Evidence obtained in contravention of banking secrecy laws may still be admissible, and the clean-hands principle does not bar equitable relief in specific circumstances.

Abdul Aziz Mohamad J:

The first defendant is indebted to the plaintiffs under a judgment obtained in the Republic of Singapore which has been registered as a judgment of the High Court in Malaya under the Reciprocal Enforcement of Judgments Act 1958 . Believing that the first defendant would dissipate his assets in Malaysia in order to avoid execution to satisfy the judgment, the plaintiffs applied for ex parte and obtained a Mareva injunction. Since under our Rules an injunction obtained ex parte would be of a limited duration only, the plaintiffs also filed an inter partes application for a Mareva injunction in similar terms. The application is yet to be heard.

Among the assets affected by the ex parte Mareva injunction are several bank accounts, two in the name of the first defendant, two in the name of the eleventh defendant company, one in the name of the twelfth defendant company, and four in the name of the fifteenth defendant, who is the first defendant's wife. Those bank accounts are also among the assets that are the subject matter of the inter partes application.

The existence and details of those bank accounts were discovered by a private investigator engaged by the plaintiffs. His affidavit went in support of the plaintiffs' ex parte application. The plaintiffs' managing director also affirmed an affidavit in support of the ex parte application. For the existence and particulars of the bank accounts, he relied on the discovery made by the private investigator. The same affidavits of the private investigator and the managing director also go in support of the inter partes application.

It is the plaintiffs' case that the first defendant is the beneficial owner of the bank accounts in the names of the two companies and the first defendant's wife, and that the companies and the wife are merely the nominees of the first defendant.

By the present applications, the first defendant (encl. (89)), the eleventh and twelfth defendants (encl. (109)) and the fifteenth defendant (encl. (57)) seek leave to cross-examine the private investigator and the managing director on their affidavits in order to establish, firstly, that in the obtaining of the information relating to the bank accounts there has been a breach of s. 97 of the Banking and Financial Institutions Act 1989 . Those defendants contend that the first purpose of the cross-examination is relevant to the ex parte application and the inter partes application because if there has been a breach of s. 97, the information is inadmissible and consequently those bank accounts should not have been subjected to the ex parte injunction and should not be included in the inter partes application. Secondly, and what is more important, those defendants hope from the cross-examination to elicit the full circumstances of the obtaining of the information in contravention of s. 97 in order to make out a case of coming to equity for the Mareva injunction without clean hands and without disclosing those circumstances. They argue that the plaintiffs, coming to equity without clean hands and with failure to make material disclosures, should have failed entirely in their ex parte application and should fail entirely in their inter partes application.

I do not think the question of disclosure need be treated as a separate question from the clean-hand principle, because if the defendants succeed on the argument about clean hands, they need not rely on the nondisclosure, and if they fail on the argument about clean hands they cannot succeed on the non-disclosure.

So in these applications I need to decide only two questions of law. The first is whether evidence obtained in contravention of s. 97 is admissible. The second is whether the clean-hand principle applies in the circumstances of this case.

Section 97

Subsection (1), read with s. 103, makes it an offence to disclose to any person any information or document relating to the affairs or account of a customer of a financial i