Vinvest Capital Holdings Berhad (sebelum ini dikenali sebagai VIVICOM INTL HOLDINGS BERHAD) v EA Holdings Berhad (WA-22NCC-536-07/2023)

This is an application via an Amended Notice of Application dated 18- 12-2023 [See Enclosure 94] by the plaintiff for discovery of documents against Bursa Malaysia Depository Sdn Bhd [“Bursa Depository”] and Bursa Malaysia Bhd [“Bursa Malaysia”] who are not parties to the suit before me.

The application is made pursuant to Order 24 Rule 7A (2) and/or Order 92 Rule 4 of the Rules of the Court 2012 [“ROC 2012”].

Bursa Depository and Bursa Malaysia oppose the application.

On 07-03-2025 I heard counsel. The plaintiff filed written submissions in Enclosures 120, 140, 302 and 315. Bursa Depository filed written submissions in Enclosures 119 and 142. Bursa Malaysia filed written submissions in Enclosures 117, 143, 299 and 313.

On 21-04-2025 I dismissed the application with costs of RM 3,000 to Bursa Depository and RM 10,000 to Bursa Malaysia subject to allocatur.

The plaintiff has appealed to the Court of Appeal on 20-05-2025 [See Enclosure 318]. These are my Grounds of Judgment.

The pleaded case of the plaintiff in the Original Action, Vinvest Capital Holdings Berhad (“Vinvest” or “plaintiff”) is as follows. Vinvest is the owner of 1,100,000,000 shares in the 1st defendant EA Holdings, Berhad [“EAH”].

EAH is a public listed company involved in activities and providing services in respect of, inter alia, investment holding, management and consultancy services.

The 2nd defendant See Jovin [“SJV” or 2nd defendant] is an individual who represented himself as a ‘share market analyst’ with connection to a wide-ranging network of remisier and brokers services.

Vinvest alleges that on or about 27-04-2023 SJV made a false representation to a Vinvest’s director that the remisier in charge of Vinvest’s Maybank CDS account had resigned from Maybank and that Vinvest would need to open a fresh CDS account. Vinvest further alleges that SJV convinced Vinvest to open the fresh CDS account (“TA CDS Account”) with TA.

Vinvest alleges that SJV was instructed by Vinvest to set up the TA CDS Account. Vinvest further alleges that subsequently it discovered SJV had wrongly sold Vinvest’s shares in EAH without its authority.

Vinvest then managed to retrieve the proceeds from the alleged wrongful disposal of Vinvest’s shares amounting to RM 5,486,000.00 by getting TA to put the proceeds in Vinvest’s bank account.

On 28-07-2023, Vinvest filed this Writ action [See Enclosures 1 and 63] before me against EAH and SJV, whereby the crux of Vinvest’s claim [See Amended Statement of Claim in Enclosure 64] is that: i. SJV had misrepresented to the plaintiff and/or plaintiff’s directors that the 1,100,000,000 ordinary shares in the 1st defendant, which had been acquired by the plaintiff on 30-11-2021 (“Shares Belonging to plaintiff”), ought to be transferred from Maybank CDS account with account no.: 098-001-073004467 (“Maybank CDS Account”) to TA Securities Holdings Berhad with account no.: 058-003-075686345 (“TA CDS Account”). This had been done. ii. The 2nd defendant had illegally, wrongfully and fraudulently sold and disposed of the Shares Belonging to plaintiff as kept in the TA CDS Account vide the open market on 23-06-2023. iii. The 2nd defendant had conspired/colluded with third parties including the 3rd defendant and other individuals to injure the interest of the plaintiff by lawful and/or unlawful means, by 5 deliberately planning and causing Shares Belonging to Plaintiff to be offloaded vide the TA CDS Account, this being under the 2nd defendant’s sole control, and sold on to the third parties (as set out under Appendix A of the Amended Discovery NOA) at a pittance price of RM 0.005 per share. This has caused the plaintiff to lose its rights exercisable through its ownership of Shares Belonging to plaintiff.

On 21-08-2023, one Ng Cheng Shin [“NCS”] filed an application to intervene and be added in the suit as the 3rd defendant on the basis that NCS is a shareholder in EAH [See Enclosure 18]. The application was allowed on 10-10-2023.

Trial is now fixed to start on 03-11-2025.

Meanwhile, Vinvest applied for interim injunctive reliefs in Enclosure 3. I did not grant all the reliefs sought. I only allowed the following interim injunctive reliefs-i. The defendants are restrained from any further transaction of the Vinvest’s shares in EAH. [ see prayer (a)]; and ii. The defendants are restrained from exercising the voting rights accorded to the Vinvest’s shares in EAH. [see prayer (c)].

My judgment in respect of the interim injunctive reliefs is reported as Vinvest Capital Holdings Bhd (Sebelum Ini Dikenali Sebagai Vivicom Intl Holdings Bhd) v EA Holdings Bhd & Ors [2024] MLJU 3155 HC.

On 06-09-2023, the 1st defendant filed its Defence. [See Enclosure 26] (“D1 Defence”).

In paragraph 9(c)(i) to (iv) of D1 Defence, EAH disclosed-i. According to its Record of Depositors as of 23-06-2023 the plaintiff’s shares were held by Mohammad Sobri bin Saad with 1,133,424,300 shares and Vinvest Capital Berhad with 1,100,000,000 shares. The total shares were 2,233,424,300. ii. According to its Record of Depositors as of 30-06-2023- a) Mohammad Sobri bin Saad has 81,424,300 shares. b) Vinvest Capital Berhad has 0 shares. c) 2,152,000,000 shares were sold. iii. According to its Record of Depositors as of 30-06-2023 there were 22 new shareholders. Their names were stated, if holding as nominees the names of the beneficial owners were stated and the number of shares each hold were stated. [See Enclosure 26 of D1’s Defence at paragraph 9(c)(iii)]. iv. According to its Record of Depositors as of 27-07-2023 there were 14 new and nominee shareholders. Their names were 7 stated, if holding as nominees the names of the beneficial owners were stated and the number of shares each hold were stated. The shareholders who had sold their shares were also stated. [See Enclosure 26 of D1’s Defence at paragraph 9(c)(iv)].

From the Defence of EAH the plaintiff knows the individuals that had acquired the shares belonging to the plaintiff, are inter alia, Keh Chuan Choon, Keh Chuan Yee, Keh Chuan Seng, Tan Yun Quan, Tan Yee Li, Chu Kerd Yee, Loo Woei Jye, Tan Hwa Sing, Carmen Quah, Goh Phaik Lim, Tan Guat Kee, Khor Chuan Meng, Cheong Kai Meng, Gan Boon Chew, Chan Kay Ding, Ng Cheng Shin and Ng Cheng Tat. [See Enclosure 292 plaintiff’s supporting affidavit for discovery dated 14-11- 2023 at paragraph 8].

These persons have been identified by the plaintiff in Appendix A of the Amended Notice of Application dated 18-12-2023 [See Enclosure 94].

On 15-09-2023, the plaintiff filed a Notice to Produce pursuant to Order 24 Rule 10 of the ROC 2012 and served the Notice to Produce on the solicitors of the 1st defendant in order to produce the 1st defendant’s Record of Depositors dated 23-06-2023, 30-06-2023 dan 27-07-2023 stated in paragraph 9(c)(i) to (iv) of D1 Defence. [See Enclosure 34].

On 26-09-2023, the 1st defendant had filed its Notice for Inspection for the plaintiff to inspect the 1st defendant’s Record of Depositors dated 21-06-2023, 30-06-2023 dan 27-07-2023. [See Enclosure 40].

Despite having obtained the necessary information, the plaintiff chose to file for discovery against Bursa Depository and Bursa Malaysia.

By an Amended Notice of Application dated 18-12-2023 [See Enclosure 94] the plaintiff applied for discovery of documents against Bursa Depository and Bursa Malaysia.

The discovery application was filed pursuant to Order 24 Rule 7A (2) of the ROC 2012.

The plaintiff applied for discovery against Bursa Depository and Bursa Malaysia of, inter-alia, official documents concerning share transactions in EAH shares by 25 shareholders or nominee shareholders listed in Appendix A to Enclosure 94.

The documents sought were stated in Appendix A as follows– Official documents recording the date, time, number of shares and CDS Account of the transaction dealings for the following individuals, and whether such individuals are the purchasers that have purchased the Shares Belonging to plaintiff (whether directly or through pledged securities account) vide the open market on 23-06-2023 and/or the subsequent transactions vide the open/off market. [Emphasis added] [Court note - In Appendix A the plaintiff has stated the 25 shareholders or nominee names, their pledged securities accounts and the number of shares held by them as at 21-06-2023, 30-06-2023 and 27-07-2023 in a table form which I have not reproduced here]

In Appendix A the plaintiff has clearly stated the 25 shareholders or nominee names, their pledged securities accounts and the number of shares held by them as at 21-06-2023, 30-06-2023 and 27-07-2023.

The plaintiff contends that the said request was to enable the identification of those individuals who had purchased shares belonging to the plaintiff, which the plaintiff had no intention or interest in disposing of, but which were, inter alia, illegally disposed of by the 2nd defendant.

Bursa Malaysia Bhd objects to the discovery application on the grounds that-i. Under section 43 of the Securities Industry (Central Depositories) Act 1991 Bursa Malaysia is strictly prohibited from giving, divulging, revealing or otherwise disclosing any information or document whatsoever relating to the affairs of any depositors and in particular relating to their securities accounts, i.e. the CDS accounts. The documents sought by the plaintiff do not fall within any of the permitted disclosures under section 45 of the Act; 10 ii. There is an overriding public interest in maintaining confidentiality of trading details of depositors and their securities accounts. Loss of public confidence will undermine the Malaysian stock market; and iii. The plaintiff ought to serve the application on the individuals named therein, whose information the plaintiff seeks from Bursa Malaysia.

Bursa Depository objects to the discovery application on the ground that the information requested in Enclosure 94 is information pertaining to records derived from the trading system which are not records kept by Bursa Depository. The said trading system is not within the control of Bursa Depository and is run by and within the control of Bursa Malaysia.

Bursa Depository had instructed its solicitors, i.e. Messrs Brendan Siva, to inform the plaintiff’s solicitors which they did by way of a letter dated 08-12-2023 (See Enclosure 105 Affidavit In Reply of paragraph 6 and Enclosure 98 Plaintiff’s Corrective Affidavit of Exhibit “TCH(Discovery)-8”). Discovery of documents against third parties under Order 24 Rule 7A

ROC 2012 [34] The discovery of documents against third parties is governed by Order 24 rule 7A (2) and 8 of the ROC 2012. A case on rule 7A (2) is Billion Prima Sdn Bhd v Nutech Co Ltd & Anor [2017] 10 MLJ 213 HC; [2016] MLRHU 949 HC, Wong Kian Kheong JC [“Billion Prima”]. [35] Order 24 rule 7A and 8 of the ROC 2012 provide as follows: Order 24 r 7A Discovery against other person

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

An application after the commencement of proceedings for an order for the discovery of documents by a person who is not a party to the proceedings shall be made by a notice of application, which shall be served on that person personally and on every party to the proceedings. … Order 24 rule 8 Discovery to be ordered only if necessary 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. [Emphasis added] Court’s analysis The law [36] The Court of Appeal in Nguang Chan aka Nguang Chan Liquor Trader & Ors v Hai-O Enterprise Bhd & Ors [2009] 5 MLJ 40 CA in a comprehensive judgment, when allowing an appeal against a High Court’s decision ordering production of documents, laid down some useful principles. These principles distilled by me are-i. The right of a party to production of a document under Order 24 ROC 2012 is subject to Order 24 rules 8 and 13 ROC 2012. ii. Order 24 rules 8 and 13 ROC 2012 state that an order for the discovery or production of any documents for inspection shall not be made unless the Court is of the opinion that the order is necessary either for disposing fairly of the cause or matter or for saving costs. iii. The test is not whether the discovery or production of the documents would fairly dispose of the case, save time of trial and cost of calling witnesses. The emphasis is on necessity not fairness and it is for the applicant to satisfy the court. The burden is on the applicant and he must provide materials to satisfy the court of such necessity. [37] This is what the Court of Appeal via Tengku Baharudin Shah JCA said- [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] 1 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.’ … [24] There is one other matter which we cannot ignore and leave unsaid because it is fatal to the decision of the learned judge and vitiated the exercise of his discretion. It is this. He apparently misdirected himself in law when he misappreciated the issue before him. In his grounds of decision, the learned judge states that the issue for his determination was whether the discovery and production of the documents would fairly dispose of the case, save time of trial and cost of calling witnesses which be answered in the affirmative. [25] As stated earlier the real issue is 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, see Dolling-Baker’s case and Ventouris v Mountain. Because of that erroneous premise the learned judge appears to be more concerned with relevance and fairness and omitted to consider whether and why it was necessary for the order to be made. The respondents also failed to provide any materials to satisfy the court of such necessity. [Emphasis added] Application to facts [38] The plaintiff applies for the following discovery orders in its Amended Notice of Application dated 18-12-2023 [See Enclosure 94]:

That Bursa Depository and RM 10,000 to Bursa Malaysia are is required, within seven (7) days from the date of this Order herein, to affirm, file and serve to the plaintiff and/or the plaintiff’s solicitor an affidavit stating as follows:

Whether any documents claimed by the Plaintiff as described in Appendix A attached in this Notice of Application (“the Documents”) are or had been in the possession, custody and/or power of BMDSB and/or BMB, and if so, the details of the document; … Appendix A reads-Official documents recording the date, time, number of shares and CDS Account of the transaction dealings for the following individuals, and whether such individuals are the purchasers that have purchased the Shares Belonging to plaintiff (whether directly or through pledged securities account) vide the open market on 23-06-2023 and/or the subsequent transactions vide the open/off market: … [Court note - In Appendix A the plaintiff has stated the 25 shareholders or nominee names, their pledged securities accounts and the number of shares held by them as at 21-06-2023, 30-06-2023 and 27-07-2023 in a table form which I have not reproduced here] [39] In my view the order for discovery sought by the plaintiff is not necessary either for disposing fairly of the cause or matter or for saving costs as required under Order 24 rule 8 ROC 2012 for these reasons-i. EAH in its Defence had already disclosed the names of all the shareholders and nominee shareholders who had acquired the shares belonging to the plaintiff [See Enclosure 26]; ii. The plaintiff had already filed the Notice to Produce pursuant to Order 24 Rule 10 of the ROC 2012 and served the Notice to Produce on the solicitors of the 1st Defendant in order to produce the 1st defendant’s Record of Depositors dated 23-06-2023, 30- 06-2023 dan 27-07-2023 stated in paragraph 9(c)(i) to (iv) of D1 Defence [See Enclosure 34]. iii. On 26-09-2023, the 1st defendant had filed its Notice for Inspection for the plaintiff to inspect the 1st defendant’s Record of Depositors dated 21-06-2023, 30-06-2023 dan 27-07-2023 [See Enclosure 40]. iv. The plaintiff in its discovery application in its Appendix A had in fact identified these buyers [See Enclosure 94]. v. The discovery application is thus not necessary as the plaintiff has identified the persons in relation to the transactions in question in appendix A. The plaintiff could and should apply for discovery against these persons. Plaintiff not allowed to go fishing [40] I am also of the view the discovery application is also a fishing expedition as it asked for documents for “subsequent transactions” without giving an end date. This is what the plaintiff asked-Official documents recording the date, time, number of shares and CDS Account of the transaction dealings for the following individuals, and whether such individuals are the purchasers that have purchased the Shares Belonging to plaintiff (whether directly or through pledged securities account) vide the open market on 23.06.2023 and/or the subsequent transactions vide the open / off market: [Emphasis added] Discovery application is not for information [41] The discovery application is also bad as it asked for information “whether such individuals are the purchasers that have purchased the Shares Belonging to plaintiff (whether directly or through pledged securities account) vide the open market on 23-06-2023 and/or the subsequent transactions vide the open/off market…” [42] Order 24 is for discovery of documents and not for information. In Hay and Her [2024] 10 CLJ 593 HC Evrol Mariette Peters J said- [31] Upon careful consideration, I found myself in agreement with the defendant’s position, as it was clear that the names and addresses of individuals did not constitute documents within the meaning of O. 24 r. 7A of the Rules of Court. [32] Order 24 r. 7A of the Rules of Court was designed to facilitate the discovery of tangible documents that are in the possession, custody, or control of a party – not to compel the disclosure of personal information or details about individuals. The distinction between documents and information is a significant one, and this application was, therefore, based on a fundamental misunderstanding of the intended scope of O. 24 r. 7A of the Rules of Court. [33] Given that the plaintiff sought personal details that cannot be classified as “documents,” it was evident that an application that included non-documents, such as this one, was deemed to be incorrectly premised. As such, this application did not satisfy the requirements of O. 24 r. 7A and should be dismissed. [Emphasis added] All parties affected by a court order must be made parties to the application [43] The law is also clear that all parties affected by a court order must be made parties to the application. [See Saujana Resort (M) Bhd v Chin Cheen Foh & Ors And Another Appeal [2021] 3 CLJ 71 CA [“Saujana Resort”] and Awesome Broadcasting Sdn Bhd v Mytv Broadcasting Sdn Bhd [2024] 5 MLRA 8 CA] [“Awesome Broadcasting”]. [44] In Saujana Resort Vazeer Alam Mydin Meera JCA held at [41]- … It is trite that in an application for declaration, all parties who would potentially be affected by such an order must be before the court. An action for a declaration is an important device for ascertaining and determining the rights of parties. And it is settled that when a declaratory order is sought, all interested parties must be before the court. See dicta of Viscount Maugham in London Passenger Transport Board v. Moscrop [1942] AC 332 at 345 (HL) … [45] In Awesome Broadcasting S Nantha Balan JCA said- [52] A further ground to dismiss the plaintiff's application is the principle that "All parties affected by a court order must be made parties to the suit." [53] This principle can be seen from the Court of Appeal decision in Saujana Resort (M) Bhd v. Chin Cheen Foh & Ors And Another Appeal [2021] 5 MLRA 420; [2021] 3 MLJ 448; [2021] 3 CLJ 71 which held at [41]: It is trite that in an application for declaration, all parties who would potentially be affected by such an order must be before the court. An action for a declaration is an important device for ascertaining and determining the rights of parties. And it is settled that when a declaratory order is sought, all interested parties must be before the court. See dicta of Viscount Maugham in London Passenger Transport Board v. Moscrop [1942] AC 332 at 345 (HL) which was adopted by the Supreme Court in Ketua Pengarah Jabatan Alam Sekitar & Anor v. Kajing Tubek & Ors And Other Appeals [1997] 1 MLRA 474; [1997] 3 MLJ 23; [1997] 4 CLJ 253 vide Lord Radcliffe's observation in Ibeneweka v. Egbuna [1964] 1 WLR 219, p 226. See also Chor Phaik Har & Ors v. Choong Lye Hock Estates Sdn Bhd & Ors [1996] 1 MLRA 470; [1996] 2 MLJ 206; [1996] 4 CLJ 141; [1996] 2 AMR 2393; Kesatuan Sekerja Pembuatan Barangan Galian Bukan Logam v. Director General of Trades Unions & Ors [1990] 1 MLRH 568; [1990] 3 MLJ 231; [1990] 2 CLJ (Rep) 218; and Chia Saw Kee & Anor v. Huah Leong Holdings Sdn Bhd & Anor [2003] 3 MLRH 46; [2003] 8 CLJ 124 for an application of this principle. [54] I hold that the failure of the plaintiff to add MCMC as a 2nd defendant is fatal to its application. [46] The plaintiff had failed to made the persons in appendix A respondents to the application so that they have a chance to object. This omission is fatal to its application. [47] The case of Billion Prima does not assist the plaintiff as there the application against the third party was for a document which contains information pertaining to the third party only. [48] Similarly, cases on pre-action discovery against a defendant would not be relevant where the applications are for a document which contains information pertaining to the defendants only. Is Bursa Malaysia Bound By Statutory Provisions Not To Disclose? [49] Bursa Malaysia Bhd also objects to the discovery application on the ground that under section 43 of the Securities Industry (Central Depositories) Act 1991 Bursa Malaysia is strictly prohibited from giving, divulging, revealing or otherwise disclosing any information or document whatsoever relating to the affairs of any depositors and in particular relating to their securities accounts, i.e. the CDS accounts. [50] Bursa Malaysia Bhd further contends the purpose for the discovery of documents sought by the plaintiff does not fall within any of the permitted disclosures under section 45 of the Securities Industry (Central Depositories) Act 1991. [51] The plaintiff contends that this Court has the absolute power to order disclosure and that this overrides the statutory prohibitions. The plaintiff relies on the High Court judgment of Bank Bumiputra Malaysia Berhad v Cheong Yoke Choy; Malaysian Central Depository Sdn Bhd (Intervener) [2000] 7 CLJ 157 HC [“Bank Bumiputra”] . Law [52] Section 43 of the Securities Industry (Central Depositories) Act 1991 provides: Duty to maintain secrecy “(1) Except as provided in this Act, no director or officer of a central depository or an authorized 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.” [Emphasis added] [53] Section 43 of the Securities Industry (Central Depositories) Act 1991 makes it clear that Bursa Malaysia is strictly prohibited from giving, divulging, revealing or otherwise disclosing any information or document whatsoever relating to the affairs of any depositors and in particular relating to their securities accounts, i.e. the CDS accounts to any person. [54] The prohibition in Section 43 of the Securities Industry (Central Depositories) Act 1991 is subject to permitted disclosures under Section 45 which states as follows-Permitted Disclosures

Subject to the provision of this Act, nothing in any other law or section 43 shall entitle any person to refuse to disclose any information or document-

Which the depositor, or his personal representative, has given permission in writing to disclose;

In a case where the depositor is declared a bankrupt, or, if the depositor is a corporation, the corporation is being or has been wound up, in Malaysia or in any country, territory or place outside Malaysia;

For the purpose of instituting or, in the course of, any civil proceedings-

between a central depository or an authorized depository agent and a depositor relating to the securities account of the depositor; or

(ii) between a central depository or an authorized depository agent and two or more parties making adverse claims to securities or monies in the securities account of the depositor, where the central depository or authorized depository agent seeks relief by way of interpleader;

To any person duly authorized to investigate into any offence under any law, such disclosure being, in any case, limited to the securities account and affairs of the depositor suspected of the offence;

To a central depository for purposes of the compilation of the record of depositors, or any part thereof, under section 34 of this Act;

To an issuer in respect of a record of depositors issued under section 34 of this Act;

For the purpose of enabling or assisting the Minister to exercise any power conferred on him by this Act or by any other written law;

For the purpose of enabling or assisting the Central Bank of Malaysia to discharge its functions under the Central Bank of Malaysia Act 1958, the Banking and Financial Institutions Act 1989 and the Islamic Banking Act 1983 or any other written law;

For the purpose of enabling or assisting the Commission to discharge its functions under this Act;

For the purpose of enabling or assisting a stock exchange or clearing house of a stock exchange to discharge its functions;

For the purpose of enabling or assisting auditors of a central depository and authorized depository agents to discharge their functions;

In a summary or collection of information, framed in such a way so as not to enable the identity of any depositor, to whom the information relates, to be ascertained.

Subject to the provisions of this Act, nothing in section 43 shall entitle any person to refuse to disclose any information or document to the Minister or the Commission if the disclosure is required in the interests of investors or in the public interest. Application to facts [55] In my view, section 43 of the Securities Industry (Central Depositories) Act 1991 makes it clear that Bursa Malaysia is strictly prohibited from giving, divulging, revealing or otherwise disclosing any information or document whatsoever relating to the affairs of any depositors and in particular relating to their securities accounts, i.e. the CDS accounts to any person. [56] The prohibition in section 43 is subject to permitted disclosures under section 45. [57] In the case before me, the purpose of the discovery does not fall within any of the permitted disclosures under section 45. [58] I now move to the next contention of the plaintiff. Court has absolute power to order disclosure and this overrides the statutory prohibitions? [59] The plaintiff contends [in plaintiffs’ written submission paragraph 30] that this Court has the absolute power to order disclosure and that this overrides the statutory prohibitions [See Enclosure 120]. [60] The plaintiff relies on the High Court judgment of Bank Bumiputra where the High Court held that: “The veil of secrecy was clearly superficial. Section 43 of the Act must be read together with s. 132(1) of the Evidence Act 1950 and the interpretation accorded to it by the Court of Appeal in The Attorney General of Hongkong v. Zauyah Wan Chik & Ors & Another Appeal (supra). His Lordship NH Chan JCA spoke of “obedience to the law” in his judgment and this phrase though generally worded must be construed generously to extend to and include an order from the court. The duty to keep confidence must now be seen in a wider context and that would be in the context of the interest of the public. This principle of law can be distilled from the case of Norwich Pharmacal Co. v. Commissioners of Customs and Excise [1972] RPC 743 at 746 and this very case was cited and adopted favourably by Gopal Sri Ram JCA in The Attorney General of Hongkong v. Zauyah Wan Chik & Ors & Another Appeal (supra) where at p. 46 of the report his Lordship said: The duty to keep confidences whether of a personal or commercial nature is essentially part of equity jurisprudence, although, more recent authority supports the foundation of the doctrine on the wider concept of public interest. (See Norwich Pharmacal Co. v. Commissioners of Customs and Excise [1972] RPC 743 at 746, per Lord Denning MR, reversed on other grounds in (1974) AC 133). It was certainly in the public interest that disclosure must be made .... The headnote of Norwich Pharmacal Co. and Others v. Commissioners of Customs and Excise (supra) bore the following summary: Even if the respondents had been right in treating the information relating to the identity of the importers as confidential, there was no statutory provision which prohibited the court from ordering discovery for the purpose of legal proceedings if the public interest in the proper administration of justice required it. In the circumstances the public interest in such confidentiality as might attach to the names and addresses of the importers was outweighed by the interests of justice in disclosure for the purpose of the appellants’ intended proceedings. … That the court has the absolute power to order disclosure can never be doubted. There is no statutory provision which prohibits this court from ordering disclosure. Nowhere in the Act nor in s. 43 of the Act is there a provision that prohibits this court from ordering disclosure. For the aforesaid reasons, effect must be given to the said orders … Section 43 of the Act cannot be viewed in isolation. The courts are free to look at the other sections of the Act so as to arrive at a just decision. In Coramas Sendirian Berhad v. Rakyat First Merchant Bankers Berhad & Anor [1994] 1 AMR 8: 425 SC, Edgar Joseph Jr SCJ speaking for the Supreme Court had this to say at p. 435 of the report: The issue, therefore, appeared to us to be purely and simply one of construction, and in the ultimate resort, must be determined upon the actual words used in sections 45(1) and 125, read not in vacuo but as occurring in a single complex statute, in which one part may throw light upon another. Lord Davey in Canada Sugar Refining Co v. The Queen [1898] AC 735, 741 aptly said that: Every clause of a statute should be construed with reference to the context and other clauses in the Act, so far as, possible, to make a consistent enactment of the whole statute or series of statutes relating to the subject matter. The court in Arataki Honey Ltd v. Minister of Agriculture and Fisheries [1979] 2 NZLR 311, 316 held that: The Act must be read as a whole and that all sections must be read bearing in mind the provisions of other sections. It is not necessary for one section to refer specifically to another section before the first section can be construed as being subject to or overriding or in some other way qualifying the other section. Thus, with these principles in mind it would be appropriate to say that s. 43 of the Act must be read in conjunction with ss. 21, 41 and 45 of the Act and when so read the proposed intervener cannot be excused from not complying with the said orders … Now, the heading to s. 45 of the Act bears the caption “permitted disclosures” and in the words of Gopal Sri Ram JCA in the case of Keet Gerald Francis Noel John v. Mohd. Noor @ Harun Abdullah & Ors CLJ JT

1995, particularly at p. 11 of the report: Headings, unlike marginal notes, are permissible guides to the interpretation of statutes: Toronto Corporation v. Toronto Rly. (1907) AC 315. and it is correct to say that a heading cannot be ignored as it can constrain the scope of the section. Shaw LJ in Dixon v. British Broadcasting Corpn [1979] 2 All ER 112, 116 remarked that “it is requisite to look at the heading.” That being the case, on reading the heading that appears in s. 45 of the Act, it is crystal clear that it leans in favour of disclosure and it greatly constrains s. 43 of the Act. In my judgment, as a bare trustee (s. 21 of the Act) the proposed intervener was certainly empowered to suspend (s. 41 of the Act) as well as disclose (s. 45 of the Act) the information as required by the said orders. This was my judgment and I so hold accordingly. This brings to mind the case of Bankers Trust Co v. Shapira and Others [1980] 3 All ER 353 CA where the plaintiff there sought to trace money paid under a mistake of fact induced by fraud. Lord Denning MR writing a separate judgment had this to say (see p. 357 to p. 358 of the report): Having heard all that has been said, it seems to me that Mustill J was too hesitant in this matter. In order to enable justice to be done, in order to enable these funds to be traced, it is a very important part of the court’s armoury to be able to order discovery. The powers in this regard, and the extent to which they have gone, were exemplified in Norwich Pharmacal Co v. Customs and Excise Comrs [1973] 2 All ER 943, [1974] AC 133. The customs authorities were perfectly innocent: but they had to disclose the names of infringers of patents whose goods had passed through their hands. Lord Reid said ([1973] 2 All ER 943 at948, [1974] AC 133 at 175): They seem to me to point to a very reasonable principle that if through no fault of his own a person gets mixed up in the tortious acts of others so as to facilitate their wrongdoing he may incur no personal liability but he comes under a duty to assist the person who has been wronged by giving him full information and disclosing the identity of the wrongdoers. [61] However, the High Court decision was set aside on appeal. There are no reported Grounds of Decision but counsel for Bursa Malaysia has produced the order of the Court of Appeal dated 28-10-2009. [See Enclosure 143 Bursa Malaysia’s submission in reply at paragraph 5]. [62] By this order dated 28-10-2009, the Court of Appeal allowed the Malaysian Central Depository Sdn Bhd’s appeal and set aside the decision of the High Court. The matter was remitted to the High Court for rehearing. [63] It is clear therefore that the High Court decision relied upon by the plaintiff is no longer good authority and cannot be used to support any proposition of law to override the express statutory prohibition against disclosure of trading details of depositors of Bursa Malaysia in section 43 of the Securities Industry (Central Depositories) Act 1991 unless the purpose of the discovery falls within any of the permitted disclosures under section 45. [64] A similar decision on the same issue and related facts has been arrived at by my brother Justice Mohd Arief J in Mohammad Sobri bin Saad v See Jovin & Ors [2024] 12 MLJ 301 HC. [65] A case which demonstrates that the court will enforce a statutory prohibition placed on a bank not to disclose information to a third party is Maju Holdings Sdn Bhd v Kamala Devi Ramadass & Anor [2003] 1 CLJ 434 CA [“Maju Holdings”], where a Writ of Subpoena Ad Testificandum and Duces Tecum was issued requiring a witness from a bank to testify in court and produce all the bank's documents, correspondence and books in connection with the accounts of the bank's customer. This was set aside by the High Court and affirmed by the Court of Appeal on the ground that the disclosure of the information was prohibited under section 97(1) of the Banking and Financial Institutions Act 1989. [66] This is what the Court of Appeal said-This in our view would clearly be in breach of s. 97(1) BAFIA 1989. The appellant's contention is that s. 97(2) permits such evidence to be given. With due respect to the appellant we must say that their contention is totally misconceived because the testimony so required of the first respondent goes far beyond what appears on the face of the documents ie, Forms 29, in that such testimony would enable information relating to a particular customer of the bank to be ascertained from it. Certainly, both ss. 97(1) and (2) BAFIA prohibit this. Section 97(2) only opens the way for admission of Forms 29 under the writ of Subpoena Duces Tecum. Further, we find that the other exceptions to s. 97(1) BAFIA, namely ss. 98 and 99 are also not applicable on the facts of the present appeal. In the circumstances, the first respondent is absolutely prohibited from giving oral testimony on matters relating to the accounts of a customer of the bank. We may add that such being the situation the learned judge does not have any discretionary power to allow disclosure of information if such information is prohibited under s. 97(1) BAFIA 1989. In the absence of such discretionary power on the part of the learned judge it would be wrong for the appellant to suggest that s. 97(1) BAFIA 1989 affords a privilege to information and documents as mentioned in their grounds of appeal. Next, it is the appellant's contention that the learned judge had failed to consider or sufficiently consider the various factors mentioned in para 2.1 to 2.5 of their grounds of appeal. In our judgment such failure on the part of the learned judge would not have in any way affected his decision for the following reasons:

Notwithstanding the relevancy of the evidence sought to be produced through the first respondent, this must necessarily be subjected to any statutory prohibition as to its admissibility. [Emphasis added] [67] As in Maju Holdings the statutory prohibition in section 43 of the Securities Industry (Central Depositories) Act 1991 is clear and unambiguous. The court will give effect to that. The plaintiff’s application against Bursa Malaysia has to be dismissed. Application against Bursa Depository [68] The application against Bursa Depository has no merits as the information requested in Enclosure 94 is information pertaining to records derived from the trading system which are not records kept by Bursa Depository. The said trading system is not within the control of Bursa Depository and is run by and within the control of Bursa Malaysia. [69] In any event the plaintiff has failed to show Bursa Depository is likely to have or have the documents requested in its possession, custody or power.

[70] For the reasons above, I dismiss the plaintiff’s application with costs of RM 3,000 to Bursa Depository and RM 10,000 to Bursa Malaysia subject to allocatur. ………(signed)…………. Leong Wai Hong Judge High Court of Malaya Kuala Lumpur (NCC 6) Dated: 23th June 2025. COUNSEL: 1) Wong Kah Hui and Ng Jing Yi for plaintiff. (KH Wong & Co. (Kuala Lumpur)) 2) Ow Jeong Jun for 2nd defendant. (David Lai & Tan (Kuala Lumpur)) 3) Kang Zhi Han for 3rd defendant. (Terrence Lee & Co. (Kuala Lumpur)) 4) Brendan Siva for Bursa Depository and Bursa Malaysia. (Brendan Siva (Kuala Lumpur)) CASES REFERRED TO: 1) Arataki Honey Ltd v. Minister of Agriculture and Fisheries [1979] 2 NZLR 311, 316. 2) Awesome Broadcasting Sdn Bhd v Mytv Broadcasting Sdn Bhd [2024] 5 MLRA 8 CA. 3) Bank Bumiputra Malaysia Berhad v Cheong Yoke Choy; Malaysian Central Depository Sdn Bhd (Intervener) [2000] 7 CLJ 157 HC. 4) Bankers Trust Co v. Shapira and Others [1980] 3 All ER 353 CA. 5) Billion Prima Sdn Bhd v Nutech Co Ltd & Anor [2017] 10 MLJ 213 HC; [2016] MLRHU 949. 6) Canada Sugar Refining Co v. The Queen [1898] AC 735, 741. 7) Chia Saw Kee & Anor v. Huah Leong Holdings Sdn Bhd & Anor [2003] 3 MLRH 46; [2003] 8 CLJ 124. 8) Chor Phaik Har & Ors v. Choong Lye Hock Estates Sdn Bhd & Ors [1996] 1 MLRA 470; [1996] 2 MLJ 206; [1996] 4 CLJ 141; [1996] 2 AMR

9) Coramas Sendirian Berhad v. Rakyat First Merchant Bankers Berhad & Anor [1994] 1 AMR 8: 425 SC. 10) Dixon v. British Broadcasting Corpn [1979] 2 All ER 112, 116. 11) Dolling-Baker v Marrett & Ors [1991] 2 All ER 890. 12) Gerald Francis Noel John v. Mohd. Noor @ Harun Abdullah & Ors CLJ JT (2) 1995. 13) Hay and Her [2024] 10 CLJ 593 HC. 14) Ibeneweka v. Egbuna [1964] 1 WLR 219. 15) Kesatuan Sekerja Pembuatan Barangan Galian Bukan Logam v. Director General of Trades Unions & Ors [1990] 1 MLRH 568; [1990] 3 MLJ 231; [1990] 2 CLJ (Rep) 218. 16) Ketua Pengarah Jabatan Alam Sekitar & Anor v. Kajing Tubek & Ors And Other Appeals [1997] 1 MLRA 474; [1997] 3 MLJ 23; [1997] 4 CLJ

17) London Passenger Transport Board v. Moscrop [1942] AC 332. 18) Nguang Chan aka Nguang Chan Liquor Trader & Ors v Hai-O Enterprise Bhd & Ors [2009] 5 MLJ 40 CA. 19) Norwich Pharmacal Co. v. Commissioners of Customs and Excise [1972] RPC 743. 20) Maju Holdings Sdn Bhd v Kamala Devi Ramadass & Anor [2003] 1 CLJ 434 CA. 21) Mohammad Sobri bin Saad v See Jovin & Ors [2024] 12 MLJ 301 HC. 22) Saujana Resort (M) Bhd v Chin Cheen Foh & Ors And Another Appeal [2021] 3 CLJ 71 CA. 23) Taylor v Anderton [1995] 1 WLR 447. 24) The Attorney General of Hongkong v. Zauyah Wan Chik & Ors & Another Appeal. 25) Toronto Corporation v. Toronto Rly. (1907) AC 315. 26) Ventouris v Mountain [1991] 1 WLR 607. 27) Vinvest Capital Holdings Bhd (Sebelum Ini Dikenali Sebagai Vivicom Intl Holdings Bhd) v EA Holdings Bhd & Ors [2024] MLJU 3155. LEGISLATION REFERRED TO: 1) Banking and Financial Institutions Act 1989, section 97(1), section 97(2). 2) Central Bank of Malaysia Act 1958. 3) Evidence Act 1950 section 132(1). 4) Islamic Banking Act 1983. 5) Rules of the Court 2012, Order 24, Order 24 Rule 7, Order 24 Rule 7A

(2), Order 24 Rule 8, Order 24 Rule 10, Order 24 Rule 13, Order 92 Rule 4. 6) Securities Industry (Central Depositories) Act 1991 section 43, section 45.