The court upheld the statutory prohibition on disclosure of information under the Securities Industry (Central Depositories) Act 1991, rejecting the Plaintiff's application for discovery.

JUDGMENT

(Enclosure 50 - Plaintiff's Application For Discovery Of Documents Held ByBursa Malaysia)

Mohd Arief Emran Arifin J:

A. Introduction

[1] The Plaintiff applies for discovery of documents pertaining to the details of the transactions by the named individuals in the table below and whether shares in the company known as EA Holdings Berhad that were previously held in his name were transferred or transacted by the said individuals:

[2] The Plaintiff contends that Bursa Malaysia has the requisiteinformation on these individuals through the Central Depository Systemmaintained by Bursa Malaysia and that the said entity should assist thePlaintiff in providing such information to enable the Plaintiff to continue withits claim against the Defendants and the said individuals.

[3] Bursa Malaysia is not agreeable to disclose the said informationand opposes this application.

[4] This Court has considered the Plaintiff's application and findthat the application for discovery should not be allowed for reasons put forthby Bursa Malaysia. My reasons for not granting the said application are asfollows.

B. Decision Of This Court

[5] The Plaintiff contends that this application should be allowed as it allegedly falls squarely within the requirements of O 24 r 7A(3)(b) of ROC 2012.

[6] I refer to the decision of Wong Kian Kheong J in Billion PrimaSdn Bhd & Anor v. Nutech Company Limited & Anor (Encl 57), 2016 MarsdenLR 2188 that lays down the applicable law on this area when dealing with an applicationfor discovery against a third party:

(i) The applicant's affidavit in support of the discovery application against third party shall specify or describe withreasonable precision as to the documents sought (O 24 r 7A(3)(b) of ROC 2012).

(ii) The applicant's affidavit in support shall show, if practicable by reference to any pleading served that the documents are relevant to anissue arising or likely to arise out of the claim made (O 24 r 7A(3)(b) of ROC 2012).

(iii) The applicant's affidavit in support shall show that the person against whom the order is sought is likely to have or have had the documentsin his possession, custody or power. This would include third parties who are'likely' to have or have had the documents in their possession, custody or power, on the adoption of a purposive interpretation by the courts (O 24 r 7A(3)(b) of ROC 2012).

(iv) The applicant bears the legal onus to satisfy the Court that a discovery application against a third party is necessary either tofairly dispose of the pending suit or to save costs (O 24 r 8 of ROC 2012).

(v) The documents are not privileged, and the third party can be compelled by an order to produce the documents (O 24 r 7 A (5) of ROC 2012).

(vi) The discovery application against third party and applicant's affidavit in support shall be served personally on the third party and onevery party in the pending suit (O 24 rr 7A(2) & 7A(4) of ROC 2012).

[7] On a plain reading of the affidavits filed by the Plaintiff itwould appear that the Plaintiff fulfils the above test. However, this Court isunable to accede to the said application as s 43 of the Securities Industry (Central Depositories) Act 1991 prohibits the disclosure of such informationand documents to third parties, such as the Plaintiff, unless the applicationfalls within the categories allowed by the said statute.

[8] Section 43 of the Securities Industry (Central Depositories) Act 1991 is reproduced for convenience:

(1) Except as provided in this Act, no director or officer of a central depository or an authorized depository agent, whether during histenure of office or during his employment or thereafter, and no other person who hasby any means access to any information or document whatsoever relating to theaffairs of any of the depositors, and in particular, relating to theirsecurities accounts, shall give, divulge, reveal or otherwise disclose suchinformation or document to any person.

(2) No person who has any information or document which to his k