银行家的错误专业意见

1. 上诉人是一家招商银行（merchant bank），答辩人则是一家公司。该公司称有关银行说服他们投资一家名为 Texsyn Fibres Industries （Texsyn Fibres）的企业，然而在投资过程中公司面临亏损。公司因此向法庭提出诉讼，要求银行赔偿他们所遭受的损失。
2. 公司表示他们是基于银行在献议书上所做出的三项陈述，而被说服做出上述的投资。其中一项陈述是，公司被保证在三年内可获得每年每股24％的股息。
3. 其他陈述则是银行表示Texsyn Fibres是一家名望有的企业，而且该企业的财务状况良好。
4. 公司在当时以每股1.33令吉购买了20万该企业的股份，然而所谓的每年24％的保证股息从未被兑现。而且该企业也并非如银行之前所陈述般，有良好的财务状况。
5. 银行的代表在法庭上表示，银行只是负责把所有和投资项目有关的资料提供给公司，而公司本身需要做足其他功课。
6. 法庭表示身为一家招商银行，他们的责任不是只是负责提供与投资项目有关的资料；他们也必须核实所提供的信息和资料，然后才传达给投资方。
7. 而且法庭发现银行在献议书上保证公司可以在三年内获得每年每股24％的股息是虚构的，事实上在Texsyn Fibres所提供的文件中并没有提及此股息的保证内容。
8. 法庭认为有关公司成功证明了银行存在过失，导致他们面临投资上的亏损。法庭因此裁决银行在公司遭受投资亏损的事项上，应负上责任。

详细的案情和判决，请阅读以下的英文版文章。

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1. The respondent is a trust corporation, while the appellant are merchant bankers. The appellant’s officer had represented and induced the respondent to make monetary investment in a company called Texsyn Fibres Industries Sdn. Bhd. (the company) resulting in a loss and the respondent filed a claim in court claiming for losses suffered.
2. The respondent claimed damages in the sum of RM401,200. It is the contention of the respondent that they were induced into making the investment by the representations made by the officer of the appellant. The respondent alleged that the appellant’s officer made three basic representations, one positively in writing while the other two can be inferred from the oral and documentary evidence given to the respondent.
3. The first direct representation was that the directors of the company had guaranteed a dividend of 24% per annum for each share for a period of three years, which representation is contained in a letter of offer dated 08.11.1974 sent to the respondent.
4. The second representation was that the company was a respectable company and the third was that the company was of sound financial standing.
5. The respondent claimed that the company solicited the services of the appellant as merchant bankers, to procure bumiputra purchasers of certain shares in the company. According to the evidence of one Tan Sri Abdul Aziz, the respondent’s chairman, that one day in 1974 one Mohamed Tajuddin, the Corporate Finance Officer of the appellant, phoned him to ask whether he was interested in investing in the company. He said Mohamad Tajuddin also told him that the company was a very large concern with a paid up capital of RM20 million with prominent personalities from Malaysia, Hong Kong and Taiwan on its board. Following this Tan Sri Abdul Aziz received a letter dated 08.11.1974 from Mohamad Tajuddin, bearing the letterhead of the appellant.
6. Apart from the above letter, Mohamad Tajuddin also sent another letter dated 22.01.1974, to the effect that the company had made a profit of RM313,000 for the month of October 1974.
7. Mohamad Tajuddin in his evidence admitted that he gave all those information to Tan Sri Abdul Aziz but added that all those information were not made up by him but were information obtained from the company. He further added that the appellant’s role in this deal was merely that of a finder ie, to get the respondent to be in touch with the company and the rest was between the respondent and the company.
8. The appellant in his submission while conceding that the first representation was made, said that there were no evidence to support that the other two representations were in fact made.
9. According to Tan Sri Abdul Aziz in reliance of the representation, the respondent did purchase 200,000 of the designated shares in the company at RM1.33 per share totalling RM266,000. It turned out that the so called guaranteed dividend of 24% per annum never materialised and what the respondent received as dividend was a mere RM8,800 on 07.07.1977, which fell far short of the guaranteed dividend, but the respondent ought to have received on their investment of RM266,000. It also turned out that the company was in fact not of sound standing and went into receivership on 31.10.1978. Subsequently, the respondent discovered that the directors’ guarantee of 24% per annum for three years, was in fact false. Nowhere in any of the documents supplied by the company was any mention made of this guarantee of 24% dividend per annum. What was contained in a letter from the company dated 09.09.1974, was that the company was prepared to increase the dividend guarantee from 1% per month to 24 cents per annum. It is clear that Mohamad Tajuddin had twisted this and made a false representation to the respondent.
10. The High Court Judge found that Mohamad Tajuddin failed to ascertain or verify with the company on the accuracy of the guaranteed dividend of 24% per annum and that he had indeed painted a rosy but false picture of the company’s financial standing to the respondent and also found that the appellant failed to include a disclaimer as to their responsibility for the information supplied to the respondent.
11. In the light of the position of the appellant as merchant bankers, it is our view that they cannot be heard to say that they are merely playing the role of a finder of bumiputra purchasers of the shares of the company and that whatever information they supplied to the appellant were simply passed on from the company. It is our view that being merchant bankers, they owe a higher duty to the respondent than that of a mere finder. They certainly owe a higher burden when supplying any information from the company to the respondent. They ought to ascertain and verify all information supplied by the company before passing on to the respondent. We agree that the first representation was actually made as it is contained in the letter from Mohamad Tajuddin to Tan Sri Abdul Aziz but we cannot agree that it was true. The representation that the directors of the company guaranteed a dividend of 24% per annum for three years was indeed a false one, as found by the learned judge. Nowhere in the documents supplied by the company was there any mention of this guaranteed dividend. In the light of this we find that the representation is a false one and on this score alone we could have dismissed the appeal.
12. As conceded by the respondent, the other two representations were indeed not made but they can be inferred from the totality of the evidence. As mentioned earlier, the appellant through Mohamad Tajuddin, painted a rosy picture of the company that it was a financially sound company and also gave the impression that any investment in it would not be a risk. Relying on these, the respondent invested in the company. It is our view that the respondent succeeded in establishing that the appellant owed a legal duty of care to the respondent and in making the representation, there was negligence which resulted in a loss by the respondent. Based on the principle laid down in Hedley Byrne & Co. Ltd. v. Heller & Partners Ltd. [1963] 2 All ER 575, the appellant owed a legal duty to exercise such care as the circumstances require in making the representations and for their failure to do so this action for negligence was justified.
13. We are in agreement with the findings of the learned judge that the appellant owed a duty of care in making the representation to the respondent resulting in the loss suffered by the respondent.
14. We have no reason to interfere with those findings. The appeal is hereby dismissed with costs.

Source: Malaysian International Merchant Bankers Bhd v. Lembaga Bersekutu Pemegang Amanah Pengajian Tinggi Islam Malaysia [2001] 1 CLJ 740. Court of Appeal.

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