Court cannot bar expert evidence at pre-trial stage, appeals court rules

 

Goh Poh Yoke is suing AmBank and AmInvestment Bank for allegedly appropriating her customers and their combined stock portfolio following her dismissal as a dealer in securities.

PETALING JAYA: The Court of Appeal has unanimously ruled that a judge has no power to decide on the admissibility and relevancy of any evidence during pre-trial case management.

“Such a task belongs to the trial judge under the Evidence Act 1950. On this ground alone, we allow both appeals.

“We allow costs of RM10,000 for each appeal subject to allocatur,” said Justice Mariana Yahya.

Mariana was chairing a three-member panel hearing two interlocutory appeals brought by appellant Goh Poh Yoke on Tuesday.

Also on the bench were Justices Lim Chong Fong and Wong Kian Kheong.

The appeals arose out of a “direction” given by Justice Adlin Abdul Majid during pre-trial case management of Goh’s lawsuit against defendants AmBank (M) Berhad and AmInvestment Bank Berhad.

On May 23 last year, Adlin ruled that a report issued by an expert was inadmissible as expert evidence. She barred Goh from adducing it at trial.

At a subsequent case management session held on June 1 last year, Adlin also rejected Goh’s request for permission to file a fresh expert report on damages.

In written grounds issued on Nov 30, Adlin explained: “It is clear from the content of the report that (the expert) is not providing opinions on a point of foreign law, science or art, as claimed by (Goh).

“Instead, the report covers legal assessments of documents before the court. It is not the role of (the expert) to make these assessments on the pretext of being an expert under Section 45(1).

“These assessments will be carried out by the court once it has considered all evidence before it.”

However, the appeals court ruled that Adlin had no power to bar the expert’s evidence prior to the commencement of the trial.

“It is our considered view that the learned judicial commissioner in conducting the pre-trial case management has no power to decide on admissibility and relevance of any evidence.

“We allow the expert’s affidavit to be used and considered at trial, subject to the defendant’s right to submit on admissibility, relevancy and weight at the trial,” said Mariana.

Earlier, the Court of Appeal ruled that the term “direction” used by Adlin was in substance an appealable order under the Courts of Judicature Act 1964.

“This is because she has expunged the affidavit of the plaintiff’s (Goh’s) expert,” said Mariana.

The appeals court also directed that the suit be called up for case management in the High Court on May 21.

Christie Soosay Nathan and Jusween Kaur represented Goh in the appeal, while AmBank and AmInvestment Bank were represented by Rutheran Sivagnanam and Chong Yi Zhen.

Goh is suing the two banks for unjust enrichment, breach of constructive trust, conspiracy by unlawful means and unlawful interference with her trade or business.

She is seeking to recover RM12,992,000 or RM4,930,000, depending on the manner of calculation.

In 1999, Goh was appointed a remisier by Arab-Malaysian Securities Sdn Bhd, which has since evolved into AmInvestment Bank.

On Nov 2, 2005, she was appointed by AmBank on a one-year contract as an exempt dealer, which was extended annually until it was terminated with effect from Oct 3, 2019.

Goh, 53, claims that she had over a career spanning 26 years secured more than 600 customers with a combined stock portfolio valuation exceeding RM200,000,000, generating an average of RM230,000 in revenue for her annually.

She says AmBank and AmInvestment Bank wrongfully appropriated her customers and their combined stock portfolio, depriving her of commissions she would have otherwise received.

Goh says that the terms of her contract specify that she was at all times engaged as an independent contractor.

AmBank, however, claims she was its employee and that the bank owned all the customer accounts she serviced. - FMT