P.G. DORAISAMY A/L P.GOPAL v AmInvestment Bank Berhad (W-02(IM)(NCC)-134-01/2025)

And Andre Chin Kwan Boon (NRIC No: 690912-07-5541)

Lenny Velintino a/l James (NRIC No: 761001-10-5739)

AmInvestment Bank Berhad (Company Registration No: 197501002220 (23742-V))

Kenanga Investment Bank Berhad (Company Registration No: 197301002193 (15678-H))

Affin Hwang Investment Bank Berhad (Company Registration No.: 197301000792 (14389-U))

TA Securities Holdings Berhad (Company Registration No:197301001467 (14948-M) …Defendants] CORAM MOHD NAZLAN BIN MOHD GHAZALI, JCA ALWI BIN ABDUL WAHAB, JCA AHMAD KAMAL BIN MD. SHAHID, JCA JUDGMENT OF THE COURT Introduction [1] There were four appeals before us, which were heard together as they concerned the one decision of the High Court which had dismissed separate discovery applications filed by the appellant as the plaintiff at the High Court against the third to the sixth defendants at the Court below. [2] Each of these four defendants namely AmInvestment Bank Berhad (“AmInvestment”), Kenanga Investment Bank Berhad (“Kenanga Investment”), Affin Hwang Investment Bank Berhad (“Affin Hwang Investment”) and TA Securities Holdings Berhad (“TA Securities”) - being investment banks or stock broking firms - are the respective respondents in each of the four appeals. The first three respondents are investment banks whilst TA Securities is a stockbroking firm. Each of the respondents is also a participating organisation of Bursa Malaysia Securities Berhad (“Bursa Malaysia”). Key Background Facts [3] The version advanced by the appellant, who is an advocate and solicitor, essentially started sometime in 2013, when on the basis of representations made by the first and second defendants in the High Court (Andre Chin Kwan Boon and Lenny Velintino A/L James, respectively) the appellant deposited the total sum of RM9,086,685.11 into the accounts of each of the four respondents with the objective of acquiring shares in a public listed company, specifically Kumpulan Jetson Berhad (“Jetson”). [4] His basic complaint is that these deposits were not returned to the appellant by any of the respondents which led him to assume, as represented, that the pre-requisites for trading in securities such as share trading accounts had been opened in the appellant’s name to enable the respondents to use the deposits to purchase Jetson shares for him. [5] However, despite having communicated regularly with the first and second defendants in respect of the purchase of Jetson shares, the appellant finally found out in 2021 that in fact no share trading accounts had been opened in his name in any of the four respondents and worse, no Jetson shares had been purchased for him. [6] Around the end of 2023 or early 2024, the appellant wrote to all the respondents to seek an account of his deposits. He claimed that he did not receive a satisfactory explanation from any of them. [7] The appellant then decided to institute legal action in May 2024 against all six defendants (the four respondents herein and the two other defendants, Andre and Lenny) and filed a writ action at the Kuala Lumpur High Court vide Suit No.: WA 22NCC-379-06/2024, which prayers essentially sought to recover the deposits that had been paid to each of the four respondents. The suit against them was premised on several bases, namely breach of trust, unjust enrichment, negligence, monies had and received, section 73 of the Contracts Act 1950, and in respect of AmInvestment only, vicarious liability under section 59A of the Capital Markets and Services Act 2007 (“the CMSA 2007”) vis-à-vis the civil liability of principal for acts of representative. [8] In October 2024 the appellant subsequently filed a discovery application against each of the four respondents. [9] In January 2025, the High Court dismissed this discovery application. Hence these appeals before us. Primary Contentions of Litigants & Decision of High Court [10] In support of his discovery application against the respondents which claimed that sums of monies had been deposited at the respondents by the appellant for the purchase of Jetsons shares, the appellant even produced a combination of documents comprising cheques, telegraphic transfer forms, transfer slips and wherever possible, his bank statements. [11] In the face of this application however, the respondents’ primary position was that they did not need to account to the appellant in respect of the deposits because the appellant never opened a share trading account with them. In other words the respondents contended that the appellant was not even a customer at any of the four respondents. The appellant’s discovery application against each of the respondent was to seek information and documents with regard to the monies he had deposited or transferred at the respondents. [12] The refusal by the respondents was also based on the argument that they cannot produce the documents sought due to the secrecy provisions found in section 43 of the Securities Industry (Central Depositories) Act 1991 (“the SICDA 1991”). [13] The High Court agreed with the respondents. The discovery application was dismissed on the ground that the disclosure of the documents was held not necessary at this stage, and that in any event such disclosure would have been prohibited by the said secrecy provisions under the SICDA 1991. [14] In ruling that discovery was unnecessary, the High Court held that the application was instead a fishing expedition since the appellant as plaintiff must first prove that there is an agreement to open securities account with the respondents and that the deposits were to be utilised in accordance with the appellant's instructions. The appellant also failed to show that instructions had been given to the respondents since even though the respondents generally admitted to receiving the deposits, they categorically denied being aware of any opening of accounts or any form of instructions as to how the said deposits were to be used. Appellant’s Primary Grounds of Appeal [15] The appellant argued that the High Court was in error in holding that the issue before the Court was whether the respondents had breached an agreement to open a Central Depository System account (“CDS Account”) with the appellant and whether the respondents were aware of the purpose for which the deposits were made. [16] It was also asserted by the appellant that the High Court was wrong in deciding that the appellant’s cause of action against the respondents was a pure contractual claim and that the High Court had disregarded the appellant’s other pleaded causes of action such as that premised on negligence, breach of trust, vicarious liability and unjust enrichment. [17] The appellant further alleged that the High Court did not appreciate that the deposits were utilised for the benefit of third parties without the appellant’s instructions. [18] In addition, the appellant contended that the High Court was in error when it equated the discovery application to a tracing remedy and duty to account and in holding that the appellant was required to first establish the liability of the respondents. [19] The appellant maintained that his discovery application is not a fishing expedition, and that the documents sought are relevant and necessary for a fair trial; and that further, the Financial Services Act 2013 and the SICDA 1991 do permit disclosures of the said documents. Evaluation & Findings of this Court The Governing Provisions [20] The pursuit for discovery, mounted by the appellant at the High Court against the four respondents by way of notices of application was pleaded to be based on the provisions of Order 24 r 3 and Order 24 r 7 of the Rules of Court 2012 (“the RC 2012”). [21] These provisions read as follows:

Order for discovery (O. 24, r. 3)

(a) the documents on which the party relies or will rely; and

(b) the documents which could—

(i) adversely affect his own case;

(1) Subject to rule 8, the Court may at any time, on the application of any party to a cause or matter, make an order requiring any other party to make an affidavit stating whether any document specified or described in the application or any class of document so specified or described is, or has at any time been, in his possession, custody or power, and if not then in his possession, custody or power when he parted with it and what has become of it.

(a) a document on which the party relies or will rely;

(b) a document which could—

(i) adversely affect his own case;

(c) a document which may lead the party seeking discovery of it to a series of inquiry resulting in his obtaining information which may—

(i) adversely affect his own case;

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. Whether the discovery application is meritorious [29] We now examine the merits of the appeals - whether the discovery ought to be allowed. First, it bears emphasis that out of the total sum of RM9,086,685.11 which the appellant claimed to have been deposited into the accounts of each of the four respondents to acquire the said Jetson shares, the relevant breakdown is as follows:

(a) As for the first appeal - AmInvestment, a total sum of RM4,366,270 was transferred in 11 transactions, each from the appellant’s bank accounts (either at Maybank, CIMB, Public Bank or RHB Bank) to AmInvestment Bank’s Clients Trust Accounts, opened at either Maybank or AmInvestment itself;

(b) As for the second appeal - Kenanga, a total of RM3,219,416.11 was transferred in four transactions, each from the appellant’s bank accounts (either CIMB or RHB) to Kenanga’s bank account maintained at Maybank;

(c) As for the third appeal - Affin Hwang, a total sum of RM 1,000,999 was transferred in two transactions, each from the appellant’s bank accounts (either Public or Affin Bank) to Affin Hwang’s account; and

(d) As for the fourth appeal - TA Securities, a sum of RM500,000 was transferred from the appellant’s CIMB account to TA Securities’ account. [30] Based on the four notices of application for the discovery against the respective four respondents, the documents sought to be discovered can be categorised into three groups. The first refers to documents which evidence the transfers or deposits made by the appellant into the relevant accounts with the respondents’ accounts (“the First Category”); the second concerns documents which show the authority, mandate or instructions upon which the respondents relied on to deal with the deposited sums (“the Second Category”); and the third is in reference to documents showing how these deposits were dealt with or utilised by the respondents (“the Third Category”). [31] As mentioned, the High Court declined discovery of all such documents and information on the grounds of non-necessity and the confidentiality provisions of section 23 of the SICDA 1991. The First Category Documents [32] In respect of the documents and information falling within First Category, in our view, as these relate to the evidence that transfers and deposits had been made by the appellant into accounts maintained by the respondents, we do not see why these are not considered as relevant since this position - that the appellant had made transfers and deposits at the respondents in the sense that the latter had received monies deposited and transferred by the former - is the very foundation of the case instituted by the appellant against the respondents and the two other defendants. [33] In simple terms, the appellant contended that he had deposited monies with the respondents and that he now asked for the return of the same. The receipt of the deposits, made by the appellant, is the premise of his case. [34] The argument of the respondents that the issue of whether the appellant had caused the deposits be made into the accounts at the respondents would be for the appellant to prove at the trial later does not, in our view, truly appreciate the rationale for a pre-trial discovery under Order 24 in terms of disposing fairly of the cause or matter and for saving costs. [35] Neither is the contention of the respondents that it must be deemed that the appellant would already have the necessary documents and evidence to substantiate his allegations tenable. The documents shown by the appellant are largely documents generated for the appellant as the person making the transfers who now applied to have copies of the documents which had been produced by the respondents evidencing receipts by the respective respondents of the deposits and transfers made by the appellant. [36] We find that more tellingly, the respondents’ assertion that the First Category documents are simply unnecessary and a fishing exercise since these documents which include the remittance advices, transfer slips and cheque images are already in the possession of the appellant, to be somewhat disingenuous. [37] This is because the pleadings of the respondents, other than TA Securities - are not exactly clear in acknowledging the identity of the person who made the deposit of such monies in the first place. It bears emphasis that the appellant’s claims against the respondents arise by virtue of the deposits made by the appellant into the accounts maintained by the respondents’ accounts, which with the exception of Affin Hwang, had acknowledged the fact of having received the sums of monies from the transfers and deposits. [38] As such, the documents under the First Category plainly exist, are undoubtedly relevant and are necessary for a fair trial and to save costs. There is no valid impediment to the respondents, including Affin Hwang, from producing the same. [39] Moreover, we are of the view that since AmInvestment deemed it fit to produce its bank statements during the relevant period to show the receipt of the said deposits into its accounts, there would be no legitimate basis preventing the other respondents to do likewise. [40] We emphasise that in relation to Affin Hwang, despite its denial of having receipt any transfers or deposits in the pleadings, the appellant had managed to produce two cheques made payable to its former name, Hwang DBS Investment Bank Berhad, in addition to the corresponding bank statements showing that the appellant’s bank accounts had been debited for the respective amounts. This further supports the stance that in such circumstances, Affin Hwang now bears the burden to produce its bank statements to substantiate its position. [41] Indeed, Affin Hwang submitted that the appellant bears the burden to prove the primary fact that it had received the monies in the first place, before alleging that the said sum had been utilised by the respondents for third party benefit. For the respondents to have utilised the alleged sum, the respondent must have received the monies first. According to Affin Hwang who denied receiving any such monies, this had not been proven by the appellant. Thus to allow the discovery would be akin to allowing the appellant to shift the burden of proof against the respondent. But it has been shown that it is not true that the appellant has no evidence to support the crux of his pleaded claim, as to whether the alleged sum was indeed transferred and/or deposited by the appellant. [42] Thus if any of the respondents takes the position that they did not receive any deposits or transfers, given the evidence already produced by the appellant which suggested the contrary, the respondents must produce their own documents that evidence the receipt or non-receipt of the deposits, as the case may be given that as correctly submitted by the appellant, the same remains a fact in issue. And we also agree with the submission of the appellant that if the respondent could show documentary evidence that the monies deposited were not from the appellant, the matter of this suit will end there. [43] If the respondents admitted to having received monies via the deposits and transfers which had entered into their respective internal system, either into the pool account or general account or other account description notwithstanding, which is at any rate by definition must be under the control of the respective respondents, it is almost unimaginable that the respondents would not wish to inquire into the identity of the depositor, and be in a position to be able to account for every single cent from any such deposit. The relevant documents must surely have been issued and kept in the ordinary course of event and been in existence to reflect, record, track or document that very specific matter of receipt of the deposits and transfers. [44] In fact, they are obliged under the law to do so. In other words, they must have these documents. This is so since the respondents would have had to find out whose money was deposited as part of their duties and in adherence to anti-money laundering laws and guidelines, and this is on top of the plain fact that the respondents are financial institutions and stockbroking companies which operate in a very heavily regulated financial services industry and securities market which are subject to the Financial Services Act 2013 (“the FSA 2013”), and the Capital Markets and Services Act 2007, not to mention a myriad of other regulations and guidelines issued thereunder. [45] This is the law for which we take judicial notice under section 57(1) of the Evidence Act 1950 as we do not find any merit in the objection of the respondents that this fact was not in the pleadings of the appellant. We need only mention this:

Facts of which court must take judicial notice

(a) all laws or regulations having the force of law now or heretofore in force or hereafter to be in force in Malaysia or any part thereof; ………. [46] We reiterate that the case of the appellant is for the recovery of monies which he claimed to have been paid into the respondents for share trading purposes through the other two defendants. The discovery is for the purposes of securing documents to pursue such a claim. [47] We thus find the insistence that the appellant must, before anything else, first show that he is a depositor with a securities account opened at the respective respondents in respect of the documents under the First Category to be misconceived for being unnecessarily premature at this stage of the proceedings as he could not, to begin with, even show how his monies were dealt with by the respondents despite the latter having received them. To shut the door on discovery because he could not show he is a depositor or a customer is therefore unwarranted, given the said circumstances. Similarly, we find that the High Court was in error in holding that the issue before the Court was whether the respondents had breached an agreement to open a securities account with the appellant and whether the respondents were aware of the purpose for which the deposits were made. These are issues to be properly ventilated at trial and should not be the impediment to ensuring a fair trial by refusing discovery at this pre-trial stage. [48] After all, based on his own pleadings, whilst the appellant’s intention, as communicated and discussed with the two defendants (Andre and Lenny) was clearly to undertake share trading as shown by the making of transfers and deposits, he could not be certain that he is either a customer or a depositor with any of the respondents as he had relied on the two defendants to perform the necessary on his behalf. [49] We cannot in any event emphasise enough that as held by this Court in the above-mentioned case of Bandar Utama Development Sdn Bhd & Anor v Bandar Utama 1 JMB (supra), Order 24 concerns with situations which are “fact centric” where in the final analysis the test for discovery is whether it is necessary for fairly disposing of the case or saving cost as stated in Order 24 r 8 of the RC 2012. [50] We say that the application of this requisite test in this case results in an affirmative finding of the necessity for discovery in relation to the documents in the First Category since it would fairly dispose of the case of the appellant and save costs. Whether discovery is prohibited by statutory provisions on secrecy [51] The respondents then pursued the argument, accepted by the High Court, that any order for discovery would be contrary to section 43 of the SICDA 1991. However, the appellant’s position is that the secrecy provisions of section 43 of the SICDA do not apply to the said documents in the First Category because they do not involve third parties. The respondents argued otherwise, maintaining their stance that under the FSA 2013 the respondents have no obligation to divulge information to a non-customer, such as the appellant. [52] First, we refer to section 43 of the SICDA 1991. It states as follows:

Duty to maintain secrecy.

Secrecy

(a) the financial institution; or

(b) any person who is or has been a director, officer or agent of the financial institution, shall disclose to another person any document or information relating to the affairs or account of any customer of the financial institution. …..

(1) A holder of a Capital Markets Services Licence shall establish and keep in a licensed institution one or more trust accounts designated or evidenced as such into which he shall pay–

(a) all amounts, less any brokerage and other proper charges, that are received from or on account of any person, other than a holder of a Capital Markets Services Licence, for the purchase of securities and that are not attributable to securities delivered to a holder of a Capital Markets Services Licence not later than the next bank business day or such other day as may be specified by the Commission on which they were received by such holder; and

(b) all amounts, less any brokerage and other proper charges, that are received for or on account of any person, other than a holder of a Capital Markets Services Licence, from the sale of securities and that are not paid to that person or as that person directs not later than the next bank business day or such other day as may be specified by the Commission on which they were received by such holder.

(a) contravenes this section commits an offence and is liable on conviction to a fi ne not exceeding one million ringgit; or

(b) with intent to defraud, contravenes this section commits an offence and shall, on conviction, be liable to a fi ne not exceeding one million ringgit or to imprisonment for a term not exceeding ten years or to both. [Emphasis added] [74] Additionally, pursuant to the Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2001 the respondents, as reporting institutions, have an obligation under section 14 to report any suspicious transaction to the Central Bank. Similarly under section 13 of this same Act, they have the duty to keep a record of any transaction involving currency exceeding such amount as the Central Bank may specify, which record necessarily includes the identity and address of the person in whose name the transaction is conducted. The relevant provision of section 14 reads as follows –

Report by reporting institutions

(a) any transaction exceeding such amount as the competent authority may specify;

(b) any transaction where the identity of the person involved, the transaction itself or any other circumstances concerning that transaction gives any officer or employee of the reporting institution reason to suspect that the transaction involves proceeds of an unlawful activity or instrumentalities of an offence;

(c) any transaction or property where any officer or employee of the reporting institution has reason to suspect that the transaction or property involved is related or linked to, is used or is intended to be used for or by, any terrorist act, terrorist, terrorist group, terrorist entity or person who finances terrorism.

[94] The other reason why discovery would not be objectionable is this. Apart from the point just made that these cases - Philipp v Barclays Bank UK Plc, Royal Bank of Scotland International Ltd v JP SPC 4 and another and Koperasi Sahabat Amanah Ikhtiar Bhd v RHB Investment Bank Bhd involved examination of the merits of the claim of negligence, unlike the instant appeals before us which is still at this interlocutory stage, the aforesaid pronouncements by Courts in these cases concerned the tort of negligence with focus on whether the duty of care is owed by banks to non-customers. [95] However, the main suit in the appeals before us is not merely grounded on negligence, but also other causes of action, which, as mentioned earlier include breach of trust, unjust enrichment, monies had and received, section 73 of the Contracts Act 1950, and by way of vicarious liability under section 59A of the CMSA

[96] Thus, for the sake of argument, even if the respondents might argue that the appellant could not prove the existence of a duty of care owed by them to him (which as we stated earlier, could not in any event be properly determined at this interlocutory stage), we would state that the fact that the appellant is pursuing other causes of action as well means that his request for discovery ought not at this instant to be dismissed out of hand. Conclusion [97] In conclusion, in our view, it certainly cannot be said that the appellant was seeking to trawl for evidence by casting the net over a wide-open area. [98] The central and pivotal role of the documents in question - in the First Category and the Second Category - is above all necessary for the fair disposal of the suit as well as for saving costs, in accordance with the provisions of Order 24 r 8 of the RC 2012. [99] We stress that the overarching objective of the rules on discovery in civil litigation is to ensure a fair trial and the efficient resolution of disputes. Mechanism of the rules encourages transparency amongst the parties by enabling at the pre-trial stage the exchange of information and evidence between parties in litigation, and thus avoiding any of the parties to be taken by surprise in a "trial by ambush". Like in this case, discovery helps identify undisputed facts, and this would potentially reduce the scope of the case to only the essential, disputed matters. [100] On the specific facts of the case, the granting of the discovery order against the respondents in respect of the documents in the First Category and the Second Category is amply justified on the plain words of the pleadings of the parties as discussed above, considering the centrality of the documents in question vis-a-vis the claim of the appellant for the return of the monies he had transferred to the respondents, which also satisfied the criteria spelt out in the case of Yekambaran (supra) as well as, we emphasise, given the determination that such a production is necessary for disposing of the case fairly and for saving costs under Order 24 r 8 of the RC 2012. [101] Above all it, is not clear how the respondents would be prejudiced by the discovery order, and in any event, we must stress that this is only a discovery application, in that undoubtedly the burden still firmly remains on the appellant as the plaintiff to prove his case as he pleaded, against the respondents and the two defendants in the main suit. [102] Whilst it is settled that an appellate court would be slow to interfere with the discretion of the court of first instance, particularly in relation to interlocutory matters, in our view, in this case, we are satisfied that the appellant has successfully demonstrated that the High Court had exercised its discretion in error in its total refusal of discovery and that appellate interference is to such extent warranted. [103] As such, we set aside the decision of the High Court on each of the four appeals in part, and thus allow each of the four appeals in part, whereby the discovery order is hereby granted against the respondents pursuant to the respective notices of application in respect of documents in the First Category and the Second Category only, but not the Third Category. [104] The order on costs granted by the High Court is also set aside. [105] We make no order as to costs for these appeals. Dated on 19 February 2026 - signed - MOHD NAZLAN MOHD GHAZALI Judge Court of Appeal Putrajaya, Malaysia For the Appellants: [P.G. Doraisamy a/l P.Gopal] Dato’ Ambiga Sreenevasan, Selvaratnam and Gokul Radhakrishnan (Messrs. SREENEVASAN) For the Respondent: [AmInvestment Bank Berhad] Muhammad Izzat Zainal (Messrs. SHOOK LIN & BOK.) For the Respondent: [Kenanga Investment Bank Berhad] Teh Meng Teck, Dianne Ng and Cliff Tan Ze Yin (Messrs. CHEAH TEH SU) For the Respondent: [Affin Hwang Investment Bank Berhad] Marianne Loh and Megan Phang (Messrs. SHOOK LIN & BOK.) For the Respondent: [TA Securities Holdings Berhad] Bobby Chew Chin Guan and Lee Bee Hsia (Messrs. CHRIS KOH & CHEW)