For the avoidance of doubt, in any proceedings against a person for a contravention of section 218 or 219, it is not necessary for the prosecution or plaintiff to prove that the accused person or defendant intended to use the information referred to in section 218(1)(a) or (1A)(a) or 219(1)(a) in contravention of section 218 or 219, as the case may be. (Emphasis added.) [145] We do not have the baggage associated with a decision like the Singapore case of Public Prosecutor v Ng Chee Kheong and so we do not have to get our Parliament to legislatively overrule such a decision. Our position is more consistent with the Australian approach and interpretation as our Insider Trading provisions are very similar to the Australian Corporation Act provisions. [31] For the reasons advanced by both the High Court and Court of Appeal, I agree that the Singapore case of Ng Chee Kheong is of no relevance to the interpretation of s.89E of the SIA. Our insider trading regime is indeed more in sync with the Australian approach. Answer to Leave Question No. 1 [32] Thus, I would answer Leave Question No. 1 in the negative and state that s.89E of the SIA (now s.188 CMSA) does not create a strict liability offence. Instead, s.89E(1)(b) of the SIA (s.188(1)(b) CMSA) requires that an accused or defendant knows or ought reasonably to know that the information in question was not generally available. This knowledge of the accused or defendant constitutes the mens rea element of the insider trading prohibition and courts would have to determine this objectively based on the available evidence. 27 2nd Issue – Materiality [33] The Materiality Issue deals with the relevant point in time at which a court is required to assess whether information in the possession of the insider is material for the purposes of determining any transgression under s.89E SIA, taking into account the definition of materiality in s.89B SIA that reads: 89B Material effect on price or value of securities. For the purposes of this Division, an information that on becoming generally available would or would tend to have a material effect on the price or value of securities, refers to such information which would or would tend to, on becoming generally available, influence reasonable persons who invest in securities in deciding whether or not to acquire or dispose of such securities, or enter into an agreement with a view to acquire or dispose of such securities. [34] In the present case, both the High Court and Court of Appeal were of the view that “materiality” may be determined by looking at post-acquisition condition relevant to the trade. The Court of Appeal accepted the High Court’s finding that preferred the evidence of the Plaintiff’s expert who had evaluated the materiality of the information in the Announcement post-acquisition rather than the materiality of the information that the Defendant possessed merely at the time of the impugned acquisition. This was also the approach taken by another High Court in Suruhanjaya Sekuriti Malaysia v Chan Soon Huat [2018] 9 MLJ 782. 28 [35] Learned counsel for the Defendant submits that this approach is incorrect, and argues that instead, the Court should assess “materiality” at the point in time when the two tranches of the impugned acquisition of shares were made by the Defendant. Further, learned counsel for the Defendant submitted that given the similarity in language between the Singaporean and Malaysian provisions on materiality, the Singapore case of Lew Chee Fai Kevin ought to be followed. In Lew Chee Fai Kevin, it was held that the relevant point in time for assessment of materiality would be the time of the impugned trading. I am, with respect, unable to accept that contention. On the issue of materiality of the information, the Court may consider facts and circumstances at the time and after the time of any impugned acquisition. Various authorities support this view. [36] A case in point is the decision of the Supreme Court of Canada in Sharbern Holdings v Vancouver Airport Centre Ltd [2011] S.C.J. No. 23, where in assessing the materiality of a false statement in a disclosure statement had this to say: 57 As I have explained, the question of materiality involves the application of a legal standard to a given set of facts. ... 58 ... The Court must therefore inquire into what the reasonable investor would consider as significantly altering the total mix of information made available. This is a fact specific inquiry, and except in those cases where common sense inferences are sufficient, the party alleging materiality must provide evidence in support of that contention. 29 59 In carrying out a materiality assessment, a court must first look at the information disclosed to investors at the time they made their investment decision ... The next step in determining whether an omitted fact or information (the “omitted information”) would be considered as significantly altering the total mix of information made available is to consider the omitted information against the backdrop of what was disclosed. ... As part of this second step, a court may consider contextual evidence which helps to explain, interpret, or place the omitted information in a broader factual setting, provided it is viewed in the context of the disclosed information. ... 60 Another type of evidence relevant to the materiality assessment is evidence of concurrent or subsequent conduct or events that would shed light on potential or actual behaviour of persons in the same or similar situations (“behaviour evidence”). ... Beyond this behaviour evidence, evidence of common knowledge or, depending upon the circumstances, knowledge specific to particular investors would also be admissible. Nonetheless, in considering the question of materiality, the predominant focus is on the disclosed and omitted information. 61 In sum, the important aspects of the test for materiality are: i. Materiality is a question of mixed law and fact, determined objectively, from the perspective of a reasonable investor; ... iv. Materiality involves the application of a legal standard to particular facts. It is a fact-specific inquiry, to be determined on a case-by-case basis in light of all of the relevant considerations and from the surrounding circumstances forming the total mix of information made available to investors; and v. The materiality of a fact, statement or omission must be proven through evidence by the party alleging materiality, except in those cases where common sense inferences are sufficient. A court must first look at the disclosed information and the omitted information. A court may also consider contextual evidence which helps to explain, interpret, or place the omitted information in a broader factual setting, provided it is viewed in the context of the disclosed information. As well, 30 evidence of concurrent or subsequent conduct or events that would shed light on potential or actual behaviour of persons in the same or similar situations is relevant to the materiality assessment. However, the predominant focus must be on a contextual consideration of what information was disclosed, and what facts or information were omitted from the disclosure documents provided by the issuer. [37] The High Court in Suruhanjaya Sekuruti Malaysia v Chan Soon Huat [2017] CLJU 2175 followed the materiality test enunciated in Sharbern that clearly recognizes that 'materiality' may be determined by looking at post-event information. In that case, the High Court in determining the issue on materiality of information in the context of insider trading under s.89E of the SIA took the following approach: J. The materiality of the Inside Information [75] The Inside Information obtained by the Defendant must be material information for the general public. It means that with the information, if it is available to the general public, the price of the particular securities i.e. WCT Shares and Warrants would have a significant change when it is traded in the open market. A cancellation of a major contract or project, if it is known to the general public, more likely will both result in the price of the securities to be largely affected and affecting the general public's decision to trade on the securities. [76] There is no need for a complex and elaborate formulation of what constitute material information. The facts of this case show that the information is material, otherwise the Defendant would not have sold a huge chunk of his securities on a short span of time. This court takes the approach that determining the materiality of the information must not be determined only by looking at the possible reaction of the public, but it can also take into account the very conduct of the Defendant in this case. The information is material depending on the facts of each case. This court have considered the totality of the evidence in the conclusion that the information is 31 indeed material including by considering the action of the Defendant himself in disposing the securities. ... ... [118] Hence it is wrong to argue that 'materiality' is to be assessed based on information only as at the date of the alleged inside trade. [119] Applying the Sharbern Test, the Court may properly consider "subsequent behaviour evidence", that is to say, the potential behaviour of the hypothetical reasonable investor [i.e. persons in the same or similar situation as the reasonable investor on 30.12.2008] who has alongside with the announcement of the cancellation notice, the OSK Analysis [the 'subsequent event'] when making his decision to trade on the WCT securities. [120] The Sharbern Test clearly recognizes that 'materiality' may be determined by looking at post-event information, in this case, information occurring after the date of the cancellation notice. [38] Similarly, in Securities Commission Malaysia v Toh Kai Fatt [2023] 10 MLJ 670 the High Court took a composite approach and looked into the totality of the evidence in construing whether the information was material for the purposes of civil claim arising from the transgression s.188 of the CMSA, and held as follows: [205] The contention by learned counsel for the defendant is premised on his interpretation of the words ‘on becoming generally available’ in s 185 to mean the actual date when the information becomes generally available — in this case, the date of the announcement. This, however, is not how I construe s 185. [206] To my mind, the words ‘on becoming generally available’ in s 185 do not refer to the time when the information actually ‘becoming generally available’ but instead refer to the court positing the effect of the information ‘on becoming generally available’ at the time the information was disclosed or communicated. This explains 32 why the section refers to a determination as to whether such information on becoming generally available ‘would or would tend to have’ a material effect on the price or value of securities. In other words, the court is required to posit based on the information ‘on becoming generally available’ as opposed to the court looking at any actual impacted price or value of the shares or actual influence of reasonable persons who invest in securities in deciding whether or not to acquire or dispose of such securities, or enter into an agreement with a view to acquire or dispose of such securities. [207] Accordingly, as long as this court is satisfied that at the time the inside information was communicated to the defendant and in positing the effect of such information on becoming generally available at the time the inside information was communicated, if such information would or would tend to influence reasonable persons who invest in securities in deciding whether or not to acquire or dispose of such securities, or enter into an agreement with a view to acquire or dispose of such securities, this would suffice to constitute ‘material’ information. [208] Thus, while the difference between the price of the shares immediately prior to and immediately post the announcement is a fact that may be looked at by the court as support of its conclusion that the information is material, this is not and in fact cannot in law to be treated as the legal test to determine ‘materiality’ of the information. If this were so, it will be very easy to avoid a claim for insider trading for the insider could trade on the inside information, sell and make a gain from the same and then take steps to make the information to be generally available before the announcement. This will result in the announcement having minimal impact on the price of the impugned shares, thereby dispelling any ‘materiality’ to the information. [39] Having looked at the approach taken in Sharbern [supra], and the two High Courts in Suruhanjaya Sekuruti Malaysia v Chan Soon Huat [supra] and Securities Commission Malaysia v Toh Kai Fatt [supra] in construing the materiality of the information, I am of the considered view that the approach 33 taken in these two High Court cases in determining materiality is the correct one. Materiality is a question of mixed law and fact, which is to be determined objectively from a reasonable investor’s perspective. And in so doing, regard must be had to the statutory definition of materiality in s.89B of the SIA, and the facts and circumstances prevailing at the time when the information was conveyed to or obtained by the insider. This would include the effect that such information would have on becoming generally available at the time the inside information was communicated and whether it would have generally affected investor behaviour in respect of the shares or securities in question. [40] Additionally, in determining the materiality of the information, the court ought not be focusing only at the possible reaction of the public to that information when it becomes available to the public, but also consider the very conduct of the insider, such as was done by the High Court in this case, which approach was approved by the Court of Appeal. This, I find, is the correct approach; and for these reasons I am disinclined to follow the Singapore decision in Lew Chee Fai Kevin [supra]. [42] There are also highly persuasive authorities from Australia, given the similarities in our insider trading regime, that have considered events and circumstances that had occurred after the impugned transaction, such as price movements of the relevant securities after the information is made public, as proof of materiality. This would include the cases of R v Doff [2005] NSWCCA 34 119; R v Hannes [2000] NSWCCA 503; and R v Rene Walter Rivkin [2004] NSWCCA 7. Similarly, in our case the evidence of price surge of Worldwide shares after the Announcement, a post-acquisition event, supports the finding of materiality of the inside information made by both the High Court and Court of Appeal, and that finding is without blemish. The inside information in the Defendant’s possession at the material time, is without doubt, that which “would or would tend to influence reasonable persons who invest in securities in deciding whether or not to acquire or dispose of such securities, or enter into an agreement with a view to acquire or dispose of such securities”. This, in my view would suffice to constitute ‘material’ information. [43] Thus, having regard to the above authorities, I agree with submissions of learned counsel for the Plaintiff that in determining the materiality of information in the possession of an insider, as defined in s.89B SIA, the court is at liberty to consider facts and circumstances at the time and also after the time of any impugned acquisition. Hence, the Defendant’s argument is entirely misplaced. Materiality is not based on information solely as at the date of the alleged inside trade. Materiality can be looked at by reference to post-event information, including post-event price sensitivity of the information, which is a clear indication of the information’s materiality. Thus, whether the information is material for a breach of s.89E would very much depend on the facts and 35 circumstance of each case, however, the determination of it must be based on the approach stated above. Answer to Leave Question No. 2 [44] Thus, in summary, the following is the answer to Leave Question No. 2: In determining the materiality of information in the possession of an insider, as defined in s. 89B SIA, the court shall not merely confine itself to the facts and circumstances occurring at the time of any impugned acquisition or trade of the securities, but also take into consideration the facts and circumstances after the time of the said impugned acquisition or trade. Conclusion [45] My learned sister Hasnah Binti Dato’ Mohammed Hashim, CJM, and learned brother Abdul Karim Bin Abdul Jalil, FCJ, have read this judgment in its draft and concur with the same and they have agreed that it be made part of the judgment of the court. In the premise of the foregoing, the appeal is dismissed with costs. The judgment of the Court of Appeal is affirmed. Dated this 26th day of August 2025 (Vazeer Alam bin Mydin Meera) Federal Court Judge 36 Counsels: The Appellant : Profesor Datuk Dr. Gurdial Singh Nijar Lau Mark Chi-Ming Abraham Au Kristen Ta [Messrs. Sreenevasan Young] The Respondents : Sm Shanmugam Shoba Venu Gopal Mageswary Karroppiah Daniel Ariff Tung Adib Vincent Tung Low Wen Zhen Siew Hui Yi [Messrs. Shan Chambers] Amicus Curie : Sfc Shamsul Bin Bolhassan Sfc Liew Horng Bin [Jabatan Peguam Negara]