Ocbc Bank (Malaysia) Berhad v Yong Hong Development Sdn. Bhd. (JA-22NCVC-17-01/2016)

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TAY PEI HWA S/N ZiXS6y11b02pmLamHarYzQ

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SHUNTAL TRADING SDN BHD … DEFENDANTS S/N ZiXS6y11b02pmLamHarYzQ GROUNDS OF JUDGMENT INTRODUCTION [1] Messrs K.K. Lim, the 13th Defendant herein (“D13”) filed this application in Enclosure 868 for discovery and production of documents by the Plaintiff (“the Plaintiff/Bank” where appropriate). The documents sought to be produced are as follows:

A report in respect of the Bank’s internal investigation from May 2015 to October 2015 on the conspiracy by the Defendants in the matter herein to defraud the Bank (“Investigation Report”);

(ii) Documents in respect of a disciplinary action taken by the Bank against its former employee, Ms. Chia Mee Lan (“CML”), in respect of the loan application of the 20th Defendant in the matter herein (“Disciplinary Action Papers”) including but not limited to-

(iii) The documents relating to the Bank’s alleged admission of “negligence and shortcomings in the process / system” referred to in a letter dated 10.04.2023 issued by Bank Negara Malaysia (“BNM””) (“the BNM Documents”), (collectively referred to as “the requested Documents” or “Investigation Report” / “Disciplinary Action papers” / “the BNM Documents”, where the context requires). S/N ZiXS6y11b02pmLamHarYzQ [2] The grounds provided by D13 for seeking the discovery of the above documents can be found in their submissions in Enclosure 885, which essentially state the following:

During the trial, it was revealed through the Plaintiff’s own witnesses that internal fraud had occurred within the Plaintiff. The witnesses testified that:

Between May to October 2015, the Plaintiff conducted an internal investigation that purportedly uncovered suspicious transactions among the Borrowers; and

The Plaintiff’s former employee, Ms. Chia Mee Lan admitted to being negligent in approving one of the loans, and that the Plaintiff’s weak and/or insecure loan system allowed such negligence and internal fraud to take place.

(ii) In light of the above testimony and letter from BNM, D13 now seeks to obtain the Documents to fully comprehend the nature of the internal fraud within the Plaintiff which is directly related to D13’s defence.

(iii) Therefore, D13 submits that the documents sought are relevant and necessary for D13’s defence. S/N ZiXS6y11b02pmLamHarYzQ [3] With respect to the BNM Documents, D13’s application for discovery is hinged on the Plaintiff’s alleged admission of internal weakness in its processing system in the loan application process. ISSUES TO BE DECIDED Investigation Report and Disciplinary Action Papers [4] D13 had commenced a separate action against the Bank under High Court of Malaya Civil Suit No.: WA-22NCVC-63-01/2022 (hereinafter referred to as “Abuse of Process Suit”), claiming that the Bank had committed the tort of abuse of court process against D13 through the filing of this suit against D13. [5] In opposing this application by D13, the Plaintiff submits as follows:

In the Abuse of Process Suit, D13 filed an application against the Bank for the discovery and production of the very same Investigation Report and Disciplinary Action papers sought in the present application in Encl 868. The discovery application filed in the Abuse of Process Suit is referred to as “Abuse Discovery Application".

The grounds in support of D13’s Abuse Discovery Application, as well as the grounds in opposition thereof advanced by the bank, is set out in the Grounds of Judgment of the High Court in dismissing D13’s Abuse Discovery Application.

The said Grounds of Judgment is found in Encl 877, PDF 404- 417, which also set out the documents sought by D13 in those proceedings, (for the avoidance of doubt, they are the very same Investigation Report and Disciplinary Action Papers which are now sought again by D13).

In considering the issues of privilege and confidentiality which were relied upon by the Bank in opposition to D13’s Abuse Discovery Application, the High Court found that both the Investigation Report and Disciplinary Report and Disciplinary Action Papers are protected from disclosure /production under the principles of litigation privilege, as well as confidentiality (at Encl 877). [6] Having determined that both the Investigation Report and Disciplinary Action Papers are protected by the principle of litigation privilege and confidentiality, the learned Judge dismissed D13’s application. D13 filed an appeal against the dismissal, which wa rejected by the court of Appeal (“COA”) on 22.04.2024. D13 did not file any application for leave to appeal to the Federal Court. PLAINTIFF’S SUBMISSION [7] The Court having dismissed the discovery application in the Abuse of Process Suit, there is now a judicial determination that both the Investigation Report and the Disciplinary Action Papers are protected from disclosure/production on grounds of litigation privilege, to which D13 is deemed to have acquiesced. S/N ZiXS6y11b02pmLamHarYzQ THE LAW [8] The Federal Court in Orchard Circle Sdn Bhd v Pentadbir Tanah Daerah Hulu Langat & Ors [2021] 1 MLJ 180 at pages 210 to 211 reaffirms the salient principles as follows: “Res Judicata [78]…Peh Swee Chin FCJ in Asia Commercial Finance (M) Berhad v Kawal Teliti Sdn Bhd [1995] 3 CLJ 783 in delivering the judgment of the court explained the concept of Res judicata which means that when a matter adjudged, and its significance lies in its effect of crating an estoppel per rem judicature. When a matter between two parties has been adjudicated by a Court of competent jurisdiction, the parties and their privies are not permitted to litigate once more the res judicata as the judgment becomes the truth between the parties. The rationale is that there should be finality in litigation and that no one should be vexed twice for the same cause or issue. [79] For the doctrine to apply, the same issue must have been raised and decided in an earlier proceeding or action in which the parties are represented. It is not open for the same issue to be litigated afresh between the same parties. [9] The Plaintiff further submits that D13 had cross-examined Mr Chan Chee Keong (PW2) – author of the Investigation Report, and Ms Chia Mee Lan (PW14) – the Bank’s Business Development Manager to whom the Disciplinary Action Papers relate, without the need to sight either the Investigation Report or the Disciplinary Action Papers. [10] Seeking the discovery or production of the same documents at this juncture demonstrates that D13’s attempt to obtain the Investigation Report and Disciplinary Action Papers is nothing more than a S/N ZiXS6y11b02pmLamHarYzQ tactical maneuver, intended to pave the way for a subpoena to be issued against PW2 and/or PW14 as a “recall” of witnesses. In either case, further unnecessary delay to the proceedings will result. [11] Applying the principles enunciated by Peh Swee Chin in the case above this Court finds that, D13 is now barred from making another attempt to compel the Bank to disclose and produce the said documents in these proceedings. D13 has already failed in the Abuse Discovery Application to overcome the issues of litigation privilege and confidentiality, which protect these very documents from production in court. [12] I agree with the Plaintiff’s submission that this application is barred by res judicata and issue estoppel. Therefore, I find that the application, on the above grounds, is without merit and must be dismissed. BNM DOCUMENTS [13] D13 grounds for seeking a discovery of the BNM Documents is centred on an alleged admission by the Bank of negligence and shortcomings in its loan processing system, referenced through a letter by BNM dated 10.04.2023, issued to the “Setiausaha Sulit Kanan”, Pejabat Menteri Kewangan Malaysia and not to the Bank. The documents sought via D13’s Discovery Application are described as “documents relating to” the said BNM Letter. S/N ZiXS6y11b02pmLamHarYzQ [14] The Plaintiff submits that the BNM Letter was not addressed to the Bank, and the Bank having denied making any purported admission of negligence and/or shortcomings, is also not in a position to comment on or confirm any purported finding by BNM, and therefore cannot pinpoint the documents actually sought by D13, as averred in the Bank’s AIR (Encl 876 PDF 39);

43.3 paragraph 13.4 of the Discovery AIS is categorically denied, as the Plaintiff had made no such purported admission of negligence or shortcomings/weaknesses in its loan application process/system and is not in a position to comment on or confirm any purported finding by Bank Negara Malaysia (“BNM”).

Paragraph 15 Discovery AIS is not denied only to the extent that the Bank’s Documents are in the possession, care and control of the Plaintiff. The BNM Documents are not adequately specified or identified, and the Plaintiff is unable to ascertain the basis of BNM’s letter dated 10.042023 and therefore cannot confirm or deny the identity or existence of the BNM Documents sought. THE LAW [15] The Plaintiff submits that the salient facts and pleaded case of the parties, demonstrates the irrelevancy of the BNM Documents. [16] The general legal principle on the requirements to be fulfilled in a discovery application had been laid down in the High Court case of Yekambaran Marimuthu v Malayawata Steel Bhd [1994] 2 CLJ 581, where the Court held as follows [at pages 69 and 73]. “the essential elements for an order for discovery are threefold, namely first, there must be a “document”, secondly, the document must be “relevant” and thirdly, the document must be or have been in the S/N ZiXS6y11b02pmLamHarYzQ “possession, custody or power” of the person against whom the order for discovery is sought. It is indisputable that the items sought were documents and were in the possession, custody or power of the defendant.” [17] In the Court of Appeal case of Nguang Chan aka Nguang Chan Liquor Trader & Ors v Hai-O Enterprise Bhd & Ors [2009] 5 MLJ 40 at page 47, the Court of Appeal held that [at page 92]; “[11] Under r 13(1) an order for the production of documents for inspection is not to be made unless the court is of opinion that such order is necessary either for disposing fairly of the case or matter or for saving costs. It is for the party seeking production to satisfy the court that such production is necessary for the purpose specified in r 13(1) per Parker LJ in Dolling-Baker v Marrett & Ors [1991] 2 All ER 890 and Ventouris v Mountain [1991] WLR 607. [12] And in considering the application the court should bear in mind the words of Sir Thomas Bingham MR in Taylor v Anderton [1995] 1 WLR 447 at p 462 that ‘the purpose of the rule is to ensure that one party does not enjoy an advantage or suffer an unfair disadvantage in the litigation as the result of a document not being produced for inspection.’ [13] Finally the court would dismiss a plaintiff’s application for discovery if it is of the view that the plaintiff was ‘merely fishing for evidence to prop up his case’ and to allow him discovery would be unduly oppressive to the party giving discovery – see Lesli S Homes v Engineering Service Inc [1993] 1 AMR 27 at p 36.” [18] Guided by the authorities cited above, I find that the BNM Documents are irrelevant and unnecessary in the context of an Order 24 ROC 2012 application, as they have no connection to D13’s pleaded defence. D13’s request amounts to a fishing expedition, given the vague and overly broad language used in their Discovery Application. S/N ZiXS6y11b02pmLamHarYzQ [19] I also agree with the Plaintiff’s submission that an order for the disclosure or production of the BNM Documents if granted, would be incapable of compliance, as the plaintiffs would be unable to ascertain or identify the documents which may fall within the purview of what was prayed for by D13 in this Discovery Application. [20] For the reasons aforesaid, I dismiss this application with costs. Dated 21 February 2025 …………t.t………………… Ahmad Murad Bin Abdul Aziz Judge High Court of Malaya Kuala Lumpur COUNSEL FOR THE PLAINTIFF: GC TAN WITH BRIAN CHEN AND NICOLE WAN SOLICITORS FOR THE PLAINTIFF: TETUAN SHOOK LIN & BOK COUNSEL FOR THE DEFENDANTS: SYED ISMAT WITH MUHAMMAD AIMAN SYAHMI DAN JAY LOH SOLICITORS FOR DEFENDANTS: K.K. LIM & ASSOCIATES S/N ZiXS6y11b02pmLamHarYzQ Cases Referred to: ➢ Orchard Circle Sdn Bhd v Pentadbir Tanah Daerah Hulu Langat & Ors [2021] 1 MLJ 180 ➢ Yekambaran Marimuthu v Malayawata Steel Bhd [1994] 2 CLJ 581 ➢ Nguang Chan aka Nguang Chan Liquor Trader & Ors v Hai-O Enterprise Bhd & Ors [2009] 5 MLJ 40 Legislation Referred to: ➢ Companies Act 2016 Decision date: 10.10.2024