P.G. DORAISAMY A/L P.GOPAL v TA Securities Holdings Berhad (W-02(IM)(NCC)-137-01/2025)

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)

Subject to the provisions of this rule and of rules 4 and 8, the Court may at any time order any party to a cause or matter (whether begun by writ, originating summons or otherwise) to give discovery by making and serving on any other party a list of the documents which are or have been in his possession, custody or power and may at the same time or subsequently also order him to make and file an affidavit verifying such a list and to serve a copy thereof on the other party. …

The documents which a party to a cause or matter may be ordered to discover under paragraph (1) are as follows:

the documents on which the party relies or will rely; and

the documents which could—

adversely affect his own case;

(ii) adversely affect another party’s case; or

(iii) support another party’s case. Order for discovery of particular documents (O. 24, r. 7)

(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.

An order may be made against a party under this rule notwithstanding that he may already have made or been required to make a list of documents or affidavit under rule 3.

An application for an order under this rule shall be supported by an affidavit stating the belief of the deponent that the party from whom discovery is sought under this rule has, or at some time had, in his possession, custody or power the document, or class of document, specified or described in the application, and that it falls within one of the following descriptions:

a document on which the party relies or will rely;

a document which could—

adversely affect his own case;

(ii) adversely affect another party’s case; or

(iii) support another party’s case; and

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

adversely affect his own case;

(ii) adversely affect another party’s case; or

(iii) support another party’s case.

An order under this rule shall not be made in any cause or matter in respect of any party before an order under rule 3 has first been obtained in respect of that party, unless, in the opinion of the Court, the order is necessary or desirable. [22] In the often-referred to authority of the High Court in the case of Yekambaran s/o Marimuthu v Malayawata Steel Berhad [1994] 2 CLJ 581 it was plainly held that an applicant in a discovery application must satisfy three essential elements to justify the same which are first, there must be a "document"; secondly, the document must be relevant and thirdly, the document must be or have been in the "possession, custody or power" of the party against whom the order for discovery is sought. [23] Consistent with the requirements of the above-stated Order 24 r 3 (4) and Order 24 r 7 (3), the relevancy of the document sought to be discovered is essential in the sense that it ought to be relevant to an issue in the case, as disclosed in the pleadings, either in supporting the applicant's case, or impairing the opponent's case, or in leading to a train of inquiry. [24] Courts will as such refuse discovery if the document is not shown to be relevant especially when any such discovery application is construed as a fishing expedition. This is where an applicant literally is fishing for evidence to build a case, instead of having in mind an identifiable and known document to strengthen an existing case. [25] But showing relevancy alone is not sufficient. And we further do recognise that a party seeking discovery not only has the burden to show that the documents sought are relevant but must also establish that the documents are necessary for disposing the matter fairly and for saving costs (see the decision of the Court of Appeal in Malaysia Debt Venture Berhad v Platinum Techsolve Sdn Bhd & Ors [2020] MLJU 1421). [26] In the final analysis, the pivotal question in any discovery application is whether discovery is necessary for disposing fairly of the proceedings or for saving costs. This Court had said the following in the case of Nguang Chan aka Nguang Chan Liquor Trader & Ors v Hai-O Enterprise Bhd & Ors [2009] 5 MLJ 40: “[25] As stated earlier the real issue is compliance with r 13(1) which stipulates that 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…” [27] However, at the same time it cannot be emphasised enough that a grant of an order for discovery is also dependent on the facts of the case. It is based on the particular facts of each case. The Court of Appeal in Bandar Utama Development Sdn Bhd & Anor v. Bandar Utama 1 JMB [2019] 10 CLJ 516 said this: “[18] It must be noted that O. 24 is 'fact centric'. Pure reliance of cases within and outside the jurisdiction as a general rule will not tie the hands of the court in the exercise of its discretionary powers. The test whether or not to grant an order is set out in O. 24 r. 8 itself……..” [28] And Order 24 r 8 reads as follows:

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:

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;

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;

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

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

The court shall take judicial notice of the following facts:

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.

Except as provided in this Act, no director or officer of a central depository or an authorised depository agent, whether during his tenure of office or during his employment or thereafter, and no other person who has by any means access to any information or document whatsoever relating to the affairs of any of the depositors, and in particular, relating to their securities accounts, shall give, divulge, reveal or otherwise disclose such information or document to any person.

No person who has any information or document which to his knowledge has been disclosed in contravention of subsection (1) shall in any manner howsoever disclose the same to any other person.

A person who contravenes this section shall be guilty of an offence and shall, on conviction, be liable to a fine not exceeding three million ringgit or to imprisonment for a term not exceeding five years or to both. [53] This provision governs the confidentiality of information and documents relating to the affairs of the depositor, especially concerning his securities account. Section 2 of the SICDA 1991 states that a “securities account” means an account established by a central depository for the recording of deposit of securities and for dealings in such securities by the depositor, whilst a depositor is defined in the same section 2 simply as a holder of a securities account. [54] Now, it is a generally known fact that a securities account (or a central depository system - CDS account) is different from a trading account. Much like a bank account - but for shares, a CDS account holds and tracks securities/share ownership of a depositor by way of a book-entry system operated by Bursa Malaysia Depository Sdn Bhd. Thus, for example, shares which are purchased are credited into the CDS account. [55] A trading account, on the other hand, reflects the securities transactions such as the buying and selling of shares undertaken by the depositor through a stockbroking firms or investment banks. Funds utilised for or proceeds received from share transactions are managed via the trading account. [56] This duty of secrecy is imposed on directors and officers of the central depository itself as well as more pertinently for present purposes, on those referred to as the authorised depository agents (“the ADAs”). The ADAs are institutions appointed by the central depository (Bursa Malaysia Depository Sdn Bhd) under section 13 of the SICDA 1991 as agents for managing the Central Depository System (CDS) or securities accounts. For present purposes it suffices that we state that the ADAs include primarily stockbroking firms such as TA Securities, and investment banks such as AmInvestment, Kenanga Investment and Affin Hwang Investment. [57] Notwithstanding the prohibitions in section 43, disclosure of CDS information is nevertheless allowed under circumstances of permitted disclosures specified in section 45 of the SICDA 1991. However, in our view, none of the specified circumstances applies in this case. The appellant could not rely on the exception in section 45

(c) (i) which allows disclosure for the purpose of instituting or, in the course of, any civil proceedings between an authorized depository agent (such as any of the respondents herein) and a depositor relating to the securities account of the depositor. This is because all of the respondents pleaded in no uncertain terms that the appellant is not a depositor. [58] Yet the respondents at the same time contended that the documents sought by the appellant are documents relating to the accounts/affairs of the respondents’ customer(s) which have no correlation whatsoever to the appellant’s pleaded relief against the respondents, which is the recovery of the deposits of monies made to the respondents, from the respondent. [59] We find this contention untenable - at least in respect of the documents in the First Category. [60] We cannot disagree with the appellant that section 43 of the SICDA 1991 does not apply to the documents in the First Category. This in our view is quite clear since these documents relate to evidence of the receipt by the respondents of the deposits or transfers made by the appellant. Such receipts do not obviously concern any third party depositor. [61] Further, if the respondents maintained that the appellant is not a customer and does not have a status as a depositor and has no securities account, it is even more compelling that section 43 has no relevance to such documents since in that situation, there is no affairs of any depositor, what more of any securities account of his, that is sought to be disclosed. [62] As such, we are of the view that the High Court fell into an error when it decided that disclosure was prohibited under section 43 of the SICDA 1991 merely by reason that the appellant could not show that it was a depositor in order to invoke the exception under section 45 of the same Act. [63] Now, the respondents, in particular AmInvestment Bank also argued that it is additionally bound by the secrecy provisions against disclosure as contained in the FSA 2013. Specifically section 133 of the said Act. The relevant parts read as follows:

Secrecy

No person who has access to any document or information relating to the affairs or account of any customer of a financial institution, including—

the financial institution; or

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. …..

No person who has any document or information which to his knowledge has been disclosed in contravention of subsection (1) shall disclose the same to any other person.

Any person who contravenes subsection (1) or (3) commits an offence and shall, on conviction, be liable to imprisonment for a term not exceeding five years or to a fine not exceeding ten million ringgit or to both. [64] The respondents argued that the appellant could not place his situation under any of the exceptions set out in section 134. [65] It should be noted that the provision on permitted disclosures in section 134 (1) (a) clearly states that a financial institution or any of its directors or officers may for such purpose or in such circumstances as set out in the first column of Schedule 11, disclose any document or information relating to the affairs or account of its customer to such persons specified in the second column of that Schedule. [66] A reference to the list of exceptions in Schedule 11 would readily show in paragraph 4 that disclosure is permitted in any civil proceedings between a financial institution and its customer relating to the customer’s transaction, to all persons to whom the disclosure is necessary for the purpose of the civil proceedings. In addition, disclosure is also allowed in paragraph 4 where it is in compliance with a court order made by a court not lower than a Sessions Court. [67] We make several observations. First, if the appellant was a customer then the said paragraph 4 concerning the existence of a civil proceeding between the parties would permit the requested discovery. Secondly, also, if the appellant was a customer, it could be argued that disclosure is not an issue and should not be denied as it concerns his own customer information, as permitted in paragraph 1 of the said Schedule 11. [68] Thirdly, in any event, as the respondents denied the appellant is a customer, then it stands to reason that information and documents sought by the appellant - the documents in the First Category - do not relate to any customer information since it does not involve any customer of a financial institution or that of any third party customer but merely evidence of receipt of the deposits - vis-à-vis the relationship between the appellant and the respective respondents only. [69] Fourthly, as highlighted by this panel at the hearing of the appeal, the FSA 2013 does not apply to TA Securities because unlike the other three respondents, TA Securities is not a financial institution as defined in section 131 of the FSA 2013. As such, TA Securities cannot in any event invoke section 133 of the FSA 2013 to refuse disclosure. [70] As such, it is our view that the refusal of discovery of the documents in the First Category by reason of section 43 of the SICDA 1991 and section 133 of the FSA 2013 cannot be sustained. [71] We therefore conclude this part of our grounds of judgment by stating that discovery of the documents in the First Category is necessary to save time and costs in line with the requirements and rationale of Order 24 r 8 of the RC 2012. The secrecy provisions in the FSA 2013 and the SICDA 1991 do not apply to the documents in the First Category and therefore could not be a reason to refuse discovery. The Second Category Documents [72] As for the documents in the Second Category which evidence the requisite instructions or mandate to the respondents in respect of the monies said to have been deposited and transferred by the appellant, we should point out that it is rudimentary that the respondents, as banks and stock broking companies hold monies placed with them, for example by customers for trading purposes and in that capacity - as trustees - they must surely ensure that what they do with such monies must be in accordance with the instructions or mandate given by the customers. [73] The respondents are under a duty and must in other words be able to account to the appellant for the monies they received. For instance, under section 111 of the CMSA 2007, a holder of a Capital Markets Services Licence - which all the respondents here are - shall establish and keep in a licensed institution, one or more trust accounts designated or evidenced as such into which shall be paid all amounts, less any brokerage and other proper charges, that are received from or on account of any person for the purchase of securities and from the sale of securities not later than the next bank business day. It must be noted that the word used here is any person, not any customer. The entirety of the section reads as follows – Certain monies received by holder of Capital Markets Services Licence to be paid into trust account

(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–

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

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.

Notwithstanding subsection (1), where a holder of a Capital Markets Services Licence receives payment in a place outside Malaysia, the holder may keep such payment in one or more trust accounts in an institution licensed outside Malaysia to provide banking or financial services.

A holder of a Capital Markets Services Licence who–

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

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 reporting institution shall promptly report to the competent authority—

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

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;

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.

For the purposes of this section, “transaction” includes any attempted transaction or proposed transaction. [75] As such, it cannot be correct that the respondents could not only choose not to account for the funds that had entered into their respective systems but also not identify the true instruction and mandate that accompanied the funds. Thus, we agree with the appellant that it is very relevant for the respondents to provide documents as to the instructions or mandate they acted on to deal with the monies received from the appellant. In fact, the respondents (other than Affin Hwang) pleaded that the monies received had been paid into trading accounts or used for the benefit of third parties and/or their existing customers, by which they did not mean the appellant. [76] We find this evidence in the Second Category would be necessary to determine if the respondents had acted on valid instructions vis-à-vis the monies deposited with them by the appellant. In that sense, if indeed the mandate was validly followed, the trial could see significant cost saving including the shortening of trial preparation overall and with fewer witnesses testifying. We find that discovery of the documents under the Second Category is warranted under Order 24 r 8 of the RC 2012. [77] Similar to the documents in the First Category, we do not think the secrecy provisions of the FSA 2013 or the SICDA 1991 would be of relevance, primarily because no depositor account needs to be involved in the documentary evidence showing the instruction, mandate or authority in respect of the monies deposited with the respondents by the appellant, as sought by the appellant. In other words, such documents in the Second Category do not need to relate to the affairs of other depositors or any securities accounts. They do not concern third party account information. [78] For the same reason as applied to the documents in the First Category too, the secrecy provisions in section 133 does not apply (and TA Securities is not subject to the FSA 2013 at all) since there is no other customer information that is sought to be discovered. And again, if on the other hand the appellant could be construed as a customer, then disclosure is also permitted pursuant to Schedule 11 because of two exceptions. First, the disclosure would then be of his own customer information and secondly, the existence of a civil proceeding between the customer and the relevant respondent also permits disclosure of customer information. [79] It cannot be the position that the burden to show the existence of the mandates and instructions would entirely be on the appellant - such a construction would yield an untenable conclusion, namely that in the absence of express instructions from the appellant, the respondents were at liberty to deal with his deposits in any manner they saw fit. [80] Surely the respondents could not take the position that they did not need to inform the appellant as to what had happened to his monies deposited with the respondents or how they had used it. Even though the respondents claimed there had been no instructions from the appellant to purchase Jetson shares, it is unthinkable if they are suggesting that in the absence of any such instructions from the appellant, the respondents need not account the monies to the appellant and instead could use the same as they think fit. [81] But if the respondents had somehow instead taken instruction from another person in respect of the monies deposited by the appellant, this is exactly the information that the appellant sought in the discovery of the Second Category, to which the appellant is entitled. Whether on such discovered facts there was a duty of care owed by any of the respondents to the appellant and whether there was a breach of that duty would be a matter to be evaluated at trial. It thus also cannot be right, as held by the High Court, that - even at this pre-trial stage - until the appellant could prove these instructions were given to the respondents, the latter have no obligation to inform the appellant how they used or dealt with the monies. [82] Accordingly, we conclude that the documents in the Second Category must surely exist and be in the possession of the respondents. They are relevant and necessary for a fair trial and to save costs. The secrecy provisions in the SICDA 1991 and the FSA 2013 do not prohibit disclosure pursuant to such discovery. The Third Category Documents [83] In respect of the documents in the Third Category which would show how such monies were in fact utilised, we are cognisant of the appellant’s position that in view of the respondents’ obligations under the Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2001, they must make it their business to find out and be aware of the deposits made by the appellant such that it is incumbent on the respondents to explain to the appellant what they did with his money. [84] Again, we reiterate that the respondents (save for Affin Hwang) had even pleaded that the deposits were utilised for the benefit of third parties and/or existing customers of theirs. We cannot disregard the merits of this contention of the appellant to justify the discovery of the documents under this Third Category. Neither do we reject that they must have a duty to account to the appellant for sums they received from him. [85] However, as the appellant himself recognised, this category of documents could fall within the secrecy provisions of section 43 of SICDA 1991 as they will crucially and necessarily in all likelihood identify the accounts of third parties - or securities/CDS accounts of depositors who benefitted from the transactions (using the monies deposited by the appellant) as undertaken by the respondents. [86] Given this position in law, we are of the view that any disclosure of documents under the Third Category ought rightly to be denied as it is prohibited. Since section 43 of the SICDA 1991 applies to prevent disclosure, we cannot accede to the appellant’s assertion that reliance could instead be placed on an exception which he claimed would be available under section 134(1)(a) of the FSA 2013, a different Act altogether. Nor do we think a case could be validly made out to justify the production of the said documents sought under the Third Category pursuant to a protective or confidentiality order to maintain the confidentiality of the information contained therein. Banks’ Duty of Care to Non-Customers [87] Of some relevance to the present discussion, regard may be had to the case of Philipp v Barclays Bank UK Plc [2024] AC 346, where the UK Supreme Court held that since a bank’s duty is to execute the instruction of its customer, any failure to do so will breach that duty. If the instruction is clear and is given by the customer personally, the bank need not make any inquiries to verify the instruction. The exception is where the bank is put on inquiry and has reasonable grounds to believe that for instance, the instructions from an agent of a customer is fraudulent. [88] As for non-customers, it is noteworthy that in another recent case - Royal Bank of Scotland International Ltd v JP SPC 4 and another [2022] UKPC 18, the Privy Council was clear in its dismissal of an attempt to extend a bank's duty to a non-customer of the bank. [89] We are certainly mindful of the case of Koperasi Sahabat Amanah Ikhtiar Bhd v RHB Investment Bank Bhd [Civil Appeal: No. 02(f)-98-11/2022(W)] where, based on its broad grounds, the Federal Court overturned the decision of the Court of Appeal and held that a financial institution does not owe a duty of care to third parties who are not its customers, especially in cases of pure economic loss. [90] It must be appreciated that in that case, that conclusion was arrived at after the Federal Court had undertaken an analysis as to whether a duty of care existed, where on the facts, the Federal Court determined that there was no reasonable basis to suspect that the transfer of the funds to the bank was unauthorized, making the misappropriation (which resulted therefrom) unforeseeable to the bank. There was also a lack of legal proximity since the respondent in that case had no established account or prior interactions with the bank, the only link being the fraudulent deposit into a pool account. Thus, the bank did not assume any duty of care or responsibility towards the respondent. [91] The Court also considered that it would be unjust and unreasonable to impose a duty of care on the bank, particularly when there was no established customer relationship. [92] In the instant appeals before us, the respondents claimed that the appellant was not a customer but the majority of them appeared to acknowledge having received monies from him. Questions such as whether a duty of care existed in this case and whether the respondents ought to have been put on inquiry as to whether the instructions concerning that monies were in adherence to the genuine mandate from the appellant are in our view matters that would be more suitably ventilated at trial, to be examined in the context of the factual matrix of the case. [93] For what the appellant was seeking, we reiterate, is the making available documents at this pre-trial stage to enable him to advance his claim at trial proper. He cannot thus be shut out at this stage since at this interlocutory stage there is yet evidence to demonstrate, for example, whether the unauthorized shares transactions using the monies deposited by the appellant (assuming there were such transactions) which caused losses to the appellant (assuming that was the case) and which would go towards establishing the existence of a duty of care, were known or ought to have been reasonably foreseeable by each of the respondents. The documents he sought in the discovery could either fortify or weaken his case within the context of Order 24 r 3 and Order 24 r 7, and in our view, relevant and necessary for the fair disposal and the saving of cost of the same, falling within the remit of Order 24 r 8 of the RC

[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)