Maritime Network Sdn Bhd v Rhb Bank Berhad (WA-24NCC-114-03/2025)

This case before me is a classic example of the adage “curiosity killed the cat" as the plaintiff, Maritime Network Sdn Bhd, chose to proceed to file this OS [Enclosure 1] despite clear evidence from the defendant, RHB Bank Berhad (“RHB”), that such a course of action would be ill-advised.

The OS is an application for pre-action discovery by the plaintiff against RHB pursuant to Order 24 rule 7A of the Rules of Court 2012.

The documents sought by the plaintiff concern steps taken by Bank Negara and RHB to curb money laundering under the Financial Services Act 2013 and the Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2001.

The documents sought are as follows: -

Minimum Due Diligence Guide for Foreign Exchange Rules -

The compliance framework policy(ies) of RHB pertaining to foreign exchange transactions; and

The internal policy of RHB on the due diligence required for foreign exchange transactions. (“Documents”) [5] I heard counsel on 06-06-2025 and on 02-07-2025 dismissed the OS with costs of RM 10,000 subject to allocatur. The plaintiff has appealed to the Court of Appeal on 02-07-2025. These are my Grounds of Decision. [6] To my mind, the OS is frivolous as the plaintiff had admitted via their solicitor’s letter to RHB dated 18-02-2025 that-i. Sums remitted from overseas into their Multi Currency Account are from parties who are not their contracting parties; ii. The plaintiff had rejected RHB’s request for documents from them for verification of these overseas funds as required by Bank Negara for money laundering checks. iii. The plaintiff insisted RHB must not refund these funds to the sender banks despite having exceeded the standard turnaround time for documents verification. [See plaintiff’s solicitor’s letter to RHB dated 18-02-2025, exhibited in the plaintiff’s supporting affidavit Enclosure 2 at page 36] [7] In the same letter, the plaintiff pushed the blame to RHB and insisted that RHB showed them that RHB had complied with the verification guidelines set by Bank Negara. [See plaintiff’s solicitor’s letter to RHB dated 18-02-2025 at paragraphs 5 to 7 in the plaintiff’s supporting affidavit Enclosure 2 at page 36] [8] I shall elaborate more in my Grounds below. [9] At the outset, I should point out that plaintiff’s counsel has in his written submission in Enclosure 12 wrongly reproduced the prayers. He had added the following words “for the years 2023, 2024 and/or 2025” in his reproduction of prayers [b] and [c] when these words do not appear in his prayers 1[b] and [c] set out in Enclosure 1 OS. Counsel should be more careful in future as it can inadvertently mislead the Court. Background Facts Relationship between the plaintiff and RHB [10] The plaintiff is a Malaysian company carrying on a business as a shipping agent. [11] The plaintiff banks with RHB, more specifically the Port Kelang branch of RHB. [12] The plaintiff has, inter alia, two accounts with RHB: i) RHB Account No.: 61207700002040, which is a multi-currency account (“Multi Currency Account”); and ii) RHB Account No.: 21207700090260, which is a current account (“Current Account”). [13] The plaintiff’s Multi Currency Account is used for ship owners and charterers who intend to remit payments to the plaintiff for their services, in USD and/or any other foreign currency aside from MYR. Disputes between the parties Factual Contentions of the plaintiff [14] The plaintiff alleges as follows. That early in 2025, the plaintiff discovered there were entities who were not contracting parties of the plaintiff who had remitted payments to the plaintiff’s Multi Currency Account. [See Affidavit in Support Enclosure 1 affirmed by Jeyenderan A/L M. Ramasamy dated 28-02-2025 (“Enclosure 2”) at paragraphs 7 - 8]. [15] The plaintiff instructed RHB not to return the funds to the agent/sender banks, but to hold all transactions which did not correspond directly to the plaintiffs’ clients to enable the plaintiff to obtain further information to support or deny the transaction. [See Enclosure 12 plaintiff’s written submission at paragraph 16]. [16] The plaintiff alleges that RHB did not comply with the plaintiff’s instructions, and proceeded to return the funds to the agent/sender banks upon failure of the plaintiff to reveal the invoices that indicated the plaintiff’s clients as the payees. [See Enclosure 12 plaintiff’s written submission at paragraph 17]. Factual Contentions of RHB [17] RHB alleges as follows. Pursuant to the “Minimum Due Diligence Guide for Foreign Exchange Rules – Financial Institution’s Version”, a financial institution is required to request documentary evidence from its customer to verify transactions as part of their due diligence processes to ensure compliance with the foreign exchange rules. A financial institution may reject to trade or cancel any transaction if there is a reasonable doubt of its compliance with the foreign exchange rules. [See RHB’s Affidavit in Reply affirmed by Wong Sauo Hon dated 19- 03-2025 (“Enclosure 8”) at paragraph 10.1] [18] RHB further alleges that it had repeatedly requested supporting documents from the plaintiff regarding the purpose of the transactions and the relationship between the parties involved in the Inward Foreign Telegraphic Transfers (“IFTT”) made to the plaintiff’s Multi Currency Account. However, the plaintiff failed to provide sufficient supporting documents of, amongst others, nine (9) IFTTs made to the plaintiff’s Multi Currency Account. [See RHB’s Affidavit in Reply affirmed by Wong Sauo Hon dated 19-03-2025 (“Enclosure 8”) at paragraph 10.2] [19] RHB had also provided the “Minimum Due Diligence Guide for Foreign Exchange Rules – Notice 4 – Public Version”, which is available for disclosure to the public, to the plaintiff vide RHB’s solicitors letter dated 06-03-2025. [20] This letter and the “Minimum Due Diligence Guide for Foreign Exchange Rules – Notice 4 – Public Version” can be seen in RHB’s Affidavit in Reply affirmed by Wong Sauo Hon dated 19-03-2025 (“Enclosure 8”) at paragraph 11 read with exhibit WSH-1. [21] Paragraph 14 of the Minimum Due Diligence Guide for Foreign Exchange Rules – Notice 4 – Public Version states clearly that-

LOBs may reject any transactions by a client if there is reasonable doubt of its compliance with FE Rules. [Emphasis added] [22] I should point out that the “Minimum Due Diligence Guide for Foreign Exchange Rules – Notice 4 – Public Version” exhibited by RHB has duplicate pages at pages 33, 34, 41 to 46 of Enclosure 8. Counsel should be more careful. Court Proceedings [23] In light of RHB’s refusal to provide the requested Documents to the plaintiff, the plaintiff filed an OS for a pre-action discovery for the Documents. [24] The plaintiff contends in its written submission Enclosure 12 that it is entitled to the Documents because, and I quote - i. D.1 maritime cannot frame a viable claim without the documents; ii. D.2 the documents are necessary and specific – not a fishing expedition; iii. D.3 RHB is “mixed up” in the wrongdoing or critical to understanding it; iv. D.4 there is no other reasonable or proportionate way to obtain the documents/information; and v. D.5 the application is made in good faith and for a legitimate purpose. [25] RHB opposed the OS on the ground that the pre-action discovery application is not necessary as the plaintiff is able to identify its purported cause of action without the pre-action discovery. A review of the law on pre-action discovery in Malaysia Applicable rules of court [26] Order 24 rule 7A, Order 24 rule 8 and Order 24 rule 13 ROC 2012 are the applicable rules on pre-action discovery. They read as follows-Discovery against other person (O. 24, r. 7A)

(1) An application for an order for the discovery of documents before the commencement of proceedings shall be made by originating summons and the person against whom the order is sought shall be made defendant to the originating summons.

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 the case of an originating summons under paragraph (1), state the grounds for the application, the material facts pertaining to the intended proceedings and whether the person against whom the order is sought is likely to be party to subsequent proceedings in Court; and

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.

A copy of the supporting affidavit shall be served with the originating summons or the notice of application on every person on whom the originating summons or the notice of application is required to be served.

An order for the discovery of documents before the commencement of proceedings or for the discovery of documents by a person who is not a party to the proceedings may be made by the Court for the purpose of or with a view to identifying possible parties to any proceedings in such circumstances where the Court thinks it just to make such an order, and on such terms as it thinks just.

An order for the discovery of documents may—

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

Require the person against whom the order is made to make an affidavit stating whether the documents specified 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.

A person shall not be compelled by such an order to produce any document which he could not be compelled to produce- [1] In the case of an originating summons under paragraph (1), if the subsequent proceedings had already been commenced; or [2] In the case of a notice of application under paragraph

(2), if he had been served with a subpoena to produce documents at the trial.

For the purposes of rules 10 and 11, an application for an order under this rule shall be treated as a cause or matter between the applicant and the person against whom the order is sought.

Unless the Court orders otherwise, where an application is made in accordance with this rule for an order, the person against whom the order is sought shall be entitled to his costs of the application, and of complying with any order made thereon on an indemnity basis. Discovery to be ordered only if necessary (O. 24, r. 8)

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. Production to be ordered only if necessary (O. 24, r. 13)

13.(1) An order for the production of any documents for inspection or to the Court shall not be made under any of the foregoing rules unless the Court is of the opinion that the order is necessary either for disposing fairly of the cause or matter or for saving costs.

Where on an application under this Order for production of any document for inspection or to the Court, privilege from such production is claimed or objection is made to such production on any other ground, the Court may inspect the document for the purpose of deciding whether the claim or objection is valid. [Emphasis mine] Relevant Malaysian case law on pre-action discovery [27] There are two leading cases on pre-action discovery in Malaysia. Both are Court of appeal judgments. They are Infoline Sdn Bhd v Benjamin Lim Keong Hoe [2017] 8 CLJ 554 CA [“Infoline”] and the subsequent case of Bandar Utama Development Sdn Bhd & Anor v Bandar Utama 1 JMB [2018] MLJU 697 CA. [“Bandar Utama Development”]. Infoline [28] In Infoline, Mary Lim JCA [delivering the judgment of the court] has this to say of the history of pre-action discovery and the rationale for the insertion of the new Order 24 rule 7A in our ROC 2012- [13] Order 24 r. 7A is new specific provision enabling discovery in two situations. In the first scenario, discovery is sought prior to the commencement of action whereas in the second, it is sought after commencement of proceedings but against a non-party. The application for pre-action discovery is by means of an originating summons whereas in the latter, it is by means of a notice of application. [14] In summary, O. 24 r. 7A(3) requires an applicant seeking discovery of documents before action to:

State the material facts pertaining to the intended proceedings;

(ii) State whether the person against whom the order is sought is likely to be a party in the subsequent proceedings in the High Court;

(iii) Specify or describe the documents sought and show that the documents are relevant to an issue arising or likely to arise out of the claim made or likely to be made; and

(iv) Identify the persons against whom the order is sought is likely to have or had the documents in his possession, custody or power. [Emphasis mine] [29] In Infoline, Mary Lim JCA has this to say of Singapore cases which had considered their equivalent of our Order 24 rule 7A, which is Order 24 rule 6- [16] Given that O. 24 r. 7A is new provision under our Rules of Court 2012, the respondent had invited the court to consider the approach of the courts in Singapore on the operation and application of their equivalent O. 24 r. 7A, which is O. 24 r. 6. Having considered them, we are not disinclined to follow them finding the cases cited persuasive as the procedural requirements on pre-action discovery are substantially similar. [17] The leading authority is the Court of Appeal’s decision in Kuah Kok Kim v. Ernst & Young [1996] 3 SLR (R) 485, a decision under the old O. 24 r. 7A, now amended to O. 24 r. 6. ,,, [19] Subsequently, Lai J in Ching Mun Fong v. Standard Chartered Bank [2012] 2 SLR 22, held that a pre-action application is particularly appropriate where the applicant needs information or evidence “to mount a claim, and not to fish for additional evidence to ground further causes of action”:

What then is the purpose of pre-action discovery? In Kuah Kok Kim v. Ernst & Young [1996] 3 SLR (R) 485 (“Kuah Kok Kim”) at [31], the Court of Appeal explained that pre-action discovery is to assist a plaintiff who “does not yet know whether he has a viable claim against the defendant, and the rule is there to assist him in his search for the answer”. The word “viable” must not be understood to mean that the plaintiff is entitled to pre-action discovery for the purposes of augmenting his case or to “complete his entire picture of the case”. If that was the case, the ordinary processes of general and specific discovery under O. 24 rr. 1 and 5 respectively would be subverted … Instead pre-action discovery serves a somewhat more modest purpose: it is merely to allow the plaintiff who suspects he has a case to obtain the necessary information to allow him to commence proceedings. [20] Three cases were examined by Lai J; namely Bayerische Hypo-und Vereinsbank AG v. Asia Pacific Breweries (Singapore) Pte Ltd [2004] 4 SLR

(R) 39 and Ng Giok Oh v. Sajjad Akhtar [2003] 1 SLR (R) 375 where the applications were refused; and Beckkett Pte Ltd v. Deutsche Bank AG Singapore Branch [2003] SLR (R) 321 where the application was allowed. In both Asia Pacific Breweries and Ng Giok Oh, the applicants already knew their causes of action and were not otherwise constrained from commencing proceedings. The applications were really to enable the applicants to assess or augment the strength of their case. In Beckkett Pte Ltd however, the position was somewhat different. The defendant bank (qua pledgee) had sold certain shares belonging to the applicant (qua pledgor). The application for pre-action discovery of documents relating to the “details of the manner of sale of the pledged shares (whether by private treaty or auction)” was granted because the court found that without the information sought, the applicant would have no idea whether it had a basis to bring a claim against the defendant for failing to take reasonable steps to obtain the best price. [21] Further, Lai J was of the view that the Rules of Court: ... exists to provide a systematic and orderly process for the discovery of evidence leading to trial. The rule allowing for pre-action discovery complements this by helping potential plaintiffs to ascertain if they are in a position to commence proceedings: by virtue of the disclosed documents the potential plaintiff will be able to decide if he has a cause of action against the defendant. [30] In Infoline, Mary Lim JCA after reviewing Singapore, UK and Australian caselaw summarised the principles applicable as follows- [36] Considering the appeal properly under O. 24 r. 7A, we are of the view that the whole intent behind O. 24 r. 7A is the saving of costs, resources and time if early discovery is ordered, in fact ordered even before proceedings are commenced. If discovery reveals that the applicant’s concerns are unfounded, that in this case the respondent’s termination or cessation as a beneficiary is proper and in accord with the terms of the trust deed, litigation can largely be avoided. This obviously means saving of both time and costs… [37] With those considerations, what O. 24 r. 7A then requires from the applicant is an explanation as to why pre-action discovery and not discovery in the course of action or proceedings is necessary. The requisites in O. 24 r. 7A(3) indicate that pre-action discovery is really to assist a prospective litigant plaintiff to determine whether he has a viable claim against the intended defendant… [38] Insofar as the documents sought to be discovered are concerned, the documents must be specified or sufficiently described. All this is for practical purposes so that the order is capable of response and compliance from and by the defendant who is the appellant before us… [39] Finally, the applicant has to identify the person having possession, custody or power over the documents sought… [42] Therefore, in exercising discretion whether to grant discovery of specified or described documents in the possession, custody or power of the appellant, the respondent must satisfy the court that discovery of the same before filing of action against the appellant is indeed necessary, necessary at the particular stage of the application, and that is necessary because the order of discovery will allow for the fair disposal of the cause or matter or that it will lead to a saving of costs. The respondent must show that the discovery is necessarily required even before an action is initiated as it is precisely to enable the respondent to decide whether he can even commence action against the appellant in particular, to start with. And, if the information revealed from that discovery can determine or assist in reaching an answer to that predicament, then the order ought to be made. Such an approach is not only fair but sensible and practical as it can obviously avoid unnecessary litigation thus saving costs and preventing wastage of time and resources which is what pre-action discovery seeks to achieve. Where the court is of the opinion that the applicant is unable to satisfy these conditions, certainly the court must dismiss the application as is apparent from the terms of r. 8. [Emphasis mine] Bandar Utama Development [31] In Bandar Utama Development, the Court of Appeal said the threshold test to satisfy an order for pre-action discovery under Order 24 rule 7A is extremely high in contrast to common law right - [12] Pre-action discovery is not related to contractual parties but it is addressed to third parties who may be tortfeasors, etc. or parties who are necessary for the purported plaintiff to succeed in a claim or a potential party to be the defendant. …The threshold test to satisfy an order for pre-action discovery under Order 24 rule 7A is extremely high in contrast to common law right, as the rules sets out specific requirements and the court must exercise its power with caution and circumspect. It is a power which must be exercised in a genuine case and not for the purpose of annoying a third party or in cases related to fishing expedition, etc. [Emphasis mine] A summary of the law on pre-action discovery [32] The following are the principles to be applied on pre-action discovery as distilled from Order 24 rule 7A, Order 24 rule 8 and Order 24 rule 13 ROC 2012, Infoline, Bandar Utama Development and case law-a) The burden of proof lies on the plaintiff to show that the court should exercise its discretion to grant a pre-action discovery. b) In respect of a pre-action discovery for a defendant to disclose documents on the identity of the wrongdoers, the plaintiff should show that the defendant although not the wrongdoers, has somehow got mixed up in the tortious acts of that wrongdoers so as to facilitate their wrongdoings so that he comes under a duty to assist the plaintiff who had been wronged by disclosing the identity of the wrongdoers. c) In respect of a pre-action discovery for information contained in a document to be provided by a defendant the plaintiff must show that the information is necessary in order for him to determine if he can even commence legal action against the intended defendant. In such cases, the pre-action discovery order ought to be made to avoid unnecessary litigation thus saving costs, preventing wastage of time and resources which is what pre-action discovery seeks to achieve. d) To resist disclosure, the defendant can show that the plaintiff is on a fishing trip or fishing expedition. In such a situation, the application will be dismissed. What amounts to a fishing trip or fishing expedition is vividly illustrated in this judgment of the Singapore High Court in Thyssen Hunnebeck Singapore Pte Ltd v TTJ Civil Engineering Pte Ltd [2003] 1 SLR 75 Choo Han Teck JC and cited in Billion Prima Sdn Bhd & Anor v Nutech Co Ltd & Anor [2017] 10 MLJ 213 Wong Kian Kheong JC- [6] In my view, I would hold that a ‘fishing expedition’ in the context of discovery refers to the aimless trawling of an unlimited sea. Where, on the other hand, the party concerned knows a specific and identifiable spot into which he wishes to drop a line (or two), I would not regard that as a ‘fishing expedition’. [Emphasis mine] e) As an aside, it would not be remiss of me to say that using the act of fishing as an analogy to illustrate what is or is not a fishing expedition has respectable provenance. A highly respected Court of Appeal Judge Mahadev Shanker in his recent memoirs narrated observing Punch Coomaraswamy, at the time a Senior Partner at Braddell Brothers, rebutting his learned friend’s submission that in his application for discovery he was on a fishing expedition by saying- “My Lord, a fishing expedition is one where the applicant does not clearly know what documents he is after…My case is not like that. I have identified the documents I require these people to disclose. Since I know where the fish are, this is not a fishing expedition.” [See Summom Bonum The Ultimate Good by Dato’ Mahadev Shanker collated and edited by Santhi Latha 2021 ed. at page 221 and Sharifah Sofia by Syed Hussein (representing Hak Asasi Hidupan Liar Malaysia Global) & Ors v Pengarah Kepada Lembaga Kebajikan Haiwan [2022] 12 MLJ 37 HC]. f) To resist disclosure, the defendant can also show that that there is some consideration of public policy which prevents him from making this disclosure. Consideration of public policy which can prevent him from making disclosure maybe that such disclosures would or might impair or hamper the efficient conduct of a defendant’s statutory duties. And secondly such disclosure would or might be prejudicial to those whose identity would be disclosed. The Court will then have to do a balancing act by examining the facts. On the whole, if a document would be discoverable in a discovery application filed once a suit is commenced, such a document should be discoverable in my view. Especially if its disclosure now is necessary in order for the plaintiff to determine if he can even commence legal action in the first place against an intended defendant. For in such cases, the pre-action discovery order ought to be made to avoid unnecessary litigation thus saving costs and preventing wastage of time and resources which is the very objective of Order 24 rule 7A ROC 2012. g) Apart from considerations of public policy that prevent disclosure, the defendant can also show that he is prevented by common law or some statute from making this disclosure. Statutory defences available are for example legal professional privilege under section 126 to 129 of the Evidence Act 1950 or documents and information protected under sections 2, 13A and 16a of the Official Secrets Act 1972. h) When ordering pre-action discovery, a defendant is entitled to his costs of the application, unless the Court orders otherwise, and of producing a copy each of the documents ordered on an indemnity basis. [See Order 24 rule 7A(9) ROC 2012]. Thus, a defendant who sought the protection of a court order before giving pre-action discovery should be entitled to his costs of the application unless the court is of the view the defendant had unreasonably opposed the application. For practical purposes, it is useful for the Court to request parties to agree on the costs of the defendant for producing a copy each of the documents ordered. This is because Order 24 rule 7A(9) ROC 2012 reads as follows-Unless the Court orders otherwise, where an application is made in accordance with this rule for an order, the person against whom the order is sought shall be entitled to his costs of the application, and of complying with any order made thereon on an indemnity basis. Court’s analysis [33] I am of the view the Documents sought are not necessary. This pre-action discovery is not necessary. [34] The plaintiff had stated that its cause of action against RHB is for breach of duty of care for allowing monies from unknown parties to be credited into the plaintiff’s account. [See Affidavit in Support Enclosure 1 affirmed by Jeyenderan A/L M. Ramasamy on 28-02-2025 (“Enclosure 2”) at paragraph 17]. [35] This cause of action is with respect nonsensical based on common sense. It also flies in the face of the facts admitted by the plaintiff in the plaintiff’s solicitor’s letter to RHB dated 18-02-2025 exhibited in the plaintiff’s supporting affidavit Enclosure 2 at page 36, which I had referred to earlier. [36] To recap, in this letter the plaintiff admitted that-i. Sums remitted from oversees into their Multi Currency Account are from parties who are not their contracting parties; ii. The plaintiff had rejected RHB’s request for documents from them for verification of these overseas funds as required by Bank Negara for money laundering checks. iii. The plaintiff insisted RHB must not refund these funds to the sender bank despite having exceeded the standard turnaround time for documents verification. [37] In any event, the Documents sought are not necessary for the plaintiff’s claim. An order for the discovery or production of any documents for inspection shall not be made unless the Court is of the opinion that the order is necessary either for disposing fairly of the cause or matter or for saving costs. [See Nguang Chan aka Nguang Chan Liquor Trader & Ors v Hai-O Enterprise Bhd & Ors [2009] 5 MLJ 40 CA] [“Nguang Chan”]. [38] The Court of Appeal in Nguang Chan said- [24] There is one other matter which we cannot ignore and leave unsaid because it is fatal to the decision of the learned judge and vitiated the exercise of his discretion. It is this. He apparently misdirected himself in law when he misappreciated the issue before him. In his grounds of decision, the learned judge states that the issue for his determination was whether the discovery and production of the documents would fairly dispose of the case, save time of trial and cost of calling witnesses which be answered in the affirmative. [25] As stated earlier the real issue is … discovery may only be ordered if the court is of opinion that such order is necessary either for disposing fairly of the cause or matter or for saving costs. The test is necessity not fairness and it is for the applicant to satisfy the court, see Dolling-Baker’s case and Ventouris v Mountain. Because of that erroneous premise the learned judge appears to be more concerned with relevance and fairness and omitted to consider whether and why it was necessary for the order to be made. The respondents also failed to provide any materials to satisfy the court of such necessity. [Emphasis added] [39] In Ahmad Zahri Mirza v Pricewaterhousecoopers Capital Sdn Bhd [2015] MLJU 878 HC, Lee Swee Seng J referred to the Singapore Court of Appeal case of Ching Mun Fong v Standard Chartered Bank [2012] 4 SLR 185 [“Ching Mun Fong”] and held that it is not the business of the court to assist the plaintiff to gather evidence via a pre-action discovery application as evidence is not required to be pleaded to commence an action. - [45] It is also not the business of the Court to assist the plaintiff with the gathering of evidence via a pre-action discovery application. What is needed to be pleaded to commence an action is to plead material facts and not evidence. If it is to weigh and consider evidence, then the application should come later in a pre-trial discovery application and not a pre-action discovery application. The need for a pre-action discovery must be discernibly different from that of the more common pre-trial discovery as was pointed out in the case of Ching Mun Fong v Standard Chartered Bank [2012] 4 SLR 185 where the Singapore Court of Appeal... [40] In the Singapore Court of Appeal case of Ching Mun Fong, a customer of a bank alleged that the bank breached its contractual obligations and was negligent in failing to advise her. The customer sought pre-action discovery of voice-logs of the communications she had with the bank’s representatives. The court held that the discovery of the voice-logs was not necessary to enable the customer to institute the intended action. The Singapore Court of Appeal said- [39] The appellant contemplates making claims against the Respondent in contract and/or in tort. In particular, the Appellant suggests that the Respondent had breached its contractual obligations and was negligent in failing to advise her of its intentions, the trend in gold prices and what strategies to adopt. Since the Appellant knows what her intended causes of action are and the basis on which they are said to have arisen, the discovery of the voice-logs is not necessary to enable her to institute the intended action. [40] On the Appellant’s declared intentions as regards the voice-logs, it is to help her assess, based on the evidence contained in the voice-logs, whether she would be able to substantiate her assertion that the Respondent had failed to properly advise her and in turn failed in its duty to her in contract and/or in tort. In effect, the Appellant is attempting to determine whether she is likely to succeed in her causes of action, as opposed to merely enabling the formulation of her pleadings. In this regard, we would underscore that under O 18 r 7, only facts and not evidence, are to be pleaded. What the Appellant seeks relates to matters of evidence, viz, whether the Respondent’s officers had given her proper advice. The fact that the Respondent has denied any failure in that regard is a phenomenon which often occurs in civil litigation. … [41] In these circumstances, we hold that the Judge was correct in her decision to refuse the application for pre-action discovery of the voice-logs. It seems to us that the Appellant is, at this point, on a fishing expedition. In the normal course, the appellant would be entitled to have these discovered after the commencement of action. [Emphasis added] [41] In Yap Sin Moy v Pembinaan Ysl Sdn Bhd & Ors [2018] MLJU 953 HC, Noorin Badaruddin J cited both the Singapore High Court decision in Ching Mun Fong v Standard Chartered Bank [2012] 2 SLR 22 HC and the Singapore Court of Appeal decision in Ching Mun Fong v Standard Chartered Bank [2012] 4 SLR 185 CA and held as follows: [25] ...It is apt to refer to the following findings of the learned High Court Judge. “[8] What then is the purpose of pre-action discovery? In Kuah Kok Kim v Ernst and Young [1996] 3 SLR (R) 485 (“Kuah Kok Kim”) at [31], the Court of Appeal explained that pre-action discovery is to assist a plaintiff who “does not yet know whether he has a viable claim against the defendant, and the rule is there to assist him in his search for the answer.” The word “viable” must not be understood to mean that the plaintiff is entitled to pre-action discovery for the purpose of augmenting his case or to “complete his entire picture of the case.” If that was the case, the ordinary process of general and specific discovery under O 24 rr 1 and 5 respectively would be subverted (see Singapore Court Practice at para 24/6/2)” [Emphasis added]

[42] I hereby make the following orders. Enclosure 1 is dismissed with costs of RM 10,000 to the defendant subject to allocatur. ………(signed)………… Leong Wai Hong Judge High Court of Malaya Kuala Lumpur (NCC 6) Dated: 21th July 2025 COUNSEL: 1) P. Taneswaran, James Joshua Paulraj and S. Surianathan (Pupil in Chamber) for plaintiff. (Tanes, Khoo & Paulraj (Kuala Lumpur)) 2) Gan Khong Aik and Tong Min Jie for defendant. (Gan Partnership (Kuala Lumpur)) CASES REFERRED TO: 1) Ahmad Zahri Mirza v Pricewaterhousecoopers Capital Sdn Bhd [2015] MLJU 878 HC. 2) Bandar Utama Development Sdn Bhd & Anor v Bandar Utama 1 JMB [2018] MLJU 697 CA. 3) Bayerische Hypo-und Vereinsbank AG v. Asia Pacific Breweries (Singapore) Pte Ltd [2004] 4 SLR (R) 39. 4) Beckkett Pte Ltd v. Deutsche Bank AG Singapore Branch [2003] SLR

(R) 321. 5) Billion Prima Sdn Bhd & Anor v Nutech Co Ltd & Anor [2017] 10 MLJ 213 HC. 6) Ching Mun Fong v Standard Chartered Bank [2012] 2 SLR 22 HC. 7) Ching Mun Fong v Standard Chartered Bank [2012] 4 SLR 185 CA. 8) Infoline Sdn Bhd v Benjamin Lim Keong Hoe [2017] 8 CLJ 554 CA. 9) Kuah Kok Kim v. Ernst & Young [1996] 3 SLR (R) 485. 10) Ng Giok Oh v. Sajjad Akhtar [2003] 1 SLR (R) 375. 11) Nguang Chan aka Nguang Chan Liquor Trader & Ors v Hai-O Enterprise Bhd & Ors [2009] 5 MLJ 40 CA 12) Sharifah Sofia by Syed Hussein (representing Hak Asasi Hidupan Liar Malaysia Global) & Ors v Pengarah Kepada Lembaga Kebajikan Haiwan [2022] 12 MLJ 37 HC. 13) Thyssen Hunnebeck Singapore Pte Ltd v TTJ Civil Engineering Pte Ltd [2003] 1 SLR 75 HC. 14) Yap Sin Moy v Pembinaan Ysl Sdn Bhd & Ors [2018] MLJU 953 HC. LEGISLATION REFERRED TO: 1) Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful activities Act 2001. 2) Evidence Act 1950 sections 126, 127, 128 and 129. 3) Financial Services Act 2013. 4) Official Secrets Act 1972 sections 2, 13A and 16a. 5) Rules of Court 2012 Order 24 rule 7A, Order 24 rule 7A(9), Order 24 rule 8 and Order 24 rule 13.