Goh Poh Yoke v Ambank (M) Berhad (WA-22NCC-121-03/2022)

AMBANK (M) BERHAD

AMINVESTMENT BANK BERHAD (COMPANY NO.: 23742-V) DEFENDANTS JUDGMENT A. Introduction [1] This judgment relates to the following directions given by this court, in the course of case management: a. The inadmissibility of the expert report filed by the plaintiff; and b. The filing of witness statements or proposed questions for witnesses, for the purpose of trial. [2] The reasons for the directions given by the court are set out below. B. Background Facts [3] The claim against the defendants arises under a service agreement dated 2 November 2023, entered into between the plaintiff and the 1st defendant

Such persons are called (emphasis added) [15] The reason behind section 45 of the EA is explained in SC Sarkar, Law of Evidence (2nd Edition, Lexis Nexis), Volume 2. The learned author explained at page 1601 that: Formation of opinion, on the set of facts placed before it, is the exclusive function and prerogative of the Court. Generally, opinions or beliefs, of a third person, are inadmissible in evidence. However, there may be certain issues before the Court, which need expertise, in relation to science, art etc., to form an opinion, in relation to the subject matter of the suit. These are outside the legal and judicial fields. A Judge is not supposed to possess the expert knowledge in such fields. It is for this reason, that Law of Evidence provides for expert opinion, to be adduced as evidence, subject to certain conditions, in the fields like foreign law, science, art, or identity of handwriting (emphasis added) [16] Thus, although opinions in general are inadmissible, by section 45 of the EA, the opinion of an expert is admissible, if it is an opinion on the point of foreign law or science or art, or on the genuineness of handwriting or finger impressions. [17] In this case, the expert report is that of the Chief Legal Officer of Crow by setting out the context for which he is providing his opinion: In this report, I will provide my professional opinion on the quantum of damages that the Plaintiff should be entitled to claim from the Defendants in this dispute as a result of the wrongful termination of her engagement as remisier by the [18] The plaintiff argued that the content of the Report falls within the ambit of an opinion on under section 45(1) of the EA. [19] I am unable to agree, as the content of the Report shows otherwise. The Report addresses the following issues. a. The status of the plaintiff: CMY opined that the plaintiff was not an employee of the 1st defendant. He reached this conclusion by reviewing the Rules of Bursa Malaysia Securities, the Service Agreement and other documents such as internal emails, commission statements and payslips. He cited case laws to support his findings. b. Whether the plaintiff is entitled to prayer (a) of the statement of claim, which is an order for the defendants to provide an account of all monies deposited and/or placed by the plaintiff with the defendants as security deposit: CMY conducted a review of the Service Agreement and Bursa Participating that the plaintiff is entitled to access a record of the statement of accounts of the security deposit and receive a refund of the deposit. c. Whether the defendants had wrongfully retained the CMY concluded that the clients and portfolio were wrongfully retained by the defendants, without the prior knowledge or consent of the plaintiff or the clients. He reached this conclusion by assessing internal memorandums, internal processes of the defendants and correspondences between the plaintiff and her clients. d. Whether the plaintiff suffered a loss of reputation: CMY answered this question in the affirmative, basing his policy document, which he claims would require the financial institution that may wish to engage the plaintiff. He claimed that this would preclude the plaintiff from being engaged by financial institutions. e. The loss of future earnings: CMY calculated the the alternative, at RM 4,930,000. He assessed damages due to the plaintiff by considering the principle of law on assessment of damages, and citing case laws to support his assessment. His calculation of damages is based on the computation used in the case law he cited. [20] It is clear from the content of the Report that CMY is not providing opinions on a point of foreign law, science or art, as claimed by the plaintiff. Instead, the Report covers legal assessments of documents before the court. It is not the role of CMY to make these assessments on the pretext of being an expert under section 45(1) of the EA. These assessments will be carried out by the court, once it has considered all evidence before it. [21] In MSM Malaysia Holdings Bhd & Ors v Transnational Insurance Brokers (M) Sdn Bhd [2022] 10 MLJ 923, the High Court, citing Koh Han Ban v Impower Sdn Bhd & Anor v Ricaharad Tseng [2003] MLJU 187 and Liberty Insurance Berhad v Marrison Anak Sidai & Anor [2018] MLJU 1267 held that the power to interpret legal documents lies in the court. [22] In Koh Han Ban (supra), Ramly Ali J (as His Lordship then was) rejected the witness statement of an advocate and solicitor, which contains the interpretation of the terms of an agreement before the court. Referring to the proposed witness, the learned judge held as follows: is trying to interprete and construe the contractual terms and conditions of the said SPA. In this context, I am in full agreement with the counsel for the 2nd Defendant that the construction of clauses under a contract or an agreement is a matter purely and solely to be decided by the Court assisted by counsels by way of submissions. It is a question of law. An opinion of law is not admissible (emphasis added) [23] I am further guided by Tropical Network Sdn Bhd v Geo-Chem Inspection (M) Sdn Bhd (FIMA Bulking Services Bhd, third party) [2011] 8 MLJ 359, where the High Court in dealing with an attempt to lead expert evidence on the Malaysian Palm Oil Board Rules, held as follows: [37] The issues at hand do not require special skills. The issues are (i) whether under the MPOB Rules there is a duty on the defendant to seal the inlet valve; (ii) whether the failure of the defendant to seal the inlet valve is a breach of contract or negligence. It is a question of mixed law and fact well within the purview of the court, which do not require expert evidence. Furthermore, DW6 had not shown that he has the academic qualification or the necessary experience to be an expert on the interpretation of the MPOB Rules (emphasis added) [24] Similarly, in this case, the Report involves the interpretation of regulations such as the Rules of Bursa Malaysia Securities, Bursa Participating Directives and Guidance and Bank Negara Employee Screening policy document. The interpretation of laws and regulations and the determination of whether they apply to the facts of the case are within the purview of the court. Further, as these regulations are issued under Malaysian laws, evidence of an expert under section 45(1) of the EA would not be required. [25] For the reasons and based on the considerations as set out, I ruled the Report to be inadmissible, and would not be considered by the court in the trial of this matter. [26] I must also add that order 34 rule 2(2) of the ROC empowers the court to give orders and directions in respect of witnesses in proceedings, including expert witnesses. As such, it is well within the purview of the court to provide directions to the parties on the Report, including directions on the admissibility of the Report. Directions on witness statements [27] direction for witness statements or questions for witnesses, to be filed by 12 June 2023. I also notified parties that I will assess the relevance of the witnesses, based on the witness statements filed. [28] The parties had filed their respective lists of witnesses. The plaintiff initially listed 13 witnesses. All witnesses are subpoenaed witnesses. They include the following: a. A former officer of AmSecurities Sdn Bhd and the 2nd defendant who will be testifying on the terms of the Service Agreement. b. The Senior Vice Presidents of AmSecurities Sdn Bhd. One proposed witness arranged the transfer Mahkamah : As for the list of witnesses, all 13 of P's from AmSecurities Sdn Bhd to the 2nd defendant, and the other has knowledge of the work performance. c. Four clients of the plaintiff. d. Other former exempt personnel of the 1st and 2nd defendants. e. The Head of Retail Broking of RHB Investment Bank, who will be testifying on the application of Bank Negara Employee Screening policy document. [29] The defendants listed two witnesses, the Head of Retail Business and the Head of Human Resources Shared Services and Industrial Relations of the 1st defendant. [30] expressed my concerns during a case management on 1 June 2023. The following was exchanged during the case management conducted via e-review: witnesses appear to be subpeonaed witnesses. Will all of them be called? Mahkamah : I do not believe you require all 13 witnesses for a commercial trial of this nature with heavy reliance on Peguam : In respect of the subpoena witnesses of intended reasons for calling the same. We have similar concerns on their relevancy and we will be reserving our Peguam : My lady, I have tried to reduce the difficulty in this case is that the reality of this matter is very different from what is stated in many of the documents. For example, one of the key issues is whether the Plaintiff is an employee or an independent contractor. It is the Plaintiff's case that in reality and in fact, the Plaintiff was for all intents and purposes an compliance with BNM policy? Defendan 1, 2 the Plaintiff, we have taken note of the right to make the necessary objections. Plaintif 1 witnesses as much as possible. The independent contractor. Kien Hong required to explain an example, why is Witness 7, Ch'ng almost all documents are in Part B. As documents, and especially when Plaintif 1 be present to give oral evidence on this issue and to piece together the documentary evidence to be able to demonstrate that the Plaintiff indeed was an independent contractor. The witnesses are required to give context to the documents to show the actual contractual relations between the parties. Peguam : Yang Arif, the Plaintiff's desire to dispute Defendan 1, 2 her own employment status does not have a nexus with extrinsic parties nor Witness No. 7 and the BNM Policy. This is why we will have to reserve our rights to make the necessary objections. Ultimately this is a contractual relationship and the opinion of other witnesses cannot alter the character of Peguam : My Lady, with respect to my learned witnesses that we are concerned with but their testimony on oath as to what the contract. Plaintif 1 friend, it is not the opinion of these actually transpired. Peguam : This requires a number of witnesses to Plaintif 1 (Witness No. 11), the position of the Plaintiff is that because of BNM's screening policy and the purported termination of the Plaintiff with cause the engaged as a remisier by other financial institutions. The Defendants specifically deny that BNM's screening policy has Peguam : Hence, this witness is necessary as demonstrate this part of the Plaintiff's case. Further, this witness is from RHB Investment Bank and not the Defendants. Peguam : Yes, Yang Arif. question for each witness to be filed, Plaintiff was disenabled from being such an effect. Plaintif 1 without him we would be unable to Mahkamah : All witnesses are subpeonaed witnesses? Plaintif 1 Mahkamah : The effect of BNM guidelines, if at all relevant, is up to the court to determine. Mahkamah : I require a witness statement / list of Peguam : With regard to Mr Ch'ng Kien Hong Peguam : Yang Arif, I agree it is up to the Court to admissibility. However, it is respectfully submitted that the effect of the aforesaid guidelines and the Plaintiff's termination purportedly with cause and how it affects any financial institution that wishes to engage the Plaintiff is a matter of relevance of each witness based on witness statements that I will direct Peguam : Yang Arif, the Plaintiff will also be giving of each witness. Plaintif 1 decide on the issue of relevance and evidence which has to be tendered. Mahkamah : I will nonetheless determine the parties to file next week. Plaintif 1 evidence and a witness statement will be filed. Mahkamah : Both sides are required to file witness statements. (emphasis added) so that I can determine the relevance [31] The direction to file witness statements or proposed questions to witnesses was given by the court pursuant to order 34 rule 2(2) of the ROC, which provides that: At a pre-trial case management, the Court may consider any matter including the possibility of settlement of all or any of the issues in the action or proceedings and require the parties to furnish the Court with such information as it thinks fit, and the appropriate orders and directions that should be made to secure the just, expeditious and economical disposal of the action or proceedings, including

the period within which the parties have to exchange and file witness statements of all witnesses who may give evidence at the trial;

whether the number of witnesses shall be limited and whether the evidence-in-chief of the witnesses specified be each limited to a single witness statement (emphasis added) [32] Based on the above, the directions given on the filing of witness statements or proposed questions of witnesses are directions that the court is empowered to give, pursuant to order 34 rule 2(2) of the ROC. E. Conclusion [33] To summarise, the court had given pre-trial case management directions on the following: a. the inadmissibility of the Report; and b. the requirement to file witness statements or proposed questions for witnesses. [34] I will conclude by highlighting that the directions given are directions in the course of pre-trial cases management, and are not judgments or orders of this court. Dated 30 November 2023 - sgd - ADLIN ABDUL MAJID Judge High Court of Malaya Commercial Division (NCC6) Kuala Lumpur Counsel: Plaintiff : Christie Soosay Nathan (together with Sherwin Raphael) of Messrs. Christie Soosay Nathan & Associates Defendants : Rutheran Sivagnanam (together with Chong Yi