at least 17 types of documents over an open-ended timeline which spans almost 13 years.

The documents sought to be discovered are irrelevant and unnecessary to the issues raised and pleaded in the proceedings herein. The documents sought are also inconsistent with the Plaintiffs’ pleaded case given, amongst others that:

The relief pleaded in the Amended Statement of Claim does not include tracing of the monies which went into the MBB and HSBC accounts;

(ii) The Plaintiffs’ pleaded case against the 2nd Defendant (“Sidqi”) does not include any contention that Sidqi had received any monies insofar as the 1st and 2nd Acquisitions are concerned (which in any event is denied).

(iii) Insofar as the 3rd Acquisition is concerned, it is not in dispute that the payment of RM50,000,000.00 was made directly to Sidqi’s joint account with the 4th Defendant as is pleaded in paragraph 51 of the Defence;

(iv) In amplification of the above, the Discovery Application seeks discovery of documents against Sidqi from MBB and HSBC in respect of all the acquisitions even though Schedule D of the Discovery Application makes no mention of Sidqi’s name insofar as the 1st and 2nd Acquisitions are concerned; and

Additionally, Sidqi’s joint account in HSBC with the 4th Defendant (HSBC Account No. 105-665491-108) is an active account which Sidqi and the 4th Defendant use for various personal and private transactions which are entirely unrelated to the proceedings herein. [16] The 2nd Defendant further submits as follows:

the Discovery Application fails to identify with specificity the documents sought to be discovered by the Plaintiffs, as required under Order 24 Rule 7A(3)(b) ROC 2012.

A perusal of the Discovery Application will show that the application seeks blanket disclosure of at least 17 types of documents over an open-ended timeline which spans almost 13 years.

A perusal of the Discovery Application shows that the Plaintiffs are seeking to discover, in relation to the Defendants’ accounts with the 1st or 2nd Discovery Defendants, all correspondence, all cheques, all debit vouchers, transfer applications, orders and internal memoranda since 18.4.2011, all statements, credit vouchers, remittance advices and SWIFT messages since 18.4.2011, all mandates and account opening forms relating to any account active since 18.4.2011, and all written instructions received by the 1st or 2nd Discovery Defendants in relation to the Defendants. [17] The 3rd Defendant grounds to oppose application filed in their submissions (Enclosure 157) on Prayer 2 (Discovery of Documents Requested) are as follows:

The Documents Requested which existed before the year 2018 are unlikely to still be in the possession, custody or power of the Banks;

The Documents Requested are irrelevant to the matters in dispute in this action as no alleged money trail is pleaded, and there is ultimately no proprietary claim;

The Documents Requested are unnecessary either for disposing fairly of the cause or matter or for saving costs on the relevancy point; and

The wide-ranging orders sought by the Plaintiffs are an abuse the Court’s process in breach section 133(1) of the Financial Services Act 2013 on banking secrecy. [18] The majority of the Federal Court Judges in Protasco Bhd v. Tey Por Yee & Anor and other appeals [2021] 9 CLJ 349, held that the disclosure of the banking documents specified under the BBEA was meant to co-exist independently of the procedural requirements under Order 24 Rule 7A of the RC and was therefore available as an independent basis for discovery against non-parties in a litigation. [19] Section 7 of the BBEA is not intended to be a discovery provision at all, but an evidentiary rule to facilitate the admissibility of bankers’ books. The Federal Court in the Protasco case concurred that the applicant must still satisfy the Court on affidavit that any bankers’ books for which discovery is sought, must be relevant to the issues in the action. [20] Goh Hooi Yin v. Lim Teong Ghee & Ors [1977] 2 MLJ 26 was cited by the majority decision in the Protasco case was said to refer to the relevancy requirement in discovery. For completeness, we set out the following extract from the Goh Hooi Yin case: “Section 7(1) of the Bankers' Books (Evidence) Act, 1949 is in pari materia to the English Act. The main object of the provisions of the Act is to enable evidence to be procured and given and to relieve bankers from the necessity of attending and producing their books. They do not give any new power of discovery or alter the principles of law or the practice with regard to discovery.” [21] The 4th Defendant’s submits in Enclosure 159 as follows:

The Discovery Documents are not specific nor identified which amounts to Plaintiffs’ attempt for a fishing expedition;

The relevancy and necessity of the Discovery Documents are doubtful as the Discovery Documents lacks specificity. [22] The 5th Defendant submits in Enclosure 151 that the application by the Plaintiffs in Enclosure 140 is irrelevant to the 5th Defendant as follows:

As averred in the 5th Defendant’s Affidavit in Reply (Enclosure 147), the 5th Defendant was only involved in the preparation of the Sale and Purchase Agreement for the 65% shares in Borcos between AWH Holdings Sdn Bhd and GMV-Borcos Sdn Bhd for a consideration of RM190,450,000.00 (the 2nd Acquisition) executed on 15.1.2013; and

At no material time were the proceeds of the 2nd Acquisition paid over to the 5th Defendant. As such at no material time did the 5th Defendant make payments of the proceeds to any personal or corporate accounts held in MBB or HSBC. ANALYSIS BY THE COURT [23] At the outset, the Plaintiffs indicated that Prayer 1 shall not be pursued. The Plaintiffs shall proceed with Prayer 2 based on the limited scope as reflected in para 3 (supra), Prayer 3, Prayer 4 and the Plaintiffs’ Notes of Submissions (Encl. 193). [24] The High Court in the case of Billion Prima Sdn Bhd & Anor v. Nutech Co Ltd & Anor [2017] 10 MLJ 213 at pp. 223 - 226 outlined the following six conditions before the court may exercise discretion to order discovery against a third party (in this case against the 1st and 2nd

The applicant shall specify or describe the documents with respect to which the order is sought.

The document must be relevant to an issue that is likely to arise out of the claim made, or that is likely to be made in the proceedings.

The document must be likely to have or have had been in the possession, custody or power of the person against whom the order for discovery is sought.

The document must be shown to be necessary to either fairly dispose of the suit or save costs.

The documents sought are not privileged documents and the third party can be compelled to produce the documents.

The application and supporting affidavit must be served on the third party and the other parties to the suit. Whether the documents requested from the Discovery Defendants were specific and described? [25] In this Application, the Plaintiffs sought under Prayer 2 for the Discovery Defendants to supply to the Plaintiffs’ solicitor copies of the following documents in their control within the span of 1 year from the date of the respective acquisition for all the 3 acquisitions as follows:

All cheques drawn on any account at the Discovery Defendant in the name of the 1st to 5th Defendants or any of them or to which the 1st to 5th Defendants or any of them are to have been a signatory; and

All statements, credit vouchers, remittance advices and SWIFT messages relating to any account at the Discovery Defendants in the name of the 1st to 5th Defendants or any of them are to have been a signatory. [26] The Plaintiffs’ submissions that the documents sought in Encl. 140 were sufficiently described and that the description on types and class of documents would be sufficient is devoid of any merits. In this regard, the Discovery Application of Encl. 140 fails to identify with specificity the documents sought to be discovered by the Plaintiffs as required under Order 24 Rule 7A(3)(b) ROC 2012 when the Plaintiffs sought the Discovery Defendants to supply all cheques, all statements, credit vouchers, remittance advices and SWIFT messages relating to any account at the Discovery Defendants in the name of the 1st to 5th Defendants or any of them are to have been a signatory. [27] The Court is of the view that the Plaintiffs’ application is a fishing expedition, despite the Plaintiffs specifying the two accounts in MBB Account No. 514020618726 held by the 3rd Defendant and HSBC Account No. 105-665491-108 held by the 2nd and 4th Defendants, the application made by the Plaintiffs in seeking a list of documents (see para. 3) which are wide ranging and for a period of 12 months for each acquisition period. [28] The High Court decided in the case of Datuk Amar James Wong Kim Min & Anor v. Pendaftar Pertubuhan [2004] 6 MLJ 235 at p. 239, as follows: “To me, the applicants must be specific to the documents they are requesting for disclosure. Otherwise, their application will turn out to be a mere fishing expedition. This court, is not going to issue the applicants the fishing licence.” Whether the documents requested are relevant to the issues arising or likely to arise out of the Plaintiffs’ causes of action? [29] The Plaintiffs submit that the documents requested in Encl. fulfilled the relevancy test under O. 24 r. 7 A para 3 (b) of the ROC 2012. The Plaintiffs admitted that Issues To Be Tried has yet to be filed. The Plaintiffs put on record that the Court had dismissed Defendants’ striking out application as reflected in Encl. 108, 109, 112 & 113. Be that as it may, the Court is of the view that the documents sought to be discovered are irrelevant and unnecessary to the issues raised and pleaded in the proceedings herein insofar as to the documents sought to be discovered against the Discovery Defendants. (see para. 15 supra) Whether the documents requested are in the possession, custody or power of the Discovery Defendants? [30] The Plaintiffs submit that the documents requested are in the possession and control of the Discovery Defendants and that the Banks held all the financial records regarding the 3 acquisition. [31] The High Court, in the case of Kumpulan Powernet Bhd & Anor v. Woo Wai Mun & Ors [2021] 1 LNS 529 at pp. 24, 44 & 45, decided as follows: “[18] In Yekambaran s/o Marimuthu v. Malayawata Steel Berhad [1994] 2 CLJ 581, a leading authority on the subject of discovery of documents, Edgar Joseph Jr. SCJ set out the elements the applicant has to satisfy to succeed in an application for discovery and defined what is relevant: “The essential elements for an order for discovery are threefold; namely, first there must be a ‘document’, secondly, the document must be ‘relevant’ and thirdly, the document must be or have been in the ‘possession, custody or power’ of the party against whom the order for discovery is sought. As to ‘relevance’, our Rules of the High Court limit discovery to documents which are ‘relevant to’ or ‘relate’ to the factual issues in dispute. More particularly, the discovery obligation applies to documents ‘relating to matters in question in the action’ [Rules of the High Court, O. 24 r. 1(1)] or ‘relating to any matter in question in the cause or matter’ [O. 24 r. 3(1)]. In practice, relevance is primarily determined by reference to the pleadings but there need not be a pleading for a matter to be said to be in issue. (see Phillips v. Phillips [1879] 40 LT 815, 821). In this context, relevance is defined broadly. It does not extend to documents relevant merely to a party’s credibility unless that itself is a fact in issue. (see George Ballantine & Sons Ltd. v. Dixon & Son Ltd. [1974] 1 WLR 1125). If, however, the document’s relevance is to a fact in issue, not simply to credibility, it has long been settled that relevance of an indirect kind suffices.” The observation of Edward Bray in his highly regarded work on discovery at p. 18 as to the test of ‘materiality’ merits quotation; there he says this: “......for the purpose of testing the materiality of the discovery to a particular issue......it is the case of the party seeking the discovery that must be assumed to be true, and not that of the party from whom the discovery is sought.” “[45] … Whilst it is true that “working papers” belong to Baker Tilly, and are meant for internal use, this per se does not mean, however, that disclosure of these documents cannot be ordered. In British & Commonwealth Holdings plc v Spicer and Oppenheim [1993] AC 426, the auditors of the company concerned were ordered to disclose their working papers because the same included "information of relevance". [34] Fourthly, I find that the Plaintiffs have fulfilled the test of necessity set out in Order 24 rule 8 which reads: “Discovery to be ordered only if necessary (O. 24, r. 8) 7. On the hearing of an application for an order under rule 3, 7 or 7A, the Court, if satisfied that discovery is not necessary, or not necessary at that stage of the cause or matter, may dismiss or adjourn the application and shall in any case refuse to make such an order if and so far as it is of the opinion that discovery is not necessary either for disposing fairly of the cause or matter or for saving costs.” [35] In my opinion, the Documents sought will assist the Court in determining the Plaintiffs’ claim against the Defendants as to whether there were irregularities and financial mismanagement committed and/or assisted by the 1st, 2nd, and 3rd Defendants vis- à-vis the Plaintiffs and its then subsidiaries, 5th Defendant and 6th Defendant. The Documents sought to be discovered relate to and will throw light on the Plaintiffs’ claims premised on the breach of statutory duties, breach of contractual duties, breach of trust and fraud. As stated by Justice Mary Lim JCA (later FCJ) in Infoline Sdn Bhd (sued as trustee of Tee Keong Family Trust) v. Benjamin Lim Keong Hoe [2017] 6 MLJ 363: “If the documents can shed some light as to the question which vexes the applicant, in this case the respondent, as to whether he has a viable claim for being terminated as a beneficiary, then the application is properly initiated.” [32] The High Court in the case of Licvem Shipping & Trading Aos & Anor v. JLM Logistics (M) Sdn Bhd & Ors [2016] 1 LNS 264 decided that documents sought cannot be broad: "[15] Although I am mindful that this court has a discretionary power to order the discovery of any document at any stage of the proceedings, the documents sought cannot be far too wide and further it has to be relevant and related to the factual issues. In the instant case, to seek for the discovery of documents in respect of all bank accounts and all statements of account of the first defendant, in my considered opinion, is far too wide and wholly inappropriate. For this reason alone, the application ought to be dismissed. [33] On record, both the Discovery Defendants did not file any affidavits in support or written submissions in respect of Enclosure 140. Both counsel appearing for and behalf of the Discovery Defendants informed Court that they will abide to whatever order made by this Court. What is more important in a pre-action discovery application is whether MBB and HSBC have in their possession, custody or power the documents sought to be discovered. The 1st and 2nd Discovery Defendant has not filed any affidavit to confirm or refute the possession and custody of the financial records sought in Encl. 140. Consequently, the Court finds that both the Discovery Defendants are unlikely to have or have had the documents sought in their possession, custody or power. [34] The High Court in the case of Kerajaan Negeri Pahang v. Mohd. Shukri Mohd. Ramli [2022] 1 LNS 2345 at p. 22 dealt with the pre-requisite of the affidavits in in relation to a discovery application as follows: “[24] …Oleh itu adalah satu amalan yang baik untuk affidavit sokongan bagi menyokong permohonan penzahiran dokumen-dokumen ini dinyatakan maklumat yang boleh membantu mahkamah untuk menentukan sama ada dokumen-dokumen tersebut wajar dizahirkan atau sebaliknya. [25] Sementara itu pihak yang membantah permohonan penzahiran dokumen juga hendaklah secara jelas dalam affidavit jawapan menyatakan apakah fakta asas utama bantahan penzahiran dokumen tersebut. Mahkamah berpendapat adalah tidak memadai hanya memberikan fakta umum berkenaan dengan dokumen tersebut misalnya hanya menyatakan bahawa dokumen-dokumen tersebut tidak berada di dalam milikannya atau menyatakan bahawa dokumen-dokumen itu tidak relevan dengan kes yang dikemukakan.” Whether the document shown necessary to either fairly dispose of the suit or save costs? [35] The Court finds that a wide order for discovery without determining the type and nature of the documents, apart from a fishing expedition by the plaintiffs, is detrimental as even documents which are wholly irrelevant to the said action would be subject to the open-ended order for discovery which will lead to further delay and expenses on the disposal of the said action. (see Wong Hou Lianq & Anor v. Wong Kie Yik & Ors [2015] 1 LNS 1075) Where the documents sought are wide and lacking in specificity, needless to say it will be more difficult to establish that discovery is necessary to dispose of the proceedings fairly or to save costs. Whether the requirements in Section 7 BBEA is Satisfied? [36] The question for the Court’s consideration is whether the Plaintiffs satisfy the requirements pursuant to Section 7 BBEA for a discovery order to be granted as follows:

the documents sought must be relevant; and

the documents sought must be a “banker’s book” pursuant to Section 2 BBEA. [37] Earlier the Court opined that the Plaintiffs failed to fulfil the requirement of relevancy, which is the cornerstone of Section 7 BBEA. Therefore, the Discovery Documents do not fall within the definition of a banker’s book pursuant to Section 2 BBEA, even with the purposive approach to the definition of “banker’s book” by the Federal Court in Protasco decided that definition of “banker’s book” should only be confined to “ledger, day book, cash book and account book” and books of account regularly kept in the course of the bank’s business. The definition of “banker’s book” “cannot be just any documents in the bank's possession”. The Discovery Documents do not fall under the definition of “banker’s book” in Section 2 BBEA as they are not ledgers, day books, cash books, account books and/or books of account regularly kept in the course of the Discovery Defendants’ businesses. Therefore section 7 of the BBEA is inapplicable.

[38] I have read and perused the Affidavits in Support, Affidavits in Reply, Written Submissions & the Authorities filed by both parties. I have also considered the submissions and arguments put forward by both parties and the numerous authorities cited and referred to for the Court’s deliberation. Conclusion [39] Based on the foregoing reasons, the Plaintiffs’ application in Enclosure 140 is hereby dismissed. No order as to costs. Dated 27 March 2025. Sgd ………………………………………….. (EDDIE YEO SOON CHYE) Judicial Commissioner High Court (Civil NCvC 13) Kuala Lumpur PARTIES For the Plaintiffs Robert Lazar acting as Counsel Mohd. Wafiy Azman (Wardah Yumna Yunus with him) Messrs Azmi & Associates Kuala Lumpur For the 1st Defendant Ivy Shu Messrs Chetan Jethwani & Company Kuala Lumpur For the 2nd Defendant Chong Lip Yi Messrs Robert Low & Ooi Kuala Lumpur For the 3rd Defendant Edmund Choi Messrs Gan Ho & Razlan Hadri Kuala Lumpur For the 4th Defendant Tan Choon Hao Messrs Fahri, Azzat & Co. Petaling Jaya For the 5th Defendant Mak Jun Yeen Messrs Godfrey D’cruz & Co. Petaling Jaya 1st Discovery Defendant Muhammad Muazzim bin Azmi Amin Messrs Azam Lim & Pang Kuala Lumpur 2nd Discovery Defendant Kresha Paskaren Messrs Benjamin Dawson Kuala Lumpur