Heliliah Mohd Yusof JCA:

[1] The appellant (the respondent in the High Court) namely Bursa Malaysia Securities Berhad (or Bursa) lodged an appeal against the decision of the High Court rendered on 28 March 2008 as follows:

(i) granting leave in the application for judicial review filed by the respondent in the appeal (the applicant in the High Court) namely Gan Boon Aun (GBA).

(ii) further allowing an oral application for an order to stay certain deliberations which were to have been made on 31 March 2008 by the appellant, Bursa.

[2] The application for leave filed by GBA sought to commence proceedings to obtain:

(a) An order of mandamus that the hearing and/or proposed deliberations brought by Bursa Malaysia Securities Berhad under its letters dated 19 February 2008 and 27 February 2008 against GBA pursuant to the provisions of the Bursa Malaysia Securities Berhad Listing Requirements (LR) be deferred sine die until after the final disposal of Kuala Lumpur Sessions Court Criminal case No 62A-302-07 and all appeals thereof, on the grounds stated in the statement in support of the application for leave.

(b) An order of Prohibition and/or Injunction against Bursa Malaysia Securities Berhad to defer any further decision (s) by BMSB to enforce under the provisions of the LR against the applicant until after the final disposal of Kuala Lumpur Sessions Court Criminal case No. 62A-302-07 and all appeals thereof, on the grounds stated in the statement.

[3] On 28 March 2008 after having considered written submissions filed by Bursa and GBA the High Court judge granted leave for the commencement of proceedings in respect of the reliefs sought. An interim stay of the deliberations of the Listing Committee was also ordered. The grounds for his decision are not available. The proceedings for judicial review has been fixed to commence on 9 August 2012.

[4] Hence this appeal has arisen from a decision of the High Court judge given at the first stage of an application for leave for judicial review filed pursuant to O 53 r 3 Rules of the High 1980 (RHC 1980) namely, at the stage of the application for leave itself. Before embarking on the issues raised the background and essential facts leading to the appeal need to be elucidated.

Background

[5] Bursa is a stock exchange vested with statutory functions under the Capital Markets and Services Act 2007 (CMSA 2007) to ensure an orderly and fair market in the securities that are traded through its facilities To be noted is that the CMSA 2007 has superseded the Securities Industries Act 1983. Specific mention is also to be made of s 11 of the CMSA 2007 which provides:

Section 11

(1) For the purposes of this section, ss 12, 13 and 27:

(a) "exchange" refers to a stock exchange or a futures exchange; and

(b) "relevant person" means a participating organisation or an affiliate.

(2) It shall be the duty of an exchange to ensure, so far as may be reasonably practicable, an orderly and fair market in the securities or futures contracts that are traded through its facilities

(3) In performing its duty under subsection (2), the exchange shall

(a) act in the public interest having particular regard to the need for the protection of investors; and

(b) ensure that where any interests that it is required to serve under any law relating to corporations conflict with the interest referred to in paragraph (a), the latter shall prevail.

(4) It shall be the duty of the exchange to take appropriate action as may be provided under its rules for the purpose of monitoring or securing compliance with such rules

[6] In the discharge of its statutory duties, Bursa issues rules and requirements which are monitored and enforced. A company that is listed in the Official List of the Bursa is governed by Listing Requirements (LR) that set out the minimum standards of conduct that must be complied by listed companies The purpose of the LR is also to specify the requirements that must be complied by applicants, listed issuers, management com