Working Paper

Banking Secrecy in Singapore and Its Impact on Pre-Action Asset Tracing

CBFL-WP-NG03

Nelson GOH

Adjunct Researcher, Centre for Banking & Finance Law, Faculty of Law, National University of
Singapore

nelsongohkt@gmail.com

29 December 2016

This report may be cited as: Nelson GOH, “Banking Secrecy in Singapore and Its Impact on Pre-Action
Asset Tracing”, Centre for Banking & Finance Law, Faculty of Law, National University of Singapore, 29
December 2016, report number CBFL-WP-NG03
URL: http://law.nus.edu.sg/cbfl/pdfs/working_papers/CBFL-WP-NG03.pdf
 The views expressed in this paper are those of the author(s). They do not necessarily represent or
reflect the views of the Centre for Banking & Finance Law (CBFL), or of the National University of
Singapore.

© Copyright is held by the author(s) of each CBFL Working Paper. The CBFL Working Papers
cannot be republished, reprinted, or reproduced in any format (in part or in whole) without the
permission of the author(s).

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 Banking Secrecy in Singapore and Its Impact on Pre-Action Asset Tracing

Nelson GOH

Adjunct Researcher, Centre for Banking & Finance Law, Faculty of Law, National University of
Singapore

nelsongohkt@gmail.com

29 December 2016

ABSTRACT:

This paper seeks to analyse the impact of Singapore’s current banking secrecy regime on pre-action
discovery. There are broadly four possible avenues for pre-action discovery in Singapore: a Norwich
Pharmacal order, a Bankers Trust order, pre-action discovery under the Rules of Court, and a bankers’
books application under the Evidence Act. However, given Singapore’s banking secrecy regime, it is likely
that only one route, that of a bankers’ books application, may be available for parties who require pre-
action discovery from banks. Nonetheless, it is suggested that the principles governing pre-action
discovery and the policy considerations emerging from the case law, may inform the development of
the nascent bankers’ books jurisprudence. A matter of terminology should be clarified at the outset: the
term ‘disclosure’ is used in English law to describe the process by which a party to proceedings discloses
relevant documentary evidence, while the term ‘discovery’ (commonly associated with US civil litigation)
is the term used in Singapore broadly to describe the same process. Both terms are used
interchangeably in this article with no intent to draw a distinction between them.
DRAFT
Not to be reproduced in anyway without the author’s consent.

BANKING SECRECY IN SINGAPORE AND ITS IMPACT ON

PRE-ACTION ASSET TRACING

I. INTRODUCTION

Singapore is one of the world’s leading banking and finance centres. 1 Given its
unique geopolitical characteristics, it is no surprise that the country has chosen to
position itself as one of Asia’s leading berths for financial services. 2 As part of its
overall approach to financial services, Singapore has also maintained a strong
emphasis on banker-customer confidentiality. 3 While responding to certain calls
for more transparency, particularly in the global combat against tax evasion,
Singapore has continued to embrace banking secrecy in the main. 4 The lifting of
such rules in Switzerland have reportedly led to a deluge of wealth from Europe to
Asian financial hubs such as Hong Kong and Singapore, 5 and Singapore is
generally perceived to be a jurisdiction friendly to the inflow of foreign wealth, 6
especially from the nouveau riche in Asia.
Banking secrecy in Singapore is governed by primary legislation. Section 47 of
the Banking Act 7 provides that ‘customer information shall not, in any way, be
disclosed by a bank in Singapore or its officers to any other person except as
expressly provided by the Act’. A contravention may lead to a fine or a jail term. 8

1
Singapore has been ranked second on the Global Competitiveness Report 2014/2015 published
by the World Economic Forum. Its financial market development has been rated a 5.8 out of 7. See
World Economic Forum, ‘The Global Competitiveness Report 2014/2015’ (2014)
<http://www3.weforum.org/docs/WEF_GlobalCompetitivenessReport_2014-15.pdf> accessed 3
September 2015. Singapore is also ranked fourth on the Global Financial Centre Index, published
by the Z/Yen Group in March 2015.
<http://www.longfinance.net/images/GFCI17_23March2015.pdf> accessed 3 September 2015.
2
Economic Review Committee Sub-Committee on Services Industries Financial Services Group,
Ministry of Trade and Industry, Positioning Singapore as a Pre-Eminent Financial Centre for Asia
(September 2002).
<https://www.mti.gov.sg/ResearchRoom/Documents/app.mti.gov.sg/data/pages/507/doc/12%20E
RC_Services_Financial.pdf>. For an overview of the development of Singapore’s financial
services industry, see Tan ChweeHuat, Financial Markets and Institutions in Singapore (11th edn,
Singapore University Press, 2005). In particularly, Singapore is developing a niche for private
wealth management. See Singapore Parliamentary Debates 12 August 2013, vol 90 (Singapore’s
Private Banking Sector).
3
Singapore Parliamentary Debates 16 May 2002, vol 73, cols 1689 & 1690.
4
‘Singapore banks agonise over rich clients in tax evasion clampdown’ Financial Express (7 May
2013); Wei Gu, ‘Banks in Asia get pickier about high-end clients’ The Wall Street Journal (30
April 2015). For a useful overview of the development of the Swiss banking secrecy regime, see
Henri B Meier, Swiss Finance: Capital Markets, Banking, and the Swiss Value Chain (Wiley,
2013).
5
‘Exporting banking secrecy’ Swiss News (1 November 2010); Neil Chatterjee and John
O’Donnell, ‘Singapore’s star rises as Switzerland stumbles’ AFX Asia (Singapore / Frankfurt, 15
December 2008).
6
‘Singapore expected to dislodge Switzerland as world’s wealth management capital’ Asia One
Business News (12 May 2014).
7
Banking Act (Cap 19) (2008 Rev ed).
8
Section 47(6), Banking Act.

© Nelson Goh
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The exceptions to the duty of confidentiality are set out in the Third Schedule of
the Act, and these exceptions have been held to be comprehensive. 9
The unintended effect of the broad gateways to the inflow of foreign wealth
and the current banking secrecy regime in Singapore is that it may be possible for
perpetrators of fraud to benefit from the confidentiality regime and be protected
from asset-tracing measures. The ubiquity and ease of online transfers in modern
banking makes it easy for money to be moved from one jurisdiction to another.
Prior to launching proceedings, victims of sophisticated fraud may wish to trace
the flow of monies in and out of bank accounts to ascertain their destination. In
some cases, this is done in the slim hope that such assets may be frozen. Where
the identity of the perpetrator is unclear, victims of fraud may also file discovery
applications against banks as third parties who, although are not privy to the
fraud, may possess vital information. 10 The Third Schedule of the Banking Act
appears to limit the avenues for such procedures.
This paper seeks to analyse the impact of Singapore’s current banking secrecy
regime on pre-action discovery. There are broadly four possible avenues for pre-
action discovery in Singapore: a Norwich Pharmacal order, a Bankers Trust
order, pre-action discovery under the Rules of Court, and a bankers’ books
application under the Evidence Act. However, given Singapore’s banking secrecy
regime, it is likely that only one route, that of a bankers’ books application, may
be available for parties who require pre-action discovery from banks. Nonetheless,
it is suggested that the principles governing pre-action discovery and the policy
considerations emerging from the case law, may inform the development of the
nascent bankers’ books jurisprudence. A matter of terminology should be clarified
at the outset: the term ‘disclosure’ is used in English law to describe the process
by which a party to proceedings discloses relevant documentary evidence, while
the term ‘discovery’ (commonly associated with US civil litigation) is the term
used in Singapore broadly to describe the same process. Both terms are used
interchangeably in this article with no intent to draw a distinction between them.

II. BANKING SECRECY IN SINGAPORE

Singapore is a good keeper of banking secrets; and it is no secret that this is

perceived to underpin confidence in the banking regime. Banking law in
Singapore is primarily governed by the Banking Act. 11 The Act was first
introduced in Parliament in 1962 12 but due to issues relating to the introduction of
a new currency, the bill was not passed until 1971. 13 In the interim, the Malayan
Banking Ordinance applied. 14 As explained during one parliamentary session:
‘The banking secrecy provisions of the Banking Act protect the confidentiality of
customer information. Tight banking secrecy is important to maintaining the
confidence of customers in our banking system’. 15
9
Susilawati v American Express Bank Ltd [2009] 2 SLR(R) 737.
10
Under the eponymous Norwich Pharmacal order, which derives from Norwich Pharmacal Co v
Commissioners of Customs and Excise [1974] AC 133.
11
And the relevant subsidiary legislation.
12
Singapore Parliamentary Debates, 16 January 1962, vol 15 col 120-175.
13
Act 41 of 1970, Banking Act 1970 which came into force on 1 January 1971.
14
Singapore Parliamentary Debates, 2 September 1970, vol 30, col 202.
15
Singapore Parliamentary Debates 16 May 2002, vol 73, cols 1689 & 1690.

© Nelson Goh
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In recent years, the global tide has flowed against having strict secrecy rules.
Switzerland, traditionally renowned for its strong confidentiality regime, has
received criticism from the US government and several EU counterparts for
preventing tax authorities from taking measures against money in Swiss bank
accounts possibly subject to tax in the customer’s home jurisdiction. 16 Measures in
the EU and the US 17 on this front have created new inroads and led to divergent
views on the impact on the Swiss financial services sector. 18 The pattern of the
well-heeled shifting assets to banking centres with robust confidentiality rules is
not exclusive to Switzerland. It has been observed that Singapore has likewise
become a domain for wealthy Asians, 19 and Singapore has received some criticism
for this. 20 In 2009, Singapore demonstrated its commitment towards combating
tax evasion 21 by accepting the OECD’s Exchange of Information (EOI)
framework. Further, it committed to measures to allow the local tax authorities to
check on customer accounts without the need for a court order. 22 Separately, a
dark shadow has been cast over the confidentiality regime by its use for terrorism
financing, money laundering and related criminal activities. But strictly speaking,
the scourge of criminal activities is not shielded by the secrecy rules. Paragraph 5
of the Third Schedule allows customer information to be disclosed for purposes of
formal investigations pursuant to an order or a request made under written law. 23
There is also the Mutual Assistance in Criminal Matters Act 24 which allows the
Singapore authorities, at the request of a foreign state, to exercise their powers to
aid and facilitate the investigation and gathering of evidence in relation to
criminal matters with a cross-border reach.
As to banking secrecy in Singapore more generally, in 2001, the Singapore
government undertook a review of the legislation in this area. The erstwhile
provisions under Section 47 of the Banking Act were completed repealed and
replaced. Notably, the old Section 47(1) which generally prohibited the Monetary

16
OECD, Promoting Transparency and Exchange of Information for Tax Purposes (19 January
2010) < http://www.oecd.org/newsroom/44431965.pdf >; OECD, The Era of Bank Secrecy is
Over (26 October 2011) < http://www.oecd.org/ctp/exchange-of-tax-information/48996146.pdf >.
17
For eg, the Foreign Account Tax Compliance Act, more popularly known as FATCA, enacted
by the US Congress in March 2010.
18
‘No longer so secret, Swiss banks look to expand after purge’ Reuters (Zurich, 27 June 2015).
Although the move away from bank secrecy related business has helped: Giles Broom, ‘Swiss
Bankers Losing Secrecy Helps Image Abroad’ Bloomberg Business (9 June 2015); John Letzing, ‘
‘There is (still) no country like Switzerland’ says HSBC’s Swiss Chief’ The Wall Street Journal
(12 May 2015).
19
‘Singapore bankers rattled by chase for undeclared funds’ Today (Singapore, 19 August 2015).
20
‘Dearth of compliance expertise complicates Singapore’s fight against unlawful money’ The
Business Times (27 July 2015).
21
Ministry of Finance, ‘Singapore Endorses the OECD Standard for Exchange of Information’ (6
March 2009)
<http://www.news.gov.sg/public/sgpc/en/media_releases/agencies/mof/press_release/P-20090307-
1.html>
22
As implemented by Income Tax (Amendment) (Exchange of Information) Act 2009 (No. 24 of
2009).
23
One example being Section 31 of the Corruption, Drug Trafficking and Other Serious Crimes
(Confiscation of Benefits) Act (Cap 65A) (2000 Rev ed).
24
Cap 190A (2001 Rev. ed).

© Nelson Goh
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Authority of Singapore (MAS) from enquiring into the affairs of a customer was
replaced by the following text: 25

Customer information shall not, in any way, be disclosed by a bank in

Singapore or any of its officers to any other person except as expressly
provided in this Act. (Italics added)

The exceptions to customer confidentiality as referred to in the new Section 47 are

set out in the Third Schedule of the Act. Of relevance to the present discussion is
paragraph 7 of the Third Schedule. Paragraph 7 permits disclosure of customer
information under Part IV of the Evidence Act, 26 comprising the bankers’ books
provisions. Here, documents used in the ‘ordinary business of the bank’ may be
disclosed pursuant to a court order. In particular, Section 175(1) of the Evidence
Act provides:

On the application of any party to a legal proceeding, the court or a Judge

may order that such party be at liberty to inspect and take copies of any
entries in a banker’s book for any of the purposes of such proceedings.

This appears to be the only gateway to obtain disclosure directly from a bank,
outside of cases where proceedings are between the bank and the customer. 27
Traditionally, it was thought that a banker’s duty of confidentiality was
governed by the common law, 28 as well as by the Banking Act. However, the
amendments to Section 47 in 2001 led to doubts as to whether Tournier’s case,
the leading common law decision in this area, still had room to operate. 29 In
Susilawati v American Express Bank Ltd 30 the Singapore Court of Appeal
confirmed that the duty of confidentiality between banker and customer was
exclusively governed by the Banking Act, and the exceptions to banking secrecy
listed in the Third Schedule were comprehensive. 31 Further, it confirmed that there
was no residual room for the common law exceptions to operate. 32 This
conclusion has been criticised for conflating the banker’s contractual duty with its
statutory duty. 33 It has also been argued that Parliament’s intent was not to
abrogate but supplement the common law duty. This argument is based on Section
47(8) of the Banking Act which states that ‘[f]or the avoidance of doubt, nothing
in this section shall be construed to prevent a bank from entering into an express
agreement with a customer of that bank for a higher degree of confidentiality than

25
For a discussion on the provision and the relevant case law, see Poh Chu Chai, Banking Law
(2nd edn, LexisNexis, 2011) 555-573.
26
In particular, Sections 170-176 of the Evidence Act (Cap 97) (1997 Rev Ed).
27
As to which, see paragraph 4, Third Schedule of the Banking Act.
28
Under the landmark decision Tournier v National Provincial and Union Bank of England [1924]
1 KB 461.
29
See the view expressed in A Yeo & J Tan, ‘Singapore’ in Gwendoline Griffiths (eds), Neate:
Bank Confidentiality (4th edn, Tottel Publishing, 2006) 584-585.
30
Susilawati v American Express Bank Ltd [2009] 2 SLR(R) 737.
31
Susilawati v American Express Bank Ltd [2009] 2 SLR(R) 737, [64]-[70].
32
Susilawati v American Express Bank Ltd [2009] 2 SLR(R) 737, [67].
33
Tan Yun Hui, ‘Banking Secrecy in Singapore’ Rodyk & Davidson LLP Business Bulletin
(September 2014); Poh Chu Chai, Banking Law (2nd edn, LexisNexis, 2011) 560-561.

© Nelson Goh
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that prescribed in this section’. 34 With respect, these criticisms are not well
founded, and the interpretation of Section 47 in Susilawati must be correct. By use
of the appendage phrase ‘except expressly provided in this Act’, the Act makes
clear that there can be no operative exceptions outside of it − the exceptions in the
Third Schedule are comprehensive, save that a customer may seek to impose a
strict contractual duty of confidentiality which does not derogate from the
Schedule. 35 The exceptions to banker-customer confidentiality are so central to the
duty itself that the exceptions effectively delineate the rule without scope for a
collateral common law duty.

III. PRE-ACTION DISCLOSURE IN AID OF ASSET-TRACING

A. Norwich Pharmacal orders, Banker’s Trust orders and Pre-action

Discovery under the Rules of Court

Civil fraud is no respecter of persons. ‘Fraud’ is a protean term and covers broad
shades of conduct. It ranges from dishonest acts arising from a contractual
relationship, corruption in public office, 36 breach of express trust, and the more
straightforward but no less sophisticated ‘boiler room’ fraud. 37 The magnitude and
spread of such activities has led to the International Chamber of Commerce
setting up its own Commercial Crime Services body and a worldwide network of
law firms able to assist with such cases. 38 The pervasiveness of technology has
increased the ease and width of fraudulent activities. Universal interconnectedness
means that fraud can be committed from a foreign jurisdiction with the click of a
few buttons. With artful use of technology, false identities, addresses and websites
can be set up, while documents can be doctored and forged. Further, the ease of
online transfers means that unwitting victims can part with their money easily,
and the same sums can be moved out of jurisdiction almost instantaneously.
Unsurprisingly, a report states that online banking fraud increased by 48% from
2013 to 2014. 39 This trend is corroborated by UK’s fraud watchdog, the Financial
Fraud Action, which states that remote banking (being telephone and online
banking) losses rose in the first six months of 2015 to £65.9 million. 40 Singapore
has faced similar problems. From 2009 to 2015, there was a reported three-fold

34
Poh Chu Chai, Banking Law (2nd edn, LexisNexis, 2011), 560-561.
35
It has been suggested that this outcome leaves a customer with no contractual remedies but a
cause of action in breach of statutory duty. But it is possible for duties imposed by written law to
be contractual duties, such as in the sale of goods: See for eg Part IV of the Sale of Goods Act
(Cap 393) (1999 Rev Ed).
36
Eg Republic of Haiti v Duvalier [1989] 2 WLR 261.
37
Where cold calls are made typically to wealthy and vulnerable individuals to invest in schemes
promising high returns. The name ‘boiler room’ refers to the high pressure tactics used to persuade
and coerce potential victims. See for eg http://www.bbc.com/news/business-25761528. The UK
has set up an authority to deal with this specific problem:
<http://www.actionfraud.police.uk/fraud-az-boiler-room-fraud>.
38
<https://icc-ccs.org/home/fraudnet>
39
Kevin Peachey, ‘ Online banking fraud up by 48%’ BBC (UK, 27 March 2015).
40
Financial Fraud Action UK, New Release, ‘New fraud figures show fraudsters directly targeting
customers’ 2 October 2015. Available online at:
http://www.financialfraudaction.org.uk/download.asp?file=3020

© Nelson Goh
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increase in cyber-cheating cases. 41 A mid-year brief by the Singapore Police Force

reported that amidst the generally low crime rates in Singapore, commercial
crimes, in particular, online scams, have increased significantly. 42
In many fraud cases, victims rarely possess sufficient information about the
wrongdoers. Where the defendant is known to the victim, it may be open to the
victim to launch proceedings and apply for freezing injunction where
appropriate. 43 A freezing injunction is apposite only where monies are about to be
dissipated. 44 However, this may be difficult if the location of the fraudster is not
known, nor where their assets may be. Moreover, in many cases, the information
provided to the victim is fictitious – false identities, sham companies, dressed-up
websites, fabricated certificates of financial instruments, temporary contact
numbers and addresses, etc. Thus, when little is known about the perpetrator, the
only accurate information may be that of the bank account to which money is
transferred. In these cases, the availability of pre-action discovery against banks
becomes critical.
As explained above, it appears that the only means to obtain pre-action
discovery against a bank in Singapore is via the bankers’ books provisions in the
Evidence Act. However, there are other avenues for pre-action discovery (not
against banks) which should be borne in mind. Indeed, because there is scant
jurisprudence on the bankers’ books provisions, the case-law in these other areas
become extremely helpful in guiding a court towards the relevant considerations.
In Singapore, apart from the bankers’ books provisions, there are broadly three
other avenues by which a victim may obtain pre-action discovery in aid of
potential civil proceedings: a Norwich Pharmacal order, a Bankers Trust order,
and pre-action discovery under the Rules of Court. A detailed discussion of these
forms of pre-action discovery goes beyond the scope of this paper and the reader
is referred elsewhere. 45 For present purposes, this section provides an overview
and in the later section draws on aspects of the relevant case-law.
As is well known, under the common law, pre-action discovery may be sought
via a Norwich Pharmacal order. 46 The order originates from the House of Lords
decision Norwich Pharmacal Co v Commissioners of Customs and Excise 47 where
owners of a patent sought against the commissioners of customs and excise

41
‘Big spike in cyber scams drive up crime rates’ Today Online (Singapore, January 2015).
42
Singapore Police Force Mid-Year Brief 2015, available at:
http://www.spf.gov.sg/stats/crimebrief2015.html
43
As to which see generally Iain Goldrein (ed), Commercial Litigation: Pre-emptive Remedies
(2nd intl edn, Sweet & Maxwell, 2011) 245-393; Steven Gee, Commercial Injunctions (5th edn,
Sweet & Maxwell, 2004), Ch 3; Mark Hoyle, The Mareva Injunction and Related Orders (3rd edn,
LLP, 1997); Adrian Wong, Interlocutory Injunctions (2nd edn, LexisNexis, 2010) Ch 5.
44
Iain Goldrein (ed), Commercial Litigation: Pre-emptive Remedies (2nd intl edn, Sweet &
Maxwell, 2011), 313-327.
45
Supra n 43 and n 46.
46
See generally Paul Matthews and Hodge Malek, Disclosure (4th edn, Sweet & Maxwell, 2011)
63-90; Iain Goldrein (ed), Commercial Litigation: Pre-emptive Remedies (2nd intl edn, Sweet &
Maxwell, 2011) 435-461; C Hollander, Documentary Evidence (12th ed, Sweet & Maxwell, 2015)
59-82; Cockerill, The Law and Practice of Compelled Evidence (OUP, 2011) 56-62; Steven Gee,
Commercial Injunctions (5th edn, Sweet & Maxwell, 2004), Ch 22.
47
Norwich Pharmacal Co v Commissioners of Customs and Excise [1974] AC 133; [1973] 2 All
ER 943.

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disclosure of the identity of importers who allegedly breached their licence. As

Lord Reid famously put it:

[i]f through no fault of his own a person gets mixed up in the tortious acts
of others so as to facilitate their wrongdoing he may incur no personal
liability but he comes under a duty to assist the person who has been
wronged by giving him full information and disclosing the identity of the
wrongdoers. 48

The order essentially requires a non-party who is mixed up in a wrongful act to

disclose information 49 which may be necessary for the potential claimant to bring
its action. The Norwich Pharmacal order is the ‘modern manifestation’ 50 of the
old Chancery procedure of the bill of discovery. 51 Recent Singapore case law
suggests that the remedy is now subsumed within the civil procedure rules, and do
not operate independently. 52 Nonetheless, the Singapore Court of Appeal has
confirmed that the principles governing Norwich Pharmacal relief are likely to
useful as guidance.
Whereas a Norwich Pharmacal order operates widely, a victim of fraud having
a proprietary claim in respect of misappropriated assets may seek a Bankers Trust
order for disclosure of information and documents from a bank to trace the flow
of money. In Bankers Trust Co v Shapira, 53 due to forgeries by the first and
second defendant, the claimant lost a sum of US$1,000,000. It commenced
proceedings against the two men and the bank nominated to receive payment. The
application went uncontested as the first and second defendants were not served.
Despite this, the Court of Appeal allowed Bankers Trust Co.’s application for
disclosure against the nominated bank of the first and second defendant’s bank
balances, correspondence, cheques drawn on their accounts, debit vouchers and
internal memoranda. Lord Denning explained the court’s reason for the grant of
relief, which was novel at the time: 54

In order to enable justice to be done – in order to enable these funds to be

traced – it is a very important part of the court’s armoury to be able to
order discovery… This new jurisdiction must, of course be exercised
carefully. It is a strong thing to order a bank to disclose the state of its
customer’s account and the documents and correspondence relating to it. It
48
Norwich Pharmacal Co v Commissioners of Customs and Excise [1974] AC 133, 168.
49
Initially, disclosure under a Norwich Pharmacal order was limited to the identity of the
wrongdoer. This has been expanded to encompass information and documents which may be
relevant to the wrongdoing.
50
Paul Matthews and Hodge Malek, Disclosure (4th edn, Sweet & Maxwell, 2011) 63; Gait v
Osbaldeston (1826) 1 Russ 158; Mendizabal v Machado (1826) 2 Russ 540.
51
Paul Matthews and Hodge Malek, Disclosure (4th edn, Sweet & Maxwell, 2011) 64; C
Hollander, Documentary Evidence (12th ed, Sweet & Maxwell, 2015) 59. Traditionally, discovery
of documents was only possible where proceedings were afoot, and the old chancery procedure
was equity’s exception to the rule. Thus, it has been said that the re-introduction of pre-action
disclosure in the Norwich Pharmacal decision was an act to ‘revive’ the old procedure: Dorsey
James Michael v World Sport Group Pte Ltd [2014] 2 SLR 208, [37].
52
Dorsey James Michael v World Sport Group Pte Ltd [2014] 2 SLR 208.
53
Bankers Trust v Shapira [1980] 1 WLR 1274.
54
Bankers Trust v Shapira [1980] 1 WLR 1274, 1282. Italics added.

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should only be done when there is a good ground for thinking the money in
the bank is the plaintiff’s money. (Italics added)

Some commentators have said that the Bankers Trust order is a species of the
Norwich Pharmacal order 55 – Lord Denning himself referred to the Norwich
Pharmacal for support. However, when carefully analysed, it becomes apparent
from the judgment that the juridical basis for the two orders are distinct. 56
The third avenue is to seek pre-action disclosure via the Singapore Rules of
Court (“Rules of Court”). The Rules of Court have their origin in the English
rules of civil procedure. 57 They substantially track the English Rules of Supreme
Court 1965, 58 but with the subsequent severance of the legal ‘umbilical’ 59 cord
between the two legal systems, the Rules of Court have developed
autochthonously and evolved over time under the oversight of a rules committee. 60
Order 24 of the Rules of Court deals generally with the discovery and
inspection of documents. In 1999, the Rules of Court were amended, 61 and the
current Order 24 Rule 6 was introduced then to provide for ‘discovery against
other person(s)’ not directly involved in the proceedings, and includes pre-action
discovery. 62 . As mentioned above, in a recent decision, 63 the Singapore Court of

55
Iain Goldrein (ed), Commercial Litigation: Pre-emptive Remedies (2nd intl edn, Sweet &
Maxwell, 2011) [A3-071] discusses the decision as one of the many types of Norwich Pharmacal
orders; Paul Matthews and Hodge Malek, Disclosure (4th edn, Sweet & Maxwell, 2011) [3.19]
refers to it as ‘one of the most commonly encountered application of the Norwich Pharmacal
jurisdiction are what are generally called Bankers Trust orders’; C Hollander, Documentary
Evidence (12th ed, Sweet & Maxwell, 2015) [4-35] appears to recognize the distinction, explaining
that the jurisdiction to grant Bankers Trust relief is ‘based on a combination of the powers of
equity to take appropriate steps to restore a trust fund and a loose invocation of the Norwich
Pharmacal principle’.
56
Although the Court of Appeal referred to the Norwich Pharmacal, it exercised this ‘new
jurisdiction’ on the basis of three unreported decisions cited to it: London and Counties Securities
(in liquidation) v Caplan (unreported), 26 May 1978, Templeman J, Mediterranea Raffineria
Siciliana Petroli S.p.a v Mabanaft G.m.b.H Court of Appeal (Civil Division) Transports No. 816
of 1978, and A v C (unreported), 18 March 1980, Robert Goff J. These were referred to at 1280F-
1281D. Indeed, the Norwich Pharmacal order was at the time primarily an exception to the mere
witness rule, whereas, by contrast, Bankers Trust was dealing with a right to trace and follow
assets: See for instance, the analysis by Hoffmann J in Arab Monetary Fund v Hashim and ors (No
5) [1992] 2 All ER 911, 913F-914E. Lord Denning’s reference to the Norwich Pharmacal was
simply an example that the court could order disclosure from an innocent third party: Bankers
Trust v Shapira [1980] 1 WLR 1274, 1281F-1282B.
57
Jeffrey Pinsler, Singapore Court Practice 2014, Vol 1 (LexisNexis, 2014) 1-3.
58
Jeffrey Pinsler, Singapore Court Practice 2014, Vol 1 (LexisNexis, 2014) 1.
59
A term used by the Chief Justice, Mr Sundaresh Menon, in his speech to the English
Commercial Bar in September 2013. The speech has since been published: Sundaresh Menon,
‘The Somewhat Uncommon Law of Commerce’ (2014) 26 SAcLJ 23. [8]-[12] provide a pithy
overview of the historical relationship between English and Singapore law.
60
As set out in Section 80 of the Supreme Court of Judicature Act (Cap. 322) (2007 Rev Ed). The
committee comprises the Chief Justice, Attorney-General, not more than 5 Supreme Court Judges,
the Senior District Judge, a District Judge and two practising advocates and solicitors: Section
80(3).
61
Vide Rules of Court (Amendment No. 2) Rule 1999, S 551/1999.
62
Unlike the English procedure rules CPR r 31.16 and 31.17, which respectively concern
disclosure from a potential defendant prior to proceedings, and disclosure from a non-party during
proceedings respectively, Order 24 Rule 6 of the Rules of Court concerns disclosure from a non-
party prior to or during proceedings.

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Appeal has confirmed that Order 24 rule 6 now encapsulates the Norwich
Pharmacal relief.
At the risk of oversimplification, the above three forms of relief comprise
similar elements. First, the applicant must show that a wrong has been
committed. In the Norwich Pharmacal and Bankers’ Trust cases, the respondent
to an application is typically a third party caught up in the wrong and holds
critical information about the wrongdoer or the wrongful transaction. Order 24
Rule 6 is similar. Secondly, when faced with such applications, a court is
normally faced with a balancing exercise. It should not stymie a legitimate
request for relevant information which may lead to substantive proceedings. On
the other hand, it should guard against the unnecessary intrusion of the privacy of
third parties, who, despite having done no wrong, may be burdened by the need
to retrieve and disclose such information; and one can think of banks as a prime
example of conduits who possess a trove of information and are particular
susceptible to applications for pre-action relief. In all these cases, the bank’s
general duty of confidence to its customers appears to be an additional factor
against disclosure.

B. Bankers’ Books Orders: An Overview

As explained above, pre-action discovery against a bank in Singapore must be

sought via the bankers’ books provisions in the Singapore Evidence Act. 64 The
bankers’ books provisions, namely, Sections 170 to 176 of the Act, mirror the
English Bankers’ Books Evidence Act 1879. 65 Decisions interpreting the English
Act are therefore instructive. 66
Essentially, the bankers’ books provisions set out to achieve three purposes.
According to Wheatley v Commissioner of Police of the British Virgin Islands, 67
the first is to enable bankers’ books to be inspected despite the duty of
confidentiality, the second is to relieve bankers of the onerous need to produce
these books in court, and the third is to provide that authenticated copies of such
books be received as prima facie evidence. 68 Conceptually, the second and third
purposes coalesce as part of the overarching aim to facilitate the production of
bankers’ books as evidence. 69 The broader context to this is the general

63
Dorsey James Michael v World Sport Group Pte Ltd [2014] 2 SLR 208. See also the recent
decision La Dolce Vita Fine Dining Co Ltd and anor v Deutsche Bank AG and anor [2016]
SGHCR 3 at [23], although the Court noted that it could also make similar orders under its
inherent jurisdiction: [24]-[26].
64
Cap 97 (1997 Rev Edn).
65
See generally, Hodge Malek (gen ed), Phipson on Evidence (17th edn, Sweet & Maxwell, 2010)
1062-1067.
66
Unlike Singapore, where the Bankers’ Books provisions are incorporated in the primary
legislation concerning evidence in proceedings, other commonwealth jurisdictions such as India
and Malaysia, like the UK, have a separate Bankers’ Books legislation.
67
[2006] 1 WLR 1683.
68
Wheatley v Commissioner of Police of the British Virgin Islands[2006] 1 WLR 1683, 1692.
69
What is deemed a ‘book’ for purposes of the provisions has been interpreted with modern
lenses. For instance, microfilm records of cheques have been held to be ‘books’: Barker v Wilson
[1980] 1 WLR 884; Wheatley v Commissioner of Police of the British Virgin Islands [2006]
UKPC 24. In Wee Soon Kim Anthony v UBS AG [2003] 2 SLR(R) 91 the Singapore Court of
Appeal interpreted ‘books’ purposively to mean any form of permanent record maintained by a

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requirement for documentary evidence admitted in civil proceedings to be

accompanied by oral testimony. 70 The bankers’ books provisions were an
exception crafted specially for banks in an age when it was thought that having a
bank representative produce physical bank documents in court would be an
‘intolerable inconvenience’ 71 to a bank’s day-to-day operations. Instead of this,
attested copies could suffice. Consequently, a bank is not compellable to attend as
witness to prove the matters recorded in its books without special cause. 72 As
such, the provisions have even been referred to as a “privilege”. 73
More significant for present purposes is Section 175(1). It provides that a court
may order a party to legal proceedings to be at liberty to inspect and take copies of
bankers’ books for any purpose of the proceedings. ‘Legal proceedings’ are
defined in Section 170 as any civil or criminal proceeding and includes an
arbitration. It is noteworthy that Section 7 of the English Bankers’ Books
Evidence Act, the equivalent of Section 175 of the Singapore Evidence Act, has
developed into a form of discovery procedure on its own. To avoid Section 7
becoming a backdoor attempt at obtaining evidence from a bank outside of the
disclosure rules, early English decisions made clear that the usual disclosure
considerations apply. 74
Although the provisions have been used for asset-tracing exercises, 75 they are
generally underutilised, and there is limited English and Singapore case law
interpreting them. Notwithstanding that, some broad parameters (mainly from the

bank in relation to a customer’s transactions. On the facts, the court ordered disclosure of a range
of documents related to forex transactions including correspondence, statements, confirmation
advice and facility letters.
70
Indeed, Phipson on Evidence has categorised the bankers’ books provisions as part of the
exceptions to the rule against hearsay: Hodge Malek (gen ed), Phipson on Evidence (17th edn,
Sweet & Maxwell, 2010) 1012.
71
Pollock v Garle [1897] 1 Ch 1, 4 (CA).
72
Section 174 of the Evidence Act (Singapore) and Section 6 of the Bankers’ Books Evidence Act.
73
Bankers’ Books Evidence (Amendment) Bill, 2nd reading, The Attorney-General: “One of the
most important privileges conferred by the Ordinance is that certified copies of entries in bankers’
books are receivable as evidence in courts of law.”
74
In South Staffordshire Tramways Co. v Ebbsmith [1895] 2 QB 669, 674 the Court of Appeal
confirmed that applications under Section 7 must conform with the general law of discovery: ‘…it
appears to me that, where such an inspection is asked for, the conduct of the Court in the exercise
of this jurisdiction ought to be regulated by the general rules laid down by the decisions in relation
to inspection of documents before the trial’ (Lord Escher MR). See also Williams v Summerfield
[1972] 3 WLR 131, 135: ‘In civil proceedings the normal approach to the use of section 7 is that
documents which would not be discoverable under the ordinary rules are not to be disclosed by a
side wind, as it were, by the application of section 7… one must I think recognize that an order
under Section 7 can be a very serious interference with the liberty of the subject. It can be a gross
invasion of privacy. It is an order which clearly must only be made after the most careful thought
and on the clearest grounds. I would like to adopt the approach which is adopted in civil
proceedings if that were practical’ (Lord Widgery CJ).
75
A and anor v C and ors [1981] 2 WLR 629 where Goff J made an order under Section 7 of the
Bankers’ Books Evidence Act for disclosure of bank statements in aid of a proprietary claim. See
also Mackinnon v Donaldson, Lufkin and Jenrette Corp [1986] 1 WLR 453 where the plaintiff
brought a fraud action against several individuals, and sought disclosure under the Bankers’ Books
Evidence Act against a non-party bank. Hoffman J explained that it was only in exceptional
circumstances that a court should order a foreign bank, whose relationship was governed by the
law of another jurisdiction, to be subject to a disclosure order in the UK. On the facts, the plaintiff
had sought the remedy too late in the day, being some months from trial, and there were other
alternatives which he could have but did not seek.

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discovery rules) circumscribe the scope of relief: First, the documents sought
must be material to the proceedings. A court will not entertain a fishing
expedition,76 and if the relevance of documents is unclear. 77 Second, third parties
should not be prejudiced – here, typically a bank or a customer. 78 Further, because
the rules of discovery apply to applications for bankers’ books, in Bhimji v
Chatwani (No 2) 79 it was held that ‘by parity of reasoning’ 80 documents disclosed
under bankers’ books provisions are subject to the usual implied undertaking that
documents obtained are not to be used for purposes outside of the litigation. These
appear to be the key applicable principles.

IV. UNLOCKING THE DOOR: RETHINKING THE BANKERS’ BOOKS

PROVISIONS

Despite its importance as the only gateway to obtain banking documents, there is
limited case law interpreting the bankers’ books provisions. This is unsurprising
since in most cases, parties who require bank documents may obtain it from the
other party during the discovery process. Nonetheless, it is possible to rethink the
scope and application of the bankers’ books provisions, with reference to the
jurisprudence derived from other forms of pre-action discovery which attempt to
strike a balance between the competing private and public interests involved.

A. Pre-Action Discovery – The Competing Tensions

Private Considerations

The considerations for and against pre-action discovery purely from a civil
litigation perspective 81 are finely balanced although the default position appears to
be that such relief is often exceptional and must be necessary. 82
Court orders for pre-action discovery have consistently been viewed with
caution. At a basic level, the default position in common law civil litigation is for
parties to reveal their hand only after pleadings are filed. Respecting this
procedural sequence ensures several benefits. First, it is only when proceedings
have been brought that the issues are crystallised through the pleadings. This way,
the parties have a better sense of what information or documents are relevant and
required to be disclosed. Cost and time is saved by the avoidance of unnecessary
disclosure which may occur in the absence of the parties’ pleaded cases. 83 Having
parties plead their case results in fairly clear boundary lines on what is and is not

76
Williams v Summerfield [1972] 3 WLR 131.
77
South Staffordshire Tramways Company v Ebbsmith [1895] 2 QB 669.
78
South Staffordshire Tramways Company v Ebbsmith [1895] 2 QB 669, 674-675. See also DB
Deniz Nakliyati v Yugopetrol and ors [1992] 1 WLR 437 and Pollock v Garle [1897] 1 Ch 1, 5
(Lindley MR), 6 (Chitty LJ).
79
[1992] 1 WLR 1158.
80
Bhimji v Chatwani (No 2) [1992] 1 WLR 1158, 1164G; Knox J, relying on Waterhouse v Barker
[1924] 2 KB 759, 774 for the proposition.
81
As opposed to public policy which is discussed below.
82
“Necessity” being the test used in Order 24 rule 7 of the Singapore Rules.
83
Dorsey James Michael v World Sport Group Pte Ltd [2014] 2 SLR 208, [49].

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relevant. Secondly, lenient pre-action discovery rules may also encourage

spurious law suits. Litigious parties are encouraged to seize the opportunity to
discover documents in a bid to support a speculative claim. Thirdly, in the
absence of proceedings, there is little reason to disturb a potential defendant’s
right to privacy and confidence. The law does not generally encourage pre-action
discovery against a potential party, and this approach prevents “roving requests”. 84
It could be argued therefore, that an order to allow discovery prior to proceedings
against a non-party is even more intrusive. 85 Moreover, on a technical point, pre-
action disclosure may transgress the ‘mere witness’ rule which holds that a party
cannot obtain early disclosure from a non-party to proceedings who may be called
as a witness, since such testimony would be given at a later stage. 86
Where disclosure against a bank is concerned, bank secrecy can also be
justified by the importance of client confidentiality. Although Tournier’s case is
no longer the standard bearer in Singapore, Tournier and its progeny help to
explain the rationale for confidentiality. The first is simply the protection against
unwarranted attempts by outsiders to inquire into one’s financial affairs. The
second, is the need to ensure the confidence of business customers, who repose
trust and divulge key business information to their bankers and cannot have such
information reach their competitors. 87 However, it is helpful to note that the
exceptions highlighted in Tournier’s case do remind us that no duty of
confidentiality can be absolute. The common law has considered that a banker
would be released from such an obligation if under compulsion of law, such as in
aid of criminal investigations, or if there is an overriding public duty. 88
On the other hand, the existence of various avenues of pre-action disclosure
point towards the utility and legitimacy of such relief. 89 As in the Norwich
Pharmacal and Bankers Trust cases, there will be instances where critical
information lies in the hands of a third party. Without access to this, a victim of
fraud may have no means to initiate proceedings. So crucial is this point, that in
the Norwich Pharmacal, the innocent party mixed-up in the wrong is said to be
under a duty to disclose. 90 Secondly, time and cost may in certain instances be
saved through pre-action discovery. 91 Having obtained information and
84
Dorsey James Michael v World Sport Group Pte Ltd [2014] 2 SLR 208, [26].
85
Dorsey James Michael v World Sport Group Pte Ltd [2014] 2 SLR 208, [27].
86
Mercantile Group (Europe) AG v Aiyela [1994] QB 366; Iain Goldrein (ed), Commercial
Litigation: Pre-emptive Remedies (2nd intl edn, Sweet & Maxwell, 2011) 438; C Hollander,
Documentary Evidence (12th ed, Sweet & Maxwell, 2015) 60-61, 72. As to the rules pertaining to
compelled evidence see generally Cockerill, The Law and Practice of Compelled Evidence (OUP,
2011).
87
G S George Consultants and Investments Pty Ltd v Datasys Pty Ltd (1988) (3) SA 726 (W) 726,
736.
88
David Chaikin, ‘Adapting the Qualifications to the Banker’s Common Law Duty of
Confidentiality to Fight Transnational Crime’ (2011) Sydney Law Review 265, 271-284.
89
Dorsey James Michael v World Sport Group Pte Ltd [2014] 2 SLR 208 [26].
90
Norwich Pharmacal Co v Commissioners of Customs and Excise [1974] AC 133; [1973] 2 All
ER 943. Lord Reid famously put it at 168: “[i]f through no fault of his own a person gets mixed up
in the tortious acts of others so as to facilitate their wrongdoing he may incur no personal liability
but he comes under a duty to assist the person who has been wronged by giving him full
information and disclosing the identity of the wrongdoers.”
91
Dorsey James Michael v World Sport Group Pte Ltd [2014] 2 SLR 208 [32] : “[the procedure] is
to help save unnecessary costs and avoid needless claims in relation to actual or anticipated
proceedings…”.

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documents, a potential claimant may in fact realise that its case is not as strong as
it envisaged, causing it to relent from commencing proceedings. Finally, even
where the ‘mere witness’ rule is concerned, the courts have recognised exceptions
in exactly these cases – where without the information, the alleged wrongdoer
cannot be pursued. 92

Public Policy

Leaving the arena of private considerations to the sphere of public policy, one gets
a sense that the converse is true, i.e., that discovery against banks (pre-action or
otherwise) is growing in perceived legitimacy due to the public outcry against
bank secrecy being used as a tool for hiding assets from tax authorities and the
swelling of ill-gotten gains through illegal activities – cue the Panana papers. 93
Much ink has been spilt on the ills generated by jurisdictions with strict
banking secrecy, and those arguments will not be rehashed here. Amidst the
criticisms however, there appear to be a handful of possible justifications for a
banking system with strict secrecy rules. Interestingly, the Swiss banking secrecy
regime in Switzerland appears to have been spawned by events of foreign
interference, and has more of political history to “blame” for its origins. The
French Herriot Government’s seizure of funds located in Swiss banks and later,
the harsh treatment by the Nazi government of Germans who failed to disclose
their Swiss bank accounts, led ultimately to the Swiss government enshrining the
importance of bank secrecy in the Federal Banking Act in 1934. 94 In one sense,
the enactment of such laws was simply a decision to emphasise Swiss sovereignty
and the rule of law – it was up to the state to independently decide how and to
what extent it wished to protect bank accounts within its jurisdiction, without fear
of foreign intervention.
The sovereignty argument may be further supported by potential benefits of
competition. 95 An analogy could be had with the capital markets, where different
jurisdictions compete on the basis of innovative and diverse listing rules. Any
comparative advantage gained is a result of arbitrage through the exercise of
national sovereignty. 96 From Singapore’s viewpoint, as a relatively young city
state with little natural resource, the building of a stable and attractive financial

92
Jade Engineering (Coventry) Ltd v Antiference Window Systems Ltd [1996] FSR 461; AXA
Equity & Law Life Assurance Society plc and others v National Westminster Bank plc and others
[1998] EWCA 782; Aoot Kalmneft v Denton Wilde Sapte (a firm) [2001] EWHC 1 (Mercantile)).
93
A significant leak in confidential documents revealing the use of offshore tax havens by the
global elite to protect their wealth, and in some cases, from tax authorities. See Financial Times,
Geoff Dyer, Max Seddon and Richard Milne, 4 April 2016, ‘Panama Papers lead highlights global
elites use of tax havens’. Available at http://www.ft.com/cms/s/0/549c1e96-f9e7-11e5-8f41-
df5bda8beb40.html#axzz4Guz67jk6
94
Robert Ladd, ‘Swiss Miss: The Future of Banking Secrecy Laws in Light of Recent Changes in
the Swiss System and International Attitudes’ (2011) 20 Transnational Law & Contemporary
Problems 539, 541-543.
95
Arturo Bris (IMD International), ‘Keeping Banking Secrecy and Preserve Globalisation” June
2009.
96
As with the case of taxation. See e.g., Chris Edwards and Danile J Mitchell, Global Tax
Revolution: The Side of Tax Competition and the Battle to Defend it (2008) 175.

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services sector was one way to ensure growth and employment. 97 More
fundamentally, proponents of bank secrecy will further argue that such a regime
engenders customer confidence in the banking system. For the sake of argument,
in an extreme case, if customers lose confidence in the banking system, panic
withdrawals could lead to bank illiquidity and even liquidation. 98
But the argument from sovereignty can only goes so far – it is agnostic as to
the intrinsic value of banking secrecy. Customer confidence in the financial
system may be a better reason. Further, some of the above justifications are rooted
in decades past, and now have to face up to criticisms of a contemporary nature.
Both the Swiss and Singapore banking secrecy regimes were set up decades ago,
where the scourge of cross-border crime syndicates was less common. The global
recognition that bank secrecy may impede legitimate initiatives by tax authorities
or criminal prosecutors to unravel crime 99 suggests an acceptance that in the
appropriate case, the public interest may in fact swing the other way – in favour of
less secrecy and more disclosure.

B. Rethinking Section 175(1)

With the above competing tensions in mind, we consider how Part IV of the
Evidence Act may be reimagined without doing violence to its text. With
emphasis added, the relevant parts of Part IV of the Evidence Act read:

Interpretation
170. In this Part —
“bank” and “banker” mean any company carrying on the business of
bankers in Singapore under a licence granted under any law relating to
banking;
“bankers’ books” includes ledgers, day books, cash books, account
books and all other books used in the ordinary business of the bank;
“court” means the High Court;
“legal proceeding” means any civil or criminal proceeding or inquiry
in which evidence is or may be given, and includes an arbitration.

Court or Judge may order inspection

175.
—(1) On the application of any party to a legal proceeding, the court
or a Judge may order that such party be at liberty to inspect and take
copies of any entries in a banker’s book for any of the purposes of
such proceedings.
(2) An order under this section may be made either on or without
summoning the bank or any other party, and shall be served on the

97
Indeed, as early as the 1960s, Singapore’s former Prime Minister Mr Lee Kuan Yew had a
vision to transform Singapore into an Asian financial hub, and sought strategic advice on this: Lee
Kuan Yew, From Third World to First: The Singapore Story - 1965-2000 (Harper, 2003), p 89.
98
David Chaikin, ‘Adapting the Qualifications to the Banker’s Common Law Duty of
Confidentiality to Fight Transnational Crime’ (2011) Sydney Law Review 265, 269.
99
David Chaikin, ‘Adapting the Qualifications to the Banker’s Common Law Duty of
Confidentiality to Fight Transnational Crime’ (2011) Sydney Law Review 265, 266.

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bank 3 clear days before the same is to be obeyed unless the court or
judge otherwise directs.

‘Party to a Legal Proceeding’

The first question that arises is whether Section 175 (read with Section 170)
permits pre-action relief. Section 175 permits a Judge to make an order on the
application of “any party to a legal proceeding”. Section 170 further defines
“legal proceeding” as any “civil or criminal proceeding or inquiry in which
evidence is or may be given, and includes an arbitration”.
At first blush, the bankers’ books provisions do not appear suited for pre-action
discovery since Section 175 seems to permit bankers’ books applications on the
premise of ongoing legal proceedings. Indeed, there has been a recent decision
which suggested that separate legal proceedings were necessary. 100 Can Section
175 be interpreted otherwise?
The first obvious point about the definition of “legal proceeding” in Section
170 (and consequently, the application of Part IV) is that it is framed broadly. The
bankers’ books provisions are housed in Part IV of the Evidence Act. Structurally,
the Act is divided in four parts – Parts I, II and III provide the substantive laws
governing aspects of evidence in judicial proceedings such as the burden of proof,
hearsay, and trial procedures, but Section 3 makes clear that Parts I, II and III do
not apply to arbitration proceedings. By contrast, Part IV (the bankers’ books
provisions), which appears very much a stand-alone, allows bankers’ books
applications to be made in relation to arbitration proceedings. Although this does
not tell us much about whether pre-action relief is available, it suggests that the
bankers’ books provisions are agnostic to the specific type of proceedings being
initiated. Compared to the other Parts of the Evidence Act, the bankers’ books
provisions appear to be facilitative and are not intended to spell out a party’s
comprehensive rights and obligations with respect to evidence. Such a view leans
slightly in favour of a generous reading of the provisions, or at least, an agnostic
one.
Secondly, and unsurprisingly, the parliamentary debates and legislative history
of Singapore’s bankers’ books provisions do not shed any light on their
interpretation. 101 Given the void of direct interpretative aids, one looks towards
case law.
It is suggested that the existing case law bears out a case for interpreting
Section 170 as including anticipated or potential proceedings – with use of
safeguards. In a limited handful of cases, it appears that applications for disclosure
of bankers’ books have been successful, prior to or post-trial, suggesting that there
is no need for ongoing proceedings. In Barker v Wilson, a criminal case, the
applicant, a police office, made a bankers’ books application for disclosure of
information relating to the respondent’s bank account. At the time of application,
no separate legal proceedings were afoot (although they were commenced three

100
La Dolce Vita Fine Dining Co Ltd v Deutsche Bank AG [2016] SGHCR 3, [93]-[96].
101
The Bankers’ Books provisions appear to have been introduced into the Evidence Act by way
of Ordinance 44 of 1949—Bankers’ Books Evidence (Amendment) Ordinance 1949. There are no
publicly available parliamentary reports

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days later). 102 Although the decision was centred on the issue of what type of
documents rightly fell within the English Act, Caulfield J was alive to the
information gap facing the police: “…the police were in a quandary. They needed
to know, in order to link up the evidence, the identity of the payees of the cheques
which had been drawn by the appellant over a period of years.” 103 In the famous
Bankers Trust v Shapira case, although there were separate legal proceedings
launched on the same day, the proceedings were practically in suspense since the
two alleged fraudsters could not be served. Thus, although technically the main
proceedings were afoot, practically, the discovery application was of far more
importance and in no way adjunct. Had the discovery application not been
brought, there would have been little chance of progress on the main suit.
Interestingly, D B Deniz Nakliyati TAS v Yugopetrol and others 104 involved a post-
judgment, stand-alone, application. There were no live, main, proceedings to
speak of.
Most recently, this esoteric issue was raised in the Singapore court in Success
Elegant Trading Limited v La Dolce Vita Fine Dining Company Limited and ors
(“Success Elegant”). 105 In brief, the claimants in an arbitration brought discovery
applications in the Singapore Court to compel the respondents’ banks to disclose
certain documentary evidence. As the application was not quite pre-action, the
discrete point was not an issue in contention. Nonetheless, following an earlier
Bruneian decision Chan Swee Leng, 106 the High Court Registrar opined that the
applicants had to “show that they [were parties] to separate and independent legal
proceedings. 107 On appeal, the High Court judge dispelled this notion. In
reviewing Chan Swee Leng carefully, the Judge noted that the Brunei court was
not itself faced with a pre-action application, but in any event, the thrust of that
decision was that the bankers books’ provisions did not create a right to discovery
where there was none. In other words, what was crucial was for “a party … to
establish a substantive right to obtain disclosure before an order would be
made”. 108 Therefore “if a party could demonstrate a substantive right to the
documents, without relying on s175 of the EA, an order could be made under s
175 for disclosure”.
In his attempt to interpret the section, the Judge held:

The “legal proceedings” in s175 would refer to the very application for
disclosure, in which the applicant demonstrates a right to discovery
independent of s175. In fact, any reliance on s175 alone for disclosure
would be misconceived since that section did not provide an independent
right to inspection of bankers’ books where none existed. …

102
Barker v Wilson [1980] 2 All ER 81.
103
Barker v Wilson [1980] 2 All ER 81, 82G.
104
DB Deniz Nakliyati v Yugopetrol and ors [1992] 1 WLR 437.
105
Success Elegant Trading Limited v La Dolce Vita Fine Dining Company Limited and ors
[2016] SGHC 159.
106
Chan Swee Leng v Hong Kong and Shanghai Banking Corporation Ltd [1996] 5 MLJ 133
107
La Dolce Vita Fine Dining Co Ltd and anor v Deutsche Bank AG and anor and anor matter
[2016] SGHCR 3, [90]-[96].
108
Emphasis added. Success Elegant Trading Limited v La Dolce Vita Fine Dining Company
Limited and ors [2016] SGHC 159, [91].

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…it could readily be seen that s175 was not meant to confer an
independent right of discovery … [it] relate only to how evidence is to be
provided by the banks ... If this was the case, s175 should also,
concomitantly, not be read as abrogating whatever substantive rights a
party might have to discovery. By requiring an independent set of legal
proceedings before pre-action disclosure was granted, banks would be
generally exempt from pre-action disclosure orders unless there was an
on-going separate legal proceeding. I did not think s175 was meant to
have that effect given that it was enacted to ease how evidence of
bankers’ books would be adduced in court.

With one minor caveat, it is respectfully suggested that the Judge’s explanation on
the role of s175 is correct. What should be required by way of safeguard is that
the applicant show a substantive right underlying the disclosure application – as
was in the case in Bankers Trust where a right to trace property was given effect
by the grant of disclosure. The Judge’s view on the policy implications of such a
narrow interpretation is also laudable – it appreciates, realistically, that pre-action
discovery against banks would become an extremely rare occurrence if
independent legal proceedings are required. However, the Judge’s explanation
that “legal proceeding” in s175 would therefore refer to the discovery application
itself, is, with respect, difficult to follow. Section 175 read with section 170 –
which spells out what legal proceedings are – suggest that the bankers’ books
relief are an adjunct. The better interpretation is therefore that what is permitted,
in the spirit of the rules, is that the “legal proceeding” referred to in section 175
includes anticipated proceedings where the applicant has a supporting, underlying,
legal right. As identified in the Norwich Pharmacal and Bankers Trust cases,
there may be instances where a wrong has clearly been committed but the party is
unable to complete the puzzle for want of facts not reasonable obtainable. 109 The
Judge’s conclusions (albeit obiter) are therefore welcomed.

The Exercise of Discretion – Some Safeguards

Given the new-fangled importance on the bankers’ books provisions, since

Susilawati, and the potentially wide discretion a court may have when faced with
such applications, it is thought that certain safeguards to that discretion are
apposite. These follow the collective wisdom of the jurisprudence on pre-action
discovery under the other avenues.

(a) Establishing a Substantive Right

Following Success Elegant, if a safeguard be needed, the courts may impose the
same threshold requirement as it does in interlocutory injunctions and require that
the applicant show a ‘serious issue to be tried’ on its case. 110 Pitching the threshold
any higher may shut the door to possible relief. The court may also impose a
further practical safeguard. It was suggested by the court in Kuah Kok Kim & Ors
109
Aoot Kamneft v Denton WildeSapte [2002] 1 Lloyd’s Rep 417, [20].
110
Bouvier, Yves Charles Edgar and anor v Accent Delight International Ltd and anor and anor
appeal [2015] SGCA 45

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v Ernst & Young (a firm) 111 that a draft of the pleadings which may be used in
anticipated proceedings would aid the court in appreciating the nature of the case.
Such a technique should be adopted. 112 Some flexibility may be afforded in cases
where the need to trace the flow of monies is urgent. The ease of online transfers
means that money may swiftly be shifted from jurisdiction to jurisdiction such
that delay to the application may ultimately hinder the success of a tracing
exercise. In the absence of a set of the draft pleadings, the applicant should at least
be able to articulate in a witness statement what the material facts are, what the
potential cause of action is, and what remedies it intends to seek, with the relevant
documentary proof. Imposing this amount of disclosure from the applicant aids to
weed out fishing expeditions. A pre-action discovery order should not be sought
for purposes of attempting to formulate a case. The contours of a case must be
sufficiently clear, with the application, aiding only to fill some gaps.
The court also should not require that the applicant intends to bring a suit. In
two Norwich Pharmacal cases, BSC v Granada Television 113 and Ashworth v
MGN, 114 it was clarified that this is not required, although it will almost always be
the case. 115

(b) Necessity

As in pre-action discovery cases, the documents sought must be necessary to the

applicant’s exercise to trace misappropriated assets. The applicant should show
that without the documents it seeks, it cannot proceed with further investigation. It
is here that the Norwich Pharmacal case-law provides us helpful guidance on
when relief is necessary. Some cases frame the question of necessity more
narrowly, asking whether the information was vital to sue or vital to plead 116 or
could not be obtained from elsewhere. 117 More recent cases, however, confirm that
the test of necessity ought not to be unduly fettered. In R (on the application of
Mohamed) v Secretary of State for Foreign and Commonwealth Affairs, 118 the
Court held that what was necessary depended on a balancing of a wide range of
factors including the size and resource of the applicant, the urgency involved, and
any public interest in granting the application. A similar flexible approach was

111
Kuah Kok Kim & Ors v Ernst & Young (a firm) [1996] 3 SLR(R) 485.
112
Some analogy may be drawn with cases involving derivative actions under the Companies Act.
There, it has become a practice to provide the court with a draft of the statement of claim to enable
it to ascertain if the potential causes of action have merit: Law Chin Eng and anor v Hiap Seng &
Co Pte Ltd (Lau Chin Hu and others, applicants)[2009] SGHC 223, [5]; Fong Wai Lyn Carolyn v
Airtrust (Singapore) Pte Ltd and anor [2011] 3 SLR 980, [6]; Chan Tong Fan and another v
Chiam Heng Luan Realty Pte Ltd (Chiam Toon Tau and another, non-parties) [2013] SGHC 192,
[10]; Chua Swee Kheng v E3 Holdings Ltd and anor [2015] SGHC 22, [26].
113
BSC v Granada Television [1981] AC 1096.
114
Ashworth v MGN [2002] 4 All ER 193, [45].
115
Such a conclusion is sensible since one purpose of pre-action disclosure is to enable potential
litigants to decide against launching proceedings. See Dorsey James Michael v World Sport Group
Pte Ltd [2014] 2 SLR 208 [26].
116
Nitkin v Richards Butler LLP [2007] EWHC 173.
117
Mitsui & Co Ltd v Nexen Petroleum UK Ltd [2005] EWHC 625 (Ch); [2005] 3 All ER 511
118
R (on the application of Mohamed) v Secretary of State for Foreign and Commonwealth Affairs
[2008] EWHC 2048.

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taken in Rugby Football Union v Consolidated Information Services Ltd,119 where

Lord Kerr added to the above factors that the court should assess if the order
would deter similar future wrongdoing, and whether innocent parties would be
prejudiced. 120 Indeed, Lord Kerr explained that ‘[t]he essential purpose of the
remedy is to do justice. This involves the exercise of discretion by a careful and
fair weighing of all relevant factors’. A flexible approach is consistent with the
remedy’s provenance as a revival of the old equitable bill of discovery, and courts
should avoid limiting the relief but instead determine whether it is ‘necessary’ and
just in all the circumstances. While the balancing act may admit of some inherent
uncertainty, such tasks are routinely undertaken by courts in applications
concerning document disclosure and should not cause additional burden.
In short, in determining necessity under the Bankers’ Books provisions, the
court should have regard to: (a) the potential harm to the applicant measured
against the potential harm to the respondent; (b) whether disclosure sought is
onerous. Here, instead of refusing the application outright, a Judge could limit an
overzealous request for disclosure, such as to information relating to specific
impugned transfers; (c) the size and resource of the applicant; 121 (d) the public
interest in granting the application; 122 (e) the deterrence of future wrongful
conduct. 123 Factors (d) and (e) require a Judge to balance policy considerations.
The overall image of a strict and stable confidentially regime is a strong policy
goal in Singapore; yet, it is suggested that limited and justified orders for
disclosure do not detract from that goal.

(c) Use in other Proceedings?

Where the applicant has a proprietary right over the misappropriated assets (as
opposed to a mere contractual right), it is arguable that the implied undertaking as
to collateral use of documents need not apply. In Omar v Omar, a Bankers Trust
case, the first instance judge held that since the discovery application was to trace
the applicant’s own property in the UK and abroad, it would be logical not to
impose such a requirement. In the event, the judge gave leave to use the bank
documentation in foreign proceedings, although he considered it was not strictly
necessary. It is respectfully suggested that this approach is correct. As discussed
above, the modus operandi of fraudulent schemes is for monies to be laundered
from jurisdiction to jurisdiction to whitewash the illegality. It would be unrealistic
and somewhat paradoxical for a court to order disclosure of bank documents to
aid a victim’s tracing exercise, but limit the use of those documents to local
proceedings. Indeed, the documents sought may often simply reveal that money
has been channelled to another jurisdiction. In the light of this, it is submitted that
the Riddick principle should not be imposed to a tracing exercise under the
bankers’ books provisions although I would be prudent for the applicant to make

119
Rugby Football Union v Consolidated Information Services Ltd [2012] UKSC 55.
120
Rugby Football Union v Consolidated Information Services Ltd [2012] UKSC 55, [17].
121
R (on the application of Mohamed) v Secretary of State for Foreign and Commonwealth Affairs
[2008] EWHC 2048.
122
R (on the application of Mohamed) v Secretary of State for Foreign and Commonwealth Affairs
[2008] EWHC 2048.
123
Rugby Football Union v Consolidated Information Services Ltd [2012] UKSC 55.

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clear in its sworn statement that it intends to pursue the perpetrators, even outside
of jurisdiction, and intends to use the disclosed documents, where useful, for such
purposes.
In a similar vein, because pre-action bankers’ books applications will often be
used in the civil fraud context, they will regularly be coupled with applications for
gagging and sealing orders under paragraph 5 of the First Schedule of the
Supreme Court of Judicature or Section 4(10) of the Civil Law Act. 124 These
concurrent requests ‘protect’ the bank, and more importantly, prevent a ‘tip-off’
of the alleged fraudster.

(d) Other Considerations

Many applications for disclosure of bankers’ books will be made inter partes,
with the banks’ counsel present, although in substance, the true adversary, the
alleged perpetrator, is not heard. It is trite that an applicant in an ex parte hearing
has a duty of full and frank disclosure, 125 including the disclosure of any material
fact which may work against it, and in the alleged perpetrator’s favour.
Although bankers’ books relief is statutory in nature, it resembles an interim
mandatory injunction. As such, in exercising its discretion under Section 175, a
Court may pay heed to the usual equitable considerations which apply to
interlocutory injunctions. It is suggested that one such requirement is that of
‘clean hands’. The applicant must not itself be a party to a fraudulent transaction,
or an illegal activity. Second, any delay in making the application must be
explicable. Dilatory conduct may suggest that there was no real belief that a fraud
took place or that the applicant does not have a genuine interest in prosecuting the
claim. 126 Inexplicable delay may also suggest that the proceedings are being used
for collateral purposes, and also mean that the court’s exercise of its powers may
be futile.
Lastly, the court should be mindful of prejudice to the banks. In this regard,
pursuant to Section 176 of the Evidence Act, a judge should normally exercise its
discretion and order that a bank be indemnified for the cost incurred in assisting
the applicant.

C. Overall Approach to Section 175(1)

By infusing Section 175 with some of the key principles from other pre-action
discovery relief, one must be careful not to saddle the applicant with too many
burdens so as to stymie its attempt. In many such cases, the applicant would be
compelled to act swiftly before assets are dissipated beyond reach. However,

124
But contrast this with the recent decision of BBW v BBX and others [2016] SGHC 190 where
the High Court found that sealing orders were rooted in the Court’s inherent jurisdiction.
125
See generally The “Vasiliy Golovnin” [2008] 4 SLR(R) 994; Tay Long Kee Impex Pte Ltd v Tan
Beng Huwah [2000] 1 SLR(R) 786 (endorsing (The King v The General Commissioners for the
Purposes of the Income Tax Acts for the District of Kensington[1917] 1 KB 486); Steven Gee
(n43) [9.001].
126
Bouvier, Yves Charles Edgar and another v Accent Delight International Ltd and anor and anor
appeal [2015] SGCA 45, [109]-[114]; Antonio Gramsci Shipping Corporation v Recoletos
Limited [2011] EWHC 2242 (Comm), [28]-[29]; Madoff Securities International Ltd v Raven
&Ors [2011] EWHC 3102 (Comm), [158]-[159].

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victims of sophisticated fraud are often faced with information gaps which
prevent them from presenting a watertight case. Overall, the above factors should
not be bright line rules but guidelines for the exercise of discretion in a Section
175 application. Each case turns on its own facts, and so long as the applicant is
able to sufficiently explain the gaps in its case, the court should not presume
against it.
It should be recalled that, although the bankers’ books laws were primarily
aimed at facilitating the giving of evidence by banks, they were intended to
directly address the banking secrecy issue. As explained in Wheatley and anor v
Commissioner of Police of the British Virgin Islands, 127 one purpose of the
provisions is “to enable a banker's books to be inspected and copied despite the
duty of confidentiality owed by banker to customer”. 128

V. CONCLUSION

As Lord Kenyon famously remarked: 129

All laws stand on the best and broadest basis which go to enforce moral
and social duties: Though indeed it is not every moral and social duty the
neglect of which is the ground of an action. For there are, which are called
in the civil law, duties of imperfect obligation, for the enforcing of which
no action lies … But there are certain duties, the non-performance of
which the jurisprudence of this country has made the subject of a civil
action. And [it has been said] that “an action upon the case for a deceit lies
when a man does any deceit to the damage of another”.

An application for pre-action asset tracing in the context of civil fraud poses some
difficult questions for the court. The banking secrecy rules in Singapore impose a
strong confidentiality regime, and deviation from which requires some
justification. But in the spirit of Lord Kenyon’s speech, it would be amiss if the
law acts to prevents pre-action disclosure against an actionable fraud. It is
somewhat unfortunate that the legal framework in Singapore does not appear to
permit pre-action disclosure against a bank in the normal way, via the Rules of
Court, or by way of a Norwich Pharmacal or Bankers Trust order. This, however,
should not be reason to jettison the careful and considered reasoning on aspects of
pre-action disclosure present in those cases. The only route appears to be through
the bankers’ books provisions, and while those provisions remain underexplored
by the courts, it is suggested that the way those provisions are interpreted and
applied may be informed by the host of authorities concerning pre-action
discovery. These authorities highlight that at a pre-action stage, an order for
disclosure is effectively an act of balancing the interest of a victim claimant
against the broader public interest of privacy and confidentiality. Further, the
court must be mindful to ensure that such orders do not impermissibly encroach
on banks, who in many cases, serve merely as conduits, with no ostensible
involvement in a civil fraud. With the right safeguards in mind, Section 175 of the
127
[1980] 2 All ER 82.
128
[1980] 2 All ER 82, [42].
129
Pasley v Freeman (1789) E.3 T.R.51.

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Evidence Act may be interpreted in such a way that is attuned to the needs and
reality of fraud victims, and in the appropriate case, be a means for them to trace
misappropriated assets.

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