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2025 MarsdenLR 3495
HIGH COURT MALAYA KUALA LUMPUR
BANK PEMBANGUNAN MALAYSIA BERHAD – Appellant
Versus
SIDQI AHMAD SAID AHMAD & ORS (ENCLS 2 44 106 179 714 730) – Respondent
[Suit No: WA-22NCC-264-06/2022]
Discovery orders may be granted against third parties involved in fraudulent transactions to trace misappropriated funds, regardless of their direct involvement in the original transaction.
Headnote:(A) Rules of Court 2012 - Order 24 r 7A - Bankers' Books (Evidence) Act 1949 - Discovery orders sought by Plaintiff against banks for documents related to alleged fraudulent disbursements of RM400 million loan. (Paras 1, 13, 114)
(B) Discovery - The court established that comprehensive discovery is warranted in cases of alleged fraud, enabling tracing of misappropriated funds. (Paras 25, 27, 113)
(C) Fraud - Evidence of unjustified payments and lack of supporting documentation raises serious concerns regarding the legitimacy of transactions involving the defendants. (Paras 22, 28, 51)
(D) Letters of Undertaking - The court found that existing Letters of Undertaking do not bar the Plaintiff from seeking discovery through separate applications. (Paras 34, 36) (E) Temporal Scope - The court ruled that temporal gaps do not negate the connection between loan funds and subsequent payments made to the defendants. (Paras 22, 30) (F) Propriety of Application - The court deemed the discovery application procedurally proper, serving distinct purposes from previous applications. (Paras 77, 80) (G) Relevance of Documents - The court concluded that the requested documents are necessary for the fair disposal of the proceedings, reflecting the complexity of the alleged fraud. (Paras 85, 114)
| Table of Content |
|---|
| 1. background facts of loan and defendants (Para 1 , 2 , 3 , 4 , 5 , 6 , 7 , 8 , 9 , 10 , 11 , 12) |
| 2. plaintiff seeks discovery orders (Para 13 , 19 , 20) |
| 3. court analysis of temporal impossibility argument (Para 22 , 23 , 24 , 31 , 32) |
| 4. principle of discovery in fraud cases (Para 25 , 26 , 27 , 28 , 29 , 30) |
| 5. effect of letters of undertaking on discovery (Para 34 , 35 , 39 , 40) |
| 6. probative value of r&m's findings (Para 43 , 44 , 45 , 46) |
| 7. legitimacy of payments received by defendants (Para 51 , 52 , 53) |
| 8. discovery to identify additional wrongdoers (Para 59 , 60 , 61 , 62) |
| 9. propriety of the discovery application (Para 77 , 78 , 79) |
| 10. scope of documents sought in discovery (Para 85 , 86 , 88 , 89) |
| 11. relevance of defendants' connection to original loan (Para 104 , 105 , 106 , 108) |
| 12. conclusion and order for discovery (Para 113 , 114 , 115) |
[1] This is an application by the Plaintiff, Bank Pembangunan Malaysia Berhad, for discovery orders against Malayan Banking Berhad ("Maybank") and Maybank Islamic Berhad ("Maybank Islamic") to obtain banking records of the 4th Defendant, Roslina Binti Ibrahim ('Roslina"), the 24th Defendant, BVS Trinity Sdn Bhd ("BVS Trinity') and the 25th Defendant, VCB Malaysia Bhd (" VCB Malaysia") in relation to alleged fraudulent disbursements of a RM400 million loan.
Background Facts
[2] On 23 May 2012, the Plaintiff issued a letter of offer to Aries Telecoms (M) Berhad ("Aries") for a term loan facility ("Loan") of RM400,000,000.00 ("Loan Sum"). The purpose of the Loan was to partly finance the development of a coastal network consisting of installing a fibre optic network around Peninsular Malaysia ('Project').
[3] On 28 June 2012, the Plaintiff and Aries entered into a Facility Agreement. The Loan was initially supported by the appointment of Huawei Technologies Co Ltd, China ('Huawei China") as the turnkey contractor to build, operate and maintain the network for the Project.
[4] The Loan Sum was disbursed to Aries in two tranches: the first tranche of RM200,000,000.00 on 2 July 2012 and the second tranche of RM200,000,000.00 on 15 November 2013. The disbursements were approved by the late Dato' Mohd Zafer Mohd Hashim ('Dato' Zafef), who was the President and Group Managing Director of the Plaintiff at the material time.
[5] On 10 July 2018, the Plaintiff issued a notice to Aries declaring default and demanding repayment of RM451,266,763.13. On 9 May 2019, summary judgment was entered against Aries for the sum demanded in a separate suit. Aries appealed to the Court of Appeal and obtained a stay of execution on 31 May 2019, subject to the Plaintiff's right to appoint a receiver and manager under the debenture.
[6] On 4 July 2019, the Plaintiff appointed Mr Lim Keng Peo of Deloitte Corporate Solutions Sdn Bhd as the receiver and manager ("R&M") over the assets and undertakings of Aries. On 24 September 2020, upon investigation by the R&M based on available documents and public information, certain irregularities were discovered in relation to the Loan.
[7] In January 2022, the Plaintiff discovered through the 13th Defendant, Ranjeet Singh Sidhu ("Ranjeet'), who was acting on behalf of Aries at the material time, that sometime before 4 July 2012, Ranjeet had made payment of approximately RM8,000,000.00 to Dato' Zafer through the 14th Defendant, Noorusa'adah Binti Othman ("Adah") as intermediary, for the successful disbursements of the Loan to Aries.
[8] On 15 June 2022, the Plaintiff filed this suit against the defendants in this action including Roslina (the 4th Defendant), the 7th until 9th Defendants, the 11th, 17th and 22nd Defendants, BVS Trinity (the 24th Defendant) and VCM Malaysia (the 25th Defendant) ("the Said Defendants'). The R&M found that there were payments made by Aries to Roslina, BVS Trinity and VCB Malaysia which were not supported by relevant information or documents.
[9] On 4 July 2022, the Plaintiff obtained an Ex Parte Mareva Inju
