PUTRAJAYA (Aug 30) : A three-member Court of Appeal (COA) bench on Wednesday allowed the appeal by National Feedlot Corporation Sdn Bhd (NFCorp) and four others against Public Bank, ruling that the bank is liable to pay damages to them over alleged breach of contract in protecting information concerning their bank accounts.
This comes after the appellate bench ruled that the High Court judge ignored vital evidence from the bank’s domestic inquiry on its former clerk Johari Mohamad, who was implicated in the leak of confidential documents.
Judge Datuk S Nantha Balan, who wrote the judgement, said he agreed with NFCorp’s submission that there is no evidence that confidential information with regard to the plaintiffs' documents was in the public domain prior to March 7, 2012.
“The bench is of the view that there was serious misappreciation of evidence by the High Court, which warrants appellate intervention on our part. In the case before us, the High Court judge ignored vital evidence, in particular the testimony of Veronica Foo (the head of investigation audit at the bank) before the domestic inquiry.
“[The judge also ignored] the bank’s stance vis-à-vis the charge of serious misconduct by Johari (where it found the clerk guilty of misconduct) for breaching Section 97(1) of the Bank and Financial Institutions Act. We therefore allow the appeal on liability in respect of all plaintiffs, except Real Food Company Sdn Bhd, which has no claim against the bank,” Nantha Balan said.
Nantha Balan was the third judge who sat with Datuk Azizah Nawawi and Datuk P Ravinthran, forming the bench that allowed the appeal by NFCorp, National Meat & Livestock Corporation Sdn Bhd, Agroscience Industries Sdn Bhd, Real Food Company, and NFCorp chairman Datuk Seri Mohamad Salleh Ismail in hearing the case.
Following that, the appellate court granted nominal damages of RM10,000 with 5% interest from May 22, 2012, the suit's filing date.
The court also set aside the RM350,000 costs set by the High Court against the plaintiffs, and now ordered the bank to pay RM500,000 as costs to the plaintiffs.
Nantha Balan, in overturning the decision, pointed out and ruled that it was Johari who had handed over the impugned documents — namely, the financial statements of the plaintiffs’ accounts — to third parties, and these then eventually found their way into politician Mohd Rafizi Ramli’s hands.
The court drew the timeline where it noted that Johari had wrongfully accessed Public Bank’s IBM mainframe to download the plaintiffs’ customer profile and balance summary (CF-BS) on Feb 16, 2012.
Rafizi then held a press conference to disclose those information along with the CF-BS that led to Salleh complaining on March 30, 2012 about wrongful disclosure and filed the suit.
The bank issued a show-cause letter to Johari on April 12, 2012, and the financial institution issued a domestic inquiry against him, who was charged with having committed misconduct.
High Court judge 'took wrong turn' in concluding documents were not from Public Bank
Nantha Balan said the trial judge took a "wrong turn" in accepting the bank’s evidence and concluding that the impugned documents were not the bank’s documents.
“Had the judge carefully considered the evidence, she would have concluded that Foo’s answer that the impugned documents were not the bank’s documents was not credible, especially in light of the bank’s response, the show-cause letter to Johari, and the notice of domestic inquiry, and the bank’s conduct during the inquiry,” he said.
Looking at all the circumstances, Nantha Balan said it would take very little to tilt the probabilities in favour of the conclusion that it was Johari who had handed over the impugned documents to third parties, and these then eventually found their way into Rafizi’s hands.
“The rest is, as they say, history. Ultimately, it is what Johari did that facilitate the disclosure of the impugned documents to Rafizi,” the judge added.
The appellate judge admitted that there is no smoking gun evidence to show that Johari had passed the information directly to Rafizi, but to suggest that the said documents were not the bank’s documents, and that there was no evidence that the confidential information of the plaintiffs was disclosed to third parties, would be a complete volte-face by the financial institution.
On July 29, 2019, then High Court judge Datuk Su Geok Yiam dismissed NFCorp’s suit, saying the companies and Salleh had failed to prove their claim against the bank on a balance of probabilities, resulting in the appeal.
NFCorp and the rest of the plaintiffs were represented by senior lawyer Tan Sri Muhammad Shafee Abdullah, while Yoong Sin Min appeared for Public Bank.