Tey Por Yee v Protasco Bhd (W-02(IM)(NCC)-179-01/2019)

TEY POR YEE … PERAYU-PERAYU (NO.K/P: 760202-14-5147) 15

OOI KOCK AUN (NO. K/P: 670307-07-5561) DAN 20 PROTASCO BHD ... RESPONDEN (NO. SYARIKAT: 548078-H) [Dalam Mahkamah Tinggi Malaya Di Kuala Lumpur (Bahagian Dagang) 25 Guaman No: 22NCC-362-09/2014 Antara PROTASCO BHD ... PLANTIF

Dan PT ANGLO SLAVIC UTAMA (NO. PENDAFTARAN SYARIKAT: 09.03.1.46.80564) 35

TEY POR YEE

OOI KOCK AUN (NO. K/P: 670307-07-5561) … DEFENDAN-DEFENDAN] 40 2 CORAM 5 HAMID SULTAN ABU BACKER, JCA HANIPAH FARIKULLAH, JCA KAMALUDIN MD SAID, JCA 10 GROUNDS OF JUDGMENT Introduction [1] There are 3 appeals heard by this Court namely:

(i) Appeal no. 179 is concerned on the Second and Third Defendant’s appeal against the whole of the High Court order dated 7.1.2019 which allowed the Plaintiff’s application under Enclosure 307 for disclosure under the 20 provisions of the Banker’s Book (Evidence) Act 1949 (BBEA).

The learned judge had erred in law and/or in fact in failing to 20 five proper and due judicial consideration to the fact that the Plaintiff’s application in Enclosure 307 was an abuse of process. In this regard:

(i) In failing to appreciate that Enclosure 307 was in effect 25 an application for, inter alia, specific discovery against third party banks and against the Defendants, provisions for which are set out under Order 24 Rules 7 and 7A of ROC; 30 6

The learned judge had erred in law and/or in fact in failing to appreciate the main purpose and object of the BBEA. In this regard;

(i) In failing to appreciate and consider that the main object 20 of the provisions of BBEA is to relieve bakers from the necessity of attending and producing books as evidence in court; and

The learned judge had erred in law and/or in fact in failing to 5 recognise that Enclosure 307 was a fishing expedition. In this regard;

(i) In failing to take cognisance of the fact that the Plaintiff did not have adequate basis to mount its pleaded claim 10 pertaining to fraud and conspiracy against the Defendants;

The learned judge had erred in law and/or in fact in failing to appreciate and consider that the Defendants have sworn in their respective affidavits that the matters sought to be inspected are not relevant to SPA 1 and SPA 2 and therefore 25 the Defendants’ affidavits are conclusive and no order for inspection should be made by the honorable High Court;

The learned judge had erred in law and/or in fact in failing to hold that the Plaintiff in effect sought to reverse the legal 30 8 burden, and was ultimately compelling the Defendants to 5 prove that they did not do the things the Plaintiff complains of. Appeal No.715 10 [6] The Second and Third Defendant’s grounds of appeal are as follows -

The learned judge had erred in law and/or in fact in determining that the Plaintiff was entitled to seek that copies 15 of documents that it procured from a bank under the authority of the BBEA Orders, such copies not amounting to copies of entries in Bankers’ books within the meaning of the BBEA, be admitted into evidence under the EA. In this regard - 20

(i) In failing to take cognisance of the fact that the BBEA only permits the Plaintiff to inspect and make copies of documents obtained from a bank which amount to entries in Bankers’ books as defined under the BBEA; 25

The learned judge had erred in law and/or in fact in 5 determining that the Plaintiff was entitled to seek that documentary evidence that it procured from a bank under the authority of the BBEA Orders be admitted into evidence under EA despite such documentary evidence falling outside the scope of the BBEA Orders. In this regard;

(i) In failing to appreciate the fact that such documents are subject to banking privacy and should not be admitted in evidence if such documents fell outside the scope of the BBEA Orders;

The learned judge had erred in law and/or in fact in determining that the provisions of the BBEA are to be interpreted in a manner that is inconsistent with settled 10 principles of statutory interpretation. In this regard;

(i) In determining that the provisions of the BBEA are to be interpreted in the context of modern banking practice, notwithstanding the fact that principles of statutory 15 interpretation require that the natural and ordinary meaning be given in construing a statue.

In dismissing the Plaintiff’s application under the BBEA 5 (Enclosure 395) for the documents disclosed pursuant to Order (Enclosure 48) dated 25. 6. 2018 and Order (Enclosure 307) dated 7.1.2019 be admitted as evidence and marked as exhibits; 10 2. In failing to appreciate and/or properly appreciate that the orders prayed for in the Plaintiff’s application under the BBEA (Enclosure 395) are consequential and/or are a proper consequence to Order (Enclosure 48) dated 25.6.2018 and Order (Enclosure 307) dated 7.1.2019 15 obtained from the banks pursuant to the applications of the Plaintiff made in Enclosure 48 and Enclosure 307 under the BBEA;

In failing to appreciate and/or properly appreciate that 20 the documents obtained from the banks pursuant to the applications of the Plaintiff made in Enclosure 48 and Enclosure 307 under the BBEA represented records maintained by the bank in relation to the transactions of a customer and correspondingly constituted “books” 25 within the definition of the BBEA;

In failing to adopt a purposive approach in defining the term “bankers’ books” under the BBEA; 30 12

In taking into account irrelevant considerations and /or in 5 not taking relevant considerations in arriving at the learned judge’s said decision. THE APPEAL 10 [8] The Defendant’s case is that the Plaintiff’s applications in the Enclosure 307 and Enclosure 395 made under the BBEA was misconceived and an abuse of process, having regard to the legislative intent of the of the BBEA and the provisions for the third party discovery under Order 24 rule 7A of the ROC. 15 Because of this the court did not have the jurisdiction to grant the orders prayed for. The application for discovery was a mere fishing expedition and that the Plaintiff has, by application under the BBEA, sought in effect to reverse the burden of proof, which is impermissible in law. The Plaintiff’s case is that the argument that 20 the legislative intent of the BBEA, the provisions of the Act do not provide a party with an independent right of discovery is unsustainable. Plaintiff contended that the provisions of the BBEA only provides a mechanism in which a document already obtained pursuant to a discovery application under Order 24 Rule 7A of 25 ROC may be proved at trial. [9 Having heard the submissions and perusal of the Plaintiff’s application in Enclosures 307 and 395 in the Records of Appeal, our preliminary view is that the Plaintiff’s applications appear to be 30 13 applications for specific discovery under Order 24 of ROC 2012. 5 The applications for discovery cannot be made under section 7 of the BBEA because section 7 of BBEA, the purpose of which is only for an order to inspect and take copies of any entries in a banker's book for any purposes of proceedings. It is not a discovery provision. The discovery of documents made in 10 Enclosures 307 and 395 is made against the bank which is non party to the legal proceedings to produce the documents and involved the Second and Third Defendant. [10] In that circumstances, application for discovery ought to have 15 been made under O. 24 r. 7A of ROC which provides discovery against other person. In this context, as provided under O. 24 r. 7A (1) of ROC if an application for an order for the discovery of documents before the commencement of proceedings it shall be made by originating summons and the person against whom the 20 order is sought shall be made defendant to the originating summons. Under O. 24 r. 7A (2) of ROC, if 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 25 that person personally and on every party to the proceedings. [11] Our preliminary view is that the Plaintiff’s application in Enclosures 307 and 395 purportedly made under BBEA without 14 reference to O. 24 r. 7A (2) of the ROC, would amount to an 5 abuse of court process. [12] However, since we have not made final determination in this matter, we required parties to put in further written submissions focussing on whether application under the BBEA to inspect and 10 take copies of any entries of banks book is in effect an alternative procedure for discovery. The further written submissions may highlight the difference between discovery proceeding under ROC and inspection provision under BBEA for our considerations. Most importantly what is the underlying principle and intention under 15 BBEA. We adjourned the hearing of the appeal for decision to a date to be fixed. [13] Upon receiving the further written submissions as requested and together with the main written submissions, we were able to make 20 determination on the issue. Having considered all submissions placed before us and after perusing the Records of Appeal including the grounds of judgment of the learned judge and Enclosures 307 and 395 which are the subject matter in this appeals, we found merits in the Second and Third Defendants’ 25 appeal. It is our unanimous decision that the Defendants’ appeals are allowed and the Plaintiff’s appeal is dismissed. Since the main trial has not been completed, we ordered all Costs to be Costs in the cause. We gave our reasons. 30 15 BRIEF FACTS 5 [14] The Plaintiff, Protasco Berhad is a public listed company listed on the Main Board of Bursa Securities Malaysia. Plaintiff’s principal business is in construction, education, property development, road maintenance and other related business. The Second and 10 Third Defendants are the former directors of the Plaintiff. In the Main suit, the Plaintiff is claiming for breach of fiduciary duty by the Second and Third Defendants to cause the Plaintiff to purchase shares in oil exploration rights in Indonesia from the First Defendant. The Plaintiff alleges that the Second and Third 15 Defendants had personal interest in the First Defendant and claimed that the Second and Third Defendants failed to disclose their personal interest and subsequently breach of their fiduciary duty as directors. Therefore, the Plaintiff seeks, among others, to recover the sum of USD 27 million from the Second and Third 20 Defendants. [15] The Plaintiff sought and obtained an order dated 25.6.2018

18.10.2018 The Plaintiff filed Enclosure 307 for discovery against CIMB Bank Berhad and/or CIMB Islamic Bank Berhad and/or Maybank Berhad to allow the Plaintiff to, inter alia, inspect and take copies of all entries in the books of the banks in relation to bank accounts belonging to the 2nd and 3rd Defendants. Enclosure 307 was similarly filed pursuant to section 6 and/or 7, BBEA and/or Order 92 rule 4, ROC. In the supporting affidavit, the Plaintiff’s then Director of Corporate Finance deposed to a belief that: 18 Date Particulars of Proceedings a. “the entries in the books of Maybank Berhad, CIMB Bank Berhad and/or CIMB Islamic Bank Berhad relating to the accounts [belonging to the 2nd and 3rd Defendants] and the documentation relating to the inflow and outflow of funds from the said accounts are extremely material to a critical issue in the Plaintiff’s claim, which is the ownership of the 1st Defendant and the end beneficiaries of the Plaintiff’s monies”; and b. “the information and documentation sought by the Order prayed for herein will reveal that the Plaintiff’s monies paid [pursuant to the SPAs] were ultimately channeled back to the 2nd and 3rd Defendants either through themselves or persons and/or entities connected and/or controlled and/or related to them”. The Plaintiff did not identify any of the documents sought as being “banker’s book” within the meaning of section 2, BBEA. The 2nd and 3rd Defendants opposed to Enclosure 307 on the following basis: Enclosure 307 was misconceived in law for it being, in substance, an application for discovery. As such, the Plaintiff ought to have filed the application under the ROC. The provisions in the BBEA could not be relied on 19 Date Particulars of Proceedings to circumvent the strictures on discovery under the ROC; and In any event, the orders sought were wide and all encompassing, and oppressive by reason of their being so. Enclosure 307 was in effect a fishing expedition and was therefore tactical in nature. In the upshot, Enclosure 307 was an abuse of the process of the High Court.

7.1.2019 The High Court allowed Enclosure 307 (“BBEA Order 2”). Aggrieved, the 2nd and 3rd Defendants filed Civil Appeal 179.

14.2.2019 BBEA Order 2 was stayed by the Court of Appeal. By which time the banks concerned had produced copies of some documents. On the first day of trial, the Plaintiff sought to admit the documents (the “Disputed Documents”) disclosed pursuant to BBEA Order 1 and BBEA Order 2 (collectively, the “BBEA Orders”) as evidence through its first witness, the then Director of Corporate Finance of the Plaintiff. The Plaintiff sought to do this without regard to the provisions of the BBEA. Pertinently, as produced before the High Court, the Disputed Documents were in 2 separate bundles and were unsorted, the said documents having merely been 20 Date Particulars of Proceedings split into 2 categories – documents purportedly obtained under BBEA Order 1 marked as Bundle C1 and documents purportedly obtained under BBEA Order 2 marked as Bundle X1. The Plaintiff did not consider the provisions of the BBEA, and the BBEA Orders, as to what documents were admissible and the requirements for proving the same. The 2nd and 3rd Defendants objected to this course of action on the basis that any attempt to introduce the Disputed Documents was necessarily circumscribed by the BBEA, the BBEA Orders having to be read in light of the provisions of the legislation.

22.2.22019 The Plaintiff filed Enclosure 395 for the Disputed Documents to be admitted and/or taken as evidence and marked as exhibits pursuant to sections 2, 3, 4, 5 and/or 6, BBEA and/or Order 92 rule 4, ROC. The Plaintiff’s basis for Enclosure 395 was as follows: The orders sought for in Enclosure 395 “are consequential and/or are a proper consequence to” Enclosure 48 and Enclosure 307; The Disputed Documents “are documents obtained pursuant to the provisions of the [BBEA]”; and The Disputed Documents “are documents which form part of the records kept by the bank of transactions relating to the bank’s business”. 21 Date Particulars of Proceedings The 2nd and 3rd Defendants opposed Enclosure 395 on the following grounds: The Disputed Documents derived from sources that were not within the definition of “banker’s book” under section 2, BBEA. For that reason, the contents of the Disputed Documents could not be said to be “entries” within the meaning of the BBEA. The broad categorisation of the Disputed Documents suggested by the 2nd and 3rd Defendants can be found in Annexure A. This is explained further in paragraph 38.2(c) below. Some of the Disputed Documents did not fall within the scope of the BBEA Orders. This is explained further in paragraph 38.3(a)(iii) below; and Critically, none of the Disputed Documents had been proven as required under the BBEA, specifically sections 4 and 5, BBEA.

15.3.2019 The High Court made an order for Enclosure 395 to be “dismissed without affecting the Plaintiff’s rights to adduce the relevant documents at the trial”. The learned Judge however arrived at legal conclusions on the nature of the documents that were admissible under the BBEA, and the mode of proof for the same. 22 Date Particulars of Proceedings The learned Judge further concluded that any of the Disputed Documents which were later found to be wrongfully disclosed viz. in the event of a successful appeal against Enclosure 307, or which could not be proved under the BBEA could nevertheless be admitted under Evidence Act 1950 (“EA”) since the Plaintiff now had possession of the same.

18.11.2019 The trial is scheduled to resume. 5 SUBMISSIONS [Appeal no: 179, 715 and 741] [17] The Defendants referred to sections 3, 4 and 5 of BBEA, and 10 argued that the framework of BBEA lies in the those key sections which set out certain conditions that must be complied with. Section 3 says that a copy of any entry in a banker’s book in all legal proceedings be received as prima facie evidence of such entry and of the matters, transactions and accounts therein 15 recorded but before admitting of a copy of a banker’s book entry into evidence, a bank officer must prove by either oral or affidavit evidence that the book was, at the time of the making of the entry, one of the ordinary books of the bank; the entry was made in the usual and ordinary course of business and the book is in the 20 custody or control of the bank. 23 [18] First thing to be observed is the definition of banker’s book itself 5 which in section 2, banker’s book includes any ledger, day book, cash book, account book and any other book used in the ordinary business of a bank. Section 5 of BBEA further requires that the person who verified the copy against the original entry to prove, by either oral or affidavit evidence, that the copy has been 10 examined with the original entry and is correct as a pre-condition to such copy being admitted as evidence. Only if these conditions are fulfilled will a copy of any entry be received as prima facie evidence. 15 [19] Section 6 of BBEA provides that in any legal proceedings to which the bank is not a party, a bank officer shall not be compellable to produce any banker’s book or to appear as a witness to prove the matters, transactions and accounts therein recorded where the contents of a banker’s book could be proven under BBEA viz 20 sections 3, 4 and 5, unless by order of a Judge made for special cause. This according to the Defendant reinforces section 130(3) EA, in so far as the underlying purpose of BBEA in concerned. i.e. to avoid the need for bankers to give formal evidence of banker’s books entries. 25 [20] Section 7 of BBEA has to be understood in the context of section 130(3) EA and section 6 of BBEA, as well as provisions of law concerning banking secrecy. It was submitted that this provision enables a party to any legal proceedings to apply ex parte for an 30 24 order to inspect and take copies of any entries in a banker’s book 5 for any of the purposes of such proceedings. Though it would appear at first blush that section 7 BBEA empowers a court to enable discovery, closer consideration of the provision in the context of the statute as a whole would show that this is not the case. The Defendant’s case is that the BBEA cannot be invoked 10 for the purpose of seeking discovery. [21] The underlying purpose of banker’s books legislation is to preclude the need for a banker to attend legal proceedings to lead formal evidence on banker’s books entries. A banker is obliged by 15 law to maintain the secrecy of a customer’s banking information save unless otherwise exempted from doing so. It is for that reason that when an order is made under BBEA, it is subject to an implied undertaking that copies of entries in banker’s books provided under the authority of an order of court are not to be 20 used for collateral purpose. Any documents obtained under the cover of BBEA could be only be used for the admission of banking documentary evidence into evidence. [22] There is a specific legal framework for discovery in Malaysia, 25 specifically Order 24 ROC. Prior to the coming into force of the ROC, the Rules of the High Court 1980 (“RHC”) similarly provided for discovery (though non-party discovery was dealt with through the application of common law principles).It is in this context that consideration should be given to the existence of a specific legal 30 25 framework for discovery in Malaysia, previously under the RHC, 5 and now, the ROC. The ROC is an exhaustive code providing no room for the exercise of any common law principles of discovery. It was submitted that this carries with the following legal implications. If a party is seeking discovery against a bank as a non-party, that party must apply for discovery under Order 24 rule 10 7A(2) ROC. If this is prior to the commencement of action, then the application is moved under Order 24 rule 7A(1) ROC. [23] As it is intended to facilitate the proving of copies of entries in banker’s books, the BBEA can only be invoked in the following 15 circumstances, the right to discovery being an essential pre-requisite to the making of an order: a. Where Party A has obtained discovery against Party B to the legal proceedings, and thereby determines that a bank has 20 entries in banker’s books that are relevant to the legal proceedings and, Party B is not in possession of a copy of said entry. In such an instance, Party A can seek inspection under section 7 of BBEA and take a copy from the bank. That copy is to be admitted into evidence only upon fulfilment of 25 sections 3, 4 and 5 of BBEA as discussed above. b. Where Party A has a copy of an entry in a banker’s book but there is a dispute as to the said copy being admitted on the ground of its authenticity, then Party A is entitled to make an 30 application under section 7 of BBEA to inspect and take a 26 copy from the bank. That copy is to be admitted into evidence 5 only upon fulfilment of sections 3, 4 and 5 of BBEA as discussed above. [24] It may be that copies of documents are provided by a bank under the authority of a BBEA order, and such documents cannot be 10 proven under section 4 and 5 of BBEA. In such a situation, by reason of banking secrecy and by reason of the implied undertaking, the party who procured said documents would not be permitted to adduce the same pursuant to EA. If the documents are not copies of entries in banker’s books within the definition of 15 a “banker’s book” under section 2 of BBEA, then the said party should not have those documents at all. The bank was not permitted to release those documents in the first place as no court could have validly made such an order under the BBEA in any event. Any other documents would have been given by the bank 20 only for the purposes of BBEA and nothing more. Attempting to rely on these documents under the EA would be in breach of the implied undertaking, and an abuse of process of BBEA procedure. A court is not permitted to countenance such breaches of the law. 25 [25] On the other hand and in reply, the Plaintiff submitted that argument that the legislative intent of BBEA, the provisions of the Act do not provide a party with an independent right of discovery is unsustainable. Plaintiff contended that the provisions of BBEA only provides a mechanism in which a document already obtained 30 27

Discovery against other person (O. 24 r. 7A)

(a) in the case of an originating summons under paragraph

(b) 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 10 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.

(a) be made conditional on the applicant giving security for 5 the costs of the person against whom it is made or on such other terms, if any, as the Court thinks just; and

(b) require the person against whom the order is made to make an affidavit stating whether the documents specified 10 or described in the order are, or at any time have been, in his possession, custody or power and, if not then in his possession, custody or power, when he parted with them and what has become of them. 15

(a) in the case of an originating summons under paragraph 20

(b) in the case of a notice of application under paragraph

(i) to enable bankers' books to be inspected despite the duty of confidentiality;

(a) letters, figures, marks, symbols, signals, signs, or other forms of expression, description, or representation 15 whatsoever;

(b) any visual recording (whether of still or moving images);

(c) any sound recording, or any electronic magnetic, 20 mechanical or other recording whatsoever and howsoever made, or any sounds, electronic impulses, or other data whatsoever;

(d) a recording, or transmission, over a distance of any 25 matter by any, or any combination, of the means mentioned in paragraph (a), (b), or (c), or by more than one of the means mentioned in paragraphs (a), (b), (c) and (d), intended to be used or which may be used for the purpose of expressing, describing, or howsoever 30 representing, that matter” 50 [68] This according to the Defendants does not however mean that a 5 court is at liberty to include any such document under the BBEA. The document, even if it is a document or statement within the meaning of section 90A of EA, must be a copy of an entry in a banker’s book i.e. the mode utilised by a bank to permanently record transactions relating to the business of that institution. As 10 wide as that scope may seem at first glance, “document” must be construed ejusdem generis with “ledger, day book, cash book and account book”. Thus, in Williams v Williams, Tucker v Williams [1987] 3 All ER 257, Sir John Donaldson MR said at p.261: 15 “Putting the matter in another way, ‘other records’ in the new definition has, I think, to be construed ejusdem generis with ‘ledgers, day books, cash books [and] account books’ and unsorted bundles of cheques and paying-in slips are not ‘other 20 records’ within the meaning of the Act.” [69] Similarly, in Re Howglen [2001] 2 BCLC 695, Pumfrey J said, at p.701: 25 “I take this case as clear authority that the words ‘other records’ have to be construed to cover records of the same kind as ledgers, day books, cash books and account books, which are, as is well known, the means by which a bank records day-to-day financial transactions. The words are not, it 30 seems to me, apt to cover records kept by the bank of 51 conversations between employees of the bank, however 5 senior, and customers. The records in the present case are essentially the records of meetings, and it seems to me that those sort of notes of meetings cannot be properly regarded as entries in books kept by the bank for the purpose of its ordinary business within the definition of s 9(2).” 10 [70] Where the permanent record is a computer document, the admitting of that document under the BBEA must not only fulfil the requirements of section 3, 4 and 5, of the BBEA, it must also comply with the certification requirements under section 90A of 15 EA. This approach would negate any inconsistency between the BBEA and the EA. Any other reading would not only lead to a conflict between the two statutes, but also be repugnant to the BBEA and render it redundant. It must be borne in mind that a court is not at liberty to ignore the language of the BBEA, or its 20 underlying purpose, to provide an updated interpretation of the definition of “banker’s book”. Such an exercise is permitted only to the extent the law allows. As explained above, section 90A of EA allows for that updating within the scope permitted by that provision. 25 [71] Given this context, the Malaysian courts must be cautious when applying the definition to current banking practice. The subjective views of a judge on what ought to be included as a “banker’s book” cannot prevail over the constraints placed by legislature on 30 52 the exercise of power, and settled principles of statutory 5 interpretation. The Malaysian courts have less latitude in that regard, and thus less able to approach the definition of “banker’s book” with the latitude of their English counterparts. For instance, in Barker v Wilson [1980] 2 All ER 81, the permanent record was kept by way of microfilm. Bridge LJ said, at p.83: 10 “The Bankers’ Books Evidence Act 1879 was enacted with the practice of bankers in 1879 in mind. It must be construed in 1980 in relation to the practice of bankers as we now understand it. So construing the definition of ‘bankers’ books’ 15 and the phrase ‘an entry in a banker’s book’, it seems to me that clearly both phrases are apt to include any form of permanent record kept by the bank of transactions relating to the bank’s business, made by any of the methods which modern technology makes available, including, in particular, 20 microfilm.” [72] While the rationale of the approach adopted by Bridge LJ is noteworthy, it cannot be adopted wholesale in the Malaysian context for the reasons set out above. Pertinently, the definition of 25 “banker’s books” under the English BBEA was expanded by the 1982 amendment. It raises the question of why there was a need to do so given the judicial pronouncements that preceded it. Be that as it may, the point made above concerning the need to adhere to the definition in the context of the statute as a whole 30 53 was underscored in R v Dadson (1983) 147 JP 509. Heilbron J 5 said: “Whilst the Bankers’ Books Evidence Act enables evidence to be admissible in a court by the production of copies, rather than the originals, it does so provided only that the book, one 10 of the types referred to in that section, is one of the ordinary books of the bank, and the entry was made in the ordinary course of banking business. It is therefore manifest that these letters could not be brought within the clearly expressed language of that Act. They are not “bankers’ books” and in the 15 judgment of this Court they should not have been admitted. Furthermore, the emphatic references to those letters in the summing-up, were in effect an invitation to the jury, if they were so minded, to rely upon them as material evidence to prove that the appellant knew that he was not allowed to have 20 an overdraft, and so to infer that he falsely and dishonestly represented that he was authorized and entitled to use the cheque card when issuing the various cheques and in our judgment they were misdirection’s, and the verdicts cannot stand.” 25 [73] The Singapore courts appeared to have adopted a broader understanding of the definition under its banker’s books framework. Care has to be exercised, however, in applying decisions from that jurisdiction, notably Wee Soon Kim Anthony 30 54 v UBS AG [2003] 2 SLR(R) 91, for the reasons set out above. 5 Furthermore, the Singapore definition of “banker’s books” includes “ledgers, day books, cash books, account books and all other books used in the ordinary business of the bank”. This definition is similar to that in section 2 of the BBEA save that the latter states “any other book” instead of “all other books”. The post- 10 amendment definition in the English BBEA substituted, inter alia, “all other books” with “all other records”. This distinction was acknowledged by Chao Hick Tin JA, in paragraph 31. [74] Notwithstanding, the court applied a broader definition to include 15 correspondence between the bank in question and the defendant (who had previously been ordered to grant discovery of the same documents but had failed to do so). Chao Hick Tin JA justified this on the basis that correspondence which recorded a transaction between a bank and a customer formed an integral part of the 20 account of that customer. He said, at pp.100-101: “[36] In any event, we are of the opinion that in interpreting the expression “other books” in the definition we should take a purposive approach and recognise the changes effected in the 25 practices of bankers. Any form of permanent record maintained by a bank in relation to the transactions of a customer should be viewed as falling within the scope of that expression. Correspondence between a bank and a customer which records a transaction clearly formed an integral part of 30 55 the account of that customer and there is no good reason why 5 it should be excluded. Otherwise, the object behind the enactment of Part IV of the Act would be undermined and banks would be troubled to have to come to court with the documents, including correspondence, relating to the account(s) of each customer. Thus, we agree with the 10 approach taken in Williams v Williams. However, such records should be contrasted with notes taken by bank officers of meetings with customers and such notes cannot be regarded as entries in books kept by the bank for the purpose of its ordinary business within the meaning of “bankers’ books” (Re 15 Howglen Ltd [2001] 1 All ER 376).” [75] Be that as it may in the presence case, it was contended that the Plaintiff did not identify any of the documents sought as being “banker’s book” within the meaning of section 2 of BBEA and 20 neither the learned Judge had specifically identified which of the Disputed Documents were or were not “banker’s books” (Disputed Documents referred to documents purportedly obtained under BBEA Order 1 and documents purportedly obtained under BBEA Order 2). In our view this would prejudice the Defendants and it is 25 fatal. [76] The words “a copy of any entry in a banker’s book” are found in sections 3, 4 and 5 of BBEA which is very significant. The word “entry” is not given a specific definition in BBEA. However, the 30 56 wording of section 3 suggests that an “entry” in a banker’s book 5 refers to “the matters, transactions and accounts therein recorded” in the banker’s book. In Williams v Williams, Tucker v Williams [1987] 3 All ER 257, Sir John Donaldson MR said, at p.259: 10 “The first Bankers’ Books Evidence Act was enacted in 1876. Its purpose was set out in the preamble: ‘WHEREAS serious inconvenience has been occasioned to bankers and also to the public by reason of the ledgers and 15 other account books having been removed from the banks for the purpose of being produced in legal proceedings: And whereas it is expedient to facilitate the proof of the transactions recorded in such ledgers and account books: Be it therefore enacted [etc].’ 20 The way this was achieved was by providing that entries in the bank’s books should be admissible as prima facie evidence of the ‘matters, transactions, and accounts recorded therein’, subject to verification by the bank’s officers and that copies of 25 all such entries should be admissible in evidence without production of the originals.” [77] On the relevancy of entries in a book account, we noted section 34 of EA provides that entries in books of accounts regularly kept 30 in the course of business are relevant whenever they refer to a 57 matter in which the court has to inquire, but the entries shall not 5 alone be sufficient evidence to charge any person with liability. This section contemplates two conditions of admissibility. Lord President, Salleh Abas (as he was then) in Sim Siok Eng & Anor v Poh Hua Transport & Contractor Sdn Bhd [1980] 2 MLJ 72, 73 (FC) held as follows - 10 “The fundamental principle underlying this section is a compromise between total rejection and partial acceptance of a doctrine that ‘a man cannot make evidence for himself’. Thus maxim springs from the desire to safeguard the law 15 against false evidence being used, but the safeguard may be too extreme because unless modified it prevents a party from using entries recorded by itself in a subsequent trial. Thus a compromise is reached between the necessity of evidence and circumstantial guarantee of its truthfullness. Such 20 guarantees are reflected in the following two conditions of admissibility enacted in section 34 i.e,

(i) Discovery is defined as “Compulsory disclosure, at a party’s request, of information that relates to the litigation”; and

Order 24 rule 3(1) ROC empowers the Court to order any party to the proceedings to give discovery by making and 25 serving on any other party a list of the documents which are or have been in his possession, custody or power (the “List”). The form of the List shall be in Form 38.

Order 24 rule 7(1) ROC provides that any party to the 30 proceedings may apply to Court for an order of discovery 66 against any other party.

As against a non-party: a. Order 24 rule 7A(1) ROC provides that an application for discovery could be made before the commencement of 10 proceedings by way of an originating summons; and b. Order 24 rule 7A(2) ROC provides that an application for discovery could be made after the commencement of proceedings by way of a notice of application. 15 Inspection

Order 24 rule 9 ROC provides that a party who is agreeable to disclose any documents in the List served on him shall 20 allow for the inspection and taking of copies of the said documents by serving a notice in Form 40.

Order 24 rule 10(1) ROC provides that a party who had made reference to any documents in his pleadings or affidavits 25 shall allow for the inspection and taking of copies of the said documents upon receiving a request in Form 41.

Order 24 rule 11(1) ROC empowers the Court to make an order in Form 43 for the inspection and taking of copies of 30 documents in any of the following event: 67 a. Where a party fails to offer inspection under Order 24 5 rule 9 or rule 10 ROC; b. Where a party objects to the production of any document for inspection; or 10 c. Where a party offers inspection at an unreasonable time or place. [92] In this context, we referred to the Hong Kong Court of Appeal in Shun Kai Finance Co Ltd v Japan Leasing HK Ltd (No 2) 15 [2001] 1 HKC 636. Citing with approval the decision of Hobhouse J in Eagle Star Insurance Co Ltd v Arab Bank plc (English High Court, 25 February 1991, unreported), Le Pichon JA stated obiter, at p.641: 20 “Hobhouse J further pointed out that although sometimes referred to as an exercise of discovery and r10 (similar to Order 24 rule 10, ROC) appears in the Order entitled ‘Discovery and Inspection of Documents’ — 25 … it is not, in essence, a discovery exercise. Its history is different, its function is different.” [93] Coming back to BBEA, prior decisions of the High Court have made it clear that the BBEA is not intended to give power of 30 discovery to the High Court. Thus, in Goh Hooi Yin v Lim Teong 68 Ghee & Ors [1977] 2 MLJ 26, citing Arnott with approval, 5 Arulanandom J said, at p.28: “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 10 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. 15 In Parnell (formerly O’Shea) v Wood & Anor (1892) 17 PD p 137, the Court of Appeal in upholding the trial judge’s refusal to allow inspection of pass books of a party had this said by Kay L.J.: 20 “It is necessary to proceed with caution in acting on section 7 of the Bankers' Books Evidence Act, as was observed by Bowen L.J., in Arnott v. Hayes. According to the appellants, if a person engaged in litigation has a banking account, his adversary is entitled to inspect that 25 account to see whether he can find anything that will help him. The Bankers’ Books Evidence Act has nothing to do with any question of the kind. Section 7 of the Act gives a certain power of inspecting bankers’ books if the judge thinks fit to order it, but to suppose that it meant to 30 69 authorize a roving inspection of them is absurd. The main 5 object of the Act was this: before the Act the only way of making bankers’ books evidence was to have them produced at the trial, and to examine the clerk who kept them. Bowen L.J., in Arnott v. Hayes, has pointed out the course of proceeding. The books which were wanted 10 were generally books which were in daily use, and the statute was mainly passed for the purpose of relieving bankers from this inconvenience by allowing them to make copies and verify them. The Act does indeed provide by section 7 for allowing inspection where a judge 15 thinks proper to order it, but a case must be made shewing that such inspection is proper. I never saw a more extraordinary application than the present. Pass books are produced which are no doubt copied from the banker's books, but the party producing them seals up 20 parts which she swears not to be relevant. According to the law of discovery, the opposite party has no right to look at the parts so sealed up. The present application is an attempt to get behind the affidavit of the party producing the documents. There is nothing to shew that 25 the affidavit is untrue, but the applicants wish to evade it by obtaining inspection of the books from which the pass books were made out.” 30 70 [94] Similarly, in Pean Kar Fu v Malayan Banking Bhd (Toh Boon 5 Pin, Intervener) [2004] 5 MLJ 519, Jeffrey Tan J (as he then was) said, at p.525: “9 … As said, s 7 is to enable parties, who would otherwise not be able to do so, to inspect the books of the bank and take 10 copies of them. Section 7 is to assist discovery. Section 7 has not altered the principles of law or practice with regard to discovery which is the pre-trial device to obtain facts and information about the case from the other party in order to assist the party’s preparation for trial. Section 7 empowers the 15 court to order the inspection and the taking of copies of entries in a banker’s book, in the pre-trial discovery process. But that is not to say that s 7 has brought about a right to bring a separate action against a bank to reveal its book entries, and or to take the discovery process away from the court before 20 whom the legal proceeding is being held or taken. Section 7 has not provided an alternative method of discovery. Discovery remains in the domain of the trial court. This application for a s 7 order should have been made to the trial court.” 25 [95] The learned judge in this case concluded that section 7 of BBEA provided the Plaintiff a free-standing right to discovery. He further concluded that “This construction is supported by the plain words of section 7, which in no uncertain terms provide for the right to 30 71 inspect banker’s books and to take copies of entries in such 5 books”. In our view, the submission of the Defendant is correct that the strictly literal interpretation of section 7 of BBEA by the learned judge was erroneous for it having the effect of disregarding the underlying legislative intent of the BBEA and rendering the other provisions in the BBEA repugnant. It also 10 ignored other relevant legislation, in particular the FSA. [96] As alluded to earlier the duty of banking secrecy is statutorily imposed by 133(1) of FSA. Section 134 read with Schedule 11, FSA however provides for certain permissible disclosures, 15 including “compliance with a court order made by a court not lower than a Sessions Court”. An order made under the BBEA would, as a matter of course, be such a court order. In Tournier v National Provincial and Union Bank of England [1924] 1 KB 461, Bankes LJ said, at pp.472-473: 20 “In my opinion it is necessary in a case like the present to direct the jury what are the limits, and what are the qualifications of the contractual duty of secrecy implied in the relation of banker and customer. There appears to be no 25 authority on the point. On principle I think that the qualifications can be classified under four heads: (a) Where disclosure is under compulsion by law; (b) where there is a duty to the public to disclose; (c) where the interests of the bank require disclosure; (d) where the disclosure is made by 30 72 the express or implied consent of the customer. An instance of 5 the first class is the duty to obey an order under the Bankers’ Books Evidence Act.” [97] It is trite that the Court ought to adopt an interpretation that avoids absurdity and injustice. In Panglima Tentera Laut Diraja 10 Malaysia & Ors v Simathari a/l Somenaidu [2017] 2 MLJ 14, Zaharah Ibrahim FCJ (as she then was) said, at pp.28-29: “[58] To interpret s 217(2) of the Armed Forces Act in a strictly literal manner in the circumstances of this case 15 would certainly lead to the absurd consequence that a Naval serviceman, for want of regulations made under s 16 of the Ordinance or s 36 of the Armed Forces Act, could not, at the material time, be terminated from service except in pursuance of a sentence by a court-martial. That could not 20 have been intended by Parliament. [59] How then should the court interpret s 217(2) of the Armed Forces Act? 25 [60] The following words of Donaldson J in Corocraft Ltd and another v Pan American Airways Inc [1968] 2 All ER 1059 are quoted in Bennion on Statutory Interpretation, (5th Ed) at p 502: 30 The duty of the courts is to ascertain and give effect to the 73 will of Parliament as expressed in its enactments. In the 5 performance of this duty the judges do not act as computers into which are fed the statute and the rules for the construction of statutes and from whom issues forth the mathematically correct answer. The interpretation of statutes is a craft as much as a 10 science and the judges, as craftsmen, select and apply the appropriate rules as the tools of their trade. They are not legislators, but finishers, refiners and polishers of legislation which comes to them in a state requiring varying degrees of further processing. 15 [61] Romer LJ in Swan v Pure Ice Company, Limited [1935] 2 KB 265 quoted the following passage from Maxwell on the Interpretation of Statutes, (7th Ed), p 217: 20 They (ie, the authorities) would seem rather to establish that the judicial interpreter may deal with careless and inaccurate words and phrases in the same spirit as a critic deals with an obscure or corrupt text, when satisfied, on solid grounds, from the context or history of the 25 enactment, or from the injustice, inconvenience, or absurdity of the consequences to which it would lead, that the language thus treated does not really express the intention and that his amendment probably does. 30 [62] In Tetuan Kumar Jaspal Quah & Aishah v Far Legion 74 Sdn Bhd & Ors [2007] 3 MLJ 305; [2007] 3 CLJ 230, 5 Suriyadi Halim Omar JCA (as he then was), said: ... Maxwell in Interpretation of Statutes had occasion to quote the following passage from Nokes v Doncaster Amalgamated Collieries Ltd [1940] AC 1014 at p 1022: 10 … Judges are not called upon to apply their opinions of sound policy so as to modify the plain meaning of statutory words but where, in construing general words the meaning of which is not entirely plain there are 15 adequate reasons for doubting whether the Legislature could have been intending so wide an interpretation as would disregard fundamental principles, then we may be justified in adopting a narrower construction. At the same time, if the choice is between two interpretations the 20 narrower of which would fail to achieve the manifest purpose of the legislation we should avoid a construction which would reduce the legislation to futility and should rather accept the bolder construction based on the view that Parliament would legislate only for the purpose of 25 bringing about an effective result. (Emphasis added.) [63] We agree with the minority in the Court of Appeal that in the circumstances of this case, the court must, as exhorted by s 17A of Act 388, give to s 217(2) of the Armed Forces 30 Act a construction that would promote the underlying 75 purpose of that subsection: which is clearly to preserve the 5 subsidiary legislation in force and applying to Navy servicemen at the time of coming into force of that subsection until such time as the subsidiary legislation is replaced under the Armed Forces Act.” 10 [See also: Kesatuan Pekerja-Pekerja Bukan Eksekutif Maybank Bhd v Kesatuan Kebangsaan Pekerja-Pekerja Bank & Anor [2018] 2 MLJ 590], [98] The legislative purpose of the BBEA is “to make the proof at trial 15 of banking transactions easier”. The issue is whether BBEA has an impact on the law and practice of disclosure, by enabling orders to be made for pre-trial disclosure of documentary evidence in the hands of non-parties (i.e. banks) relating to accounts held by the parties to the litigation and indeed 20 sometimes by non-parties as well. We reiterated our stand that section 7 of BBEA has to be understood in the context of its underlying legislative intention, and section 130(3) EA, as well as a banker’s statutory duty to secrecy under the FSA. The BBEA, EA and the FSA ought to be considered as being in pari materia 25 as submitted by the Defendants. [99] The meaning of the phrase “in pari materia” was extensively discussed in Shah & Co. v State of Maharashtra 1967 AIR SC 1877, where Vaidialingam J said, at pp.1882-1883: 30 76 “(21) We have been referred to certain passages in certain text 5 books, as well as in certain decisions, to show, under what circumstances, statutes can be considered to be in pari materia, and the nature of the construction to be placed on such statutes. Sutherland, in “Statutory Construction”, 3rd Edition, Vol. 2, at p. 535, states: 10 “Statutes are considered to be in pari materia – to pertain to the same subject matter – when they relate to the same person or thing, or to the same class of persons or things, or have the same purpose or object.” 15 The learned author, further states, at p. 537: “To be in pari materia, statutes need not have been enacted simultaneously or refer to one another.” 20 Again, at p. 544, it is stated: “When the legislature enacts a provision, it has before it all the other provisions relating to the same subject matter which it enacts at that time, whether in the same statute or in a 25 separate act. It is evident that it has in mind the provisions of a prior act to which it refers, whether it phrases the later act as an amendment or an independent act. Experience indicates that a legislature does not deliberately enact inconsistent provisions when it is cognizant of them both, without expressly 30 77 recognizing the inconsistency.” 5 The canon of construction, under these circumstances, is stated by the author, at p. 531: “Prior statutes relating to the same subject matter are to 10 be compared with the new provision; and if possible by reasonable construction, both are to be so construed that effect is given to every provision of each. Statutes in pari materia although in apparent conflict, are so far as reasonably possible construed to be in harmony with 15 each other.” In Craies, on ‘Statute Law’, 6th Edition, at p. 133, it is stated: “Where Acts of Parliament are in pari materia, that is to say, 20 are so far related as to form a system or code, of legislation, the rule as laid down by the twelve, judges in Palmer’s Case [(1785) 1 Leach C.C. 4th ed., 355], is that such Acts ‘are to be taken together as forming one system, and as interpreting and enforcing each other’. In the American case of United Society 25 v. Eagle Bank [(1829) 7 Conn. 457, 470], Hosmer J. said: ‘Statutes are in pari materia which relate to the same person or thing or to the same class of persons or things…’” In Maxwell on ‘The Interpretation of Statutes’, 11th Edition, at 30 p. 153, the principle is stated thus: 78 “An author must be supposed to be consistent with himself, 5 and, therefore, if in one place he has expressed his mind clearly, it ought to be presumed that he is still of the same mind in another place, unless it clearly appears that he has changed it. In this respect, the work of the legislature is treated in the same manner as that of any other author, and the 10 language of every enactment must be construed as far as possible in accordance with the terms of every other statute which it does not in express terms modify or repeal… It cannot be assumed that Parliament has given with one hand what it has taken away with the other.” 15 [See also: AG v HRH Prince of Ernest Augustus of Hanover [1957] 1 All ER 49, Bell ExpressVu Limited Partnership v Rex [2002] 2 R.C.S. 559, Board of Trustees of the Port of Bombay v M/s. Sriyanesh 20 Knitters AIR 1999 SC 2947] CONCLUSION [100] Having regard to the matters stated above, our conclusion are as 25 follows-Enclosure 307 We agreed with the Defendants that the BBEA was created to 30 79 merely facilitate the proving of banking transactions through the 5 admission of bankers’ evidence. It was, not intended to serve as an alternative means of discovery against bankers. The ordinary principles of discovery would not be applicable in an application under section 7 of BBEA. This is underscored by the fact that there is a specific legal framework for discovery in Malaysia, 10 specifically Order 24 of the ROC. Respectfully, the foregoing conclusions of the learned Judge were therefore erroneous. The Plaintiff ought to have first establish its right to discovery under the ROC. We also agreed with the Defendants that the learned Judge failed to specifically identify which of the Disputed 15 Documents were or were not “banker’s books” (Disputed Documents referred to documents purportedly obtained under BBEA Order 1 and documents purportedly obtained under BBEA Order 2. Documents such as company documents, memorandum or resolution for opening of bank account, memorandum or 20 resolution for change of authorised signatory) are not “banker’s books” as they do not permanently record transactions in the ordinary business of a bank. Miscellaneous internal documents used by the bank (such as 25 specimen signature form, remittance application form, account opening application form, correspondence and documents evidencing the closing of account) are not “banker’s books” as they do not permanently record transactions in the ordinary business of a bank; 30 80 Cheques and paying-in slips (such as cheque deposit receipts, 5 transaction slips are not “banker’s books” as they do not permanently record transactions in the ordinary business of a bank. They are either instructions (e.g. cheques) or documents evidencing the said instructions (paying-in slips) prepared merely for the purposes of customers’ convenience. 10 Bank statements are not “banker’s books” as they are created not for the purpose of permanently recording transactions in the ordinary business of a bank, but for customer’s reference only. 15 Enclosure 395 In respect of BBEA Order 1: The Plaintiff would not be permitted to adduce under the EA 20 documents that were improperly disclosed. Those disputed documents should be excluded for being outside the scope of the BBEA for not being copies of entries in banker’s books within the meaning of section 2. The Plaintiff was required to prove and verify any of the Disputed Documents that fell within the 25 permissible scope of the BBEA Orders under sections 4 and 5 of BBEA. Failing that, the Plaintiff was not permitted to rely on the Disputed Documents on the strength of the EA. In respect of BBEA Order 2: 30 81 The Plaintiff was required to prove and verify any of the Disputed 5 Documents that fell within the permissible scope of the BBEA Orders under sections 4 and 5 of BBEA. Failing that, the Plaintiff was not permitted to rely on the Disputed Documents on the strength of the EA. 10 [101] The learned Judge ought to have dismissed Enclosure 307 and BBEA Order 2 ought not have been made. Enclosure 395 ought to have been treated only as applying to copies of documents produced under BBEA Order 1, and, to that end all the documents produced under BBEA Order 1 ought to have been determined as 15 inadmissible under the BBEA on ground that those documents were not admissible under the EA. [102] In the result, our unanimous decison are as follows - 20 1. The Second and Third Defendants’ appeals in Civil Appeal 179 is allowed with an order that Enclosure 307 be dismissed and BBEA Order 2 be set aside;

The Second and Third Defendants’ appeals in Civil Appeal 25 715 is allowed with an order that the documents produced under BBEA Order 1 are inadmissible, and that all copies of those documents be expunged from the court file; 30 82

The Plaintiff Civil Appeal 741 is dismissed.

All Costs will be Costs in the cause. Dated this 6th Mac, 2020 10 Sgd KAMALUDIN MD. SAID JUDGE 15 COURT OF APPEAL MALAYSIA PUTRAJAYA PARTIES 20

Malik Imtiaz Sarwar, R. Jayasingam. Lim Yvonne, Ng Keng Yang and Khoo Suk Chyi for the Appellants (Messrs BH Lawrence & Co.,) 25

S.Sivaneindiren, Peter Skelchy and Joycelyn Teoh for the Respondent (Messrs Cheah Teh & Su)