Peh Swee Chin SCJ:

[1] At the conclusion of the hearing of arguments, we have allowed the appeal herein, indicating that we would give our reasons in writing, and now we hereby do so.

[2] The appellant/defendant, a foreign bank, has been carrying on business, at all material times, in the Republic of Singapore (hereinafter called the foreign bank) and the respondents/plaintiffs were customers of the foreign bank in connection with foreign exchange dealings or transactions, (hereinafter called the bank customers).

[3] To summarize, the statement of claim of the bank customers in the notice of writ of summons, alleged that bank customers were hopeful that the foreign bank would assist them in their foreign exchange transactions. The foreign bank being also a foreign exchange dealer allegedly promised to do everything possible to so assist the bank customers in such transactions, and both parties then entered into two agreements both dated 20 October 1992 under the respective titles of "Foreign Exchange, Metal and Option Agreement" and "Securities Services Agreement".

[4] The statement of claim alleged further in effect that the bank customers gave instructions from Kuala Lumpur for foreign exchange dealings which were transacted by the foreign bank in Singapore, London and New York.

[5] The statement of claim further alleged that for a period of 20 days, 127 foreign exchange transactions were carried out in London, New York and Singapore for a total value of US$400 million, and further that the foreign bank had acted in "fraudulent breach of a fiduciary duty" owed to them with particulars of fraud being appended to the statement of claim. It was alleged with particulars given that the foreign bank had given false and misleading information to the bank customers, obtaining a profit for itself and passing the loss to the bank customers. The bank customers therefore claimed special damages of US$10.55 million, general damages for US$10 million and costs.

[6] It will be noticed that the action was based in tort and not contract.

[8] The foreign bank filed a conditional appearance and a further application dated 24 December 1993 for the order of the learned Deputy Registrar dated 25 August 1993 above-mentioned to be set aside and for a further order that the said notice of writ of summons itself and the service of the same to be also set aside with costs.

[9] The learned Judge who, on the whole gave an elaborate and well-reasoned judgment, (except on one point), dismissed the aforesaid application of the foreign bank, and from such dismissal, the foreign bank had appealed to us.

[10] Two points clearly emerged as issues in this matter viz, first, whether our High Court had jurisdiction to hear the action thus filed, and secondly whether our High Court was or was not a forum non conveniens but arguments were addressed to Court without seeming to make a clear distinction between the two issues, causing perhaps a good reasoning on the part of the learned Judge on the question of jurisdiction but a rather inadequate one on the other point of forum non conveniens.

[11] To summarize, it was argued to the effect for the foreign bank that first, that the subject matter of claim was in contract. Secondly, all the foreign exchange transactions and other things took place outside Malaysia, except for the instructions and information from the foreign bank to the bank customers, which were received by the bank customers in Kuala Lumpur and acted on by them in Kuala Lumpur. Thirdly both agreements had provided for all disputes betwe