Back
2021 MarsdenLR 2051
HIGH COURT MALAYA KUALA LUMPUR
MY HOME BUDGET HOTEL SDN BHD – Appellant
Versus
CIMB BANK BERHAD – Respondent
[Suit No: WA-22NCC-154-03/2020]
The Plaintiff failed to prove wrongful disclosure of bank statements, as evidence did not support claims against the Defendant, leading to dismissal of the case.
Headnote:(A) Financial Services Act 2013 – Section 133 – Personal Data Protection Act 2010 – Section 7 – Breach of confidentiality and privacy in bank account disclosure – Plaintiff claims bank statements were wrongfully disclosed by Defendant's officer without consent, leading to allegations of statutory and contractual breaches. (Paras 76-85)
(B) Burden of proof – Plaintiff must prove allegations regarding wrongful disclosures. Failure to call key witnesses, including claimant's counsel, resulted in a lack of credible evidence supporting Plaintiff's claims. (Paras 56-59)
Facts of the case: Plaintiff opened an account at Defendant's bank. Dispute arose from alleged unauthorized disclosure of bank statements to a third party during Suit 509 proceedings. (Paras 1-6)
Findings of Court: Plaintiff failed to substantiate claims with adequate evidence, leading to a dismissal of the action. (Paras 64, 119)
Issues: Main issues included whether bank statements were unlawfully disclosed and if statutory obligations were violated by the bank. (Paras 32, 76)
Ratio Decidendi: Court affirmed that the burden of proof lies with the Plaintiff, who failed to establish wrongful disclosure or breach of duty by the Defendant based on the evidence presented. (Paras 56, 64)
Result: Plaintiff's claims dismissed with costs. (Paras 120)
JUDGMENT
Background Facts
[1] At all material times, the Plaintiff is the customer of the Defendant and had opened an account at the Defendant's branch at Lucky Garden, Bangsar which carries on the business at No 21, Lorong, Ara Kiri Satu, Lucky Garden, Bangsar, 59100 Kuala Lumpur (hereinafter referred as 'the Defendant's Branch').
[2] The Plaintiff opened a current account no 80-0091214-4 at the Defendant's Branch ('the Account').
[3] The Plaintiff's claims in this action revolve around the production by the Defendant of certain bank statements of the Plaintiff's Account by the Defendant's Assistant Manager during the course of the trial in Suit No: Wa-22NCvC-509-09/2017 ('Suit 509').
[4] In Suit 509, the Defendant's Assistant Manager, one Encik Zafri bin Hassan ('En Zafri' or 'DW1') was served with subpoenas by the claimant in respect of the Plaintiff's Account. The purpose for the subpoenas was to address the question at the Suit 509 trial as to whether the Plaintiff's Account had sufficient funds to pay out certain cheques that the Plaintiff had issued to the claimant.
[5] It is the Plaintiff's case in the present action that the Defendant's Assistant Manager had without the Plaintiff's consent and in breach of relevant legislations, wrongfully disclosed and provided the Plaintiff's bank statements to third party, more specifically, the claimant's solicitors in Suit 509.
[6] In order to appreciate the Plaintiff's claims in this action, it is necessary to give a brief narration of the events that had taken place at the proceedings in Suit 509, particularly, pertaining to the subpoenas that were served on En Zafri, the Defendant's Assistant Manager.
Suit 509
[7] On 27 September 2018, the claimant's solicitors in Suit 509 served a sealed copy of a 'Subpoena to testify and produce documents' dated 24 September 2018 ('Subpoena dated 24 September 2018') to the Manager of the Defendant's Branch, requiring him to attend court from 2 October 2018 to 5 October 2018 with bank statements of the Plaintiff's Account for the period of 6 months from 15 July 2015 to 15 December 2015.
[8] En Zafri, who was the Assistant Manager at Defendant's Branch was tasked to attend court to testify and produce the relevant statements for the Plaintiff's Account in Suit 59 on 3 October 2018.
[9] On 3 October 2018, En Zafri duly attended at the trial of Suit 509. From the notes of proceedings for that day, it is clear that En Zafri did not hand over the bank statements to the court and or to any of the parties to the proceedings during the course of his testimony.
[10] What is also clear from the notes of proceedings is that counsel for the Plaintiff, Mr Sri Dev Nair (who happened to also act for the Plaintiff in this action) had initially objected to En Zafri's attendance to give evidence on the Plaintiff's Account. The objection was premised primarily on the issue of confidentiality of the Plaintiff's Account.
[11] There is no dispute that the learned trial judge, after hearing the objection, had overruled the objection. However, she limited the questions to be asked of En Zafri to only the question expressly stated in the Subpoena dated 24 September 2018, namely - 'were there sufficient money in the account to honour the cheques at the date of the cheques?'
[12] There is also no dispute that during En Zafri's examination in chief, the bank statements were not handed over by En Zafri to any one including the court.
[13] Notwithstanding the aforesaid, based on the notes of proceedings, counsel for the Plaintiff had during his cross examination of En Zafri asked him on the bank statements of the Plaintiff's Account, particularly, the bank balances as shown in the statements for the relevant period.
[14] After En Zafri had completed his testimony on 3 October 2018, he left the court with the bank statements.
[15] The proceedings in Suit 509 continued on 22 November 2018. On that day, during cross examination of another witness, Mr Ananthan Vijayakumar ('M
