P.G. DORAISAMY A/L P.GOPAL v Kenanga Investment Bank Berhad

Case Significance

Illustrates that a statutory secrecy provision such as section 43 of the Securities Industry (Central Depositories) Act 1991 is not a blanket bar to discovery: the court balances confidentiality against a claimant's legitimate need under Order 24 and grants production of properly identified, relevant categories while refusing an over-broad request.

This Court of Appeal decision is one of four related discovery appeals heard together under Order 24 of the Rules of Court 2012, this appeal concerning the respondent Kenanga Investment Bank Berhad. The appellant — a natural person and an advocate and solicitor, referred to here by role — is the plaintiff in a High Court suit who says that, from around 2013, he deposited over RM9 million across accounts with four investment banks and stockbroking firms to buy shares in a public listed company, but discovered in 2021 that no share trading accounts had been opened in his name. To trace what became of his money he sought discovery from each of the four respondents.

A central objection to the discovery, particularly relevant to an investment bank and participating organisation of Bursa Malaysia, was statutory secrecy. The respondents contended that discovery was prohibited by section 43 of the Securities Industry (Central Depositories) Act 1991 (the SICDA 1991), which protects the confidentiality of securities-account information. The court had to weigh that statutory confidentiality against the appellant's legitimate need, under Order 24 rules 3 and 7, for documents relevant to his claim, and against the objection that the applications were a mere "fishing expedition". The scope of the respondents' duty of care to the appellant as a non-customer, in the context of the Financial Services Act 2013, formed part of the backdrop.

The court concluded that the High Court had erred in refusing discovery in its entirety. Recognising that appellate courts are slow to interfere with discretionary interlocutory decisions, it nonetheless held that a total refusal was an error warranting correction. It set aside the decision below and allowed each of the four appeals in part, granting discovery against the respondents in respect of the First and Second Category documents only, and not the Third. The High Court's costs order was set aside and no order as to costs was made on the appeals.

The judgment is a useful illustration that statutory secrecy provisions such as section 43 of the SICDA 1991 do not operate as a blanket bar to discovery: the court will still order production of properly identified, relevant categories of documents while refusing an over-broad request.