Alauddin Mohd Sheriff JCA:

Both these appeals are against the decision of the High Court, Kuala Lumpur given on 28 April 2001 which set aside two subpoenas Ad Testificandumand Duces Tecum('the subpoenas') couched in similar terms issued against the following persons:

(i) In respect of Civil Appeal No. W-02-459-2001, against the first respondent ('Erdmann Vogt') by writ of subpoena dated 24 April 2001; and

(ii) In respect of Civil Appeal No. W-02-460-2001, against the first respondent ('Kamala Devi') by writ of subpoena dated 13 December 2000.

A brief account of the dispute between the appellant (Maju Holdings) and the second respondent (Fortune Wealth) is as follows:

The second respondent issued proceedings against the appellant for an alleged breach of a Call & Put Option Agreement ('the agreement') purportedly dated 1 April 1997. The agreement was intended as a means of financing the acquisition by the appellant of shares in Ipmuda Berhad ('the shares'). Under the agreement, the second respondent has the option during the option period to put to the appellant the shares at a predetermined price. It is the alleged failure by the appellant to pay for the 'put' shares that has given rise to this action. The appellant in its defence, inter alia, pleaded that the agreement had been repudiated when it had exercised its common law option to avoid the same upon discovery that the second respondent was merely a nominee of one Koh Kim Teck. This common law right exists as at all material times Koh Kim Teck was an agent of the appellant to arrange the financing of the transaction through the agreement but did not at any time disclose to the appellant his beneficial interest in the shares. In short the appellant says that Koh Kim Teck and not the second respondent was the beneficial owner of the shares. Under the law, he ought to have disclosed that beneficial interest. His beneficial interest was further put squarely into issue during the cross-examination of PW1, one Miss Loke Foong Meng.

At the hearing before the High Court, the second respondent after having led evidence through PW1 and PW2 intimated to the court that they were closing their case. It was at this juncture that the appellant took out the subpoenas against the first respondents. The subpoenas were served on Kamala Devi on 15 December 2000 and Erdmann Vogt on 24 April 2001. By the said subpoenas both the first respondents were ordered to attend hearing on a certain date and so from day to day until the end of the proceedings 'to give evidence for the defendant' and to produce 'all documents, correspondences and books in connection with the shareholding in Ipmuda Berhad by Koh Kim Teck, Fortune Wealth (Hong Kong) Limited and/or the bank from the month of March 1997 until now'.

Both the first respondents took out separate summonses to have the said subpoenas struck off on the grounds:

(i) that the said subpoenas on the face of it are too wide and unlimited in that they are asking the witnesses to produce all documents, correspondences, books and other statements relating to the shareholdings of one Mr. Koh Kim Teck in Ipmuda Berhad; and which information was in fact readily and presently available to the appellants through Ipmuda's company secretary, the company in which the appellant itself has a substantial shareholding and sharing a common Chairman in the person of Tan Sri Abdul Sahid Muhamad.

(ii) that the issuance of these subpoenas were made in futility by the appellants 'on a fishing expedition. It was an attempt to discovery of documents from parties who are not even parties to these proceedings; and the call under the subpoenas is an abuse of the process of court and should be set aside.

(iii) thirdly, and most important of all is s. 97(1) of the Banking and Financial Institutions Act 1989 ('BAFIA'). BAFIA is an Act specifically passed to regulate the business and affairs of the Banking Industry and s. 97(1) contains a restriction against any disclosure