Disclosure of evidence gathered under investigation can be admitted in related trials, and the implied undertaking of confidentiality may be modified based on the purpose of disclosure.

Headnote:(A) Malaysian Code on Take-Overs and Mergers 1998 - Securities Commission Act 1993 - Companies Act 1965 - The Plaintiff sought compliance with the Code and the SCA from the 2nd to 29th Defendants, claiming they acted in concert in acquiring control of Ho Hup. The court assessed the admissibility of evidence gathered under the Companies Act, particularly regarding an implied undertaking not to disclose evidence obtained during an investigation. It held that disclosure for related purposes does not violate this undertaking. (Paras 10, 14.1, 15.1-15.4)

Facts of the case:
The Plaintiff sought to declare the actions of the Defendants regarding share acquisition as breaches of the Code and SCA and requested declarations, injunctive relief, damages, and costs. The SSM launched an investigation against specific Defendants for non-compliance which led to the Plaintiff wishing to call Investigation Officers to present evidence.

Findings of Court:
The court dismissed the Defendants' preliminary objection, allowing the Plaintiff to call SSM Witnesses to admit evidence related to the Company’s affairs without violating the implied undertaking.

Issues: The court explored whether evidence gathered under the coercive powers of the SSM can be disclosed for purposes other than the SSM investigations.

Ratio Decidendi: The Riddick principle, concerning implied undertakings regarding the disclosure of documents, applies and can be modified based on the circumstances, allowing for admission if no ulterior purpose exists.

Result: The court permitted the calling of witnesses to admit the Impugned Evidence.

Table of Content
1. factual background and context of case (Para 1 , 2 , 3 , 4 , 6 , 7 , 8)
2. arguments regarding admissibility of evidence (Para 9 , 10 , 11 , 12 , 13)
3. court's analysis on implied undertaking (Para 14 , 15 , 16 , 17 , 19 , 20 , 21 , 22 , 23)

JUDGMENT

Facts of Case1. On 27/1/10 the Plaintiff filed this action against the 1st Defendant, Ho Hup Construction Company Bhd (Ho Hup) and 28 others. In it the Plaintiff sought to secure the compliance by the Defendants with the Malaysian Code on Take-Overs and Mergers 1998 (the Code) and the Securities Commission Act 1993 . (the SCA ). In particular the Plaintiff sought inter alia, the following reliefs:-a) A declaration that the 2nd to 29th Defendants are parties acting in concert in the acquisition of control of Ho Hup.b) A declaration that the 2nd to 29th Defendants have breached the Code and the in failing to make a mandatory general offer for the shares of Ho Hup.c) An order directing the 2nd to 29th Defendants or one or more of them to make a mandatory general offer for the shares in Ho Hup in accordance with the provisions of the Code and/or the .d) Special and/or general damages and/or equitable compensation.e) Damages at common law for conspiracy to injure.f) Punitive damages andg) Costs.

2. Pending trial in this case investigations were commenced by Suruhanjaya Syarikat Malaysia (the SSM) into complaints made against the 2nd, 3rd and 5th Defendants for alleged offences under Sections 69 E and F of the Companies Act 1965 (the Act).

3. In the course of investigations statements were recorded by the Investigation Officers of SSM. The powers to investigate are under Section 7D of the Act. Witnesses are obliged to answer all questions including questions to which the answers may be self-incriminating.

4. As a result of the investigations, proceedings were commenced by the SSM against the 2nd, 3rd and 5th Defendants by way of an Originating Summons vide Kuala Lumpur High Court Case No: D-24NCC-67-2010 (the SSM OS) for injunctive relief to restrain the 2nd, 3rd and 5th Defendants from voting at an EGM of the 1st Defendant to be held on 4/2/10.5. The main ground of the application in the SSM OS was that the 2nd, 3rd and 5th Defendants failed to disclose as required under Sections 4 (1), 7(1), 7(4), 69D, 69E,69F, 69M, 69N, 691, 368 A(1)(a) and (b) of the Act, their acquisition of shares in Ho Hup.

6. The SSM summoned various persons to give statements and to provide various documents and information to the Investigation Officers. These statements, information and documents obtained were then set out in affidavits affirmed by the Investigation Officers and filed in Court in support of the SSM OS (the Impugned Evidence). These affidavits are comprised in Jilid 5 to Jilid 9, Part C of the Plaintiff’s Bundle of Documents.A consent order was entered in the SSM OS case where the 2nd and 5th Defendants were restrained from exercising their voting rights to shares in the 1st Defendant.

7. On 29/10/10 when the Plaintiff opened its case Counsel for the Plaintiff informed the Court that he intended to call the Investigation Officers who had filed the affidavits in the SSM OS as witnesses. The Court was also informed that the witness statements of the Investigation Officers had been prepared and served on the Defendants. The objective in calling the Investigation Officers as witnesses was to put in evidence the Impugned Evidence obtained by the Investigation Officers during the SSM investigations.

8. The Plaintiff intended to call 11 Investigation Officers (the SSM Witnesses).

9. Counsel for the Defendants gave notice that he would be raising “a substantial preliminary objection as to the admissibility of the evidence that the SSM Witnesses were intending to give, in so far as the same relates to the Impugned Evidence, in this trial”.

10. Preliminary Objection by the 2nd, 4th to 7th Defendants.Counsel for the Defendants very ably framed the following issues for the Court to conside

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