Datasets:

izardy
/

malaysia-kehakiman-ejudgement

Dataset card Data Studio Files Files and versions Community

Split (1)

train · 17.6k rows

CaseNo stringlengths 6 242 ⌀	Parties stringlengths 19 7.97k ⌀	KeyWord stringlengths 1 6.94k ⌀	DateOfAP stringlengths 10 10	Judge stringlengths 8 413 ⌀	Document stringlengths 114 114 ⌀	Document_Text stringlengths 131 486k ⌀	Text_Len float64 131 486k ⌀	Text_Ext_Method stringclasses 4 values
J-02(NCVC)(W)-1542-08/2016	PERAYU Majlis Bandaraya Johor Bahru RESPONDEN Libroff Media Sdn. Bhd. (677494-V)	Contract —Appeal — Claims for breach of contract — Whether there is a binding contract binding the parties at once to perform the agreed terms — Whether the contemplated formal documents come into existence in settling and executing the terms negotiated between the parties — Whether the intention of the parties is not to make a concluded bargain at all, unless and until they execute a formal contract — Contracts Act 1950 [Act 136],Section 7.	22/10/2017	YAA TAN SRI DATUK SERI PANGLIMA DAVID WONG DAK WAHKorumYAA TAN SRI DATUK SERI PANGLIMA DAVID WONG DAK WAHYA DATUK DR HAJI HAMID SULTAN BIN ABU BACKERYA DATUK VERNON ONG LAM KIAT	https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=581a4dab-2cc9-4752-8e0e-da0cc7ed82f0&Inline=true	DALAM MAMKAMAN RAYUAN MALAVSIA (BIDANGKUASA mwum) RAVUAN SIVIL No. J-02(NCVC)(W)»\|5424)8I2D16 ANYARA MAJLIS BANDARAVA JOHOR aAHnu ...PERAV\|.l DAN usnors MEDIA sou am) ...RE5PONDEN (No. Syuriknt: 51149441) [Da\am Mahkamah Tmggw Malaya Du Jahor Bahru Dalam Nagsn Johcr Darul Takzlm Guaman swn No 22Ncvc—19s—1 IIZDM] Anlava Lnhroﬂ Msdva Sdn Bhd [No Syanker 577494») P\amm Dan Mams Bandavaya Johnr Eahm . . Devenaan CORANI DAVID WONG DAK wAH,.1cA HAMID sunnu am ABU EACKER. JCA VERNON om: LAM KIAY,JcA JUDGMENT or THE coum Inlrodlleﬂon 1 ms IS an appeal against the declsmn pl lne Hlgn Gnu wmcn lhe learned Judge suslalnea ma clalm ol Plainllmnesponaenl and allowed a declarallnrl that [here was In place a omulng agreement palweenlhe Delenaam/Appellant and the Respondent. 2 We heard me appeal am alley due oonslderatlan lo respecllve suhnllsslons pl counsel, we allowed lhe appeal and now give our reasons Bnckgmund lacu- 3. The Hespnrlderll IS the pnllale emalpllse appoinlea by ma Gavemmenl cl Malaysla pursuant lo a spunsmsnlp agreement dated 7.3 2007 to curlslrucl advellissmenl slmclures in conjunction wan ma '1 Malaysla' campalgn U1 every scale capi I m Malaysla 4. The stats aapllal oupnay, being me clry ol John! laanm, was laenlmed as ona o1 lne slle lor ma nons1mcllcn ol advemslng structures. The Is The Raspandam nn :2 9.291: mama an agprml nom JKR on ma bulldhg Mme smlmum, -uupu m cm umamnm slbumad mamin. That may reans as follows. Bwu ..u.....»_.. ﬁnn- u........ ..u n.m...u..u....... 4....” NII1 n-mm ,....,,, mu ..m...~.. . ..... lav ,e M ...u... _~%ﬁu..~w—,..;u .m..., :. x. mm, In-mu .... _. ....».u.‘... ...:““‘... ‘-UVM\| .. M ... ...... .._u..-....‘..............».._... n I>« Iwt-Iuq. u... ..... ... W. m In-mm. no :J..““'..n §’.“¢"L£.‘é‘:.‘..‘£‘.“.“.‘.‘.‘n..’-‘"-'3.x".«4“‘...". "ﬂ .. ‘.1... p... II-n ..¢.....m _,.,. M .... = um ‘ was -4.. ........ mm mm. ,-. Iutluhnlt us-uzr-vtl nun- u‘-.._.p.:..;........a.w..uw.., ";‘:‘.'::.:" '12“.-".:.:..“."-"..., 3,: .... ..‘......W.q........., mu... ...» .u.....w ...... .«-9... ,5: ,_.E."_.:’...._ 4. wow. M nllrr ...._ ...,»:.... ..¢w......_.......u.....x...u. :‘::'...:.“:..“:" V--'= r..':.‘:....'‘“.»:';::.;. ' ... ...,.u-.«-- m 4. .........—....... ».a.u........ M "'1': -1;.;.‘:........::.q N W W... .........n In aunurv-nun 34mm.‘ ..;1..:..m L:-:7 73y..,.m ... .‘)\ ‘V ....w..4 ..N.»... A, .N;.;;...m my ...4_ ﬁnk WE l\|.<nY.(Iik ,.,..,... “ ,... ad-ll :..:x.:-;:.x;r".:.‘:;:mr.:.;-. cm. W (him-J; Aunts M W ..., ,... M... m: ..n..,,dh,.;L,_:...,»..m...,.,... ..__,.,. Jam-nu ..m.m' ‘ ‘"““" "‘ ’”" :12 - we 2.“::m“:1.1.“.‘:,::"‘ L:”‘.‘:.?‘..".'§ZI M .9»,..;w.......m:1-;....K.....m........m. .x..¢. . ..1.,.~,.,.m..,“,..:....~........ W "" '"' .;.2’l:..:I.1”»“.:».u‘.£11t“..‘74,. u . ,....y,.. _..;. _ :.,.u.;._:M.m.. M M. WII b/dwv(4~ W... M.‘ An :1 ,m.,..mm "u'~§i"v H91: u,,_..m. W.,.::-.y.. v as-;~..:.-“'"~-J ..,..«....,......~..........« . ﬂu:_._.‘..,::...;...»...u u 11 on 29 11.2013, me Appellant mlolmeﬂ me Respondent ma a Ianar man me our made on 7 3 2012 has been wnhﬂrawn The ralavam passage of me am Ierrer reads as follow: "3 Sehubungan dangan rm sum! bawalan ru/ukalv M515/L//2010/(IV/PSW/Ya/1 Dsrtanklv 717.2012 auaran I3. n was me conrermorr at me Respondsnnhallhe wilhdrawal aims nﬂer was wvungful aa pramxaea on me cuvresporvderwes trarwaarr me pames, (have had been a cortduded arm mnmng agraerrrenz which ma Respondent was enwea to erworce mqn com doclxlnnz 19. The learner: Juaga found that, desplle the absence 0! an exewled wrmen comvacl. mere was mdeed a vahd and concluded conlvact premised on a Ienar dared aazmz (raprrmucea In paragraph an above) M are Appellanl In (he Respunaam am we aocepmnae at me nllev contained m me Aapellarrra xeuar through a wener «am the Resparmenr dated 29 11 26:2 (reproduced in paragraph 11 shave) ma vaamau Judge mso renea on me conducts at me pamaa. 14 our gwunas ol d-clllon: 20 From me subnussmns at vespscuvs counsel, me area cl law which we are concsmed relaxes In an agrsemenl at cunlvam wwm me tum 'suh.ec« xe cemracr or wun sucn swrmlav \|em\ In me Iuagmem smar Wang Sdn Bhd u. Mg Kn sang [am] 3 cu 619, ms noun cm wnh approval me lollowmg passage in Mums u. cum-ron [1954] 91 cm :5: (as meme Federal! coun In me case olGhnrln GrunIcrSdn Bhd u. Lau Wing Hung [1997] 1 cu 525): wnene me pames who nave been «n negenanen reach agreement upan terms are canlraclual nature and arm agree that the mane! al lhevr nagakralion sneu be new mm by s /mmal com/MI, me case may belong In any amnee classes. u may be we in when me pames nave zeaenea rmarrry IN arrangmg an me uenns or their Daryarn and mlervd fa be rmmedisraly bound to the pemumance 01 muse terms, but at me same time propose re have me terms resrauea In a Iolm men will be mile: 01 more precise but no! wrrerem m sﬂscl. an secondly. u may be a sass In wnren me pames nave completely agreed upon all the lei/-n5 of men bsrgarn and unenuno eepenure mm or eaurrran m [hat wmcn their agreed terms express or fmuly, but nevertheless have made performance or ans 0! more or we term: cendmonal upon me sxecmron of e mnnar eoeumem or, thirdly, me case may be one In whrch me Intention of me parties »s not to make a oorlcmded bargain er a», unless and um lhey execute a Iunnar contract n 22. In sun of me ﬁrs: rwo cases, there 15 a birlding mnlmcl U7 me ms: case a contract blndmg me pamss all me In perform me llglssd xerms whemer me conlemplaleu formal document comes mle exlslence 01 nor, and II7]0!I7 nnney nave 50 agreed) rn semlng and executing the furmal ducumenr; In me second case a corltracl bmdmg the penlee la [olrl m DI/ngmg (he formal canrracl lnta mtlstsnce and men lo tarry ll into execullan me eleresanl case‘ welnen evalualad me eelresponaences ba(ween me Appellenl and Respondent te delerrnlne whelher me cncumslenees ln mus case in in me llrsl Iwo classes ol cases which give use in a lmling agreernenl M the mm: class er use wnlcn can only gwe rise In a mnmng agreement when mere V3 2 lomlal execulee agreemenl The Rsspondenl naa rellea much on me leller dated 25 1.2013 co eenlene mel male was a concluded cunlracl between me pames. In men letter conlainad me lellewing words. Sehubangan dsngan nu, In x n J salinln ubcngr ggmgml yang Isrssbm untuk diasnlak eemule sebe/um urvsarl merlanlinlanganlrlya“ ls 23. It 15 our view man me wovds “unluk dfssmak semula ssbelum umsan menandatangan1nya“ speak for themselves u. max me Appeuam had not ﬁnished ns remew m the am agreement. ms is home our m the evmenca ov SP1 where In cross examinaunn he said. FD/. MB./B um um‘ wins to Lmmw to (all men. that We had reweweu lhs sgruemenl and it was m or-I19!‘ Agrse or disagree? Fmsal. Agree, Yang Am ms was a\|so home out byma suhsaqusnl nsgnuanuns carried oul by me mspecnve parnes on or abuutocluhav am: on nmamauvs sues cm conslruclmn 01 me advemsemem stmcluves. These nsgoniauons resulted n a letter hum me Appellant dated 29 u me much veads as follawsz ;;JJi¢’i~,s«/ n » w~~~~~~~'.r,~::;;..r::.~:........ ' y.—n....».»w...».m...«m.m,.— ....y..........w......‘....».........y .w M .... ‘A n W. JI.T.~..mwM.....,....,...u .. ....w-W».-s . ...........M............ ....‘.. "aw mg m:.;_n.u:._. ‘ ..n..'.",......"“’ ..«.m.w~ ‘ 3 s...~.,......m..:....W.:.....m»....n..»......‘,..... ......,.. ............_....m...n.m..,.m... muuvm m.mumum.=.m....wMm- 24. The Rospandam lepkadlo ainrasald mar an 5.12.2013 which rem; as Inﬂows: I: ' .. vv ,£.l€‘®-.z€19ﬁ": H mm_m..wm.m..q .. M3 ommn 11! V w. .... W Iuudl x... m...... Nun: -..».,...».. M. hlxnbavflhm mm....m.. :.»..m VIM, mu.-. r...,..u.m.:....«...w...: ......... ... m..»....u. ~......a..... ".........uu-m""' ..w.. »».a-»........... mu :.:_..;._..m.. V». xm-nu-m-m=.na«:vnwnwuan1:.n-‘An u sun... y.. Vunnu .. .m.,..........,.,....,. H. ................-m........ ..... U"... HM W“ ..m_,-::;:~W.;...a:- M H Wm...-.....‘..‘..m».n.u.».v 1 «..»..4...u..v».-..»......»...,......., I ...»-aa ‘. m..m..u.......»...M............., “.95 .».... W “.4 .. -.:».. ..M.m ...._:....m“...m..,.7.'."\.. . u‘..m‘.'“...L“"‘..:..;'»’.v,-‘.7‘:., .. m.L......r,...n.-....»...m. on . ....., .... ...u.....»...u...,....., ..........4..$'=‘...,...’.$.“.m M.-M... ..«....»....;=...a.-.-L...“ ......... . w.—..»»..,.................m..m.;..x. .~..»....».;.-..u.-.«n.a..»«»=~x m....... ....4.....,..‘...._..- ....... m.........u..u..u.m.~ ..........u.._............ . .............4......_u...4...... w........n..».u............m......... 1..-.«.-...--...«............— .. u....u....-.-........4m.......—-..- -<..4-~.v................»...u...u.. ¢_...»._........._..m... . ............‘..........u.....-m-»..-A ..—....... K _........r..»n....-.r...._.:_~0-«--» _.”.....«..»-..~——...m x-rm -. u..«.....___t:-H». ................._:_ ' -‘--~,_...'“‘::‘::t_:.';‘::':i::- . "‘“.2‘...."ﬂ:‘.‘..‘..‘.-...'“"..‘.‘.".2.ER‘ - v1!‘“1U—h '9 25. \n anyone‘: reading an the Respondent‘: lenec n amounted (n a cnunlar pmpesax to me venerov uﬂev hylhe Appeuanmaueu 29.11.2013 and smce there was no uncandmonai aceapnanee o1 me pnzpcsaxs by me Appeuanx, we (Dunc! that were was never any meeting 0! mmds between mnuaci g pamss arm thus were was nu conchmad and blndmg agreement between me Respondent ana ma Appeuanu. 2e Seclirm 7 at me Conlvacls Am 1950 as crysm clear when R pmwdes that «or any acceptance In an uﬂsv In be yam, mat accemance must be anamuxe and unquahﬁed wnicn we see N: am aeeemance cancluuonz 27 This was simply a case whare the laclual malnx was such that Iheve was no meeung or nnnaa halween ma pames su as to giva nae to a binding agveamenn nemeen me names Inlarmons or vespsctwe pames, In our view‘ were that [here was In be no binding agreement until a tunnel wnnen agreement us sxacukeﬂ. 2s. Aecmmngry, we auuwea me apnea! wnn cnsxs m me sum av nmsoanm lav have and below sumac] w payment af auacamv tees, zu Appeuanu. being ma local aullmmy havmg ‘unsmcnon In manage me awaus av Johor Bahru‘ ms tasked by me Government av Mamysla Io asswst lhe Respnndanx .n ma Implemsmaluon :1! ma “1 Malayna" zampmgn 5 Discussxons belween mo Appellanl nno Respondent roaunea m vanous oonasponaences w n mo Respondent conlended \|ha\ an agvsemem had been veached helweenlhe pames which would emmea n to antovoa me saw: The AppaHan( naturally mok ms cununry posmon mm since male was no aomuax agreement axecmed by me oamas, meve was nu binding ccn\rac1 between me pames R--pond-nn pomlon: 5 The Rsspundenh case was plemrsed on the fnlmwing «mum matnx 7. By a latte! dated 2:: 12.2131», mo AppsHan! had agreed wnn the Responaenu prupusul Io oonslmct lhe structure at 2 Vocations, namely at Jalan Skudan and Ja\anTebruu — Kola Tmggx. That Ieller reads asVoHows' We a\sn ss\|ss\d91he amevs av me Hugh cum and order the depesrt nu be vefunded In the Appeuam Dated - 27 Oclobev 2017 Q wont: DAK WAH) Judge Cowl at Apuea\ Ma\ays\a Fov me AppeHanl Fadnil Ihsarv wm. mm Savna Saksen 3. Khaimlalwad Sanman Messrs. Axwad lhsan 1. Co. For me Respondenl .n Muhan Kmmuan Mlurl Kumur Partnership Nance: rms copy of the court‘: Rluam Io! Judgment Is mom: to Iomral nvmon. mu Ii mmw lo.-mnomu evnwunaz wvzoxuwxuuuu .._ . .-a-.~m4;-g-,~«-\~,-in -'32:: mnminlom/M/xv ..u r~’ M, . »».mm L .......... WIN naanuo-ruuunnsu ...m UMVNNF. M... ......m m ..v..v...,m:.............».....;....m...-.m xm-up.» »m.....«.........-..,...».... 3‘ ,,..».m.....,u».... ,...».......m,..... ,..«..w.., Malllnan ....,m M. .....u.. n-‘mum »...W. Van W... aw» m-raw »»- um w.-W. lnbvu n. W. k4V\ﬂ w_»$m....,, mnhlﬂmmlﬁ .m...m....m..W..... MWm.M_m,.\ ....w...~.. ..mw....,..m:..,.... um. Imrw kw. AIL W .m.m.~..‘.u. .,«¢...m,.,‘,, a. Mnjlls Masyunral Kerajaan Neglri Johov on uxzan again an nunnsov ms pmpnlad cnnsvunian at Km Tlnqni. max In-vol spanoornhp laws as moms- :§.%,m‘.,4..m......Amw.W......u..,..... .m........,..,.,m... .. ..m E.'.‘.'"J2“.'?§ﬁ,'.§‘I.“€”r‘.‘. . nun m 375-“. e, ,,.....,..n.. m..,a....,.‘x. ::w:~:::»~“ 4/ m ,;,.,.:.m ‘ N. r‘ A, us The Aopellunl had on 12.1.2012 appmvid me aroma: onnslmdmn by IVII Raapnnﬂenl wnuuh I mssnng which minutes ram as Mlows: :.%;.;»u".‘{w \ W , m..,.. ":**¢>-Iwm. ..w.,W..W V I4’ Mm , , mu.‘ »..»..m...... NW u up-mm hm . u..........‘wv... muumnum .............'“‘“v:'.‘3."=.“‘.-...-:““ " u-....u».m....mw.....,;... I“ M Lu--x",‘.‘§"'>~'-'~".'«‘."§'.‘e‘. 'x‘xT.'§.'?§“"£'x'.’-‘q'z'f:‘r'-‘$:‘.'.m'». in Iv-w mu;-tam -:u_.:.‘_:..».~m “......1.‘.m..-.... ' .4 ﬂ._..-....u....m...m......w..».... wan- " ‘..w."“’.‘...-‘... m ._w____ M_‘_ . ._._ ,w...,..m ~~""‘.::«;";:W,.,.,.W,...,., .. W- ,‘..M......,...m...m.....,. ,, .....»..».,..mhm.Ew..‘..,,........ »~--~ ":2; .7. ;..,..m.y.n :~:.\~A.~~ .W..«...1....m., rv « ..,, .m....m...y.~.»m.- L. ....».4...¢...» VD. 22"ﬁ?I::2‘."31‘.!.‘.‘.‘:'a ..,..m., _;~v‘:1“_;“u'_';: - Mw-~»~W-~~r:::.1::m:::;w:;:"'"" % #_.._:....,. nmmuwam my ~......y...~.,.... On 6.8.2012, mu Annullanl sum 3 laﬂsrlolhe Rasponaem wen u tau: me Reuvnnﬂlm wu cunoemod ms nu omcial law oi an-r Dov ma mnmumm M In -av-nsnmm umcmn ms cmuul may read: sa iollaws‘ .MAII1s.'\mm.uvn ,,1ommw »..».._«~.....,....... 714 .. M. . 7 14 w..‘...».......4. Mxruim M .mm...wm. .4.“ “"" ’ ‘ AV snv-.‘......m.wm n....~.........-wan .u.w.»..;..‘..-..,....».~..m..«=.,.. m..m....-.., my: man :2 mm»... ».u....w-o-<..\.k..-»..u...;..r... u »..........,w, ,;:,:-«,,,..,.........,.... .,m.,. :4 :.;_m.n..a-.....“».‘...».--w...»-u .5 .n.m n 1; mm. m. Nu: m M...“ mu m. ...u. W..." .nW..»..m»:.....>....,;..............‘ 7 W N u :34-n:)r:‘v‘v¢lAIls(!1llIn!Irgu\ ..wm...»..«m...‘ ac...“ n Rungrnu-H111!-lru Aw-Ix .u...,v— Irﬂl=:41LvI]:5 -.... ...<.»....‘... M... .‘.~....z= . W. .,....m..m.\...«.. ,. V“ ‘ ....« nmununmmumt u... m....u.m.m»....=‘ Lmbsnmn Va ..""'“,... ‘».;"$."."Ju'3.‘.".;.""u.’.3.‘ 1".’-'5'".--»."" rm .....‘....m.....»..,...........m..n ....;.......»... L':.1‘1.,T.{..'.:‘.?1’;Li‘.”=§7-!“.:..V::.“..‘:f.1""'”"""' :.. :::.':.:,:".:.:2:9;,~;m:::;,-.‘..“.“:::":r.-:"‘"='~ .i.'""“..m.‘.‘.".“-I«“."v'a1a”.‘:»'€»...1 ~..w..<....m... .,,. Myvm g'w_.',:.‘......... mum) W.-..«.... ........,. n The Recpondnm acoepvlnﬂ mu Iiovvwd lens! at one: by n Venev wed 29.11.2012 which run: an loﬂnwr §.ibs'§ff ~....u... uuummmnwnm W. m.«...1m -am,-.r.............n..-..M......... -"‘...-’J‘..‘.‘-I‘.2‘..':".‘.'.":.“y""..¢.5‘§'.'.: m._..w.....m,.....m..o,. iwsarl 1 M... ..m... mu ‘(MB .. en-rmw W. “mm M WM » ... ».... KVI ....x wruu “IQ ...w.... N... ...... ..,.. .. L.:‘.'.._...... M... .1. ..m WI»! .....«....u, 1.»... -............ .... an-am 711 31011 m.. m ‘.‘...":‘vi:’.‘..E".‘:‘.2-'."v»’3.‘E.’L... nnmu W HM!-l m.».......»..m; Anus: \. .. .. ,.m............. ....m.¢,..,......a.......«.. .,=. ..... .. ..... .5..." Iv: . Mann-n M uhlﬂl 5 NE W ..... mu! m... . M14 _,.. ...,. —w=-um«r- ...,.m.......-..- u w...._...m.....=..nm...,..M.v...... m-.....»..«.....n,.».‘.,.4....».‘. 1. M ...n .....m... “E34 M1 "EH .~.. psa- mu Wu»-u.»«...,..»...~...‘...“.9......“ hm W.“ Wm .1. ..«...................¢.....n...u...a.-..-..,r' ..n......,..-..-.»..............,........... mo-n’-"E-«' -.“'.“"..n‘..“‘. .‘.'..‘.2,""' 12.“ &'”.'.-’-‘. ....~».».n.»m... ’ :7.?T$‘.’§'L’£'§L.'2‘2'-‘.-‘u’3l:'-$71‘;-‘.'E'.:ﬂ“.f.."“..". rm ....... ‘. ﬂollwwm M147 . mm... M. raw! nm. .7. ..W ...m M.‘ ... Mn! IhI\lIl!iIm/-qlﬂrnxwkdulun 12 As lav asme Respondenlwas ommeman, us apcavlance had crealed awlxd arm hmdlng oonllan between me Appauam and ﬁsspvnﬂsnl as AH me malarial mm: mm ulrendy been canvassed and agveed despue Ihe absence 0! an mcum lovmnl agrsamem between me pamaa. I3 wnm happened alter me comsnuw acoepvance Iellel was max lhave were Ma 15) dralls exchanged helwean me names was me Mal vavsm m m: Agveemenlwas arm/ad 5\| Io, The Appellant hy a Wetter dated 25.u.2m‘ Mole no me Respondent and mlurmeﬂ as «ouows:— '2 smm drmaldumkan, peguam panel Mai/rs Isiah menelm draﬂaraklm psqanuan lersebul [Ina Qidgggl mm: 3 55’V\|¢>V'\|vS'\| 96/19“ NM ﬂ yammwbm mm msemak semuls senelum unsan m-rundalanqumnya‘ :5. The Respanaem an :4 2.201: sent 3 van came: at me agreement In ma Appellam lor execmmn	16,543	Pytesseract-0.3.10
WA-24NCC(ARB)-24-07/2016	PLAINTIF Maxbury Communications Sdn Bhd DEFENDAN Huawei Technologies (Malaysia) Sdn Bhd	null	21/10/2017	YA DATUK LAU BEE LAN	https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=29dabdf0-375c-499e-b0d0-1f5de06383ac&Inline=true	DALAM MAHKAMAH TINGGI MALAYA DI KUALA LUMPUR DALAM MAHKAMAH TINGGI MALAYA DI KUALA LUMPUR (BAHAGIAN DAGANG) SAMAN PEMULA NO: WA-24NCC(ARB)-24-07/2016 Dalam perkara mengenai satu timbangtara di antara Maxbury Communications Sdn Bhd (898817-K) (Pihak Tuntut) dan Huawei Technologies (Malaysia) Sdn Bhd (545949-D) (Responden) (“Timbangtara tersebut”); dan Dalam perkara mengenai satu awad yang telah diterbitkan oleh Penimbangtara tersebut dalam Timbangtara tersebut dan dianggap sebagai diterima oleh Plaintif pada 10/06/2016 (“Awad tersebut”); dan Dalam perkara mengenai Seksyen-Seksyen 8, 37, 42 dan 50 Akta Timbangtara 2005; dan Dalam perkara mengenai Aturan-Aturan 7, 28 dan 69 Kaedah-Kaedah Mahkamah 2012 ANTARA MAXBURY COMMUNICATIONS SDN BHD … PLAINTIF (No. Syarikat : 898817-K) DAN HUAWEI TECHNOLOGIES (MALAYSIA) SDN BHD … DEFENDAN (No. Syarikat: 545949-D) GROUNDS OF DECISION [1] Vide an Originating Summons dated 18/7/2016(encl.1), the Plaintiff is seeking to set aside, in whole or in part (as the case may be), an award published by the Arbitrator and deemed in receipt by the Plaintiff on 10/6/2016 (‘the Award’) in the arbitration between the Plaintiff (as Claimant therein) and the Defendant (as Respondent therein) (‘the Arbitration’) pursuant to s.37 and/or s.42 of the Arbitration Act 2005 (‘AA 2005’) (prayer 1). [2] In compliance with O.69 r.4(1) of the Rules of Court 2012 (‘ROC 2012’), the remedy claimed in the Originating Summons is that the Award be set aside, in whole or in part as the case may be and the questions on which the Plaintiff seeks the decision of the Court are - “(i) Whether the Arbitrator could decline jurisdiction to decide and render award on the issue of breach of an agreement that had been expressly pleaded and submitted by the parties before him on the ground that he lacked jurisdiction to decide on same? (ii) Whether the terms of the collateral agreement must be stated expressly or in words of similar effect in the written agreement itself in the first place before the Arbitrator could find the existence of a collateral agreement? (iii) In considering the Plaintiff’s contention as to the existence of a collateral agreement, whether the Arbitrator could make reference to and reliance upon an written agreement, which the Arbitrator had earlier on already ruled to be not part of the Plaintiff’s claim, and use it against the Plaintiff? (iv) Whether the Arbitrator could rule a written agreement that was in itself expressly made subject to other qualifying terms and clauses as sufficiently clear and unambiguous? (v) Whether the Arbitrator could rule out any proposed explanatory terms that constituted the most reasonable and acceptable interpretation of a written agreement on the ground that it was clear and unambiguous when such agreement was not so in itself? (vi) Whether the terms of a collateral agreement, which constituted the most reasonable and acceptable interpretation of a written agreement that was unclear and ambiguous, can be considered as in conflict with such written agreement? (vii) Whether the fact that the terms of a collateral agreement might be in conflict with that of a written agreement ipso facto renders such collateral agreement invalid and unenforceable? (viii) Whether the fact that a written agreement was given for inadequate consideration ipso facto renders a collateral agreement invalid and unenforceable? (ix) Whether the maxim “in claris non fit interpretatio” meaning ‘clear rules do not require interpretation’ applies when the terms of a written agreement are on the face of it unclear and ambiguous? (x) Whether the Arbitrator could consider terms of a written agreement as sufficiently clear and unambiguous when it concurrently found that the very same agreement left in its wake an entirely new clause touching upon and governing the very same subject matter that such written agreement was seeking to deal with?”. [3] The grounds in support of the setting aside of the Award are - “(i) the Award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration within the meaning of s.37(1)(iv)(sic) of the Arbitration Act 2005; (ii) the Award is in conflict with the public policy of Malaysia where a breach of the rules of natural justice occurred during the arbitral proceedings or in connection with the making of the award within the meaning of s.37(2)(b) of the Arbitration Act 2005; (iii) there are questions of law arising out of the Award that merits the consideration of this [Court] under s.42 of the Arbitration Act 2005, which if decided in favour of the Plaintiff, would render the Award to be set aside, in whole or in part; and/or (iv) as a result those questions of law arising out of the Award referred to herein above not being correctly decided in favour of the Plaintiff, the Plaintiff had suffered prejudice or injustice and its rights and interest had been substantially and adversely affected”. [4] Having considered the Written cum oral Submissions of both Counsel for the Plaintiff and Defendant, I granted prayer 1 of the Plaintiff’s Originating Summons pursuant to s.37(1)(a)(iv) and s.37(2)(b) AA 2005. I further ordered pursuant to s.30(5) of the Limitation Act 1953 (‘Limitation Act’), the period between 17/2/2015 and 8/3/2017 (the date of the Court’s order setting aside the Award), be excluded for the purposes of computation of the limitation period under the Limitation Act. The Defendant has appealed. Herein below are the reasons for my decision. Findings [5] The background facts relevant to the Defendant’s application are these. [5.1] In the arbitral proceedings, the Plaintiff was claiming against the Defendant, amongst others, for specific performance of the Settlement Agreement; alternatively damages in the sum of RM2,140,000.00 in lieu of specific performance or damages to be assessed by the arbitral tribunal. [5.2] The nature of the dispute between the parties in relation to the Settlement Agreement was contractual in nature. The Plaintiff had initially commenced action in Kuala Lumpur High Court vide Civil Suit No:22NCVC-16-01/2015 for the same claim, which action was pending reference to arbitration. [5.3] By a Purchase Agreement for Maxis NGBB NDC Project dated 18/8/2010 entered into between the Plaintiff and the Defendant (‘the Services Agreement’) (exh.LCS-12, Affidavit in Support affirmed by Lee Choon Seng on 14/7/2016 (‘Plaintiff’s AIS’), the Defendant had engaged the services of the Plaintiff to carry out and conduct the works relating to “Policy & Procedure, Technical Overview, Demand Study and Fundamental Planning” (‘the Works’ collectively) in respect of the Defendant’s provision of a new generation broadband project in Malaysia (‘the Project’) to the Defendant’s customer, Maxis Broadband Sdn Bhd. [5.4] Pursuant to cl.1 of the Services Agreement, both parties had agreed that the payment for the Works done was to be calculated as follows: No. Description of Work Quantity Unit Unit price (RM) 1. Policy & Procedure 1 Lump sum 229,000.00 2. Technical Overview 1 Lump sum 225,000.00 3. Demand Study 1 Lump sum 540,000.00 4. Fundamental Planning 32 OLTs Per OLT 55,000.00 (Klang Valley) 60,000.00 (outside Klang Valley) [5.5] Payment for the Works under items 1-3 of the Table above in the sum of RM994,000.00 has been duly paid by the Defendant as is evident from the Purchase Order No.1031015121 issued by the Defendant (p.128 Plaintiff’s AIS). [5.6] In respect of item 4, Fundamental Planning Works, of the Table above, the Defendant made payment for 32 OLTs amounting to RM1,770,000.00 as is evident from the Purchase Orders No. 1031015251, 1031019126 and 103109127 issued by the Defendant (pp.129-131 Plaintiff’s AIS). [5.7] The Defendant disputed the additional 60 OLTs submitted by the Plaintiff to the Defendant. The parties entered into mutual consultation. It is not disputed that at the initiation and arrangement of the Head of Maxis NGBB Project, Mr. Jasbir Singh, a meeting was held on 10/6/2011 (at Porto Romano restaurant, Kuala Lumpur) attended by representatives from both sides namely, (i) Mr. Jasbir Singh, (ii) Mr. Werner Geisert (Defendant’s Project Director), Mr. Sun Xi Wei (Senior Officer from Defendant’s Headquarters in China), Encik Ahmad Azam Mohd Salleh and Mr. Lee Choon Seng (Plaintiff’s directors). The Defendant did not dispute - (a) the Plaintiffs’ directors requested Mr. Werner Geisert and Mr. Sun Xi Wei to officially write to the Plaintiff regarding the proposed terms of settlement; (b) Miss Wong May Ann, Mr. Werner Geisert’s assistant had sent an email to Encik Ahmad Azam Mohd Salleh on 8/8/2011 (exh.LCS-14, Plaintiff’s Affidavit in Support); and (c) the execution of the Settlement Agreement dated 26/9/2011 between the Plaintiff and the Defendant (exh.LCS-1, Plaintiff’s AIS). [5.8] However the parties disagreed as to what was communicated at the meeting as can be seen in paras 6 and 7 below. Rival contentions of parties [6] The Plaintiff’s position is it was the clear understanding and intention of parties that - (i) The Plaintiff shall be paid for the additional 60 OLTs, which translated into an additional sum of RM3,340,000.00, and that the said sum of RM3,340,000.00 shall be settled or satisfied in the following manner i.e. - (a) a sum of RM1,200,000.00 to be paid after an official written copy of the settlement agreement being signed; and (b) the balance sum of RM2,140,000.00 to be recouped and recovered through the subsequent award of contract for planning and design works by the Defendant to the Plaintiff. (ii) But for the representation and assurance by Mr. Werner Geisert and Mr. Sun Xi Wei whereby the Plaintiff will be able to recoup and recover the balance sum of RM2,140,000.00 through the subsequent award of contract for planning and design works by the Defendant, the Plaintiff would not have entered into and signed the Settlement Agreement and the Plaintiff had so acted upon the representation and assurance to its disadvantage or detriment. Premised on this factor, the Plaintiff additionally pursued a case of collateral agreement between the parties to the Settlement Agreement in the High Court and the arbitration proceedings. (iii) The Plaintiff contended the Defendant breached the terms of the Settlement Agreement despite 2 reminder letters dated 18/9/2013 and 12/2/2014 to the Defendant of their commitment as per clause 4 of the Settlement Agreement and/or the Collateral Agreement (exh.LCS-15 Plaintiff’s Affidavit in Support). (iv) Relying on the promise from Mr. Werner Geisert and Mr. Sun Xi Wei, the Plaintiff on 15/7/2011 released and handed over to the Defendant the full set of the relevant and soft copy of the 92 OLTs (exh.LCS-13, Plaintiff’s Affidavit in Support). [7] In opposing the Plaintiff’s position, the Defendant took the stand - (i) The Defendant denied that the terms of the Settlement Agreement imposed any obligation or liability on the part of the Defendant to pay the additional/balance sum of RM2,140,000.00 since the payment of RM1,200,000.00 by the Defendant to the Plaintiff shall be full and final settlement of all liabilities, payments and obligations of the Defendant to the Plaintiff based on clauses 2 and 3 of the Settlement Agreement. (ii) “[T]he issue in respect of the payment of RM2,140,000.00 will only arise if the Plaintiff offers services for planning and design of fiber optic cable network to the Defendant in the Asia Pacific Region in accordance with Clause 4(i) of the Settlement Agreement; At all material time, there were no other services or projects in respect of the planning and design of fiber optic cable networks offered by the Plaintiff to the Defendant; If at all there were services or projects offered by the Plaintiff to the Defendant in respect of the planning and design of fiber optic cable networks (which is vehemently denied) the services or projects are still subject to the Defendant’s approval in accordance with the Defendant’s evaluation of its standard procurement process”. (iii) The Defendant contended clause 4(i) of the Settlement Agreement was redundant and not applicable to the Plaintiff’s claim as there are no further services of projects offered by the Plaintiff to the Defendant or alternatively, after the execution of the Settlement Agreement, there was no job, contract or planning and design works available. (iv) The Defendant denied any representations were made by the Defendant to the Plaintiff and the issues of the existence of collateral agreement did not exist and any representations to the Plaintiff, if made had been superseded and no longer applicable. (v) The Plaintiff’s act of releasing the 92 OLTs was a voluntary act. (vi) The Defendant denied receipt of the 2 reminder letters. [8] Before I delve into the merits of the Plaintiff’s application, it will be useful to refer to the applicable law. S.37 AA 2005, in particular s.37(1)(a)(iv), s.37(1)(b)(ii), provides - “37. Application for setting aside (1) An award may be set aside by the High Court only if - (a) the party to the arbitration agreement provides proof that - (i) a party to the arbitration agreement was under any incapacity; (ii) the arbitration agreement is not valid under the law to which the parties have subjected it, or, failing any indication thereon, under the laws of the State where the award was made. (iii) the party making the application was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present that party’s case; (iv) the award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration; (v) subject to subsection (3), the award contains decisions on matters beyond the scope of the submission to arbitration; (vi) the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties, unless such agreement was in conflict with a provision of this Act from which the parties cannot derogate, or, failing such agreement, was not in accordance with this Act; or (b) if the High Court finds that - (i) the subject-matter of the dispute is not capable of settlement by arbitration under the laws of Malaysia; or (ii) the award is in conflict with the public policy of Malaysia.” (Emphasis added) [8.1] S.37(1)(b)(ii) AA 2005 has to be read together with s.37(2) (b)(i)&(ii) of the same which reads - “(2) Without limiting the generality of subparagraph (1)(b)(ii), an award is in conflict with the public policy of Malaysia where - (a) the making of the award was induced or affected by fraud or corruption; or (b) a breach of the rules of natural justice occurred - (i) during the arbitral proceedings; or (ii) in connection with the making of the award”. [9] In a recent case of Petronas Penapisan (Melaka) Sdn Bhd v Ahmani Sdn Bhd [2016] 2 MLJ 697, the Court of Appeal dismissed the appeal. The facts of the case have been summarised by the editors of MLJ at pp.697- 698 as follows: “The appellant had engaged the respondent to carry out a warehouse extension project. After the respondent had completed 70% of the work, the appellant terminated the contract and appointed third-party contractors to complete the remaining 30%. When the parties arbitrated their dispute over the termination, the appellant counterclaimed for RM357,419.80 it had allegedly incurred in completing the balance of works left unfinished by the respondent. The arbitral tribunal (‘the tribunal’) found the appellant had acted reasonably and fairly in terminating the contract and had the right to appoint third-party contractors to complete the remaining 30% of the project. However, since there was lack of evidence to prove the amount that was paid to the third-party contractors, and since it was undisputed that the balance 30% of the contract price was RM260,470.20, the tribunal decided it was fair to award the appellant the said contract price plus 20% of that figure for ‘inflation’ making the total RM312,564.24. The respondent applied to the High Court pursuant to ss 37 and 42 of the Arbitration Act 2005 (‘the Act’) to challenge the tribunal’s award contending that the issue of ‘inflation’ decided upon by the tribunal was never pleaded or claimed or raised by the parties at any time nor was it one the tribunal had called upon the parties to address. Accordingly, the respondent contended, the tribunal had acted beyond its jurisdiction and breached the rules of natural justice. The respondent contended that the award contravened ss 37(1)(a)(iv) and 37(1)(b) of the Act and raised valid questions of law under s 42 of that Act. The High Court set aside the tribunal’s decision on the counterclaim holding that as there was no proof to support the counterclaim, the tribunal should have dismissed it and not proceeded on its own accord to determine what was a ‘fair amount’ to be awarded. The High Court held that as the respondent sought to set aside only that part of the award relating to the counterclaim, it had wrongly invoked s 37(1)(a)(iv), instead of s 37(1)(a)(v) of the Act. As to the challenge under s 42 of the Act, the High Court held that only two out of the four questions of law raised were real, proper and valid. As the tribunal failed to explain where it sourced the factor of ‘inflation’ or the value of that factor and also failed to invite the parties to address the tribunal on that issue, it had exceeded the limits of its jurisdiction and breached the rules of fair play and natural justice resulting in an unlawful and unconscionable decision that required the court’s intervention. The appellant’s instant appeal was against the quantum of its counterclaim. There was no appeal by the respondent”. [10] In an instructive judgment impinging on ss.37 and 42 of the AA 2005, His Lordship Hamid Sultan JCA in a supporting judgment at 713 [28] and [29], 715[30] and [31] and 716[33] and [34], held - “[28] In challenging an award related to domestic arbitration it has now become a common practice to file the application under ss 37 as well as 42. There are case laws to support such an approach. However, for proper management of issues under ss 37 and 42, the application must be separately dealt with as the jurisprudence involved in dealing with the applications varies. I will explain this further in the judgment. [29] An application to set aside an award under s 37 largely deals with issues relating to the award making process and has nothing to do with error of facts and/or law on the face of record unless the exception applies; such as public policy. An application under s 42 has nothing to do with the award making process but has everything to do with the award per se and error of law on the face of record which error substantially affects the rights of one or more of the parties. The distinction between ss 37 and 42 is that like of an apple and an orange. Sections 37 and 42 read as follows: … [30] For example, in this case the complaint by one of the parties was that the learned arbitrators when dealing with damages proceeded on the frolic of their own without inviting submission and awarded damages. Such a breach will not fall under s 42 of the AA 2005 but will fall under s 37(1)(a)(iv) and/or (v), etc, as the complaint is that the affected party was unable to present the case and it may follow that the award contains decisions on matters beyond the scope of submission to the arbitration or breach of natural justice, etc. [31] The threshold to satisfy under s 37 is very low (though the courts are slow in setting aside the award) and upon proof if successful, the court has an option to send back the matter to the arbitral tribunal to eliminate the grounds for setting aside, as set out in s 37(6). This was not done in this case. To put it in another way when a party to the arbitration complains of breach related to s 37(1)(a)(iv) and/or (v) etc, he must invite the courts attention to s 37(6) and cannot rely on s 42 as it will be an abuse of process, as he is relying on omission or excess of jurisdiction which is covered under s 37 and not s 42 of the AA 2005. [32] In addition, once the applicant had chosen to rely on s 37 grounds as stated earlier that will mitigate a no-case under s 42. I do not think it will be a proper exercise of judicial power to entertain an application under s 42 when the applicant is relying on the same facts as advocated for a s 37 application. In my considered view, a trial court ought not to entertain an application under s 42 at all. I will explain this further. [33] The threshold to satisfy s 42 requirements is very high and I will say in consequence of case laws, it is extremely high. That is to say, if a party cannot succeed under s 37, on the same facts and complaint the general jurisprudence will dictate an application under s 42 will be futile as s 37 relates to arbitral process and s 42 relates to arbitral award. [34] Before the trial court hears an application under s 42, it must take cognisance of some well established principles, which the court has considered under ss 23 and 24 of the Arbitration Act 1952 under the old regime as well as the new regime which advocates court should not readily intervene in arbitration award unless there is a patent injustice”. (Emphasis added) [11] In the same case, His Lordship Prasad Abraham JCA (delivering the judgment of the Court), on the exercise of power under s.37 AA 2005, opined at 701-702 [2], [3] and [4] as follows: “[2] In dealing with the defendant’s counterclaim, the arbitral tribunal in this case found the defendant was not entitled to recover any loss or damages arising from the termination of the contract. The arbitral tribunal found absence of evidence to support its counterclaim. The arbitral tribunal then went on to say that it would proceed to use the factor of inflation set at 20% being a reasonable sum and the arbitral tribunal proceeded to find on the following basis. The balance of 30% of the contract price RM260,470.20 add 20% inflation RM52,094.04 = RM312,564.24. [3] This issue was not brought up by the parties nor were the parties alerted to it nor invited to address that point and therefore the award in our view contains decisions on matters beyond the scope of the submission to arbitration in breach of ss 37(1)(a)(v) and 37(1)(b) of the Arbitration Act 2005 (‘the Act’) and raises question of law under s 42 of the said Act. [4] The learned judge dealt fairly exhaustively and methodically the challenge mounted by the plaintiff in particular relation to ss 37 and 42 of the said Act. Section 34 (art 34(1) of the Model Law) which allows recourse to court against an arbitral award may only be made by an application to set aside the same. We agree with the learned judge that s 37(1)(a)(v) would constitute the relevant provision to apply in the light of the challenge being mounted by plaintiff. It is our view that s 37 only allows the court to set aside the award save for the limited exception under s 37(3) of the said Act. As the learned judge exercised her powers to vary the arbitral award, the court could only proceed under s 42 of the said Act (see the decision of this court in Kerajaan Malaysia v Perwira Bintang Holdings Sdn Bhd [2015] 6 MLJ 126; [2015] 1 CLJ 617)”. (Emphasis added) [12] For purposes of my decision, I shall only focus on s.37(1)(a)(iv) and s.37(2)(b) AA 2005 as I find it is sufficient to dispose off the Plaintiff’s appeals without the need to deliberate on s.42 AA 2005. With regard to the s.37(1)(a)(iv) AA 2005 argument, it is necessary to reproduce the relevant portion of the Award of the Arbitrator (exh.LCS-2 at pp.99-101 Plaintiff’s Affidavit in Support) which reads as follows: “Examining the Pleadings to determining the Issues The role of pleadings in an arbitral proceeding is synonymous with the role it plays in the court. In order to determine if an arbitral tribunal has the jurisdiction to make an award in respect of a particular dispute it is necessary to refer to the pleaded case of each party to the arbitration and the issues of law and fact raised in the pleadings to see whether they encompass that dispute. (See PT Prime International Development v Kempinski Hotels SA [2012] 4 SLR 98 as summarized by Gerald Chien-Yi Kuppusamy in his paper The Role of Pleadings in determining an Arbitrator’s Mandate (2013) 25 SAcLJ at 331). It is clear from paragraphs 5 and 6 of the Claimant’s Statement of Claim that the Claimant’s cause of action is based entirely on the existence of the Collateral Agreement as pleaded in paragraph 5. Essentially the Claimant’s pleaded case is to “recoup and recover the balance sum of RM2,140,000.00 through subsequent award of contract for planning and design works pursuant to the Settlement Agreement”. The issue that this Arbitral Tribunal has to decide first and foremost is therefore whether the Collateral Agreement has been proved on a balance of probability. Whether the Pleadings disclosed a cause of action on Clause 4 per se A cursory reading of paragraph 6.2 of the pleadings by its use of the conjunction “and/or” tends to suggest that an alternative claim under Clause 4 per se may be intended. It may therefore be necessary for completeness to examine whether an alternative cause of action is also intended and if so, whether it is sufficient to sustain an action under Clause 4 per se – for an arbitral tribunal must confine its jurisdiction to the questions raised in the pleadings and is liable to have its award set aside if it exceeds its jurisdiction by deciding on questions not pleaded. (See Court of Appeal Singapore in Malayan Insurance Co Inc v Chek Brothers Construction Co. [1971-1973] SLR (R) 550.). A careful examination of the letter dated 18/07/2013, as stated in Paragraph 6.2 which led the Claimant to file this claim indicates clearly that its intention was to “recoup the amount of RM2,140,000.00” irrefutably pointing to a cause of action under the Collateral Agreement as pleaded and not under Clause 4 per se. Had it been the intention of the Claimant to plead an alternative cause of action based on Clause 4 per se, it has to plead the particulars of the breach under Clause 4 in clear terms independent of facts it relied on to support its claim under the Collateral Agreement. No such particulars of such a breach is pleaded, nor was there a submission on this point. Having scrutinized Paragraphs 6.2 and 6.3 of the Claimant’s Statement of Claim, it is clear that they do not raise an alternative cause of action based on the terms in Clause 4 of the Settlement Agreement. The Issues The issues that this Arbitral Tribunal has to decide will have to be confined to whether the Collateral Agreement as pleaded exists; and if it does, whether there is a breach of the Collateral Agreement as pleaded to enable an order of specific performance and/or damages to be granted to the Claimant”. [12.1] The learned Arbitrator made the following finding (exh.LCS-2 at p.108 Plaintiff’s Affidavit in Support) which reads as follows: “Finding It is clear that the Settlement Agreement settles all the disputes encountered by the Parties pertaining to the Purchase Agreement but left in its wake an entirely new one under Clause 4. However, the Claimant’s claim is not based on the Settlement Agreement under Clause 4 but on the Collateral Agreement which emanates from the Settlement Agreement and which this Arbitral Tribunal has found not to have existed. It follows therefore the Claimant’s claim for specific performance and or compensation in lieu as pleaded has to be disallowed with costs”. [13] In submission the Defendant argued - (i) the Court must be slow in invoking s.37 as the Court’s discretion is now limited to the narrowly defined circumstances citing Ajwa For Food Industries Co (MIGOP), Egypt v. Pacific Inter-Link Sdn Bhd & Another Appeal [2013] 2 CLJ 395(CA) at 404[13]; (ii) as to what constitutes “a dispute not contemplated by not falling within the terms of submission to arbitration” it means the arbitrator must not decide on a “new difference” which is irrelevant to the claim; “An arbitral tribunal has no jurisdiction to resolve disputes which have not been referred to it in the submission to arbitration” per Mohamad Ariff Yusof JCA in Kerajaan Malaysia v. Perwira Bintang Holdings Sdn Bhd [ 2015] 1 CLJ 617 at 626[22]; see also Government of the Lao People’s Democratic Republic v Thai-Lao Lignite Co Ltd (‘TLL’), a Thai Co & Anor [2013] 3 MLJ 409 at 423-424[32] and [33]; (iii) relying on the Arbitrator’s Award alluded to above, the Plaintiff’s argument is misconceived. [14] Giving heed to the principles of law in Ajwa For Food Industries Co (supra) and Ajwa For Food Industries Co (supra), with respect I disagreed with the Defendant that the learned Arbitrator did not decide on a “new difference” which is irrelevant to the claim. [14.1] Based on the Arbitrator’s Award which is reproduced in paras 12 and 12.1 above, I agreed with the Plaintiff’s submission that - (i) “the Arbitrator concluded that the Plaintiff did not raise an alternative cause of action based on the terms in Clause 4 of the Settlement Agreement and thus the Arbitrator had no jurisdiction to deal with the Plaintiff’s cause of action under the Settlement Agreement (“the Jurisdictional Issue”) and that the Arbitral Tribunal had to be confined to the issue of whether the Collateral Agreement as pleaded exists.”; (ii) the parties did not by way of pleadings or by way of submission raise or address on the jurisdictional issue; (iii) prior to the delivery of the decision on 7/6/2016, the learned Arbitrator did not at any point in time - “(a) alert or notify the parties that the Award would involve the Jurisdictional Issue; (b) invite the parties to address and submit on the Jurisdictional Issue; and/or (c) confer the parties any opportunity to address and submit on the Jurisdictional Issue.”; (iv) the jurisdictional issue was unilaterally raised and decided upon by the learned Arbitrator in the manner described in paras 12-12.1 and 14.1 (i) to (iii) above. [14.2] For the foregoing reasons, being mindful of the dicta of Hamid Sultan JCA at paras 29 and 30 and Prasad Abraham JCA in para 3 in Petronas Penapisan (Melaka) Sdn Bhd (supra) quoted in paras 10 and 11 above, I am of the view that the Award has dealt with a dispute not contemplated by or not falling within the terms of the submission to arbitration within the meaning of s.37(1)(a)(iv) AA 2005 which made it liable to be set aside. [14.3] An added reason why the Award is liable to be set aside is because the learned Arbitrator has acted contrary to the express terms of s.37(1)(b)(ii) AA 2005 read together with s.37(2)(b)(i) & (ii) of the same. [15] S.27(3) AA 2005 states - “(3) Where the decision on matters submitted to arbitration can be separated from those not so submitted, only that part of the award which contains decisions on matters not submitted to arbitration may be set aside”. [15.1] In the factual matrix of this case, since the jurisdictional issue is a matter expressly submitted to the learned Arbitrator for decision and thus not “matters not submitted to arbitration”, I agreed with the Plaintiff’s submission that the present case does not fall within the purview of s.37(3) and the only option left is for the Court to set aside the Award in its entirety. [16] Finally s.30(5) of the Limitation Act 1953 (relevant part) provides - “(5) Where the High Court orders that an award be set aside or orders, after the commencement of an arbitration, that the arbitration shall cease to have effect with respect to the dispute referred, the Court may further order that the period between the commencement of the arbitration and the date of the order of the Court shall be excluded in computing the time prescribed by this Act or any such written law as aforesaid for the commencement of proceedings (including arbitration) with respect to the dispute referred”. (Emphasis added) [16.1] I took into consideration the fact that the Plaintiff had initially commenced an action against the Defendant vide Civil Suit No: 22NCVC-16-01/2015 for the same claim, which suit upon the Defendant’s application, was stayed pending reference to arbitration vide Court Order dated 17/2/2015, pursuant to s.10 of AA 2005. Having regard to s.30(5) of the Limitation Act, I am of the view that it is only fair and reasonable that the period between 17/2/2015 and the date of the Court’s order of setting aside of the Award be excluded for the purposes of computation of limitation period. Conclusion [17] For the reasons given above I made the Order as stated in para 4 above. Dated: 21/10/2017 SGD. (LAU BEE LAN) Judge Counsel for the Plaintiff: Y.Bhg. Dato' Lee Chan Leong together with Cik Siew Ee Mei Messrs Chan Leong & Co. Advocates & Solicitors No. 3-4B, Jalan Anggerik Vanilla N 31/N Kota Kemuning, Seksyen 31 40460 Shah Alam Selangor Darul Ehsan Counsel for the Defendant: Encik K F Ee together with Cik Beatrice Lai Messrs K. F. Ee & Co. Advocates & Solicitors N-1-2, Pusat Perdagangan Kuchai Jalan 1/127, Off Jalan Kuchai Lama 58200 Kuala Lumpur 1 18	33,731	Tika 2.6.0
WA-24NCC(ARB)-24-07/2016	PLAINTIF Maxbury Communications Sdn Bhd DEFENDAN Huawei Technologies (Malaysia) Sdn Bhd	null	21/10/2017	YA DATUK LAU BEE LAN	https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=29dabdf0-375c-499e-b0d0-1f5de06383ac&Inline=true	DALAM MAHKAMAH TINGGI MALAYA DI KUALA LUMPUR DALAM MAHKAMAH TINGGI MALAYA DI KUALA LUMPUR (BAHAGIAN DAGANG) SAMAN PEMULA NO: WA-24NCC(ARB)-24-07/2016 Dalam perkara mengenai satu timbangtara di antara Maxbury Communications Sdn Bhd (898817-K) (Pihak Tuntut) dan Huawei Technologies (Malaysia) Sdn Bhd (545949-D) (Responden) (“Timbangtara tersebut”); dan Dalam perkara mengenai satu awad yang telah diterbitkan oleh Penimbangtara tersebut dalam Timbangtara tersebut dan dianggap sebagai diterima oleh Plaintif pada 10/06/2016 (“Awad tersebut”); dan Dalam perkara mengenai Seksyen-Seksyen 8, 37, 42 dan 50 Akta Timbangtara 2005; dan Dalam perkara mengenai Aturan-Aturan 7, 28 dan 69 Kaedah-Kaedah Mahkamah 2012 ANTARA MAXBURY COMMUNICATIONS SDN BHD … PLAINTIF (No. Syarikat : 898817-K) DAN HUAWEI TECHNOLOGIES (MALAYSIA) SDN BHD … DEFENDAN (No. Syarikat: 545949-D) GROUNDS OF DECISION [1] Vide an Originating Summons dated 18/7/2016(encl.1), the Plaintiff is seeking to set aside, in whole or in part (as the case may be), an award published by the Arbitrator and deemed in receipt by the Plaintiff on 10/6/2016 (‘the Award’) in the arbitration between the Plaintiff (as Claimant therein) and the Defendant (as Respondent therein) (‘the Arbitration’) pursuant to s.37 and/or s.42 of the Arbitration Act 2005 (‘AA 2005’) (prayer 1). [2] In compliance with O.69 r.4(1) of the Rules of Court 2012 (‘ROC 2012’), the remedy claimed in the Originating Summons is that the Award be set aside, in whole or in part as the case may be and the questions on which the Plaintiff seeks the decision of the Court are - “(i) Whether the Arbitrator could decline jurisdiction to decide and render award on the issue of breach of an agreement that had been expressly pleaded and submitted by the parties before him on the ground that he lacked jurisdiction to decide on same? (ii) Whether the terms of the collateral agreement must be stated expressly or in words of similar effect in the written agreement itself in the first place before the Arbitrator could find the existence of a collateral agreement? (iii) In considering the Plaintiff’s contention as to the existence of a collateral agreement, whether the Arbitrator could make reference to and reliance upon an written agreement, which the Arbitrator had earlier on already ruled to be not part of the Plaintiff’s claim, and use it against the Plaintiff? (iv) Whether the Arbitrator could rule a written agreement that was in itself expressly made subject to other qualifying terms and clauses as sufficiently clear and unambiguous? (v) Whether the Arbitrator could rule out any proposed explanatory terms that constituted the most reasonable and acceptable interpretation of a written agreement on the ground that it was clear and unambiguous when such agreement was not so in itself? (vi) Whether the terms of a collateral agreement, which constituted the most reasonable and acceptable interpretation of a written agreement that was unclear and ambiguous, can be considered as in conflict with such written agreement? (vii) Whether the fact that the terms of a collateral agreement might be in conflict with that of a written agreement ipso facto renders such collateral agreement invalid and unenforceable? (viii) Whether the fact that a written agreement was given for inadequate consideration ipso facto renders a collateral agreement invalid and unenforceable? (ix) Whether the maxim “in claris non fit interpretatio” meaning ‘clear rules do not require interpretation’ applies when the terms of a written agreement are on the face of it unclear and ambiguous? (x) Whether the Arbitrator could consider terms of a written agreement as sufficiently clear and unambiguous when it concurrently found that the very same agreement left in its wake an entirely new clause touching upon and governing the very same subject matter that such written agreement was seeking to deal with?”. [3] The grounds in support of the setting aside of the Award are - “(i) the Award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration within the meaning of s.37(1)(iv)(sic) of the Arbitration Act 2005; (ii) the Award is in conflict with the public policy of Malaysia where a breach of the rules of natural justice occurred during the arbitral proceedings or in connection with the making of the award within the meaning of s.37(2)(b) of the Arbitration Act 2005; (iii) there are questions of law arising out of the Award that merits the consideration of this [Court] under s.42 of the Arbitration Act 2005, which if decided in favour of the Plaintiff, would render the Award to be set aside, in whole or in part; and/or (iv) as a result those questions of law arising out of the Award referred to herein above not being correctly decided in favour of the Plaintiff, the Plaintiff had suffered prejudice or injustice and its rights and interest had been substantially and adversely affected”. [4] Having considered the Written cum oral Submissions of both Counsel for the Plaintiff and Defendant, I granted prayer 1 of the Plaintiff’s Originating Summons pursuant to s.37(1)(a)(iv) and s.37(2)(b) AA 2005. I further ordered pursuant to s.30(5) of the Limitation Act 1953 (‘Limitation Act’), the period between 17/2/2015 and 8/3/2017 (the date of the Court’s order setting aside the Award), be excluded for the purposes of computation of the limitation period under the Limitation Act. The Defendant has appealed. Herein below are the reasons for my decision. Findings [5] The background facts relevant to the Defendant’s application are these. [5.1] In the arbitral proceedings, the Plaintiff was claiming against the Defendant, amongst others, for specific performance of the Settlement Agreement; alternatively damages in the sum of RM2,140,000.00 in lieu of specific performance or damages to be assessed by the arbitral tribunal. [5.2] The nature of the dispute between the parties in relation to the Settlement Agreement was contractual in nature. The Plaintiff had initially commenced action in Kuala Lumpur High Court vide Civil Suit No:22NCVC-16-01/2015 for the same claim, which action was pending reference to arbitration. [5.3] By a Purchase Agreement for Maxis NGBB NDC Project dated 18/8/2010 entered into between the Plaintiff and the Defendant (‘the Services Agreement’) (exh.LCS-12, Affidavit in Support affirmed by Lee Choon Seng on 14/7/2016 (‘Plaintiff’s AIS’), the Defendant had engaged the services of the Plaintiff to carry out and conduct the works relating to “Policy & Procedure, Technical Overview, Demand Study and Fundamental Planning” (‘the Works’ collectively) in respect of the Defendant’s provision of a new generation broadband project in Malaysia (‘the Project’) to the Defendant’s customer, Maxis Broadband Sdn Bhd. [5.4] Pursuant to cl.1 of the Services Agreement, both parties had agreed that the payment for the Works done was to be calculated as follows: No. Description of Work Quantity Unit Unit price (RM) 1. Policy & Procedure 1 Lump sum 229,000.00 2. Technical Overview 1 Lump sum 225,000.00 3. Demand Study 1 Lump sum 540,000.00 4. Fundamental Planning 32 OLTs Per OLT 55,000.00 (Klang Valley) 60,000.00 (outside Klang Valley) [5.5] Payment for the Works under items 1-3 of the Table above in the sum of RM994,000.00 has been duly paid by the Defendant as is evident from the Purchase Order No.1031015121 issued by the Defendant (p.128 Plaintiff’s AIS). [5.6] In respect of item 4, Fundamental Planning Works, of the Table above, the Defendant made payment for 32 OLTs amounting to RM1,770,000.00 as is evident from the Purchase Orders No. 1031015251, 1031019126 and 103109127 issued by the Defendant (pp.129-131 Plaintiff’s AIS). [5.7] The Defendant disputed the additional 60 OLTs submitted by the Plaintiff to the Defendant. The parties entered into mutual consultation. It is not disputed that at the initiation and arrangement of the Head of Maxis NGBB Project, Mr. Jasbir Singh, a meeting was held on 10/6/2011 (at Porto Romano restaurant, Kuala Lumpur) attended by representatives from both sides namely, (i) Mr. Jasbir Singh, (ii) Mr. Werner Geisert (Defendant’s Project Director), Mr. Sun Xi Wei (Senior Officer from Defendant’s Headquarters in China), Encik Ahmad Azam Mohd Salleh and Mr. Lee Choon Seng (Plaintiff’s directors). The Defendant did not dispute - (a) the Plaintiffs’ directors requested Mr. Werner Geisert and Mr. Sun Xi Wei to officially write to the Plaintiff regarding the proposed terms of settlement; (b) Miss Wong May Ann, Mr. Werner Geisert’s assistant had sent an email to Encik Ahmad Azam Mohd Salleh on 8/8/2011 (exh.LCS-14, Plaintiff’s Affidavit in Support); and (c) the execution of the Settlement Agreement dated 26/9/2011 between the Plaintiff and the Defendant (exh.LCS-1, Plaintiff’s AIS). [5.8] However the parties disagreed as to what was communicated at the meeting as can be seen in paras 6 and 7 below. Rival contentions of parties [6] The Plaintiff’s position is it was the clear understanding and intention of parties that - (i) The Plaintiff shall be paid for the additional 60 OLTs, which translated into an additional sum of RM3,340,000.00, and that the said sum of RM3,340,000.00 shall be settled or satisfied in the following manner i.e. - (a) a sum of RM1,200,000.00 to be paid after an official written copy of the settlement agreement being signed; and (b) the balance sum of RM2,140,000.00 to be recouped and recovered through the subsequent award of contract for planning and design works by the Defendant to the Plaintiff. (ii) But for the representation and assurance by Mr. Werner Geisert and Mr. Sun Xi Wei whereby the Plaintiff will be able to recoup and recover the balance sum of RM2,140,000.00 through the subsequent award of contract for planning and design works by the Defendant, the Plaintiff would not have entered into and signed the Settlement Agreement and the Plaintiff had so acted upon the representation and assurance to its disadvantage or detriment. Premised on this factor, the Plaintiff additionally pursued a case of collateral agreement between the parties to the Settlement Agreement in the High Court and the arbitration proceedings. (iii) The Plaintiff contended the Defendant breached the terms of the Settlement Agreement despite 2 reminder letters dated 18/9/2013 and 12/2/2014 to the Defendant of their commitment as per clause 4 of the Settlement Agreement and/or the Collateral Agreement (exh.LCS-15 Plaintiff’s Affidavit in Support). (iv) Relying on the promise from Mr. Werner Geisert and Mr. Sun Xi Wei, the Plaintiff on 15/7/2011 released and handed over to the Defendant the full set of the relevant and soft copy of the 92 OLTs (exh.LCS-13, Plaintiff’s Affidavit in Support). [7] In opposing the Plaintiff’s position, the Defendant took the stand - (i) The Defendant denied that the terms of the Settlement Agreement imposed any obligation or liability on the part of the Defendant to pay the additional/balance sum of RM2,140,000.00 since the payment of RM1,200,000.00 by the Defendant to the Plaintiff shall be full and final settlement of all liabilities, payments and obligations of the Defendant to the Plaintiff based on clauses 2 and 3 of the Settlement Agreement. (ii) “[T]he issue in respect of the payment of RM2,140,000.00 will only arise if the Plaintiff offers services for planning and design of fiber optic cable network to the Defendant in the Asia Pacific Region in accordance with Clause 4(i) of the Settlement Agreement; At all material time, there were no other services or projects in respect of the planning and design of fiber optic cable networks offered by the Plaintiff to the Defendant; If at all there were services or projects offered by the Plaintiff to the Defendant in respect of the planning and design of fiber optic cable networks (which is vehemently denied) the services or projects are still subject to the Defendant’s approval in accordance with the Defendant’s evaluation of its standard procurement process”. (iii) The Defendant contended clause 4(i) of the Settlement Agreement was redundant and not applicable to the Plaintiff’s claim as there are no further services of projects offered by the Plaintiff to the Defendant or alternatively, after the execution of the Settlement Agreement, there was no job, contract or planning and design works available. (iv) The Defendant denied any representations were made by the Defendant to the Plaintiff and the issues of the existence of collateral agreement did not exist and any representations to the Plaintiff, if made had been superseded and no longer applicable. (v) The Plaintiff’s act of releasing the 92 OLTs was a voluntary act. (vi) The Defendant denied receipt of the 2 reminder letters. [8] Before I delve into the merits of the Plaintiff’s application, it will be useful to refer to the applicable law. S.37 AA 2005, in particular s.37(1)(a)(iv), s.37(1)(b)(ii), provides - “37. Application for setting aside (1) An award may be set aside by the High Court only if - (a) the party to the arbitration agreement provides proof that - (i) a party to the arbitration agreement was under any incapacity; (ii) the arbitration agreement is not valid under the law to which the parties have subjected it, or, failing any indication thereon, under the laws of the State where the award was made. (iii) the party making the application was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present that party’s case; (iv) the award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration; (v) subject to subsection (3), the award contains decisions on matters beyond the scope of the submission to arbitration; (vi) the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties, unless such agreement was in conflict with a provision of this Act from which the parties cannot derogate, or, failing such agreement, was not in accordance with this Act; or (b) if the High Court finds that - (i) the subject-matter of the dispute is not capable of settlement by arbitration under the laws of Malaysia; or (ii) the award is in conflict with the public policy of Malaysia.” (Emphasis added) [8.1] S.37(1)(b)(ii) AA 2005 has to be read together with s.37(2) (b)(i)&(ii) of the same which reads - “(2) Without limiting the generality of subparagraph (1)(b)(ii), an award is in conflict with the public policy of Malaysia where - (a) the making of the award was induced or affected by fraud or corruption; or (b) a breach of the rules of natural justice occurred - (i) during the arbitral proceedings; or (ii) in connection with the making of the award”. [9] In a recent case of Petronas Penapisan (Melaka) Sdn Bhd v Ahmani Sdn Bhd [2016] 2 MLJ 697, the Court of Appeal dismissed the appeal. The facts of the case have been summarised by the editors of MLJ at pp.697- 698 as follows: “The appellant had engaged the respondent to carry out a warehouse extension project. After the respondent had completed 70% of the work, the appellant terminated the contract and appointed third-party contractors to complete the remaining 30%. When the parties arbitrated their dispute over the termination, the appellant counterclaimed for RM357,419.80 it had allegedly incurred in completing the balance of works left unfinished by the respondent. The arbitral tribunal (‘the tribunal’) found the appellant had acted reasonably and fairly in terminating the contract and had the right to appoint third-party contractors to complete the remaining 30% of the project. However, since there was lack of evidence to prove the amount that was paid to the third-party contractors, and since it was undisputed that the balance 30% of the contract price was RM260,470.20, the tribunal decided it was fair to award the appellant the said contract price plus 20% of that figure for ‘inflation’ making the total RM312,564.24. The respondent applied to the High Court pursuant to ss 37 and 42 of the Arbitration Act 2005 (‘the Act’) to challenge the tribunal’s award contending that the issue of ‘inflation’ decided upon by the tribunal was never pleaded or claimed or raised by the parties at any time nor was it one the tribunal had called upon the parties to address. Accordingly, the respondent contended, the tribunal had acted beyond its jurisdiction and breached the rules of natural justice. The respondent contended that the award contravened ss 37(1)(a)(iv) and 37(1)(b) of the Act and raised valid questions of law under s 42 of that Act. The High Court set aside the tribunal’s decision on the counterclaim holding that as there was no proof to support the counterclaim, the tribunal should have dismissed it and not proceeded on its own accord to determine what was a ‘fair amount’ to be awarded. The High Court held that as the respondent sought to set aside only that part of the award relating to the counterclaim, it had wrongly invoked s 37(1)(a)(iv), instead of s 37(1)(a)(v) of the Act. As to the challenge under s 42 of the Act, the High Court held that only two out of the four questions of law raised were real, proper and valid. As the tribunal failed to explain where it sourced the factor of ‘inflation’ or the value of that factor and also failed to invite the parties to address the tribunal on that issue, it had exceeded the limits of its jurisdiction and breached the rules of fair play and natural justice resulting in an unlawful and unconscionable decision that required the court’s intervention. The appellant’s instant appeal was against the quantum of its counterclaim. There was no appeal by the respondent”. [10] In an instructive judgment impinging on ss.37 and 42 of the AA 2005, His Lordship Hamid Sultan JCA in a supporting judgment at 713 [28] and [29], 715[30] and [31] and 716[33] and [34], held - “[28] In challenging an award related to domestic arbitration it has now become a common practice to file the application under ss 37 as well as 42. There are case laws to support such an approach. However, for proper management of issues under ss 37 and 42, the application must be separately dealt with as the jurisprudence involved in dealing with the applications varies. I will explain this further in the judgment. [29] An application to set aside an award under s 37 largely deals with issues relating to the award making process and has nothing to do with error of facts and/or law on the face of record unless the exception applies; such as public policy. An application under s 42 has nothing to do with the award making process but has everything to do with the award per se and error of law on the face of record which error substantially affects the rights of one or more of the parties. The distinction between ss 37 and 42 is that like of an apple and an orange. Sections 37 and 42 read as follows: … [30] For example, in this case the complaint by one of the parties was that the learned arbitrators when dealing with damages proceeded on the frolic of their own without inviting submission and awarded damages. Such a breach will not fall under s 42 of the AA 2005 but will fall under s 37(1)(a)(iv) and/or (v), etc, as the complaint is that the affected party was unable to present the case and it may follow that the award contains decisions on matters beyond the scope of submission to the arbitration or breach of natural justice, etc. [31] The threshold to satisfy under s 37 is very low (though the courts are slow in setting aside the award) and upon proof if successful, the court has an option to send back the matter to the arbitral tribunal to eliminate the grounds for setting aside, as set out in s 37(6). This was not done in this case. To put it in another way when a party to the arbitration complains of breach related to s 37(1)(a)(iv) and/or (v) etc, he must invite the courts attention to s 37(6) and cannot rely on s 42 as it will be an abuse of process, as he is relying on omission or excess of jurisdiction which is covered under s 37 and not s 42 of the AA 2005. [32] In addition, once the applicant had chosen to rely on s 37 grounds as stated earlier that will mitigate a no-case under s 42. I do not think it will be a proper exercise of judicial power to entertain an application under s 42 when the applicant is relying on the same facts as advocated for a s 37 application. In my considered view, a trial court ought not to entertain an application under s 42 at all. I will explain this further. [33] The threshold to satisfy s 42 requirements is very high and I will say in consequence of case laws, it is extremely high. That is to say, if a party cannot succeed under s 37, on the same facts and complaint the general jurisprudence will dictate an application under s 42 will be futile as s 37 relates to arbitral process and s 42 relates to arbitral award. [34] Before the trial court hears an application under s 42, it must take cognisance of some well established principles, which the court has considered under ss 23 and 24 of the Arbitration Act 1952 under the old regime as well as the new regime which advocates court should not readily intervene in arbitration award unless there is a patent injustice”. (Emphasis added) [11] In the same case, His Lordship Prasad Abraham JCA (delivering the judgment of the Court), on the exercise of power under s.37 AA 2005, opined at 701-702 [2], [3] and [4] as follows: “[2] In dealing with the defendant’s counterclaim, the arbitral tribunal in this case found the defendant was not entitled to recover any loss or damages arising from the termination of the contract. The arbitral tribunal found absence of evidence to support its counterclaim. The arbitral tribunal then went on to say that it would proceed to use the factor of inflation set at 20% being a reasonable sum and the arbitral tribunal proceeded to find on the following basis. The balance of 30% of the contract price RM260,470.20 add 20% inflation RM52,094.04 = RM312,564.24. [3] This issue was not brought up by the parties nor were the parties alerted to it nor invited to address that point and therefore the award in our view contains decisions on matters beyond the scope of the submission to arbitration in breach of ss 37(1)(a)(v) and 37(1)(b) of the Arbitration Act 2005 (‘the Act’) and raises question of law under s 42 of the said Act. [4] The learned judge dealt fairly exhaustively and methodically the challenge mounted by the plaintiff in particular relation to ss 37 and 42 of the said Act. Section 34 (art 34(1) of the Model Law) which allows recourse to court against an arbitral award may only be made by an application to set aside the same. We agree with the learned judge that s 37(1)(a)(v) would constitute the relevant provision to apply in the light of the challenge being mounted by plaintiff. It is our view that s 37 only allows the court to set aside the award save for the limited exception under s 37(3) of the said Act. As the learned judge exercised her powers to vary the arbitral award, the court could only proceed under s 42 of the said Act (see the decision of this court in Kerajaan Malaysia v Perwira Bintang Holdings Sdn Bhd [2015] 6 MLJ 126; [2015] 1 CLJ 617)”. (Emphasis added) [12] For purposes of my decision, I shall only focus on s.37(1)(a)(iv) and s.37(2)(b) AA 2005 as I find it is sufficient to dispose off the Plaintiff’s appeals without the need to deliberate on s.42 AA 2005. With regard to the s.37(1)(a)(iv) AA 2005 argument, it is necessary to reproduce the relevant portion of the Award of the Arbitrator (exh.LCS-2 at pp.99-101 Plaintiff’s Affidavit in Support) which reads as follows: “Examining the Pleadings to determining the Issues The role of pleadings in an arbitral proceeding is synonymous with the role it plays in the court. In order to determine if an arbitral tribunal has the jurisdiction to make an award in respect of a particular dispute it is necessary to refer to the pleaded case of each party to the arbitration and the issues of law and fact raised in the pleadings to see whether they encompass that dispute. (See PT Prime International Development v Kempinski Hotels SA [2012] 4 SLR 98 as summarized by Gerald Chien-Yi Kuppusamy in his paper The Role of Pleadings in determining an Arbitrator’s Mandate (2013) 25 SAcLJ at 331). It is clear from paragraphs 5 and 6 of the Claimant’s Statement of Claim that the Claimant’s cause of action is based entirely on the existence of the Collateral Agreement as pleaded in paragraph 5. Essentially the Claimant’s pleaded case is to “recoup and recover the balance sum of RM2,140,000.00 through subsequent award of contract for planning and design works pursuant to the Settlement Agreement”. The issue that this Arbitral Tribunal has to decide first and foremost is therefore whether the Collateral Agreement has been proved on a balance of probability. Whether the Pleadings disclosed a cause of action on Clause 4 per se A cursory reading of paragraph 6.2 of the pleadings by its use of the conjunction “and/or” tends to suggest that an alternative claim under Clause 4 per se may be intended. It may therefore be necessary for completeness to examine whether an alternative cause of action is also intended and if so, whether it is sufficient to sustain an action under Clause 4 per se – for an arbitral tribunal must confine its jurisdiction to the questions raised in the pleadings and is liable to have its award set aside if it exceeds its jurisdiction by deciding on questions not pleaded. (See Court of Appeal Singapore in Malayan Insurance Co Inc v Chek Brothers Construction Co. [1971-1973] SLR (R) 550.). A careful examination of the letter dated 18/07/2013, as stated in Paragraph 6.2 which led the Claimant to file this claim indicates clearly that its intention was to “recoup the amount of RM2,140,000.00” irrefutably pointing to a cause of action under the Collateral Agreement as pleaded and not under Clause 4 per se. Had it been the intention of the Claimant to plead an alternative cause of action based on Clause 4 per se, it has to plead the particulars of the breach under Clause 4 in clear terms independent of facts it relied on to support its claim under the Collateral Agreement. No such particulars of such a breach is pleaded, nor was there a submission on this point. Having scrutinized Paragraphs 6.2 and 6.3 of the Claimant’s Statement of Claim, it is clear that they do not raise an alternative cause of action based on the terms in Clause 4 of the Settlement Agreement. The Issues The issues that this Arbitral Tribunal has to decide will have to be confined to whether the Collateral Agreement as pleaded exists; and if it does, whether there is a breach of the Collateral Agreement as pleaded to enable an order of specific performance and/or damages to be granted to the Claimant”. [12.1] The learned Arbitrator made the following finding (exh.LCS-2 at p.108 Plaintiff’s Affidavit in Support) which reads as follows: “Finding It is clear that the Settlement Agreement settles all the disputes encountered by the Parties pertaining to the Purchase Agreement but left in its wake an entirely new one under Clause 4. However, the Claimant’s claim is not based on the Settlement Agreement under Clause 4 but on the Collateral Agreement which emanates from the Settlement Agreement and which this Arbitral Tribunal has found not to have existed. It follows therefore the Claimant’s claim for specific performance and or compensation in lieu as pleaded has to be disallowed with costs”. [13] In submission the Defendant argued - (i) the Court must be slow in invoking s.37 as the Court’s discretion is now limited to the narrowly defined circumstances citing Ajwa For Food Industries Co (MIGOP), Egypt v. Pacific Inter-Link Sdn Bhd & Another Appeal [2013] 2 CLJ 395(CA) at 404[13]; (ii) as to what constitutes “a dispute not contemplated by not falling within the terms of submission to arbitration” it means the arbitrator must not decide on a “new difference” which is irrelevant to the claim; “An arbitral tribunal has no jurisdiction to resolve disputes which have not been referred to it in the submission to arbitration” per Mohamad Ariff Yusof JCA in Kerajaan Malaysia v. Perwira Bintang Holdings Sdn Bhd [ 2015] 1 CLJ 617 at 626[22]; see also Government of the Lao People’s Democratic Republic v Thai-Lao Lignite Co Ltd (‘TLL’), a Thai Co & Anor [2013] 3 MLJ 409 at 423-424[32] and [33]; (iii) relying on the Arbitrator’s Award alluded to above, the Plaintiff’s argument is misconceived. [14] Giving heed to the principles of law in Ajwa For Food Industries Co (supra) and Ajwa For Food Industries Co (supra), with respect I disagreed with the Defendant that the learned Arbitrator did not decide on a “new difference” which is irrelevant to the claim. [14.1] Based on the Arbitrator’s Award which is reproduced in paras 12 and 12.1 above, I agreed with the Plaintiff’s submission that - (i) “the Arbitrator concluded that the Plaintiff did not raise an alternative cause of action based on the terms in Clause 4 of the Settlement Agreement and thus the Arbitrator had no jurisdiction to deal with the Plaintiff’s cause of action under the Settlement Agreement (“the Jurisdictional Issue”) and that the Arbitral Tribunal had to be confined to the issue of whether the Collateral Agreement as pleaded exists.”; (ii) the parties did not by way of pleadings or by way of submission raise or address on the jurisdictional issue; (iii) prior to the delivery of the decision on 7/6/2016, the learned Arbitrator did not at any point in time - “(a) alert or notify the parties that the Award would involve the Jurisdictional Issue; (b) invite the parties to address and submit on the Jurisdictional Issue; and/or (c) confer the parties any opportunity to address and submit on the Jurisdictional Issue.”; (iv) the jurisdictional issue was unilaterally raised and decided upon by the learned Arbitrator in the manner described in paras 12-12.1 and 14.1 (i) to (iii) above. [14.2] For the foregoing reasons, being mindful of the dicta of Hamid Sultan JCA at paras 29 and 30 and Prasad Abraham JCA in para 3 in Petronas Penapisan (Melaka) Sdn Bhd (supra) quoted in paras 10 and 11 above, I am of the view that the Award has dealt with a dispute not contemplated by or not falling within the terms of the submission to arbitration within the meaning of s.37(1)(a)(iv) AA 2005 which made it liable to be set aside. [14.3] An added reason why the Award is liable to be set aside is because the learned Arbitrator has acted contrary to the express terms of s.37(1)(b)(ii) AA 2005 read together with s.37(2)(b)(i) & (ii) of the same. [15] S.27(3) AA 2005 states - “(3) Where the decision on matters submitted to arbitration can be separated from those not so submitted, only that part of the award which contains decisions on matters not submitted to arbitration may be set aside”. [15.1] In the factual matrix of this case, since the jurisdictional issue is a matter expressly submitted to the learned Arbitrator for decision and thus not “matters not submitted to arbitration”, I agreed with the Plaintiff’s submission that the present case does not fall within the purview of s.37(3) and the only option left is for the Court to set aside the Award in its entirety. [16] Finally s.30(5) of the Limitation Act 1953 (relevant part) provides - “(5) Where the High Court orders that an award be set aside or orders, after the commencement of an arbitration, that the arbitration shall cease to have effect with respect to the dispute referred, the Court may further order that the period between the commencement of the arbitration and the date of the order of the Court shall be excluded in computing the time prescribed by this Act or any such written law as aforesaid for the commencement of proceedings (including arbitration) with respect to the dispute referred”. (Emphasis added) [16.1] I took into consideration the fact that the Plaintiff had initially commenced an action against the Defendant vide Civil Suit No: 22NCVC-16-01/2015 for the same claim, which suit upon the Defendant’s application, was stayed pending reference to arbitration vide Court Order dated 17/2/2015, pursuant to s.10 of AA 2005. Having regard to s.30(5) of the Limitation Act, I am of the view that it is only fair and reasonable that the period between 17/2/2015 and the date of the Court’s order of setting aside of the Award be excluded for the purposes of computation of limitation period. Conclusion [17] For the reasons given above I made the Order as stated in para 4 above. Dated: 21/10/2017 SGD. (LAU BEE LAN) Judge Counsel for the Plaintiff: Y.Bhg. Dato' Lee Chan Leong together with Cik Siew Ee Mei Messrs Chan Leong & Co. Advocates & Solicitors No. 3-4B, Jalan Anggerik Vanilla N 31/N Kota Kemuning, Seksyen 31 40460 Shah Alam Selangor Darul Ehsan Counsel for the Defendant: Encik K F Ee together with Cik Beatrice Lai Messrs K. F. Ee & Co. Advocates & Solicitors N-1-2, Pusat Perdagangan Kuchai Jalan 1/127, Off Jalan Kuchai Lama 58200 Kuala Lumpur 1 18	33,731	Tika 2.6.0
24-576-05/2015	PLAINTIF 1.CATHERINE KOO [United Kingdom Passport No. 528543713] 2.EDWARD HAO-MANG KOO [United States of America Passport No. 453907724] 3.ALEXANDER HAO-NAN KOO [NRIC No.: 641222-71-5301] DEFENDAN 1.KOO LIN SHEN [NRIC No.: 210219-71-5269] 2.CHARLES KOO HO-TUNG [UK Pasport No.: 7612278793] 3.ANGELA KOO CHI-FONG [UK Pasport No.:511077870] 4.LYDIA KOO CHEE YUNG [UK Pasport No.:510909424] (suing on behalf of herself and the beneficiaries of the estate of Koo Ling Ching, deceased) 5.HSBC INTERNATIONAL TRUSTEE LIMITED (Company No: 1168) (Administrator of the estate of Koo Ling Ching) 6.MALAYA ACID WORKS SDN BHD (Company No: 3202-D) 7.MALAYA ACID WORKS (ALUM) SDN BHD (Company No: 5734-H) 8.KOO HO-TUNG, CHARLES [UK Passport No.: 7612278793] 9.KOO CHI-FONG, ANGELA [UK Passport No.:511077870] 10.KOO CHEE YUNG, LYDIA [UK Passport No.:510909424] 11.KOO HO LIANG, HENRY [UK Passport No: 7612751284]	null	20/10/2017	YA DATUK AZIMAH BINTI OMAR	https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=21297274-0903-4f28-a3f4-b949686c603b&Inline=true	1 IN THE HIGH COURT OF MALAYA AT SHAH ALAM IN THE STATE OF SELANGOR DARUL EHSAN, MALAYSIA ORIGINATING SUMMONS NO: 24-576-05/2015 In the matter of Koo Lin Shen (NRIC No. : 210219-71-5269; And In the matters of Sections 2, 51, 52, 53, 54, 55, 56, 57, 58, 59, 62, 63 and 64 Mental Health Act, 2001; And In the matters of Orders 7 and 29 of the Rules of Court, 2012; BETWEEN 1.CATHERINE KOO [United Kingdom Passport No. 528543713] 2.EDWARD HAO-MANG KOO [United States of America Passport No. 453907724] 3.ALEXANDER HAO-NAN KOO [NRIC No.: 641222-71-5301] …PLAINTIFFS 2 AND 1.KOO LIN SHEN [NRIC No.: 210219-71-5269] 2.CHARLES KOO HO-TUNG [UK Pasport No.: 7612278793] 3.ANGELA KOO CHI-FONG [UK Pasport No.:511077870] 4.LYDIA KOO CHEE YUNG [UK Pasport No.:510909424] (suing on behalf of herself and the beneficiaries of the estate of Koo Ling Ching, deceased) 5.HSBC INTERNATIONAL TRUSTEE LIMITED (Company No: 1168) (Administrator of the estate of Koo Ling Ching) 6.MALAYA ACID WORKS SDN BHD (Company No: 3202-D) 7.MALAYA ACID WORKS (ALUM) SDN BHD (Company No: 5734-H) 8.KOO HO-TUNG, CHARLES [UK Passport No.: 7612278793] 9.KOO CHI-FONG, ANGELA [UK Passport No.:511077870] 10.KOO CHEE YUNG, LYDIA [UK Passport No.:510909424] 11.KOO HO LIANG, HENRY [UK Passport No: 7612751284] … DEFENDANTS 3 GROUNDS OF JUDGMENT {Enclosures 71 – The Plaintiff’s application to erase/delete involvement of parties (2nd to the 11th Defendants) in previous proceedings which has been disposed of} A. INTRODUCTION [1] This case essentially revolves around the mental capacity of a man by the name of Koo Lin Shen (the original Defendant) (“KLS”) in managing his affairs, business and companies. [2] The Plaintiffs (Catherine Khoo, Edward Hao-Mang Koo and Alexander Hoa-Nan Koo) are Koo Lin Shen’s children. The Plaintiffs had moved this Court under Sections 2, 51 to 59, 62, 63 and 64 of the Mental Health Act 2001 (MHA 2001) seeking inter alia for the following orders: i. An inquiry be held to determine whether the Defendant is mentally disordered and is incapable of managing himself and his affairs due to such mental disorder; ii. The Defendant is mentally disordered and due to his mental disorder, incapable of managing himself and/or his affairs or otherwise; 4 iii. In the event the Defendant is found to be mentally disordered and incapable of managing himself and/or his affairs due to his mental disorder:- (a) A committee of the Defendant and/or the estate of the Defendant comprising of the Plaintiffs (“Committee”) be appointed on the following terms:- (i) The Committee is not entitled to any remuneration, unless otherwise ordered by the Court; (ii) The Committee is not required to give any security, unless otherwise ordered by the Court; (iii)The Committee be authorized to conduct the legal proceedings (including making a claim, defending, making a counterclaim, intervening in any proceedings, appearing in any proceedings, appealing against any decisions and/or opposing any appeals against any decisions) as set out in Annexure A in herein in the name of the Defendant and/or on his behalf; (iv) The Committee shall have all powers for the management of the estate of the Defendant; (v) The Committee shall be entitled to exercise all voting rights of the Defendant in relation to the shares of private limited 5 companies held by the Defendant as set out in Annexure B herein; [3] The Plaintiffs had initially filed their Originating Summons (Enclosure 1) dated 13.5.2015 on the basis of an Ex Parte application wherein together with the Ex Parte Originating Summons, the Plaintiffs had filed a certificate of urgency applying for an early date of hearing of Enclosure 1 citing Koo Lin Shen’s continuous deteriorating mental condition. [4] In view of the certificate of urgency filed, this Court had fixed Enclosure 1 for hearing on the 26.5.2015. [5] On 26.5.2015 this Court had granted prayer 1 of the Enclosure 1 that an inquiry be held to determine the state of Koo Lin Shen’s mental capacity. This Court had also ordered that Koo Li Shen be examined by an independent psychiatrist other than Dr Subash Kumar Pillai (Dr Subash), an Associate Professor and Consultant Psychiatrist from the University of Malaya who was attending to Koo Lin Shen’s health issues since 2013. The independent psychiatrist intended to be appointed must also be from a different hospital other than the University of Malaya Hospital. The matter 6 was then fixed for mention on 16.6.2015 pending examination by the independent psychiatrist on Koo Li Shen. [6] However, two months later, on the ground that they have legal and legitimate interest in the outcome of the Plaintiffs’ proceedings, being counter parties to several legal proceedings with KLS himself, the Plaintiffs and companies associated with KLS as well as the 2nd to the 11th Defendants had filed three (3) separate applications (Enclosures 29, 31 and Enclosure 37) to intervene the proceedings. In their applications to intervene the proceedings, the proposed interveners have also applied that this Court to determine the time or period of the onset of the decline in KLS’s mental state. The proposed interveners also sought for an order that their consultant psychiatrist in NeuroBehavioral Medicine from Penang Adventist Hospital Dr. Prem Kumar Chandrasekaran (Dr Prem Kumar) to review and provide his specialist’s views on KLS based on the various medical reports, any relevant documents including MRA/MRIs that may be available or which have been produced by the Plaintiffs. [7] The proposed interveners also sought for an order that based on Dr Prem Kumar’s advice, KLS be directed to attend before Dr 7 Prem Kumar for examination and evaluation to determine his mental state and the onset of his condition. [8] Subsequently the 2nd to the 11th Defendants {Charles Koo Ho Tung, Lydia Koo Chee Yung & Angela Koo Chi-Fong suing on behalf of herself and the beneficiaries of the estate of Koo Ling Ching, Deceased), HSBC International Trustee Limited (Company No: 1168 (Administrator Of The Estate Of Koo Ling Ching), Malaya Acid Works Sdn Bhd (Company No: 3202-D), Malaya Acid Works (Alum) Sdn Bhd (Company No: 5734-H), Koo Ho-Tung, Charles (UK Passport No.7612278793) Koo Chi-Fong, Angela (UK Passport No.:511077870), Koo Chee Yung, Lydia (UK Passport No.:510909424) and Koo Ho Liang, Henry (UK Passport No: 7612751284)} were made parties to this originating summons by the Order of this Court dated 30.7.2015 and 13.8.2015. respectively. [9] With these orders, KLS then became the 1st Defendant while the rest of the interveners were made the 2nd to the 11th Defendants. [10] This Court must also mention here that in view of avoiding the inconvenience to have KLS examined by multiple psychiatrists 8 (first, by the independent psychiatrist appointed by the Plaintiffs and second, a psychiatrist appointed by the 2nd to the 11th Defendants), all the parties had later agreed that a joint examination is to be conducted on KLS by two psychiatrists namely, Dr. Rajbans Singh Mukhtiar Singh of Pantai Hospital Kuala Lumpur (“Dr. Rajbans”) and Dr. Prem Kumar. The joint examination on KLS was conducted on 29.8.2015 at 11.00 a.m. at Dr. Rajbans’s clinic at Pantai Hospital Kuala Lumpur. To that, a joint report dated 17.9.2015 (“joint report”) was prepared by Dr. Rajbans and Dr. Prem Kumar. [11] However, before the substantive application (Enclosure 1) is heard, various parties including the Plaintiffs and the 2nd to the 11th Defendants had entered into a Global Settlement Agreement on 5.10.2015 (“GSA”). [12] When Enclosure 1 (for the remaining prayers) was called for hearing on 15.10.2015, the counsel for the Plaintiffs, Ms Shelby Chin had informed this Court that the parties have reached a global settlement in respect of all the related matters and they wish to record a consent order as per the draft consent order which was signed by all the parties. 9 [13] The consent order entered by the Plaintiffs and the 2nd to the 11th Defendants reads as follows: UPON THE APPLICATION of the 1st, 2nd and 3rd Plaintiffs in the above-captioned matter AND AFTER HEARING Shelby Chin, solicitors for the Plaintiffs, Rosli Dahlan, Yee Mei Ken, Ho Ai Ting and Teh Soo Jin, solicitors for the 2nd to 5th Defendants, V. Varunnath, solicitors for the 6th and 7th Defendants and Dato’ V.Sivaparanjothi, solicitors for the 8th to Defendants AND AFTER READING the Notice of Application dates 8-10-2015 (Enclosure 56), the Affidavit affirmed by Catherine Koo on 8-10-2015, the “Sijil Perakuan Segera” by Shelby Chin Pui Mun dated 8-10-2015 and the written submissions of the Plaintiffs AND AFTER HEARING the submissions by counsel IT IS BEFORE ORDERED in the presence of counsel and the 1st Defendant that:- 1. (i) the claims, counterclaims, third party proceedings, complaints and/or appeals by and/or against the 1st Defendant be settled as per the terms of the Global Settlement Agreement dated 5-10-2015 (“GSA”) annexed herewith as annexure “1”, (ii) the 5,040,000 ordinary shares of RM1.00 each in Malaya Acid Works Sdn Bhd registered in the name of the 1st Defendant be sold as per the terms of the agreed form of the Share Sale Agreement in respect 10 of shares in Malaya Acid Works Sdn Bhd in annexure A of the GSA; (iii) the 1,260,000 ordinary shares of RM1.00 each in Federal Fertilizer Co Sdn Bhd registered in the name of the 5th Defendant and the 255,000 ordinary shares of RM1.00 each in Federal Fertilizer Co Sdn Bhd registered in the name of the 2nd / 8th Defendant be purchased by the 1st Defendant as per the terms of the agreed form of the Share Sale Agreement in respect of shares in Federal Fertilizer Co Sdn Bhd in annexure B of the GSA; (iv) the 265,000 ordinary shares of RM1.00 each in Malaysia United Chemical Corporation Sdn Bhd registered in the name of the 5th Defendant be purchased by the 1st Defendant as per the terms of the agreed form of the Share Sale Agreement in respect of shares in Malaysia United Chemical Corporation Sdn Bhd in annexure C of the GSA; (v) the 18,500 ordinary shares of SGD100.00 each in the Chemical Corporation of Singapore (Private) Limited registered in the name of Regency Investment Limited, the 500 ordinary shares of SGD100.00 each 11 in The Chemical Corporation of Singapore (Private) Limited registered in the name of the 2nd / 8th Defendant and the 500 ordinary shares of SGD100.00 each in The Chemical Corporation of Singapore (Private) Limited registered in the name of the 11th Defendant be purchased by the 1st Defendant as per the terms of the agreed form of the Share Sale Agreement in respect of shares in The Chemical Corporation of Singapore (Private) Limited in annexure D of the GSA; 2. the committee of the estate of the 1st Defendant appointed by this Honourable Court be authorized to execute the following documents in the name of the 1st Defendant and on his behalf:- (i) The agreed form of the Accession Deed in annexure F of the GSA; (ii) The agreed form of the Share Sale Agreement in respect of shares in Malaya Acid Works Sdn Bhd in annexure A of the GSA; (iii) The agreed form of the Share Sale Agreement in respect of shares in Federal Fertilizer Co Sdn Bhd in annexure B of the GSA; 12 (iv) The agreed form of the Share Sale Agreement in respect of shares in Malaysia United Chemical Corporation Sdn Bhd in annexure C of the GSA; (v) The agreed form of the Share Sale Agreement in respect of shares in The Chemical Corporation of Singapore (Private) Limited in annexure D of the GSA; and (vi) All such instruments, conveyances, transfer forms, deeds, contracts and/or documents as may be necessary to give effect to any of the aforesaid agreements; 3. it shall be sufficient for any 2 out of the 3 members of the committee of the estate of the 1st Defendant to execute any documents in the name of and on behalf of the 1st Defendant, including but not limited to the documents in paragraphs 2 (i) to 2 (iv) above. [14] Upon having the consent order being recorded, the 2nd Defendant to the 11th Defendants had informed this Court that they now have no objection to the Plaintiffs’ application. 13 [15] This Court had then proceeded to scrutinize and evaluate the joint report. Upon due deliberation and consideration of the joint report, this Court opines that the mental capacity of KLS can be determined without the need to hold an inquiry as the joint report in itself would be sufficient and adequate for this Court to arrive to a decision. [16] On the same day, i.e 15.10.2015, this Court had allowed the Plaintiffs’ application and thereby granted order in terms in prayers 2 and 3 of Enclosure 1. The order granted by this Court reads as follows: UPON THE APPLICATION of the 1st, 2nd and 3rd Plaintiffs in the above-captioned matter AND AFTER HEARING Shelby Chin, solicitors for the Plaintiffs, Rosli Dahlan, Yee Mei Ken, Ho Ai Ting and Teh Soo Jin, solicitors for the 2nd to 5th Defendants, V. Varunnath, solicitors for the 6th and 7th Defendants and Dato’ V.Sivaparanjothi, solicitors for the 8th to Defendants AND AFTER READING the Originating Summons dates 13-5-2015 (Enclosure 1), the “Perakuan Segera” by Shelby Chin Pui Mun dated 13-5- 2015, the Affidavit affirmed by Catherine Koo on 13-5-2015, the affidavit of service affirmed by Ahmad Zukri bin Zakaria on 18-5- 2015, the affirmed by Catherine Koo on 19-5-2015, the Affidavit of 14 Service affirmed by Catherine Koo on 19-5-2015, the Affidavit affirmed by Catherine Koo on 20-05-2015, the Affidavit affirmed by Catherine Koo on 29-6-2015, the 2nd to 5th Defendants 2015, the Affidavit affirmed by Charles Koo Ho Tung on 29-6-2015 and the written submissions of the Plaintiffs AND AFTER HEARING the submissions by counsel IT IS BEFORE ORDERED in the presence of counsel and the 1st Defendant that:- 1. the 1st Defendant is found to be mentally disordered and incapable of managing himself and his affairs due to his mental disorder: (i) a committee of the 1st Defendant and the estate of the 1st Defendant comprising of the Plaintiffs (“Committee”) be appointed on the following terms:- (a) the Committee is not entitled to any remuneration, unless otherwise ordered by the Court; (b) the Committee is not required to give any security, unless otherwise ordered by the Court; (ii) the Committee be authorized to conduct the legal proceedings (including making a claim, defending, making a counterclaim, intervening in any proceedings, appearing in any proceedings, appealing against any 15 decisions and/or opposing any appeals against any decisions) as set out in Annexure A herein in the name of the 1st Defendant and/or on his behalf; (iii) the Committee shall have all powers for the management of the estate of the 1st Defendant; (iv) the Committee shall be entitled to exercise all voting rights of the Defendant in relation to the shares of private limited companies held by the 1st Defendant as set out in Annexure B herein; and 2. the 2nd, 3rd, 4th and 5th Defendants reserve the right to have an inquiry held for the purposes of determining the period during which the 1st Defendant has been mentally disordered pursuant to section 52(2) of the Mental Health Act 2001 subject to the terms of the Global Settlement Agreement dated 5-10- 2015. [17] Now, after more than a year after the order was issued by this Court declaring that KLS no longer able to manage himself, his affairs, businesses and financial matters, to which the Plaintiffs had already obtained what relief they sought for with the direct involvement of all 2nd to 11th Defendants, the Plaintiffs, the 16 progenitor of the order itself, now filed application in Enclosure 71, seeking for the following orders: i. the 2nd, 3rd, 4th, 5th 6th 7th, 8th, 9th ,10th and 11th Defendants to cease to be parties to the proceedings; ii. the intitulement of this action be amended by deleting the names of the 2nd, 3rd, 4th, 5th 6th 7th, 8th, 9th ,10th and 11th Defendants. [18] In other words, the Plaintiffs are now taking a massive and retrospective leap backwards and attempted to obtain an order to extricate or remove the 2nd to the 11th Defendants from the proceedings as well as orders that have been obtained by all parties before this Court on 15.10.2015. It is immensely pertinent to be reminded that the Order granted on 15.10.2015 was granted merely on the basis that a global settlement was entered to which all of the 2nd to 11th Defendants played a crucial and salient part of. The global settlement and the order would not have culminated if not for the crucial involvement of the 2nd to 11th Defendants. Even considering the sheer gravity of the 2nd to 11th Defendants’ involvement in the matter, the Plaintiffs still sought for an order that the 2nd to 11th Defendants to cease to be parties to the proceeding 17 and have the names of the 2nd, 3rd, 4th, 5th 6th 7th, 8th, 9th, 10th and 11th Defendants appearing on the intitulement of the originating summons be deleted. [19] It is pertinent to note that the Plaintiffs’ application in Enclosure 71 is not simply intended for prospective or consequential orders post-determination of the proceedings. But, the Plaintiffs’ application in Enclosure 71 was intended to have a retrospective effect in which the Plaintiffs intend to remove the involvement or the parties’ presence in the intitulement from the very beginning as though the 2nd to 11th Defendants were never part of the proceedings. It is akin to erasing records and distorting the historical integrity of the entire proceedings. [20] The Plaintiffs claim that their application was made pursuant to Order 15 rule 6 (2) (a) of the Rules of Court 2012. [21] Enclosure 71 had been served on the 2nd to 11th Defendants, however the 2nd to 11th Defendants takes a stance that they have no objections to the Plaintiffs’ application so long that there will be no admission on their part on the contents of Encl. 72 and there should be no order as to costs against them. 18 [22] Even though the Application was not objected by the 2nd to 11th Defendants, this Court had directed the Plaintiffs to submit the merits of the application. [23] Upon consideration of the submission and arguments of the counsel for the Plaintiffs, this Court is of the view that the Plaintiffs’ application is not only an ill-conceived and improper application but also an abuse of the process of the court. Hence, this Court had dismissed the Plaintiffs’ application in Enclosure 71. [24] Dissatisfied with the dismissal of their application, the Plaintiffs now filed a notice of appeal appealing against the said dismissal of their Enclosure 71. The Plaintiffs’ argument [25] The Plaintiffs had filed their Enclosure 71 purportedly relying on the provision of Order 15 rule 6 (2) (a) of the Rules of Court 2012 (ROC 2012). [26] Order 15 rule 6 (2) (a) of the ROC 2012 reads as follows: Order 15 rule 6 (2) (a): 19 (2) Subject to this rule, at any stage of the proceedings in any cause or matter, the Court may on such terms as it thinks just and either of its own motion or on application- (a) order any person who has been improperly or unnecessarily made a party or who has for any reason ceased to be proper or necessary party, to cease to be a party. [27] The counsel for the Plaintiffs had argued that this Court has jurisdiction to hear their application and is not functus officio. [28] It was contended by the counsel for the Plaintiffs that in respect of an order of mental disorder (“the order”), this Court has the jurisdiction to hear any application even though the order has been granted and perfected. The counsel for the Plaintiffs had submitted the following arguments: i. paragraph 2 of the Mental Disorder Order itself acknowledges that this Court has jurisdiction to hear the historical Issue post the Mental Disorder Order. ii. there are various provisions in the Mental Health Act, 2001 expressly provide for applications to be made and heard post 20 the Mental Disorder Order, namely; section 63, section 65 and section 74. iii. allegedly there are case laws whereby subsequent to the mental disorder Order, the High Court granted leave for proposed interveners to intervene as parties pursuant to Order 15 rule 6 (2) (b) of the Rules of Court, 2012. The counsel for the Plaintiffs had referred to a high court case of Ling Towi Sing & Ors V. Dato' Ng Kong Yeam; Kay Swee Pin & Anor (Proposed Interveners) [2017] 1 CLJ 221. A case which this Court respectfully distinguishes as the Plaintiffs’ Application shares very little to no significance at all with the facts and issues dealt with in Ling Towi. iv. the phrase “[a] any stage of the proceedings” under Order 15 rule 6 (2) (a) of the ROC 2012 covers post Mental Disorder Order. The phrase “at any stage of the proceedings” which also appears in Order 20 rule 5 (1) of the Rules of Court, 2012 has been construed by the English Court of Appeal to include after final judgment. The counsel for the Plaintiffs had referred to an English Court of Appeal case of Singh v Atombrook [1989] 1 WLR 810. 21 [29] Apart from the arguments above, the Plaintiffs’ counsel had also argued that in the present case, the 2nd to 11th Defendants’ interests in this action have ceased to exist as the Defendants themselves had informed this Court that they no longer wish to pursue with the historical Issue and they have no objection to the Plaintiffs’ Enclosure 71. The Court’s Decision [30] It is this Court’s finding and view that the Plaintiffs’ application to have the 2nd to 11th Defendants removed from the proceedings initiated by the Plaintiffs in 2015 although the 2nd to the 11th Defendants have been crucial parties to the proceedings since just 2 months after the filing of the matter is indeed a baseless application, devoid of merit and an abuse of process of this Court. The grounds that this Court views as such are deliberated below. [31] The Plaintiffs had filed the originating summons (Enclosure 1) in reliance to the provisions of the MHA 2001. Vide Enclosure 1, the Plaintiffs had applied to this Court for a declaration that that their father KLS, is a mentally disordered person under Section 51 of MHA 2001. 22 [32] Section 51 of the MHA 2001 defines mentally disordered person as: “any person found by due course of law to be mentally disordered and incapable of managing himself and his affairs.” [33] Meanwhile, “Mental Disorder” is defined under Section 2 of MHA 2001 as: “any mental illness, arrested or incomplete development of the mind, psychiatric disorder or any other disorder or disability of the mind however acquired; and “mentally disordered” shall be construed accordingly”. [34] At the time of the filing of Enclosure 1, the Plaintiffs are fully aware that the estate of KLS comprises of monies in bank accounts, and shares held in private limited companies (“Shares”). The Plaintiffs are also verily aware that the estate of KLS is entangled in numerous legal suits (“Suits”) in which KLS had been involved with in his personal capacity which were commenced in 2013 and 2014. The numerous legal proceedings KLS was involved either in his personal capacity or his companies or his family’s companies or his companies’ shares are as follows: 23 i. suits by companies that KLS holds/ previously held management positions (“Koo Family Companies”) against Defendants and others for allegations of breaches of fiduciary duties and/or conspiracy to defraud e.g.:- (a) allegations that KLS set up companies owned by himself and/or his family members (“KLS Family Companies”) in competition with Koo Family Companies; (b) allegations that KLS hived off business of KLS Family Companies to the detriment of Koo Family Companies; (c) allegations that KLS had caused Koo Family Companies to enter into contracts which unduly benefits KLS Family Companies; All of which relate to events occurring since the year 2005. ii. Suit against KLS and others for inter alia declarations that past events (such as transfer of shares in year 2001, extraordinary general meeting held in year 2004, resolutions 24 passed since year 2004) are invalid and for the register of members of the company to be rectified accordingly. iii. Suit against KLS and others for ownership of shares in a company, which relates to events since 1989. iv. Suit commenced against the Defendant for oppression of shareholders and suits initiated by the Defendant for the winding up of a company, which relates to events since the 1940s. v. Suit commenced by the Defendant against the current management of the Koo Family Companies for refusing to approve his request for the transfer of shares held in his name to third parties. vi. Suit commenced by the KLS Family Companies against Koo Family Companies for breach of contract i.e. for failure to pay rent; and defended on the grounds of allegations of breaches of fiduciary duties by the Defendant. 25 [35] This Court must also mention that throughout the years of 2013 and 2014, KLS’s medical reports by Dr Subash did not suggest any impairment in KLS’s ability to make informed decisions. During that time, the Plaintiffs had claimed that there were only assisting KLS in giving instructions to his solicitors in relation to the shares and legal suits, as they were of the view that their father, KLS was capable of managing affairs in relation thereto. [36] Then come the two medical reports by Dr Subash Kumar Pillai in 2015, namely the medical reports respectively dated 15.4.2015 and dated 5.5.2015. In these two reports, Dr Subash had found that KLS’s mental condition was as follows: i. KLS’s current cognitive functions will likely have an impact with him making informed decisions as he may not be able to remember what he had decided earlier. ii. he suffers from dementia”, which is described as “a broad category of brain diseases that cause a long term and often gradual decrease in the ability to think and remember”; iii. he could pose a danger to himself as he is “physically frail and also has dementia” and is at “higher risks for falls and getting lost”, 26 iv. he is not able to make any informed decisions regarding his shares in his companies” v. he is not able to “give proper instructions to his solicitors with the regards to the legal proceedings and a compromise”. [37] The Plaintiffs, faced with medical reports which found KLS is unable to make informed decision in respect of his estate, had come before this Court with a certificate of urgency seeking for an order to declare that their father is mentally disordered and thus incapable of managing himself and his affairs and upon such declaration, a committee of the person / his estate be appointed. [38] When the Plaintiffs commenced the proceedings, the 2nd to the 11th Defendants who claimed that they will be affected by such order had intervened into the proceedings and were made defendants. [39] Nonetheless, before this Court grants a declaration regarding KLS’s mental condition, the parties have informed this Court that all parties, particularly all 2nd to the 11th Defendants have reached a global settlement (GSA) and consequently parties have entered 27 and recorded a consent judgment with terms as recorded in Enclosure 56. [40] It is pertinent to highlight here that the consent judgment entered between the Plaintiffs and Defendants not only records the agreement of parties on the terms as stipulated in the GSA, but even goes to cover the parties’ agreement regarding the shares of numerous companies between the Plaintiffs and Defendants. [41] Consequentially from the recording of the said consent judgment on 15.10.2015, the 2nd to 11th Defendants have proceeded to inform this Court that they have no objections against the Plaintiff’s Application in Enclosure 1. [42] Considering the non-objection from the 2nd to 11th Defendants, this Court proceeded to critically and duly determine the joint report which was furnished into Court and based on the said joint report, this Court has made a finding that an inquiry is no longer required to be conducted to ascertain KLS’s mental condition as the said joint report is sufficient and comprehensive enough for this Court to determine KLS’s mental condition. 28 [43] Upon close scrutiny of the joint report on KLS, this Court is satisfied and declares that KLS is a mentally disordered person who is unable to manage himself and/or his affairs. With the granting of this declaration, the consequential order was the appointment of a committee to manage KLS’s affairs and matters. [44] To this Court, the declaration granted regarding KLS’s mental condition is a matter that is purely substantive in Enclosure 1, in which deems the proceedings of Enclosure 1 fully disposed of, determined upon merits, and ended. This Court has duly issued a final order with consequential directions in respect of KLS’s mental state or condition. [45] Enclosure 71 was filed only after some 20 months from the declaratory order declaring KLS is mentally disordered person was obtained by the Plaintiffs. The filing of Enclosure 71 by the Plaintiffs is obviously without merit, is baseless and constitutes an abuse process of court. [46] When this Court had declared that KLS is a mentally disordered person, this Court had handed down a final order, hence the proceedings had concluded and there is no longer any live 29 proceedings for the Plaintiffs return before to this Court for an order to extricate, delete or remove the names of the 2nd to 11th Defendants from the proceedings. In other words, this Court is functus officio upon granting an order in terms of Enclosure 1. This Court cannot simply add, remove or erase the involvement of parties who have played a crucial role in a proceeding, as though they were never part of the proceeding. [47] The application or operation of Order 15 rule 6(2)(a) of the ROC 2012 by the Plaintiffs in their Application is plainly misconceived. This Court has maintained since the beginning that the matter or substantive proceedings (the declaration of KLS’s mental condition) has already been determined or disposed of by this Court of which all the 2nd to 11th Defendants played salient and pertinent role in. [48] The order and the GSA had culminated only with the direct involvement of the 2nd to 11th Defendants. The declaration of KLS as a mentally disordered person and the appointment of a committee to manage KLS’s affairs was a final order, in view of the proceedings initiated by the Plaintiffs. 30 [49] Surely the Parliament would never intend to promulgate a law that allows erasure of records and manipulation of historical integrity. Though the provision may allow the addition or subtraction of parties supposedly at any time of the proceedings, clearly the provision would never promote erasure of records and distortion of historical integrity of proceedings. The operability of the provision only extends to further prospective determinations or consequential matters, and certainly does not cover retrospective erasure of involvements and records. [50] In the present case, the proceedings have already come to its end, fully determined on merits. There are no longer any proceedings before this Court under the enclosures previously filed in Court to allow the Plaintiffs to simply erase and alter the involvements of parties and the historical integrity of the proceedings. As and when, and at all material times that the 2nd to 11th Defendants were parties, the Plaintiffs cannot abuse the provision to delete or erase the 2nd to 11th Defendants’ involvement in the proceedings. The 2nd to 11th Defendants were crucial and inseparable from the determination of the proceedings. All parties have reaped benefits from the proceedings and parties cannot at their own whim and fancy erase, hide, or distort their involvement in the proceedings. 31 [51] Thereto, upon such stance of this Court, Order 15 rule 6(2)(a) of the ROC 2012 certainly cannot be relied upon by the Plaintiffs. [52] In this regard, this Court refers to the decision of Jeffrey Tan J (as he then was) in the case of Nite Beauty Industries Sdn Bhd & Anor v Bayer (M) Sdn Bhd [2000] 3 MLJ 314 in dismissing an application to intervene in which the Court there has held as follows at page 314:- “(3) Although O 15 r 6(2) states that such an application could be made at any stage of the proceedings, its scope should be limited to an application made before final judgment had been entered and not after because the proceedings would then have come to an end. Thus, the would-be intervener, who will be directly affected, either legally or financially, by any order which may be made in the action, must intervene before that order is perfected and whilst the court is still not functus officio. All proceedings came to an end upon the approval of the scheme of arrangement and compromise on 14 May 1999, thus the court no longer has any jurisdiction to make any order under O 15 r 6(2) (see pp 318H-319B, E, I).” (Emphasis is made) 32 [53] The principle enunciated in Nite Beauty Industries Sdn Bhd was affirmed in the Federal Court’s decision of Hong Leong Bank Berhad (formerly known as Hong Leong Finance Bhd) v Staghorn Sdn Bhd and other appeals [2008] 2 MLJ 622. [54] In Hong Leong Bank Berhad (formerly known as Hong Leong Finance Bhd) v Staghorn Sdn Bhd and other appeals [2008] 2 MLJ 622, the Federal Court had this to say in paragraphs 27 and 55: [27] Thus, we see that our courts have been every consistent regarding the scope of the proceedings …’ necessarily mean that there is a proceeding pending. Once the judgment is entered, the proceeding has come to an end. Further-more, O 15 is concerned with the very early stage of proceeding, to have all the necessary parties in before the trial begins. Thus, r 8 provides that, when the order under r 6 has been made, the plaintiff must accordingly amend the writ and serve the amended writ on the new defendant and upon service the new defendant is given the right to enter an appearance. All these happen before the trial. … [55] Secondly, an application for leave to intervene in order to set aside an order for sale by a party not already a party to the proceedings must be made under O 15 r 6 of the RHC. The application may be made ‘at any stage of the 33 proceedings’ meaning before judgment, otherwise the proceedings have concluded and there is no longer a proceeding in existence for the party to intervene in. The judge has also become functus officio. Even then, the application must be made promptly. Order 15 r 6 of the RHC applied to all civil proceedings whether commenced by a writ, motion or summons etc. (See also the Federal Court’s decision in Hock Hua Bank Bhd v Sahari bin Murid [1981] 1 MLJ 143 and Chew Hon Keong v Betterproducts Industries Sdn Bhd & Ors [2013] 7 MLJ 196) [55] This Court reiterates that, in the present case, when the section 56 of the MHA 2001’s order was granted, the parties before this Court includes both the Plaintiffs and the 2nd to 11th Defendants. This record and history of involvement at the material time cannot and shall not be erased or altered. All the parties here had obtained all the necessary and required orders pertaining KLS’s mental condition and all issues therein had been resolved and decided. [56] Clearly, the MHA proceedings regarding to KLS’s mental condition or mental state vide Enclosure 1 herein has come to an end. A final order has been pronounced by this Court and the order had been drawn up, perfected and sealed with all involved parties properly and appropriately recorded. As such, this Court with the 34 greatest respect is functus officio and is in no position or jurisdiction to undo or distort whatever involvement of parties had in the past. [57] This Court is minded that the Plaintiffs’ counsel had attempted to defend its Application in reliance to provisions of Sections 63, 65 and 74 of the MHA 2001. [58] These provisions are reproduced below: i. section 63 The Court may, if it appears to the Court to be just or for the benefit of the mentally disordered person, order that any property, movable or immovable, and whether in possession, reversion, remainder, contingency or expectancy, be sold or charged or otherwise disposed of as seem most expedient for the purpose of raising money to be applied for any of the following purposes: (a) the payment of his debts, including any debt or expenditure incurred for his maintenance or for his benefit; (b) the discharge of any encumbrance on his estate; (c) the payment of or provision for the expenses of his future maintenance and the maintenance of his family, including the expenses of his removal to any place in or outside Malaysia and all related expenses; 35 (d) the payment of the costs of any proceedings under this Act and of any costs incurred by order or under the authority of the Court. ii. section 65 Where a person who has contracted to sell or dispose of his estate or any part of his estate subsequently becomes mentally disordered, the Court may, if the contract is such as the Court deems ought to be performed, direct the committee of the estate of the mentally disordered person to execute such conveyances and to do such other acts in fulfillment of the contract as it deems proper. iii. section 74 (1) Where a person has been found to be incapable of managing himself and his affairs due to his mental disorder and it is subsequently shown to the Court— (a) on the application of that person; (b) on the application of a person acting on his behalf; or (c) on the information of any other person, that there is reason to believe that such incapability has ceased, the Court may make an order for an inquiry to determine whether the person is now capable of managing himself and his affairs. (2) The inquiry under subsection (1) shall be conducted in the same manner as that prescribed for an inquiry into whether a person alleged 36 to be mentally disordered is incapable of managing himself and his affairs. (3) Where upon an inquiry under this section the Court finds that the person is now capable of managing himself and his affairs the Court shall order all proceedings in the matter to cease or to be set aside on such terms and conditions as it deems proper. [59] With utmost respect, the Plaintiffs’ counsel’s reading of these provisions is erroneous and ill-conceived. Indeed the provisions allows for further and consequential orders from or stemming from an earlier order determining the mental state or condition of a person. However, none of these provisions allow a retrospective order to alter, delete, erase, and distort earlier records and direction or orders made by the Court. It is obviously plain to see that these provisions were intended to have a consequential and a prospective effect and certainly not a retrospective effect: i. Section 63 provides for sale of a mentally disordered person’s assets AFTER a person is determined to be mentally disordered; ii. Section 65 provides enforcement of contracts entered by a mentally disordered person at the time he is of sound mind 37 AFTER a person is determined to be mentally disordered; and iii. Section 74 provides for prospective discharge of a previous order declaring mental disorder AFTER a person is determined to be mentally disordered. [60] However, what the Plaintiffs intend to erase, manipulate and unduly distort here is the undeniable saliency, and involvement of the 2nd to 11th Defendants in the proceedings BEFORE KLS is determined to be mentally disordered. Clearly what is applied for by the Plaintiffs is the exact and direct opposite of what these provisions provide for. [61] None of these provisions provide for retrospective erasure of court records and distortion of the integrity of a proceeding. [62] The Plaintiffs’ application to erase the names of the 2nd to 11th Defendants from all proceedings at all material times regarding KLS’s mental condition is NOT a consequential order but instead is an unlawful attempt to erase, or distort the position and involvement of the 2nd to 11th Defendants from the proceedings in 38 which they played an integral to since the beginning of the proceedings as litigants. It would be unbecoming of the law, if this Court were to set a precedent to allow parties to simply erase and alter their litigious involvement in a litigation proceeding after the litigation proceeding has been determined. [63] To this Court’s mind, upon the declaration in the order regarding KLS’s mental state, all parties inclusive the Plaintiffs and the 2nd to 11th Defendants are undeniably parties involved and affected from the said declaration. Even more so, when the consequence of the declaration entails that all parties stand to benefit from the order. A party cannot reap benefits or face detriment from its litigation and subsequently simply erase records and pretend as though the litigation and involvement in litigation never occurred. [64] If this Court were to allow this Application by the Plaintiffs, it is akin to this Court allowing parties to, at their whim and fancy intervene into any proceedings and upon disposal of the proceeding, upon reaping benefits from the proceedings, suddenly and abruptly attempt to erase their involvement in the proceedings. 39 [65] This Court finds and maintains that the Plaintiffs’ application here is incredulous, ridiculous and appropriately should be dismissed. Adding further detriment to the Application, the Plaintiffs never furnished any real and substantive justification to the undue erasure and distortion of history and court records regarding the involvement of the 2nd to 11th Defendants. All that was furnished to Court was that there were no objections from the 2nd to 11th Defendants. This Court stresses that the judicial responsibility of this Court does not simply extend to allowing and granting directions that parties agree to. This Court must exercise its justicial discretion with due care and consideration to established principles of law. The underlying reasons and motive behind this bewildering Application is only known to the Plaintiffs. [66] The Plaintiffs purportedly also attempted to justify the Application on the notion that the 2nd to 11th Defendants’ interest have ceased to exist when the Defendants are no longer interested to pursue with the historical issues of the onset of KLS’s mental degradation. Notwithstanding the notion that the 2nd to 11th Defendants’ interest have ceased to exist, the diminishment of interests does not erase or diminish the fact of involvement in a proceeding. Interest may cease to exist, but the history and record of factual 40 involvement shall always remain. It is beyond this Court’s or any Court’s jurisdiction for that matter, to alter history and records. [67] Even if this Court were to unduly stretch the law and consider the Plaintiffs’ ill-conceived contentions, the historical issue on the onset of KLS’s mental state also offers no solace and support to the Plaintiffs’ Application. [68] This is particularly so as even the historical issue raised had already been fully disposed and determined with the integral involvement of the 2nd to 11th Defendants. This is obviously stated in the Plaintiffs’ own letter to this Court (Cheah Teh & Su letter) dated 8.10.2015. This Cheah Teh & Su letter was presented to this Court before to the consent judgment was entered regarding KLS’s mental state was recorded on 15.10.2015. Paragraphs 4 and 5 of the Cheah Teh & Su letter reads: 4. Lanjutan daripada itu, kami difahamkan bahawa Defendan- Defendan ke-2 hingga ke-11 tidak mempunyai bantahan terhadap prayer-prayer Lampiran 1 untuk deklarasi bahawa Defendan Pertama adalah pada masa kini bercelaru mental dan untuk perlantikan jawatankuasa untuk estet Defendan Pertama. 41 5. Berkenaan dengan isu sejak bila Defendan Pertama bercelaru mental, pihak-pihak bersetuju untuk menangguhkan penentuan isu tersebut. Sekiranya penyelesaian global tersebut diluluskan oleh Mahkamah dan dilaksanakan sepenuhnya, isu tersebut tidak perlu diputuskan oleh Mahkamah. ( Emphasis is made) [69] The letter itself reads and states that if the said GSA is recorded by this Court and enforced fully, the historical issue need not be delved into by this Court. Thus, with the advent of the GSA, and the recording of consent judgment, the historical issue is already deemed settled and determined. [70] This is even more apparent considering that this historical issue has even been integrated and embedded within the GSA courtesy of the integral involvement and agreement of the 2nd to 11th Defendants: Recitals A. Lydia, Angela, Charles and Henry are the beneficiaries of the Estate of Koo Ling Ching (KLC) (collectively, KLC Beneficiaries). 2 Conditions precedent 42 2.1 Agreement conditional (a)This agreement is conditional upon the KLS Family Members applying to the Shah Alam High Court and obtaining the following orders (Application) – (1) declaring KLS a mentally disordered person under the Mental Health Act 2001 (MHA Proceeding); (2) appointing a committee comprising the KLS (Committee) and (3) sanctioning KLS’ execution of the SSAs and this agreement . (b) The KLC parties who have intervened in the MHA proceeding hereby agree not to object to KLS Family members’ application as aforesaid but reserve the right to challenge the date on which KLS became mentally disordered Subject Always to clause 4.1(b) below. 4.10 Legal Proceedings … (c) KLC Parties shall take all necessary steps, actions or deeds as may be necessary to inform the Shah Alam High Court in writing that the KLC Parties no longer wish to investigate and/or wish to withdraw its 43 application for a determination as to when KLS became a mentally disordered person; [71] Therefore, as stated in the Cheah Teh & Su letter, when the GSA and consent judgment was recorded before this Court on 15.10.2015 and this Court issues the order declaring KLS being mentally disordered, thus, the historical issue regarding the onset of KLS’s mental disorder is deemed settled and ceases to be relevant. The Plaintiffs cannot now contradict its own stance and attempt to abuse this historical issue to unduly erase the 2nd to 11th Defendants’ involvement in the proceedings. This Court reiterates that all parties inclusive the Plaintiffs and the 2nd to the 11th Defendants are directly and pertinently involved in, as well as affected by the consent judgment entered and declaratory order granted by this Court. In fact, all parties have all obtained reaped benefits from the said orders. Thus, by no just means at all should this Court allow the undue erasure and distortion of records in having the names of parties be erased as though they were never involved in a proceeding which has already been fully determined and disposed of. Clearly the Plaintiffs’ Application here is a blatant abuse of the process of the Court. 44 [72] For the sake of completeness, it is apparent that the decision in Ling Towi Sing & Ors V. Dato' Ng Kong Yeam; Kay Swee Pin & Anor (Proposed Interveners) [2017] 1 CLJ 221 relied upon the Plaintiffs does nothing to support their contention. Indeed, in Ling Towi, the Court there has allowed an intervener’s application under Order 15 rule 6 (2)(a) of the ROC 2012 subsequent to an order declaring mental disorder of a person. But it is obvious to see that the nature of an application to intervene (which is an addition of undisposed interest/interest not yet determined) and a retrospective and erroneous application to erase, and distort previous records of proceeding (while reaping benefits of interests fully determined and disposed of) is utterly and thoroughly different. The case of Ling Towi lends no aid or relevance at all to the Plaintiffs’ case. [73] In view of the aforementioned findings, and deliberations this Court duly and appropriately dismiss the Plaintiffs’ Application in Enclosure 71. 45 …………………………………………….. (DATUK AZIMAH BINTI OMAR) Judge High Court Shah Alam Selangor Darul Ehsan Dated the 20th October, 2017 For the Plaintiff - Messrs Cheah Teh & Su Mr. KL Pang Ms. Shelby Chin (The counsel for the Plaintiffs is also mentioning on behalf of the counsels for 2nd to 11th Defendants) For the 2nd Defendant to 5th Defendant - Messrs Lee Hishamuddin Allen & Gledhill For the 6th and 7th Defendant - Messrs Kumar & Partnership For the 8th Defendant to 11th Defendant - Messrs V. Siva & Partners	51,305	Tika 2.6.0
28NCC-295-06/2015	PEMOHON BORHAN BIN MOHD DOYA … PETITIONER (NRIC No. 711011-05-5383) RESPONDEN MAHA PERSADA CAPITAL SDN BHD … RESPONDEN T (Company No. 749049-V) PENCELAH DATO’ Ir HJ YUSNI BIN MEON … APPLICANT/ (NRIC No. 740628-04-5313) PROPOSED INTERVENER	null	20/10/2017	YA DATO' HAJI MOHD YAZID BIN HAJI MUSTAFA	https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=72e3f305-40bb-416d-bcd2-f6098761170b&Inline=true	1 IN THE HIGH COURT OF MALAYA AT SHAH ALAM IN THE STATE OF SELANGOR DARUL EHSAN, MALAYSIA COMPANIES WINDING-UP NO. 28NCC-295-06/2015 In the matter of the Companies Act, 1965 And In the matter of MAHA PERSADA CAPITAL SDN BHD BETWEEN BORHAN BIN MOHD DOYA … PETITIONER (NRIC No. 711011-05-5383) AND MAHA PERSADA CAPITAL SDN BHD … RESPONDENT (Company No. 749049-V) AND DATO’ Ir HJ YUSNI BIN MEON … APPLICANT/ (NRIC No. 740628-04-5313) PROPOSED INTERVENER JUDGMENT 1. The Applicant by a Notice of Motion dated 30.12.2016 (Encl. 27) filed an application under section 227(2) and 289 of the Companies Act 1965 (CA 1965) to appoint the private liquidator to 2 replace the Official Receiver of Malaysia and cost of this application to be paid from the assets of the Respondent herein. Relevant background of the case 2. The Respondent is a private company has been wound up by this Court on 13.11.2015 and pursuant thereto the Official Receiver of Malaysia (OR) has been appointed as the liquidator of the Company. 3. Following this application, OR has conducted a general meeting (GM) on 13.2.2017 separately for the creditors and contributors in consideration of Encl. 27. Subsequently, OR filed it Report on 13.2.2017 (Encl. 34) and the gist can be summarised as follows: 3.1 four (4) creditors with the total claims of RM26,387,172.26 are agreeable to the appointment of the private liquidator proposed by the Applicant and the other three (3) creditors with the total claims of RM2,735,885.19 have disagreed with the same. 3.2 no voting was held for the contributors as there was a dispute on the holding of the Respondent. According to Dato’ Yusof, the Applicant had transferred his total shares worth of RM25,000,000.00 to Datin Rahmah Syukura binti Abd Hamid on 24.1.2014 and Dato’ Yusof has been adjudged a bankrupt by the Shah Alam High Court on 5.1.2017. The result of the Report was reproduced herewith in a schedule and read as follows: 3 Bil Ketetapan mesyuarat Undi bagi ketetapan Menyokong permohonan perlantikan Dato' Heng Ji Keng dan Andrew Heng Mengekal Pegawai Penerima Bil Amaun (RM) Bil Amaun (RM) Pemiutang 1 Dato' Ir Yusni bin Meon 3 14,481,823.53 2 SME Bank (M) Berhad 1 11,349,188.18 3 Borhan Bin Mohd Doya 1 2,025,000.00 4 Sierra Teguh Sdn Bhd 1 600,000.00 5 Tetuan Shahrizat Rashid & Lee mewakili CIMB Islamic Bank Berhad 2 475,952.27 6 Merit Jaya Sdn Bhd 1 110,885.19 7 Boustead Building Material 1 80,208.28 Syer Bil Syer Penyumbang 1 Dato' Ir Yusni Bin Meon Tiada Undi 2 Dato' Yusof bin A Bakar@ Md Talib Tiada Undi 4 4. At the case management before the Senior Assistant Registrar (SAR) on 27.2.2017, Encik Shahrin Bin Mohamed Saat (Shahrin) had appeared personally and requested for an extension of time to oppose to Encl. 27 as the same was only came to his knowledge recently. The SAR granted his application and Shahrin filed its affidavit in opposition vide Encl. 40 on 14.3.2017. 5. However before Encl. 27 was set for hearing, the OR vide Encl. 36 filed an application under Rule 94 of the Companies Winding Up Rules 1972 (CWR 1972) to expunge the admission of the Applicant’s two (2) Proof of Debts dated 20.5.2016 (1st POD) and 7.6.2016 (2nd POD) respectively. Both of the PODs are at Exhibit “DYM-7” and “DYM-8” of Encl. 28. 6. The Applicant opposed to the OR’s application. Parties had since filed and exchanged their respective affidavits and also written submissions on both Encl. 27 and 36 and the same were fixed for hearing on the same day. For the purpose of deciding Encl. 27, I have ordered Encl. 36 to be decided first before Encl. 27. 7. I had perused parties’ respective affidavits and submissions. In addition, parties’ solicitors and the OR had also made their oral submissions before this Honourable Court on 25.5.2017. After perusing the cause papers together with affidavits filed and all parties written and hearing oral submissions, I have on the same day granted the OR’s application at Encl. 36 and thereafter dismissed Encl. 27. My reasons are as follows. 5 Shahrin’s objection 8. Shahrin canvas his objection on Encl. 27 based on the following reasons: 8.1 The Applicant was not the contributory of the Respondent’s company; 8.2 The Applicant was also not the creditor of the Respondent’s company; and 8.3 The Petitioner and the OR have failed to adhere to the requirements under Companies Act 1965 (CA 1965) and CWR 1972; As for the above reasons, Applicant lack of locus standi and the application should be strike out. 9. From the Companies Commission of Malaysia’s (CCM) search dated 31.10.2016 at Exhibit “DYM-6” of the Applicant’s Affidavit sworn on 30.12.2016 (Encl. 28), the Respondent has the total issued share capital of 50,000,000.00 ordinary shares with the nominal value of RM1.00 each and the holding of the Respondent was comprises of the Applicant and Dato’ Yusof Bin A Bakar @ Md Talib (Dato’ Yusof) both hold 25,000,000.00 equal shares each. 10. However, Shahrin maintained that he was the real, actual and the majority shareholder with the holding of 25,500,000.00 shares in the Respondent Company. The other shareholder was Zaidi bin Abdul Hamid with the holding of 24,500,000.00 shares and both of them were not called by the OR at the GM on 13.2.2017. 6 11. The shares were transferred to Shahrin by Dato’ Yusof on 25.9.2014 and his statement was supported by the certified true copy of Form 32A (Form of Transfer of Security) dated 25.9.2014 together with the certified true copy of the Stamp Certificate from Lembaga Hasil Dalam Negeri Malaysia (LHDN) dated 25.9.2014 at Exhibit “SMS-1” in Encl. 40. 12. Further, by a certified true copy of Form 32A dated 24.1.2014 together with the certified true copy of the Stamp Certificate from LHDN dated 24.1.2014, the Applicant had sold his shares of 25,000,000.00 in the Respondent company to Datin Rahmah Syukura binti Abd Hamid on 24.6.2014 (at Exhibit “SMS-2” in Encl. 40). 13. The transactions at paragraphs 11 and 12 were later confirmed by Mohd Zaki bin Ahmad Zabidi, the Respondent Company’s Secretary vide a letter dated 8.2.2017 to the OR which was exhibited at Exhibit “SMS-7” of Shahrin’s Affidavit sworn on 10.4.2017 (Encl. 46). Nevertheless, both the transfer were not lodged to CCM. 14. Although, the Applicant had lodged the following three (3) Proof of Debt (POD), Shahrin stated that the Applicant was still not the creditors for the Respondent Company since the OR had filed an application to expunge the admission of the 1st and 2nd PODs and the 3rd POD have yet to be admitted by OR. The Applicant’s POD are as follows : 14.1 the POD dated 20.5.2016 for the claim of RM2,700,000.00 (1st POD); 7 14.2 the Proof of Debt dated 7.6.2016 for the claim of RM11,298,219.03 (2nd POD); and 14.3 the Proof of Debt dated 23.9.2016 for the claim of RM483,604.50 (3rd POD). 15. Shahrin added that the 3rd POD seems to be doubtful as the supporting documents enclosed by the Applicant with the 3rd POD are selective and/or inconsistent with the 3 rd POD. Shahrin averted that the official receipts enclosed were not the official receipt of the Respondent Company, no written agreement provided by the Applicant to show that the Respondent Company had sought advances from the Applicant as the Director at the material time and no Respondent Company’s resolution adduced by the Applicant in relation thereto. 16. Shahrin further added that the POD filed by SME Bank (M) Berhad (SME Bank) for the claim of RM11,349,188,18 should also be disregarded as SME Bank was a secured creditor and there was no mention in the OR’s Report that SME Bank has waived its secured debt in the event this Court is minded to consider the said Report. As such, SME Bank support in the Applicant’s application should also be disregarded. 17. Shahrin’s solicitors further submitted that the Petitioner had failed to have the notice in Form 12 gazetted and advertised when the Respondent Company was ordered to be wound up by Court as required by Rule 34(1) of the CWR 1972. 18. As such, Shahrin’’s solicitors also submitted that there is a likelyhood that the other creditors might have no knowledge on the Respondent’s winding up and they were not called by the OR at 8 the GM on 13.2.2017. Therefore, their positions maybe prejudiced. 19. It is lastly also submitted by Shahrin’s solicitors that OR has too failed to comply with the requirement of under sections 50(1) and 518(1) of the Company Act 2016 when inviting the Applicant and Dato’ Yusof to the GM though both were not the shareholder/contributor of the Respondent Company. Shahrin’s solicitors therefore urged that the Report dated 13.2.2017 should have be rejected and disregarded by the Court. The Applicant’s solicitor’s submission 20. In reply to the Shahrin objection, the Applicant’s solicitors submitted that the Court should have referred to the CCM’s searches dated 31.10.2016 and 16.1.2017 at Exhibits “DYM-6” of Encl. 28 and Exhibit “DYM-11” of the Applicant’s Affidavit in reply sworn on 27.3.2017 (Encl. 42) wherein the Applicant was stated as the shareholder of the Respondent Company. 21. The Applicant’s solicitors also urged the Court to refer to Encl. 34 and Rule 119 of the CWR 1972, wherein although the vote of the shareholder was not carry out, the wishes of the creditors should have special considerations and weigh in the appointment of the liquidator. Rule 119 of the CWR 1972 is read herewith and reproduced as follows: 119. Ordinary resolution of creditors and contributories At a meeting of creditors or contributories a resolution shall be deemed to be passed when a majority in number and value of the creditors or, as the case may be, contributories present, personally or by proxy, and voting 9 on the resolution, have voted in favour of the resolution, the value of the contributories being determined according to the number of votes conferred on each contributory by the regulations of the company. 22. The Applicant’s solicitors also made a reference to the High Court’s case of Li-Foong Enterprise Sdn Bhd v. Mok Yuen Lok & Anor [2006] 1 LNS 33 which read and reproduced herewith as follows: 26. In the case of an insolvent company or in the case of a winding-up the wishes of the creditors should have special considerations and weight in the appointment of liquidator. (see: InRe Karamelli & Barnett, Limited (1916) 1 Ch 203) If there is reasonable belief that the interest of creditors would be imperiled if the liquidator were to remain in office, or if the liquidator is not sufficiently independent to promote the interest of the creditors and to examine the impropriety of the company's pre-liquidation dealings as the substantial and real interest of the liquidation requires, then he should be removed. (see:George A Bond & Company Limited (1932) SR (New South Wales) Vol 32301). This principle finds support under section 261(1) of the Companies Act 1965 where it is provided, inter alia that "if the creditors and the company nominate different persons, the person nominated by the creditors shall be the liquidator." 23. The Applicant’s solicitors also submitted that the Petitioner have no objection toward the Applicant’s application (Encl. 27) and in light of the same, Encl. 27 should be granted by the Court. http://www.lexisnexis.com/my/legal/search/runRemoteLink.do?A=0.613268784568375&bct=A&service=citation&risb=21_T26668194495&langcountry=MY&linkInfo=F%23GB%23CH%23vol%251%25sel1%251916%25page%25203%25year%251916%25sel2%251%25 10 Finding 24. The law on appointment of a private liquidator is govern under section 227(2) of the CA 1965 and it is trite, only the creditors and the contributors of the company are able to apply for the appointment. Section 227(2) of the CA 1965 is read herewith and reproduced as follows : 227. Appointment, style, etc., of liquidators The following provisions with respect to liquidators shall have effect on a winding up order being made: (2) if there is no liquidator appointed the Official Receiver shall summon separate meetings of the creditors and contributories of the company for the purpose of determining whether or not an application is to be made to the Court for appointing a liquidator in the place of the Official Receiver; (i) Whether the Applicant was the shareholder of the Respondent Company? 25. The Applicant in this case made a sworn statement in his affidavit that he was the shareholder for the Respondent Company and the Applicant’s solicitors urged the Court to have a look at the CCM’s search which stated the Applicant as the shareholder. No other evidence was given by the Applicant to show that the Applicant holding other than the CCM’s search. The Applicant’s solicitors also refer to the case of Abd Hamid Zakaria & Anor v. Rimau Indah Sdn Bhd [2016] 1 LNS 410 which the Court held read herewith and reproduced as follows: 11 “14. S.4(1) of CA 1965 defines a ‘contributory’ as ‘in relation to a company, means a person liable to contribute to the assets of the company in the event of its being wound up, and includes the holder of fully paid shares in the company and, prior to the final determination of the persons who are contributories, includes any person alleged to be a contributory … 15.2 Since the Court has not had sight of the Respondent company’s registrar of members, the Court will accept the company search report as conclusive evidence of the member/shareholder status as held by the learned Judge in Arab-Malaysian Mershant Bank Berhad v. Orient Apparel Bhd [1992] 2 CLJ 647; [1999] MLJU 118 at 9-10 and with which I agree. I find based on the company search report dated 22.12.2014, as contained in Appendix 1 of the Liquidators’ Preliminary Report, the shareholders of the Respondent company are (i) WT Development Sdn Bhd and (ii) Hoklian Development Sdn Bhd. I find despite LKC’s averment that he is a shareholder and contributory of the Respondent, he has failed to show proof of the same and thereof, he is not a contributory within the ambit of s.4(1) of the CA 1965 and he has no locus under s.243(1) of the CA 1965 to make application” 26. Shahrin on the other hand has produced the Registrar of Members and a letter from Secretary to show his holding in the Respondent Company and the Applicant has resigned as the shareholder. 27. In deciding on this issue, I am guided by section 50(1) of the CA 2016 that in the event a dispute arose as to the holding of a company, I should resort to the registrar of members of the Respondent Company. Section 50(1) of the CA 2016 read herewith and reproduced as follows: 50. Registrar of members (3) The registrar of members shall be prima facie evidence of any matters inserted in the registrar as required of the authorised by this Act. 12 28. Shahrin by Exhibit “SMS-2” of Encl. 40 and Exhibit “SMS-7” of Encl. 46 has furnished to the Court the Respondent Company’s registrar of members. Although the said transfer of shares from Dato’ Yusof to Shahrin and from the Applicant to Datin Rahmah Syukura were not lodged by the Secretary to CCM, it does not invalidate the transfers. In this regard, I refer to section 58(1) of the CA 2016 and SSM Practice Note. 3/2009 which provides as follows: 518. Books and papers of company (1) Where a company is being wound up, all books and papers of the company and of the liquidator that are relevant to the affairs of the company at or subsequent to the commencement of the winding up of the company shall be prima facie evidence of the truth of all matters recorded in the books or papers in respect of the contributories and the company. SSM Practice Note 3/2009 RE: CONFIRMATION ON THE LATEST SHAREHOLDING STRUCTURE/COMPOSITION OF A COMPANY ISSUED BY A COMPANY SECRETARY 1. This Practice Note serves to inform that a Letter of Confirmation on the latest shareholding structure/composition of a company issued by a company secretary can be sufficient evidence as to the latest shareholding structure/composition of a company. 2. Section 103(1) of the Companies Act 1965 (CA 1965) provides that a company shall not register a transfer of shares or debentures unless a proper instrument of transfer in the prescribed form (i.e. Form 32A) has been delivered to the company (i.e. the company secretary) and approved by the board of directors. Upon receipt of such form, the company secretary shall make the requisite entry into the company’s Register of Members to reflect the latest status of the 13 company shareholding structure/composition. There is no requirement for the lodgement of Form 32A with the Registrar under the CA 1965. 3. The Annual Return, which is lodged annually, does not necessarily contain the latest information pertaining to the company’s shareholding structure/composition due to the gap between the date of the latest Annual Return filed and the date of the next Annual Return to be filed. In the interim, a transfer of a company’s shares may occur. Due to this, the Registrar advices that the most recent and accurate information pertaining to shareholding structure/composition can be sourced directly from the company secretary. 4. As such, Ministries, Government agencies or any third party requiring evidence and/or confirmation of the latest shareholding structure/composition of a company may rely on the Letter of Confirmation of the latest shareholding structure of the company issued by the company secretary. Such Letter of Confirmation issued can be sufficient evidence as the shareholding information contained therein is derived from the Register of Members kept in the custody of the company secretary. 5. Apart from the Letter of Confirmation, SSM would also like to highlight that the respective Ministries, Government agencies or third parties may also: i) request to inspect the Register of Members; and/or (ii) request for a copy of the Register of Members (or of any part thereof), containing the names, addresses, number of shares held and amount paid on shares; Subject to the amount of payment required by the company pursuant to section 160 of CA 1965. 14 [NOTE: Section 158(4) of the CA 1965 stipulates that the Register of Members shall be prima facie evidence on any matters inserted therein as required or authorized by the Act.] 29. I am incline to agree with the Shahrin’s solicitors’ submission that until today, the Applicant had failed to provide to the Court any proof on the Applicant holding of the shares in the Respondent’s Company. As such, from the facts of the case and the evidence adduced by way of the affidavits, I find that the Applicant is not the shareholder of the Respondent Company within the ambit of section 2 of the CA 2016. (ii) Whether the Applicant was the creditor for the Respondent Company? 30. The Applicant has filed three (3) PODs with the OR and the OR vide Encl. 36 had filed an application to expunge the admission of the 1st and 2nd POD. I have allowed the OR’s application and my brief reasons are as follows. 31. By section 525 of the CA 2016, the liquidator may at any time call for the production of the vouchers or books of the account of a company and by Rule 94 of the CWR 1972, the liquidator may apply to the court to expunge any admission of a debt. Section 525 of the CA 2016 and Rule 94 of the CWR 1972 are read herewith and reproduced as follows respectively: 525. Rights and duties of unsecured creditors (1) Every creditor shall prove his debt immediately after the making of a winding up order. (2) A debt may be proved by delivering or sending an affidavit through the post in a prepaid letter to the liquidator. 15 (3) The affidavit shall — (a) verify the debt; (b) be made by the creditor himself or by any person authorized by or on behalf of the creditor or his estate and if made by a person so authorized, it shall state his authority and means of knowledge; (c) contain or refer to a statement of account showing the particulars of the debt and shall specify the vouchers, if any, by which the statement of account can be substantiated; and (d) state whether the creditor is or is not a secured creditor. (4) The liquidator may at any time call for the production of the vouchers or books of account. (5) A creditor shall bear the cost of proving the creditor's debt unless the Court otherwise specially orders. (6) Every creditor who has lodged a proof shall be entitled to see and examine the proofs of other creditors at all reasonable times. (7) A creditor proving his debt shall deduct from his debt all trade discounts, but he shall not be compelled to deduct any discount not exceeding five per centum on the net amount of his claim, which he has agreed to allow for payment in cash. 94. Expunging at instance of liquidator If the liquidator thinks that a proof has been improperly admitted, the Court may, on the application of the liquidator, after notice to the creditor who made the proof, expunge the proof or reduce its amount. 32. After reading the affidavits and having heard the OR’s and Applicant’s submissions, I am fully satisfied that further information and documents must be furnished by the Applicant to 16 the OR under section 525 of the CA 2016 so as to enable the OR to revaluate the 1st POD. I have also perused the 1st POD at Exhibit “EHAJ-1” of Encl. 37 and found that the Perjanjian Penyelesaian bertarikh 10.7.2014 which was referred by the Applicant and the basis of the Applicant’s claimed in the 1st POD were not enclosed thereto. 33. It is also pertinent to note, the Applicant should not have lodged the 2nd POD for the claim of RM11, 298,219.03 when it is clearly stated in the Court Amended Judgment in Default dated 6.7.2015 at Exhibit “EHAJ-6” of Encl. 37 that the Applicant, the Respondent and Dato’ Yusof were to be held jointly liable to pay the judgment debt of RM11, 298,219.03 to SME Bank. Therefore, the Applicant should have not later claim the said amount from the Respondent’s estate. 34. I believe by allowing the OR’s application at Encl. 36 will not at all prejudice the Applicant. My order allowing the 1st POD to be expunged should not be deemed to be a total rejection but only for the OR to revaluate the same. In addition, it is to enable the fair distribution of the Respondent’s estate among the creditors and the contributors. In fact, until today, neither the Applicant has not filed appeal against my decision nor has he filed a fresh POD. 35. With regard to the 3rd POD, I refer to Rule 124 of the CWR 1972 and being guided by the said rule, I believe that the Applicant is not entitle to vote at the GM conducted by the OR on 13.2.2017 as the 3rd POD have yet to be admitted by the OR. Rules 124 and 125 of the CWR 1972 are referred herewith and reads and reproduced as follows: 124. Creditors entitled to vote 17 In the case of a first meeting of creditors or of an adjournment thereof a person shall not be entitled to vote as a creditor unless he has duly lodged with the Official Receiver not later than the time mentioned for that purpose in the notice convening the meeting or adjourned meeting a proof of the debt which he claims to be due to him from the company. In the case of a Court meeting or liquidators meeting of creditors a person shall not be entitled to vote as a creditor unless he has lodged with the liquidator a proof of the debt which he claims to be due to him from the company and the proof has been admitted wholly or in part before the date on which the meeting is held. Provided that this and the next four following rules shall not apply to a Court meeting of creditors held prior to the first meeting of creditors. This rule shall not apply to any creditors or class of creditors who by virtue of the rules or any directions given thereunder are not required to prove their debts or to any voluntary liquidation. 125. Cases in which creditors may not vote A creditor shall not vote in respect of any unliquidated or contingent debt, or any debt the value of which is not ascertained, nor shall a creditor vote in respect of any debt on or secured by a current bill of exchange or promissory note held by him unless he is willing to treat the liability to him thereon of every person who is liable thereon antecedently to the company, and against whom a receiving order in bankruptcy has not been made, as a security in his hands, and to estimate the value thereof, and for the purposes of voting, but not for the purposes of dividend, to deduct it from his proof. 36. I find the definition of the word “creditor” under CWR 1972 is rather wide. Rule 2 of the CWR 1972 defined creditor as “ includes a corporation and a firm of creditors in partnership” and Rule 78 of the CWR 1972 on the other hand states, “in winding-up by the Court every creditor shall prove his debt, unless the Judge in any 18 particular winding-up shall give directions that any creditors or class of creditors shall be admitted without proof”. 37. In the absent of any decided cases, I find in order to be included within the definition of creditor under the ambit of Rule 2 of the CWR 1972, the creditor must clearly prove his debt and the POD must be admitted by the liquidator for the protection of the company. It will also safeguard the rightful creditors and contributors rights and interests on the company’s estate especially in this case where there is a disputed in the shareholding of the company. 38. As a matter of prudent, the liquidator should have examine the debt and admit the same first before calling for a general meeting. 39. For the reasons stated herein, I find that the Applicant is neither the contributory nor the creditor of the Respondent Company. I therefore hereby dismiss Enclosure 27 with no order as to cost. YA DATO’ HAJI MOHD YAZID BIN HAJI MUSTAFA JUDGE HIGH COURT OF SHAH ALAM 20 OCTOBER 2017 The Applicant’s solicitors: Encik Mohd Fairus bin Ismail from Messrs Palany, Fairus & adib Chambers 19 The Respondent’s liquidator: Puan Norfadila together with Puan Norizan from Official Receiver of Malaysia, MdI Cawangan Selangor Shahrin’s solicitors: Mr. Vinod Sharma from Messrs Raihan Sharma & Co	27,472	Tika 2.6.0
B-02(W)-1496-09/2015	PERAYU 1. KANNAN A/L MUNIAN 2. MUNUSAMY A/L PERIASAMY 3. ATCHUTHAN A/L SUBRAMANIAM 4. ANTHONY A/L SOOSAI … PERAYU - PERAYU RESPONDEN 1. GOPAL A/L SUBRAMANIAM (Pengerusi Persatuan Penganut Dewa Sri Maha Mariamman Ladang Sin Wah (Metro Kajang) Kamunting) 2. BALA A/L KRISHNAN (Naib Pengerusi Persatuan Penganut Dewa Sri Maha Mariamman Ladang Sin Wah (Metro Kajang) Kamunting) 3. RAVINDRAN A/L RAMAN (Setiausaha Persatuan Penganut Dewa Sri Maha Mariamman Ladang Sin Wah (Metro Kajang) Kamunting) 4. PUNIANATHAN A/L SURIASEGARAN (Naib Setiausaha Persatuan Penganut Dewa Sri Maha Mariamman Ladang Sin Wah (Metro Kajang) Kamunting) 5. NERASIMAN A/L SINNIAH (Bendahari Persatuan Penganut Dewa Sri Maha Mariamman Ladang Sin Wah (Metro Kajang) Kamunting) … RESPONDEN - RESPONDEN	Civil Procedure — Tort of trespass — Appeal — Whether the Plaintiffs in Suit 1 were the beneficial owners of the land — Appellants filed for trespass of land — Claims dismissed by trial judge — Which party had been administering and managing the affairs of the said Temple at all material times — Whether appellant had locus standi to file suit — Whether the Society is the valid and registered body to manage and administer the affairs of the Temple — Societies Act 1966 [Act 335], section 6	20/10/2017	YA DATO' ASMABI BINTI MOHAMADKorumYA DATUK DR HAJI HAMID SULTAN BIN ABU BACKERYA DATUK DR. PRASAD SANDOSHAM ABRAHAMYA DATO' ASMABI BINTI MOHAMAD	https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=23721662-f036-47de-8d3b-4370b6928ea9&Inline=true	1 DALAM MAHKAMAH RAYUAN DI MALAYSIA (BIDANG KUASA RAYUAN) RAYUAN SIVIL NO. : B-02(W)-1496-09/2015 ANTARA 1. KANNAN A/L MUNIAN 2. MUNUSAMY A/L PERIASAMY 3. ATCHUTHAN A/L SUBRAMANIAM 4. ANTHONY A/L SOOSAI … PERAYU-PERAYU DAN 1. GOPAL A/L SUBRAMANIAM (Pengerusi Persatuan Penganut Dewa Sri Maha Mariamman Ladang Sin Wah (Metro Kajang) Kamunting) 2. BALA A/L KRISHNAN (Naib Pengerusi Persatuan Penganut Dewa Sri Maha Mariamman Ladang Sin Wah (Metro Kajang) Kamunting) 3. RAVINDRAN A/L RAMAN (Setiausaha Persatuan Penganut Dewa Sri Maha Mariamman Ladang Sin Wah (Metro Kajang) Kamunting) 4. PUNIANATHAN A/L SURIASEGARAN (Naib Setiausaha Persatuan Penganut Dewa Sri Maha Mariamman Ladang Sin Wah (Metro Kajang) Kamunting) 5. NERASIMAN A/L SINNIAH (Bendahari Persatuan Penganut Dewa Sri Maha Mariamman Ladang Sin Wah (Metro Kajang) Kamunting) … RESPONDEN-RESPONDEN 2 DAN (Dalam Mahkamah Tinggi Malaya Di Taiping) Dalam Negeri Perak Darul Ridzuan Guaman Sivil No. 22-29-2010 ANTARA 1. KANNAN A/L MUNIAN 2. MUNUSAMY A/L PERIASAMY 3. ATCHUTHAN A/L SUBRAMANIAM 4. ANTHONY A/L SOOSAI … PLAINTIF-PLAINTIF DAN 1. GOPAL A/L SUBRAMANIAM (Pengerusi Persatuan Penganut Dewa Sri Maha Mariamman Ladang Sin Wah (Metro Kajang) Kamunting) 2. BALA A/L KRISHNAN (Naib Pengerusi Persatuan Penganut Dewa Sri Maha Mariamman Ladang Sin Wah (Metro Kajang) Kamunting) 3. RAVINDRAN A/L RAMAN (Setiausaha Persatuan Penganut Dewa Sri Maha Mariamman Ladang Sin Wah (Metro Kajang) Kamunting) 4. PUNIANATHAN A/L SURIASEGARAN (Naib Setiausaha Persatuan Penganut Dewa Sri Maha Mariamman Ladang Sin Wah (Metro Kajang) Kamunting) 5. NERASIMAN A/L SINNIAH (Bendahari Persatuan Penganut Dewa Sri Maha Mariamman Ladang Sin Wah (Metro Kajang) Kamunting) … DEFENDAN-DEFENDAN 3 DENGAN DALAM MAHKAMAH RAYUAN DI MALAYSIA (BIDANG KUASA RAYUAN) RAYUAN SIVIL NO. : B-02(W)-1497-09/2015 ANTARA 1. KANNAN A/L MUNIAN 2. MMMUNUSAMY A/L PERIASAMY 3. ATCHUTHAN A/L SUBRAMANIAM 4. ANTHONY A/L SOOSAI … PERAYU-PERAYU DAN GOPAL A/L SUBRAMANIAM (BAGI PIHAK PERSATUAN PENGANUT DEWA SRI MAHA MARIAMMAN LADANG SIN WAH (METRO KAJANG) KAMUNTING) … RESPONDEN-RESPONDEN DAN (Dalam Mahkamah Tinggi Malaya di Taiping) Dalam Negeri Perak Darul Ridzuan Guaman Sivil No. 22-50-2010 ANTARA GOPAL A/L SUBRAMANIAM (BAGI PIHAK PERSATUAN PENGANUT DEWA SRI MAHA MARIAMMAN LADANG SIN WAH (METRO KAJANG) KAMUNTING) … PLAINTIF DAN 1. KANNAN A/L MUNIAN 2. MUNUSAMY A/L PERIASAMY 3. ATCHUTHAN A/L SUBRAMANIAM 4. ANTHONY A/L SOOSAI … DEENDAN-DEFENDAN 4 CORAM: HAMID SULTAN ABU BACKER, JCA PRASAD SANDOSHAM ABRAHAM, JCA ASMABI BINTI MOHAMAD, JCA (Asmabi Binti Mohamad JCA, delivering Judgment of the Court) JUDGMENT OF THE COURT INTRODUCTION [1] There are two appeals fixed before us. Appeal No. A-02(W)-1496-09/2015 (“Appeal No. 1496”) is an appeal by the Appellants, Kannan a/l Munian, Munusamy a/l Periasamy, Atchuthan a/l Subramaniam and Anthony a/l Soosai (“the Plaintiffs in the High Court Civil Action No. 22-29-2010 (“Suit 1”)”) against the decision of the learned High Court Judge of Taiping (“the learned Judge”) dated 30th December 2015 made after a full trial, which dismissed the Appellants’ claim against the Respondents who are the Committee Members of Persatuan Penganut Dewa Sri Maha Marriamman Ladang Sin Wah (Metro Kajang) Kamunting (“the Defendants in the High Court Suit 1”) with costs. [2] In essence, Appeal No.1496 relates to the claim by the Plaintiffs who are the beneficial owners of a portion of the land held under Title No.: Grant No. 26834, Lot No. 6814, Mukim Kamunting, Daerah Larut dan Matang, Perak Darul Ridzwan (“the said Land”) against the 5 Defendants for the tort of trespass. Appeal No.1496 originates from Civil Action No. 22-29-2010 (“Suit 1”) where the Appellants are the Plaintiffs and the 1st to 5th Respondents are the Defendants. [3] Appeal No. A-02(W)-1497-09/2015 (“Appeal No. 1497”) is also an appeal by the same Appellants as in Appeal No. 1496 against the decision of the learned Judge dated 30 th December 2015, which allowed the claim filed by Gopal a/l Subramaniam (“the Plaintiff in the High Court Civil Action No. 22-50-2010 (“Suit 2”)”), on behalf of Persatuan Penganut Dewa Sri Maha Mariamman Ladang Sin Wah (Metro Kajang) Kamunting (“the Society”) with costs. [4] The claim by the Plaintiff in Suit 2 is for a declaration that the Society is and was at all material times, the valid and registered body to manage and administer the affairs of the “Kuil Dewa Sri Maha Mariamman Ladang Sin Wah (Metro Kajang) Kamunting (“the Temple”). Appeal No. 1497 originates from Civil Action No. 22-50-2010 (“Suit 2”) where the Appellants are the Defendants and the 1st Respondent is the Plaintiff. [5] Suit 1 was filed on 10th August 2010 in response to this Suit the 1st Respondent in Suit 1 filed Suit 2. Both these cases were heard and disposed together by the learned Judge. [6] Aggrieved by the decisions, the Plaintiffs and the Defendants in Suit 1 and Suit 2 respectively filed these appeals against the decisions of the learned Judge. 6 [7] After having perused the Appeal Records, the written submissions of the respective parties as well as hearing the oral arguments on the issues raised, we dismissed both these appeals with no order as to cost. [8] Our reasons for doing so now follow. [9] For ease of reference the parties will be referred to, where necessary as they were described in the Suit 1 and 2 respectively. BRIEF BACKGROUND FACTS [10] The Plaintiffs in Suit 1 are the owners of a portion of the said Land. [11] The Defendants in Suit 1 are the Committee Members of the Society. The 1st Defendant in Suit 1 is the Plaintiff in Suit 2 who filed Suit 2 on behalf of the Society. [12] In essence, the dispute between the Plaintiffs and the Defendant is over a Hindu temple known as Kuil Sri Maha Mariamman Ladang Sin Wah (Metro Kajang) Kamunting (“the Temple”) which stood on the same land held under Tittle No: 26834, Lot No. 6814, Mukim Kamunting, Daerah Lumut Dan Matang, Perak, Darul Ridzuan (“Lot 6814”). [13] The Plaintiffs sued the Defendants for trespass on the land, on which the Temple stood, which they claimed they are the beneficial owners pursuant to a Deed of Settlement they had entered into with the 7 land owner, Cekap Corporation Berhad (“Cekap”), on 9th September 2009 (“the Deed of Settlement”). [14] The Defendant, on the other hand, denied that the Plaintiffs were the beneficial owners of Lot 6814 on which the Temple stood and asserted that the Society had been running and managing the said Temple since 2001. The 1st Defendant in Suit 1, on behalf of the Society, filed Suit 2 on behalf of the Society seeking for a declaration that the Society was at all material times, the registered body administering and managing the said Temple. [15] When these cases came up for hearing before the learned Judge, both parties had agreed for the Court to proceed with the case by determining the following two issues: (a) Whether the Plaintiffs in Suit 1 were the beneficial owners of Lot 6814; and (b) Which party had been administering and managing the affairs of the said Temple at all material times. AT THE HIGH COURT The Plaintiffs’ case [16] In Suit 1, the Plaintiffs led by the 3 rd Plaintiff, a priest, claim the Plaintiffs are the beneficial owners of the land on which the Temple stood. 8 The Plaintiffs filed the case against the Defendants, the former occupiers of the said Land for the tort of trespass. [17] The land known as Grant No. 26834 Lot 6814, Mukim Kamunting, Daerah Larut Dan Matang, Perak is known as Sin Wah Estate. This land was sold to Cekap which subsequently sold the land to Kamunting Setia Maju Sdn Berhad. [18] Pursuant to a Deed of Trust dated 9th April 2009 (“Deed of Trust”), the Plaintiffs were appointed trustees to the following occupiers: (a) Vekineshwaran a/l Kannniah (personal representative of the late Kanniah a/l Ramaih); (b) Narasiaman a/l Periasamy; (c) Rajoo a/l Sondanam; (d) Ramaih a/l Mariapan; (e) Gouri a/l Mariappan (personal representative of the late Suresh a/l M.Maniam); and (f) Sivapakkiam a/p Munusamy (personal representative of the late Maniam a/l Munusamy). [19] On 9th September 2009, the land owners of Lot 6814 had entered into a Deed of Settlement with Cekap (see Exhibit P1 at pages 96-106 of Appeal Records (“AR”)) for the purchase of the said Lot at the price of RM310,500.00. The Plaintiffs had paid the full purchase price to Cekap based on the terms and conditions stated in the Deed of Settlement. 9 [20] Pursuant to Clause 5 of the Deed of Settlement, the occupiers of the said land had appointed the Plaintiffs as their representatives. It was part of the terms of the said Deed of Settlement that the Plaintiffs would, at a later date, be registered as the owner of the Land. [21] Under Clause 20 of the Deed of Settlement, if the Plaintiffs and the occupiers of the said Land were able to pay the full purchase price within the stipulated time stated therein, Cekap would by way of a gift, donate a portion of the land measuring approximately 1.5 acres on which the Temple stood, currently managed by the Plaintiffs and / or the Trustees, to the Plaintiffs. [22] The Temple which was built about 70 years ago was run and managed by the estate workers as at that time there was no committee being appointed to run and/ or manage the Temple. [23] The Defendants, who were the Committee Members for 2010/2011 of the Society, were not involved with the signing of the Deed of Settlement and / or had anything to do with the negotiations with Cekap pertaining to the Temple land. [24] On 8th August 2010, the Defendant and / or its employee and /or its agent and / or a third party who colluded with the Defendants had entered into the Temple by breaking open the padlock of the gate of the Temple without any permission from the Plaintiffs who were owners of the Temple. The Defendants had caused the personal items of the 3rd Plaintiff as well as praying items in the Temple to be thrown away. 10 [25] Vide Suit 1, the Plaintiffs amongst others, claimed from the Defendants for injunctive relief, general, punitive and exemplary damages. Case for the Defendants [26] The Defendants vide its witnesses stated as follows: (a) The Defendants had registered the Society on 18th April 2001 and had since run and managed the Temple without any objections from the Plaintiffs (see Exhibit 31 at page 82 Volume 2 AR). (b) The Plaintiffs, headed by the 3rd Plaintiff were performing the daily prayers at the said Temple. They were also assisting the Society in other prayers arranged and managed by the Defendants on behalf of the Society. (c) However, in 2008, due to certain misconduct of the 3rd Plaintiff in the performance of his duties as a priest at the said Temple, a dispute arose between the Plaintiffs and the Defendants. (d) As the 3rd Plaintiff had refused to give the Defendants the keys to the Temple after he was sacked as a priest by the Defendants, the Defendants broke the padlock of the gate of the Temple in order to gain entry into the Temple that they were running and managing. 11 (e) Under the Deed of Settlement, the Plaintiffs and the occupiers of the said land only purchased a portion of the Land and not the whole lot as pleaded. The Temple was not built on the portion of the land purchased by the Plaintiffs but it stood on a portion of Lot 6814 distinct and separate from the Plaintiff’s portion. In view of the above, the Plaintiffs were not the beneficial owners of the whole lot as claimed by them. (f) Pursuant to the Deed of Settlement, Cekap would by way of a gift donate 1.5 acres of the land where the Temple stood to the committee registered to manage the Temple. The terms of the Deed of Settlement envisaged that a Deed of Gift would be executed at a future date with the committee to be registered for the purpose of managing the Temple. (g) To date, the owner of the Land had not executed any Deed of Gift with any party to donate the said land for the purpose of the Temple. (h) The Society had been legally established to manage the Temple since 2001. The claim of the Plaintiffs that the Defendants had trespass is not true in the circumstances of the case. 12 The Decision of the High Court [27] As the parties had agreed to narrow down the issues for the Court’s determination to only two issues mentioned above, the decision of the Court will be centered only on these two issues. [28] The findings of the learned trial Judge after a full trial were as follows: Issue 1 : Whether the Plaintiffs were the beneficial owners of the land where the Temple stood. (a) As reflected in paragraph 1 of the Plaintiffs’ Statement of Claim (“SOC”) of Suit 1, the Plaintiffs pleaded that they are the beneficial owners of the land known as Grant No.26834 Lot No. 6814, Mukim Kamunting, Daerah Larut Dan Matang, Perak, based on the Deed of Settlement dated 9th September 2009 entered into between Cekap and the Plaintiffs. The consideration for the said Deed of Settlement was RM310.000.00. (b) A perusal of the Deed of Settlement (Exhibit P1) showed that the Plaintiffs did not purchase the whole lot as pleaded in paragraph 1 of the SOC of Suit 1 but only a portion of the lot, approximately 1.40 acres from the 2.05 acres of the whole land (see Recital B & G at page 94 & 95 of Volume 2 AR). 13 (c) The purchase of the portion of the land by the Plaintiffs did not include the land on which the Temple stood. The Plaintiffs had only purchased the portion of the land they occupied. The rest of the land is agricultural land known as Parcel No. 37, Held under HS (M) 984, PT No. 1387, Mukim Kamunting, Daerah Larut Dan Matang, Perak (See Recital B at page 95 of Volume 2 Appeal Record). (d) Clause 20 of the Deed of Settlement stated that if the Deed of Settlement had been duly completed within the stipulated period stated in the Deed of Settlement, Cekap agreed to donate a piece of land measuring approximately 1.5 acres within the land, currently occupied by a Hindu Temple operated by the Occupiers’ to the Occupiers’ Hindu Temple Committee/Trustees, subject to final issuance of the title. A separate Deed of Gift shall be signed by Cekap and the Hindu Temple Committee/Trustee within 6 months from the Completion Date. (e) Clause 20 did not stipulate to whom the said land would be donated to. In view of this the Plaintiffs contention that they were beneficial owners is without basis. (f) Pursuant to the Deed of Assignment, the Deed of Gift is the instrument to effect the donation of the land on which the Temple stood to be executed only upon subdivision of the land and after a separate title to be issued. 14 (g) The Defendant’s witness, one Khong Wei Cheung (“PW2”) from Cekap testified that the subdivision of Lot 6814 could not be executed as the said land had been sold to Kamunting Setia Maju Sdn Bhd. (h) The evidence showed that there was no Deed of Gift having been executed in favour of the Plaintiffs. Hence, the Plaintiffs claim that they were beneficial owners of the land could not be sustained. In view of the aforesaid the Plaintiffs have no locus standi to commence Suit 1 against the Defendants for trespass. Issue 2: Who was administering and managing the affairs of the Temple at all material times (a) There was contradictory evidence given by the Plaintiffs’ witnesses. The 3rd Plaintiff (“PW1”) testified that under the Deed of Settlement, Cekap had agreed to donate the Temple to the ten occupiers and their families as these occupiers had purchased the portion of the land they were occupying. Whilst PW2 testified that the land on which the Temple stood would be donated to the “Legal Committee” to be set up by the ten occupiers. The learned Judge accepted the evidence of PW2 that it was not the intention of the Deed of Settlement for the Temple Land to be given to the occupiers in their personal capacities. 15 (b) PW2 further testified, the Temple land was not donated to the occupiers and families who purchased the portion of the said land in their personal capacity but it is for the benefit of the whole of the Hindu community in the said area and meant to be used by all Hindu devotees. (c) The evidence showed that the Temple land would only be donated to a body legally created to manage the affairs of the Temple for the benefit of those who live around the Temple and not specifically given to the ten occupiers of the portion of Lot 6814 or their families. (d) Both the Plaintiffs and the Defendants had been living together in Sin Wah Estate for a long time. All of them were once employees of the Sin Wah’s estate. They knew each other well and all of them were involved in the activities of the Temple. (e) PW1 admitted, from 1985 to 2001, the 1st Defendant in Suit 1, Gopal a/l Subramaniam (“DW1”) was the Chairman of the “informal temple committee”, Ranganathan a/l Ratnam (“DW2”) a Trustee of the Society, an ex-treasurer, Mususamy a/l Yellappan and current Trustee of the Society and an ex- Chairman of the “informal temple committee” were and are responsible for the management of the Temple. (f) The evidence before the learned Judge showed that the said Temple was managed by the “informal temple committee” who 16 were the worshippers and occupiers who had been living in the said area and / or working in the said Estate since 2001. (g) This “informal temple committee” then took steps to register the Society in order to become a formal body to undertake the task to run and manage the Temple as envisaged in the Deed of Gift. (h) This is further supported by the three signboards indicating the existence of Temple. The first signboard is at the office of the Temple. The 2nd signboard is located at the side of the main road leading to the Temple which was put up around 2005/2006. The last signboard is placed very near the Temple (see Exhibits D11B, D12C and D63A and D63B respectively). (i) The evidence of the Defendant is further supported by the evidence of Datuk Mohan a/l Shanmugam (PW3), the President of Hindu Sangam Malaysia, who testified that the Defendant had been registered with Hindu Sangam since 27th February 2002 as a body representing the Temple and had been entrusted with the responsibilities to manage and control the daily religious activities of the Temple. (j) The evidence of DW1 and DW2, proved that the water bills were registered in the name of Munusamy a/l Yellapan as Trustee (see Exhibit D-4). The electricity bill is registered in 17 the name of the Society (see Exhibit D-3). All purchases of items such as fruits, flowers and etc for the prayers which were held two or three times in a year were all paid by the Society (see Exhibits D19 & D34). (k) Besides the above, the Society too had been receiving donations from the public for the purpose of the management and upkeep of the Temple (see Exhibit D-33, Statement of Account for Year 2009). (l) The permits to hold prayers as well as other activities of the Temple were applied for by the Defendants on behalf of the Society (see Exhibits D-37, D7, D8 & D9). (m) All renovations and maintenance works were undertaken by the Defendants using the funds donated by the public (see Exhibits D10A-C, D11A-B, D12A-D, D13, D14, D43, D44, D47, D49, D50, D51, D54, D55, D56 and D59). (n) There was overwhelming evidence to prove the above. The plaintiff was not able to challenge the evidence adduced by the Defendants. (o) From the evidence adduced before the learned Judge, from 2001 to date of Suit 1 and even to date of trial, the Society was in full control of and / or responsible for the management of the 18 Temple for the benefit of the Hindu worshippers in the said area. (p) Based on the evidence placed before the learned Judge, as shown above, the learned Judge was satisfied that the Defendant was entitled to the declaration sought by them as pleaded in their SOC in Suit 2. OUR DECISION The law [29] We were mindful of the limited role of the appellate court in relation to findings of facts made by the court of first instance especially after a viva voce evidence. [30] In the course of that, we had sought guidance from the very often quoted case of Lee Ing Chin @ Lee Teck Seng v Gan Yook Chin [2003] 2 MLJ 97 where the Court of Appeal held as follows: “an appellate court will not, generally speaking, intervene unless the trial court is shown to be plainly wrong in arriving at its decision. But appellate interference will take place in cases where there has been no or insufficient judicial appreciation of the evidence.” [31] Reference is also made to the decision of the Federal Court in Gan Yook Chin v Lee Ing Chin @ Lee Teck Seng [2004] 4 CLJ 309 where 19 the Federal Court held that the test of “insufficient judicial appreciation of evidence” adopted by the Court of Appeal was in relation to the process of determining whether or not the trial court had arrived at its decision or findings correctly on the basis of the relevant law and the established evidence. The Appeals Before Us [32] Having perused the Appeal Records, especially evidence of the Plaintiffs’ witnesses as well as the Defendants’ witnesses in both Suit 1 and Suit 2 and the documentary evidence tendered in Court, the learned Judge rejected the evidence of the Plaintiffs in Suit 1 and accepted the evidence of the Plaintiff in Suit 2 and ruled in favour of the Plaintiffs in Suit 2 on both issues that were posed for the Court’s determination. [33] We observed that the learned Judge was clear with the real issues before him as pleaded by both parties and decided that the dispute between the parties could be resolved once and for all by answering both the issues as stated herein. [34] With respect to issue 1 the Plaintiffs had pleaded in paragraph 1 of their SOC in Suit 1 that they are the beneficial owners of a piece of land known as Grant No. 26834 Lot No.6814, Mukim Kamunting, Daerah Larut Dan Matang, Perak Darul Ridzuan. However, upon perusal of the documentary evidence adduced in Court vide the Deed of Settlement (“Exhibit P1”), under Recital D, the land purchased by the Plaintiffs was approximately 1.40 acres and formed a portion of land described in 20 Recital A of the same document. This is further supported by Recital G which clearly stated that Cekap sold only a portion of the Land to the Plaintiffs. [35] The evidence of a representative from Cekap, one Kong Wei Cheung (“PW2”) further reinforced the fact that the Plaintiffs had only purchased a portion of the said Land and not the whole of the said Land as pleaded. There was also a finding of fact made by the learned Judge that the land on which the Temple stood was not on the portion of the land purchased by the Plaintiffs. [36] The learned Judge had ruled that under Clause 20 of the Deed of Settlement, the land where the said Temple stood is also situated within Lot 6814, which Cekap had agreed to donate separately by way of a Deed of Gift to the Occupiers’ Hindu Temple Committee/Trustee. However, until the trial of both Suit 1 and 2 there was no Deed of Gift having been executed between Cekap and the Committee of the Occupiers’ Hindu Temple Committee or Trustees. [37] In fact, PW2 in his testimony stated that Cekap made a promise to donate the land where the Temple stood not to the occupiers but to a body to be constituted. In short the occupiers were required to form a temple committee and only after Lot 6814 had been subdivided can the intention in the Deed of Gift be effected. PW2 had stressed that the land on which the Temple stood is meant to be used by the devotees and the public and not specifically for use of the Plaintiffs and / or their families. 21 [38] In view of the above findings, the learned judge ruled that the Plaintiffs has no locus to maintain a cause action premised on the tort of trespass against the Defendants. [39] Having perused the learned Judge’s Grounds of Judgment and considered the evidence before the learned Judge, we could not disagree with the learned Judge’s findings that the Plaintiffs could not maintain the action against the Defendant on trespass as they are not the beneficial owners of the Land. [40] In view of the foregoing, we agree with the learned Judge’s resolution of Issue 1 [41] Turning now to the 2nd issue as to whether the Defendant in Suit 2 had been managing the said Temple and entitled to the prayers sought in Suit 2. [42] We observed that the learned Judge had painstakingly evaluated the evidence before him and based on the following evidence the learned Judge concluded that the Plaintiff in Suit 2 had proven his case against the Defendants. (a) The testimonies of the Defendant in Suit 2, Gopal a/l Subramaniam (DW1) who is the Chairman of the Society, Ranganathan a/l Ratnam (DW2), the Society’s Trustee and former treasurer, Datuk Mohan a/l Shanmugam (DW3), the President of Malaysian Hindu Sangam, a national body 22 responsible for the promotion of the Hindu religious affairs in Malaysia are more probable as compered to the Plaintiffs’ evidences. (b) That the Temple had initially been managed and run by an “informal temple committee” consisting of Hindu devotees and the occupiers who live and work in Sin Wah Estate until 2001. After which the “informal temple committee” was registered with the Registrar of Society (see Exhibit D13). (c) The presence of the sign boards of the Temple managed by the Plaintiffs in Suit 2 at three conspicuous places as illustrated herein. (d) The confirmation by DW3, Datuk Mohan a/l Shanmugam that the Society had been registered with Hindu Sangam on 27 th February 2002. (e) Water bills and electricity bills registered in the name of the Trustees and / or Society. (f) All expenses for the purchase of items for the religious ceremonies held by the Temple were made by the Society. (g) Documentary evidence to prove receipts of donations from the public for the maintenance and management of the Temple. 23 (h) Applications of permits to hold prayers and other related religious activities made by the Society. (i) Renovations and maintenance of the Temple undertaken by Society using the funds donated by the public. (j) The above evidence was not challenged by the Defendants in Suit 2. [43] Upon our close scrutiny of the evidence before the learned Judge we found that the evidence was overwhelmingly in favour of the learned Judge’s ruling for the Plaintiff in Suit 2. CONCLUSION [44] Having examined the pleadings, the notes of proceedings, and having heard the respective learned Counsels, we found that with respect to two appeals before us, the learned Judge had sufficiently evaluated the evidence before His Lordship, both testimonial and documentaries and had correctly allowed the Plaintiff ’s claim against the Defendants in Suit 2 and dismissed the Plaintiffs’ claim against the Defendants in Suit 1. We are satisfied there was no appealable error which merit our intervention. [45] Based on the aforesaid, we unanimously affirmed the learned Judge’s decision which allowed the Plaintiff’s claim in Suit 2 with no order as to cost. With respect to the Plaintiffs’ appeal against the decision of 24 the learned Judge which dismissed the Plaintiffs’ claim against the Defendants in Suit 1, we dismissed the Plaintiffs’ appeal also with no order as to costs. We also ordered for the deposits to be refunded. [46] We therefore ordered accordingly. Dated this 20th October 2017 (ASMABI BINTI MOHAMAD) Judge Court of Appeal, Malaysia 25 Parties: 1. Messrs R. Kengadharan & Co Advocate & Solicitor For and on Behalf of the Appellants No.15, Tingkat 2, Jalan SS 2/55 47300 Petaling Jaya Selangor Darul Ehsan [Ref: KR/LIT/2221/KM&3ORS/GS&4ORS/15(A)] …Mr R. Sivarasa Mr R. Prabhakaran 2. Messrs Gooi & Associates Advocate & Solicitors For and on Behalf of the Respondents No. 58-3-1, Tingkat 3, Fortune Heights Cantonment Road 10250 Penang [Ref: GA/886/10/GAS/GHL] …Mr Gooi Hsiao Leung Miss S.Vimala	30,003	Tika 2.6.0
W-02(C)(A)-1075-06/2016	PERAYU ASEAN BINTULU FERTILIZER SDN BHD ... APPELLANT (COMPANY NO.: 65199-P) RESPONDEN WEKAJAYA SDN BHD ... RESPONDEN T (COMPANY NO.: 227571-V)	Arbitration — Appeal— Arbitrator — Delay issue — Application to set aside the Award — Whether the appellant suffer any material prejudice— Arbitration Act 1952 [Act 93], ss 37, 42	20/10/2017	YA DATUK DR HAJI HAMID SULTAN BIN ABU BACKERKorumYA DATUK DR HAJI HAMID SULTAN BIN ABU BACKERYA DATO' UMI KALTHUM BINTI ABDUL MAJIDYA DATO' SURAYA BINTI OTHMAN	https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=1e5ce19d-d2f7-4919-ba2f-07da803f869b&Inline=true	1 THE COURT OF APPEAL OF MALAYSIA (APPELLATE JURISDICTION) CIVIL APPEAL NO. W-02(C)(A)-1075-06/2016 BETWEEN ASEAN BINTULU FERTILIZER SDN BHD ... APPELLANT (COMPANY NO.: 65199-P) AND WEKAJAYA SDN BHD ... RESPONDENT (COMPANY NO.: 227571-V) [Dalam Mahkamah Tinggi Malaya di Kuala Lumpur Bahagian Dagang Saman Pemula No.: 24C(ARB)-16-03/2015] Dalam perkara seksyen 37 Akta Timbang Tara 2005 Dan Dalam perkara Aturan 69 dan Aturan 92 Kaedah-Kaedah Mahkamah 2012 Dan Dalam perkara Akta Timbang Tara 1952 (Disemak 1972) dan Dalam Perkara Timbang Tara antara Wekajaya Sdn Bhd (Penuntut) dan Asean Bintulu Fertilizer Sdn Bhd (Responden) Dan Dalam perkara Awad Muktamad yang diterbitkan oleh Datuk Professor Sundra Rajoo pada 26.12.2014 2 Antara Asean Bintulu Fertilizer Sdn Bhd … Plaintif (No. Syarikat: 65199-P) Dan Wekajaya Sdn Bhd … Responden (No. Syarikat: 227571-V) Heard Together With THE COURT OF APPEAL OF MALAYSIA (APPELLATE JURISDICTION) CIVIL APPEAL NO. W-02(C)(A)-1076-06/2016 BETWEEN ASEAN BINTULU FERTILIZER SDN BHD ... APPELLANT (COMPANY NO.: 65199-P) AND WEKAJAYA SDN BHD ... RESPONDENT (COMPANY NO.: 227571-V) [Dalam Mahkamah Tinggi Malaya di Kuala Lumpur Bahagian Dagang Saman Pemula No.: 24C(ARB)-7-02/2015] Dalam perkara seksyen 42 Akta Timbang Tara 2005 Dan 3 Dalam perkara Akta Timbang Tara 1952 (Disemak Semula 1972) dan di dalam perkara Timbang Tara di antara Wekajaya Sdn Bhd (Pemohon) dan Asean Bintulu Fertilizer Sdn Bhd (Responden) Dan Dalam perkara Awad Muktamad yang diterbitkan oleh Datuk Professor Sundra Rajoo pada 26.12.2014 Antara Asean Bintulu Fertilizer Sdn Bhd … Plaintif (No. Syarikat: 65199-P) Dan Wekajaya Sdn Bhd … Responden (No. Syarikat: 227571-V) Coram: Hamid Sultan bin Abu Backer, JCA Umi Kalthum binti Abdul Majid, JCA Suraya binti Othman, J Hamid Sultan Bin Abu Backer, JCA (Delivering Judgment of The Court) GROUNDS OF JUDGMENT [1] The two appeals arising from the same award was fixed for hearing before us on 19-6-2017. They are appeal No. W-02(C)(A)-1075-06/2016 which relates to section 37 of Arbitration Act 2005 (AA 2005) and appeal No. W-02(C)(A)-1076-06/2016 relates to section 42 application. 4 [2] The learned trial judge had written a meticulous judgment setting out the law and facts in great detail. In addition, the learned judge had taken upon himself to exercise a curial scrutiny of the issues related to section 42 application as though it was an appeal related to a judgment of the court. In doing so, the learned judge had justified the reasons for sustaining the award and also to the amendment of the award and that part of the judgment reads as follows: “[157] In a reference under s 42 on a question of law, unlike a setting aside under s 37 AA 2005, this Court is permitted to vary part of an Award as may be affected by the error of law that has been proved to have applied to the calculation of interest here. To allow double interest to be charged would be to perpetuate an injustice on ABF and would be unconscionable in the circumstances of the case as interest on the Debit Notes was already charged at 1.5% per month on all overdue accounts. This is an error of law that satisfies that requirement under s 42 AA 2005 wherein this Court would be constrained to excise the part of the award of interest affected and to leave intact the unaffected part. [158] I had therefore ordered that the interest of 8% per annum simple interest on the Financial Charges be varied such that interest at 8% per annum simple interest should only run on the Financial Charges of RM4.631,647.37 from 1 December 2006 to 1 August 2012 and thereafter at 5% per annum simple interest until actual realization and not from 31 March 2003. I also allowed costs of RM10,000.00 to ABF.” [3] The application under section 37, principally based on public policy was dismissed by the learned trial judge, notwithstanding there was a serious complaint of delay by the learned arbitrator in delivering the award. 5 [4] After hearing the submissions, we directed further submissions and reserved our judgment to a date to be fixed. Brief Facts [5] The facts of the case is not complicated but for the issues to be determined by the learned arbitrator naturally requires great skill and knowledge, though there cannot be any justification for the delay in delivering the award. The delay complained of is about 4 years to deliver the award. The period taken from the commencement of the arbitration proceedings to the delivery of the award was about 10 years. The delay complained of in this case is a classic example for stakeholders to push for legislative measures to check misconduct of arbitrators to preserve the integrity of the arbitration process and enhance the growth of domestic as well as international arbitration. We will deal with the issue of delay and injustice complained of shortly. [6] We do not wish to repeat the facts of the case in any detail as it has been dealt with by the learned judge in a 108 pages judgment. The judgment is reported as [2016] 1 LNS 1089. This judgment must be read together with that judgment to appreciate our grounds in the proper perspective. [7] We will summarise the facts in our own words as follows: (a) The appellant is the employer and the respondent is the contractor who was engaged to construct urea storage building; 6 (b) Dispute arose between the parties and the matter was referred to arbitration in the year 2003 at a time Arbitration Act 1952 was in force; (c) 10 issues were submitted before the arbitrator and learned judge had summarised them as follows: “Issue 1: Whether given that the contract provides a Provisional Sum for rock excavation of 25,000 m3 , the Claimant (WSB) is entitled to an extension of time as a result of the discovery of the rock?; Issue 2: Whether the Respondent (ABF) had misrepresented any material facts or had given any warranty as to the amount of rock on site?; Issue 3: Whether the parties had agreed to an extension of time to 20 July 2002 based on excavation of 16,000 m3 of rock only?; Issue 4: Whether there are any other events of delay that would entitle the Claimant (WSB) to an extension of time beyond 20 July 2002?; Issue 5: If the above question is answered in the affirmative, whether the extension of time to July 2002 adequately takes into consideration these other events of delay?; Issue 6: Whether the delays to the completion of the Works were caused by or contributed to by WSB?; Issue 7: Whether if WSB is entitled to an extension of time to July 2002 (or to another date) the amount of prolongation costs that the Claimant WSB is entitled to?; 7 Issue 8: Whether apart from the claim for prolongation costs, WSB is entitled to any of its other claims?; Issue 9: Whether if WSB is only entitled to extension of time to July 2002, ABF is entitled to claim for liquidated damages for the delay caused by WSB?; Issue 10: Whether ABF is entitled to the increased costs of completing the works?” (d) The submission ended in 2009 and the final award was delivered on 26-12-2014. (e) The award was in favour of the claimant/respondent and reads as follows: “1. That ABF shall pay the sum of RM 12,342,185.29 to WSB; 2. That ABF shall pay interest at the rate of 8% simple interest per annum on the sum of RM12,342,185.29 from 31 January 2003 to WSB to 1 August 2012; 3. Thereafter ABF shall pay interest at the rate of 5% simple interest per annum on the sum of RM12,342,185.29 from 2 August 2012 until the actual realization of the said payments; 4. That ABF shall bear and pay WSB's costs of this Arbitration on a party and party basis; 5. That ABF shall pay the costs of the Award, 6. That all other requests and claims of WSB and ABF are rejected.” 8 (f) The particulars of the award sum of RM12,342,185.29 read as follows: A. Value of work done and variations: RM3,259,666.22 B. Loss of profit from omission of works: RM 90,277.39 C. Financial Charges : RM4,631,647.37 D. Prolongation Costs: RM4,360,594.31 TOTAL RM12,343,185.29 [8] The Memorandum of Appeal in appeal “No. 1075” reads as follows: “1. The Learned High Court Judge erred in law and in fact in refusing to intervene to set aside the arbitration award despite the fact that the Arbitrator had made his findings without credible evidence. In this regard, the Learned High Court Judge erred in fact and in law when he failed to consider the following: - a. That the Arbitrator was clearly wrong to hold that the Respondent is entitled to financial charges amounting to RM 4,631,647.37 when there was no evidence to support any such claim or that the Respondent had in fact suffered any such loss. b. That it is clear from the witness statements filed in the arbitration that the Respondent's claim for financial charges is not based on the audited accounts but rather based on an internal statement of accounts. 9 c. That in any event, the Respondent did not call the auditor as a witness at the arbitration to explain its auditor's report which does not explain the interest rate applicable for financial charges. d. That it simply does not make sense as to how financial charges can amount to RM 4,631,647.37 for the disputed extended contract period of 14 months which amounts to close to 40% of the contract value. e. That the invoice tendered by the Respondent does -not prove that it had incurred those monies. f. That the Respondent had not tendered any evidence to proof that it incurred losses in the form of financial charges amounting to RM4,631,647.37. 2. The Learned High Court Judge erred in law and in fact in refusing to intervene to set aside the arbitration award despite there being clear errors made by the Arbitrator as a result of delay of approximately 4 years in publishing the arbitration award. In this regard the Learned High Court Judge has erred in fact and in law when he failed to appreciate the following:- a. That the arbitrator took a period of 4 years from the close of submissions to issue the final award which amounts to an inordinate delay of which no explanation has been given by the arbitrator. b. That it is the duty of the arbitrator, an individual whom has been paid a significant amount of monies, to carry out his function as an administrator of justice to issue the arbitration award within a reasonable time. 10 c. That the arbitrator was jointly appointed for his expertise with the believe that he will issue his award promptly so that the dispute between the parties can be resolved within a reasonable time. d. That it is not for the parties to remind the arbitrator to issue the arbitration award and neither should the parties be obliged to have to take steps to terminate the arbitrator's appointment. e. That the risks of reminding an arbitrator are obvious and the option of terminating the appointment of the arbitrator means having to go through the entire process once again which is a very time consuming and costly affair. f. That the Kuala Lumpur Regional Centre for Arbitration's Arbitration Rules provides that an award must be issued within 3 months from the close of pleadings unless time has been extended. g. That once there has been a significant delay in the issuance of the arbitration award, the said award cannot be accorded the same deference of that of an award which is issued promptly. h. That given the limited grounds on which an arbitration award can be set aside, this presumes that an award has been properly and properly issued by the arbitrator and the delay (of 4 years) in the issuance of an award, cannot be accepted as it is contrary to not only what the parries expect and is against the public policy of law of arbitration in Malaysia. i. That the arbitrator could not have properly evaluated the evidence, 4 years after close of submissions and 5 years after the evidence was recorded. 11 3. That the Learned High Court Judge failed to appreciate that the failure of the Respondent to provide adequate evidence or a failure to meet the necessary standard of proof is a ground to set aside an arbitration award. 4. That the Learned High Court Judge for reasons set out above failed to appreciate that the arbitration award should be set aside on the grounds of public policy.” [9] The Memorandum of Appeal in appeal “No. 1076” reads as follows: “1. The Learned High' Court Judge erred in law and in fact in dismissing the following questions of law put before him:- a. Question 1: Whether given that the contract provides a provisional sum for rock excavation of 25,000m3, was the Respondent entitled to an extension of time as a result of the discovery of rock? b. Question 2: Whether as a matter of law if the contract requires a party to inspect the site, can it derogate its responsibilities by relying on the alleged representations made by other parties? c. Question 4: Whether if the Arbitration Act 1952 is silent on the issue of the granting of pre-award interest, does the arbitrator has the powers to grant pre-award interest? 2. The Learned High Court Judge erred in law and in fact in not answering Question 1 in the negative. In this regard, the Learned High Court Judge erred in law and in feet when he failed to consider the following:- a. That a provisional sum is in respect of works which cannot be sufficiently defined or properly evaluated at the time when the contract is evaluated. 12 b. That the Respondent had agreed to excavate the amount of hard rock based on the unit rates as agreed. c. That when, the Respondent entered into the contract, the Respondent was aware that there was a potential need to carry out rock excavation but the amount of rock that was to be extracted was unclear and it is for this reason the value of these works were treated as provisional. d. That the arbitrator was wrong to find that there was a separate contract. e. That the Respondent is not entitled to any extension of time in carrying out provisional works. f. That the Respondent should have factored these provisional works into the work program and catered for the possibility of carrying out these works. g. That the Respondent not to ask for the provisional sum item to be removed and it remained as part of the contract. h. That the arbitrator's analysis on this issue is simply incorrect and the conclusion which he reaches when finding that the Respondent is entitled to more time for a provisional sum item is simply preposterous. i. That this was not a variation or new works that were ordered by the Appellant and these works are part of the Respondent's original scope of works and all that needed to be determined is the amount of rock that the Respondent needed to extract from the site. 3. The Learned High Court Judge erred in law and in fact in not answering Question 2 in the negative. In this regard, the Learned High Court Judge erred in law and in fact when he failed to consider the following:- 13 a. That there is a specific contractual clause which deals with the issue of the amount of rock to extract and the applicable rate, which means that there is no basis for alleging that there was an act for misrepresentation or collateral warranty. b. That there is an entire contract clause and the entire contract clause operates to exclude all allegations of misrepresentation and collateral warranties. c. That the Respondent was expressly requested in the tender bid documents to satisfy themselves as to the site conditions. They failed to do so and instead claim that as a result of the mediation that there was no need for them to carry out the necessary site investigation. d. That the arbitrator was wrong in arriving at the conclusion that there was an act of misrepresentation or a collateral warranty. e. That the failure of the arbitrator to consider the relationship between the various relevant clauses in the contract resulted in him arriving at a conclusion which contradicted the applicable law and the terms of the agreement between the parties 4. The Learned High Court Judge erred in law and in fact in not answering Question 4 in the negative. In this regard, the Learned High Court Judge erred in law and in fact when he failed to consider the following: - a. That when the arbitration award was issued, the Arbitration Act 1952 was repealed and no longer applicable. The arbitrator therefore could not have awarded interest pursuant to the provisions of the Arbitration Act 1952. 14 b. That at the point of issuing the award, the applicable law was that of the Arbitration Act 2005 and the Court of Appeal in the decision of Far East Holdings Bhd & Anor v Majlis Ugama Islam dan Adat Resam Melayu Pahang (Civil Appeal No. W-02(NCC)(A)-2672- 12/2013) ruled that the arbitrator does not have the necessary power to grant pre-award interest that is the grant of pre award interest from January 2003 to December 2014 amounting to approximately RM10 million is bad in law. c. That the savings provision found in Section 51 of the Arbitration Act 2005 does not deal with the powers of the arbitrator but rather is limited to issues pertaining to the arbitration agreement and the arbitration proceedings. As such, the power to award interest falls within the purview of the Arbitration Act 2005. d. That in any event, it is debatable whether the Arbitration Act 1952 granted the arbitrator the power to grant pre award interest. It does not appear to be the case. e. That the relevant sections pertaining to the award of interest in the Arbitration Act 1952 and the Arbitration Act 2005 is similar. As such, a similar interpretation should be given to Section 33 of the Arbitration Act 1952 with regard to the power to grant pre-award interest. f. That the decisions which have previously considered the issue of allowing pre-award interest pursuant to the Arbitration Act 1952 have failed to recognise that once there is a statutory provision, common law cannot be imported to interpret that particular section or statute. g. That the power to grant interest post award is expressly provided for in the Arbitration Act 1952 but there is no such provision in relation to pre award interest. Therefore Parliament (as with the 15 2005 Act) has deliberately chosen to exclude the power of the arbitrator to grant pre award interest. h. That as a result of the delay in issuing the award, the Appellant is being penalized by interest. The Appellant cannot be responsible for the delay of the arbitrator. 5. The Learned High Court Judge erred in law and in feet in refusing to intervene to set aside the arbitration award despite there being clear errors made by the Arbitrator as a result of delay of approximately 4 years in publishing the arbitration award. In this regard the Learned High Court Judge erred in law and in fact when he failed to appreciate the following:- a. That the arbitrator took a period of 4 years from the close of submissions to issue the final award which amounts to an inordinate delay of which no explanation has been given by the arbitrator. b. That it is the duty of the arbitrator, an individual whom has been paid a significant amount of monies, to carry out his function as an administrator of justice to issue the arbitration award within a reasonable time. c. That the arbitrator was jointly appointed for his expertise with the believe that he will issue his award promptly so that the dispute between the parties can be resolved within a reasonable time. d. That it is not for the parties to remind the arbitrator to issue the arbitration award and neither should the parties be obliged to have to take steps to terminate the arbitrator's appointment. e. That the risks of reminding an arbitrator are obvious and the option of terminating the appointment of the arbitrator means 16 having to go through the entire process once again which is a very time consuming and costly affair. f. That the Kuala Lumpur Regional Centre for Arbitration's Arbitration Rules provides that an award must be issued within 3 months from the close of pleadings unless time has been extended. g. That once there has been a significant delay in the issuance of the arbitration award, the said award cannot be accorded the same deference of that of an award which is issued promptly. h. That given the limited grounds on which an arbitration award can be set aside, this presumes that an award has been properly and promptly issued by the arbitrator and the delay (of 4 years) in the issuance of an award, cannot be accepted as it is contrary to not only what the parties expect and is against the public policy of law of arbitration in Malaysia. i. That the arbitrator could not have properly evaluated the evidence, 4 years after close of submissions and 5 years after the evidence was recorded.” Delay, Public Policy and Section 37 AA 2005 [10] Learned counsel for the appellant submission in our own words can be summarised as follows: (a) 4 years delay in delivering the award has compromised the decision making process i.e. ‘there could be possibilities of misrecollections’ by the learned arbitrator. 17 (b) Delay in delivering the award is injurious to public good and violates the forum’s most basic notion of justice, and relies on the following cases, namely: (i) BV Scheepswerf Damen Gorinchem v Marine Institute [2015] EWHC 1810 (Comm); (ii) PT Asuransi Jasa Indonesia (Persero) v Dexia Bank SA [2007] 1 SLR (R) 597. (c) The delay in the award with a pre-award interests had amounted by itself to RM10.9 million. (d) Even though it was ad hoc arbitration, the present Kuala Lumpur Regional Centre for Arbitration (KLRCA) Rules requires the award to be delivered within 3 months with provisions for extension. [11] The issue of delay of arbitrators from the commencement of arbitration proceedings till the delivery of the award has been seen as an anathema to the concept of arbitration in many jurisdictions and Malaysia is no exception. Malaysian courts once well known for delay in litigation process and backlog of cases has come out of the anathema during the regime of Chief Justice Tun Zaki Azmi itself and our administration of expeditious justice has won accolades from the World Bank. [See ‘No Nonsence: The Authorised Biography of Zaki Azmi The 12th Chief Justice of Malaysia’ pgs. 11 and 12]. [12] An arbitrator being a professional and having agreed to a fee for his engagement is contractually obliged to subscribe to the doctrine of good practice, such as independence, impartiality, accountability, transparency, good governance, etc. and very importantly intellectual 18 honesty. Lack of intellectual honesty is the foundation to corrupt practices which will be abhorrent to the rule of law and justice. An arbitrator who is not able to perform his engagement within the reasonable expectation of the parties, ought to disclose at the earliest opportunity, failing which it will impinge on the doctrine of good practice as well as ethics and can be a subject matter for parties to bring an action in contract as well as many areas of tort inclusive of tort of deceit. [13] The engagement of arbitrator and the legal remedies against him may not be very different from action related to, for example construction contracts and delay issues or professionals such as lawyers and doctors. However, section 47 of AA 2005 gives some limited protection to the arbitrator. Whether it will cover delay issue is debatable. Section 47 reads as follows: “Liability of arbitrator 47. An arbitrator shall not be liable for any act or omission in respect of anything done or omitted to be done in the discharge of his functions as an arbitrator unless the act or omission is shown to have been in bad faith.” [14] Basically, section 47 to some extent gives immunity to the arbitrator for misconduct. The Model Law does not have a similar provision. Thus, the arbitrator in Malaysia is a protected species and his conduct in arbitration proceedings in a limited sense cannot be challenged unless bad faith can be established. Bad faith or good faith is one related to mens rea and the issue related to delay and bad faith is one inter-related and it will be within the province of the court to determine the issue in a suitable case and that cannot be done in an application for setting aside of the award unless it can be demonstrated 19 that the delay has in actual fact compromised the decision making process of the arbitrator warranting the court to intervene based on public policy. [15] It is well established in criminal litigation that delay may be a good ground for setting aside conviction and ordering an acquittal or rehearing. In civil and commercial cases, it is rarely done purely on the delay point if the judgment is a speaking judgment reflective of the notes of evidence, exhibits, etc. [See Monie v Commonwealth of Australia [2005] NSWCA 25]. [16] The Model Law concept leans in favour of the arbitrator without provision for disciplinary tribunal and any form of misconduct during the arbitral process or failure of the arbitrator to disclose information which may be material consideration for appointment, etc. may not be strictly within the purview of the court once the award has been made. Malaysian law also does not have a disciplinary mechanism for arbitrators coming from the panel of institutional bodies like KLRCA to check the integrity of arbitration process, the arbitrator as well as the award. Many professional bodies in Malaysia where there is some form of statutory recognition such as for the lawyers or medical practitioners , comes with a disciplinary body to keep in check with the conduct and professionalism of their members to sustain rule of law as well as administration of justice. Arbitrators or adjudicators even appointed by KLRCA are not subject to disciplinary action for conduct, unbefitting of the professional obligation. Countries like India, has amended their Arbitration Act to provide some form of relief to check misconduct. [See Indian Arbitration Amendment Act 2015]. For example, India has included a provision for disclosure, i.e. (i) circumstances disclosing any 20 past or present relationship with or interest in any of the parties or in relation to the subject matter in dispute, whether financial, business, professional or other kind, which is likely to give rise to justifiable doubts as to the independence or impartiality of the arbitrator; (ii) circumstances which are likely to affect the ability to devote sufficient time to the arbitration and in particular the ability to finish the entire arbitration within the statutory time frame. In addition, it has set out time limits for the award to be delivered and also to penalise the arbitrator on his fees as well as terminate his appointment, if the award is not delivered within the time frame. Such drastic steps have not yet been provided in AA 2005 to control the misconduct of arbitrators. Misconduct of arbitrators will generally undermine the growing arbitration industry as it will compromise administration of justice and rule of law. Our constitutional framework requires it to be checked by legislative measures, to uphold the rule of law. [17] In the instant case, the learned judge had taken into consideration the delay point and had censored the learned arbitrator. To save the award from being setting aside, the learned trial judge had taken a curial scrutiny of the complaint in relation to section 37 as well as section 42 to sustain the award, thereby demonstrating that the appellant did not suffer any material prejudice. The learned judge had also provided some relief by amending the interest provision. The complaint of pre-award interest on the face of record may look unjust but it being loss for use of money for the respondent at the market rate cannot be unjust or abhorrent to the notions of justice to seek court intervention in a party autonomy concept and also in the light of section 36 of AA 2005. The withholding of that money by the appellant, though no fault of its own in commercial sense, may have been advantageous to the appellant and a 21 loss to the respondent. [See Channel Tunnel Group Ltd v Balfour Beatty Construction Ltd (HL) [1993] 1 All ER 664; Lesotho Highland Development Authority v. Impregilo Spa [2005] UKHL 43]. [18] In our view, the delay issue cannot be the sole reason for appellate intervention when in the instant case the learned arbitrator had delivered a speaking award within the contemplation of the law. [19] Under the old regime i.e. AA 1952, the court had unfettered discretion to intervene to set aside the award. This wide discretion has been curtailed by AA 2005. Now that, that discretion has been curtailed an application under section 37 on public policy ground or purely delay point and speculative attack on the decision making process, in our view will be a non-starter. Our reasons inter alia are as follows: (a) Section 37 as a whole does not give a free hand to the courts to set aside the award based on public policy or breach of natural justice purely on a delay issue. (b) There are limited procedural mechanism to address the delay issue under AA 2005 and/or to preserve the integrity of arbitral process to some extent. The appellant has not resorted to any of those measures and it is too late to address the delay issue and allow the award to be set aside. (c) Section 37 itself qualifies the rights of the applicant by saying the court ‘may’ and not shall. The threshold test to satisfy any of the provision of the said section generally must be to do with patent injustice on the face of the record and one 22 where the award cannot be saved by sending it back to the arbitrator for re-consideration. [See section 37(6) AA 2005]. (d) Section 36 will fortify the argument that the award is final and binding on the parties. Section 36 provision is not found in the Model Law. Section 36 places a higher threshold on the court when it intends to set aside an award related to a section 37 application. In this respect, the decision from other jurisdiction which does not have a similar provision will not be helpful, save those cases which had dealt with the jurisprudence relating to ‘patent injustice’ or unconscionability, etc. Section 36 of the Act reads as follows: “An award is final and binding 36. (1) An award made by an arbitral tribunal pursuant to an arbitration agreement shall be final and binding on the parties and may be relied upon by any party by way of defence, set-off or otherwise in any proceedings in any court. (2) The arbitral tribunal shall not vary, amend, correct, review, add to or revoke an award which has been made except as specifically provided for in section 35.” [20] For reasons stated above, we do not think it is a proper exercise of appellate function to intervene in the decision of the learned judge in relation to appeal “No. 1075”. [21] In relation to appeal “No. 1076”, the learned trial judge has summarised the issues as follows: 23 “A. Where a construction contract includes a Provisional Sum item whether the contractor can claim an extension of time if it carries out these provisional sum works? B. Whether as a matter of law if the contract requires a party to inspect the site, can it derogate its responsibilities by relying on the alleged representations made by other party? C. Whether pursuant to the Arbitration Act 1952 ("AA 1952"), the Arbitrator is correct in law to grant the Respondent pre-award interest amounting to RM10,975,407.69? D. Whether if the AA 1952 is silent on the issue of the granting of pre- award interest, does the Arbitrator have the powers to grant pre-award interest?” [22] We do not wish to labour on the issues related to section 42 as it requires a high threshold to meet and this was explained in great detail by the Court of Appeal in Petronas Penapisan (Melaka) Sdn Bhd v Ahmani Sdn Bhd [2016] 3 CLJ 403. The test for intervention will relate to cases where the award suffers from patent injustice and/or where the award is manifestly unlawful and unconscionable. Usually the consideration which need to be taken into account at the initial stage itself will include whether (i) the point of law attempted to be raised will have substantial effect on the arbitration; (ii) the point have been raised before the arbitrator; (iii) arbitrator’s decision must be obviously wrong or the question must be of general public importance and open to serious doubt; (iv) it must be just and proper for the court to determine the question. The learned judge as we had said earlier, to save the award, had taken the initiative to comb the award to justify the award should javascript:DispAct=window.open('/Members/DisplayAct.aspx?CaseActCode=MY_FS_ACT_1972_93&SearchId=4hakim33','_DisplayAct','');DispAct.focus() javascript:DispAct=window.open('/Members/DisplayAct.aspx?CaseActCode=MY_FS_ACT_1972_93&SearchId=4hakim33','_DisplayAct','');DispAct.focus() 24 stand save for the adjustment related to interest. We do not think the appellant had made out a case for section 42 to apply. [23] For reasons stated above, we take the view that appellate intervention is not warranted and the appeal “No. 1076” must be dismissed in limine. [24] Both the appeals are dismissed with costs, subject to payment of allocatur fees. Deposits are to be refunded. We will now hear the parties on the issue of costs. We hereby order so. Dated: 20 October 2017 sgd (DATUK DR. HAJI HAMID SULTAN BIN ABU BACKER) Judge Court of Appeal Malaysia. Note: Grounds of judgment subject to correction of error and editorial adjustment etc. 25 Counsel for Appellant: Mr. Wong Kah Hui [with Raja Yasmin] Messrs. Kadir, Andri & Partners Advocates & Solicitors Level 10, Menara BRDB 285 Jalan Maarof Bukit Bandaraya 59000 Kuala Lumpur. [Ref: 20160200/WKH/YNAR] Counsel for Respondent : Mr. Rajendra Navaratnam [with Mr. Mak Hon Pan] Messrs Azman Davidson & Co Advocates & Solicitors Suite 13.03, Tingkat 13 Menara Tan & Tan 207 Jalan Tun Razak 50400 Kuala Lumpur. [Ref: RN/MHP/eda/0183/2004P]	36,018	Tika 2.6.0
24-576-05/2015	PLAINTIF 1.CATHERINE KOO [United Kingdom Passport No. 528543713] 2.EDWARD HAO-MANG KOO [United States of America Passport No. 453907724] 3.ALEXANDER HAO-NAN KOO [NRIC No.: 641222-71-5301] DEFENDAN 1.KOO LIN SHEN [NRIC No.: 210219-71-5269] 2.CHARLES KOO HO-TUNG [UK Pasport No.: 7612278793] 3.ANGELA KOO CHI-FONG [UK Pasport No.:511077870] 4.LYDIA KOO CHEE YUNG [UK Pasport No.:510909424] (suing on behalf of herself and the beneficiaries of the estate of Koo Ling Ching, deceased) 5.HSBC INTERNATIONAL TRUSTEE LIMITED (Company No: 1168) (Administrator of the estate of Koo Ling Ching) 6.MALAYA ACID WORKS SDN BHD (Company No: 3202-D) 7.MALAYA ACID WORKS (ALUM) SDN BHD (Company No: 5734-H) 8.KOO HO-TUNG, CHARLES [UK Passport No.: 7612278793] 9.KOO CHI-FONG, ANGELA [UK Passport No.:511077870] 10.KOO CHEE YUNG, LYDIA [UK Passport No.:510909424] 11.KOO HO LIANG, HENRY [UK Passport No: 7612751284]	null	20/10/2017	YA DATUK AZIMAH BINTI OMAR	null	null	null	null
24-576-05/2015	PLAINTIF 1.CATHERINE KOO [United Kingdom Passport No. 528543713] 2.EDWARD HAO-MANG KOO [United States of America Passport No. 453907724] 3.ALEXANDER HAO-NAN KOO [NRIC No.: 641222-71-5301] DEFENDAN 1.KOO LIN SHEN [NRIC No.: 210219-71-5269] 2.CHARLES KOO HO-TUNG [UK Pasport No.: 7612278793] 3.ANGELA KOO CHI-FONG [UK Pasport No.:511077870] 4.LYDIA KOO CHEE YUNG [UK Pasport No.:510909424] (suing on behalf of herself and the beneficiaries of the estate of Koo Ling Ching, deceased) 5.HSBC INTERNATIONAL TRUSTEE LIMITED (Company No: 1168) (Administrator of the estate of Koo Ling Ching) 6.MALAYA ACID WORKS SDN BHD (Company No: 3202-D) 7.MALAYA ACID WORKS (ALUM) SDN BHD (Company No: 5734-H) 8.KOO HO-TUNG, CHARLES [UK Passport No.: 7612278793] 9.KOO CHI-FONG, ANGELA [UK Passport No.:511077870] 10.KOO CHEE YUNG, LYDIA [UK Passport No.:510909424] 11.KOO HO LIANG, HENRY [UK Passport No: 7612751284]	null	20/10/2017	YA DATUK AZIMAH BINTI OMAR	https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=5332fe94-f1dd-4755-8b95-9ce934aa5a43&Inline=true	1 IN THE HIGH COURT OF MALAYA AT SHAH ALAM IN THE STATE OF SELANGOR DARUL EHSAN, MALAYSIA ORIGINATING SUMMONS NO: 24-576-05/2015 In the matter of Koo Lin Shen (NRIC No. : 210219-71-5269; And In the matters of Sections 2, 51, 52, 53, 54, 55, 56, 57, 58, 59, 62, 63 and 64 Mental Health Act, 2001; And In the matters of Orders 7 and 29 of the Rules of Court, 2012; BETWEEN 1.CATHERINE KOO [United Kingdom Passport No. 528543713] 2.EDWARD HAO-MANG KOO [United States of America Passport No. 453907724] 3.ALEXANDER HAO-NAN KOO [NRIC No.: 641222-71-5301] …PLAINTIFFS 2 AND 1.KOO LIN SHEN [NRIC No.: 210219-71-5269] 2.CHARLES KOO HO-TUNG [UK Pasport No.: 7612278793] 3.ANGELA KOO CHI-FONG [UK Pasport No.:511077870] 4.LYDIA KOO CHEE YUNG [UK Pasport No.:510909424] (suing on behalf of herself and the beneficiaries of the estate of Koo Ling Ching, deceased) 5.HSBC INTERNATIONAL TRUSTEE LIMITED (Company No: 1168) (Administrator of the estate of Koo Ling Ching) 6.MALAYA ACID WORKS SDN BHD (Company No: 3202-D) 7.MALAYA ACID WORKS (ALUM) SDN BHD (Company No: 5734-H) 8.KOO HO-TUNG, CHARLES [UK Passport No.: 7612278793] 9.KOO CHI-FONG, ANGELA [UK Passport No.:511077870] 10.KOO CHEE YUNG, LYDIA [UK Passport No.:510909424] 11.KOO HO LIANG, HENRY [UK Passport No: 7612751284] … DEFENDANTS 3 GROUNDS OF JUDGMENT {Enclosures 71 – The Plaintiff’s application to erase/delete involvement of parties (2nd to the 11th Defendants) in previous proceedings which has been disposed of} A. INTRODUCTION [1] This case essentially revolves around the mental capacity of a man by the name of Koo Lin Shen (the original Defendant) (“KLS”) in managing his affairs, business and companies. [2] The Plaintiffs (Catherine Khoo, Edward Hao-Mang Koo and Alexander Hoa-Nan Koo) are Koo Lin Shen’s children. The Plaintiffs had moved this Court under Sections 2, 51 to 59, 62, 63 and 64 of the Mental Health Act 2001 (MHA 2001) seeking inter alia for the following orders: i. An inquiry be held to determine whether the Defendant is mentally disordered and is incapable of managing himself and his affairs due to such mental disorder; ii. The Defendant is mentally disordered and due to his mental disorder, incapable of managing himself and/or his affairs or otherwise; 4 iii. In the event the Defendant is found to be mentally disordered and incapable of managing himself and/or his affairs due to his mental disorder:- (a) A committee of the Defendant and/or the estate of the Defendant comprising of the Plaintiffs (“Committee”) be appointed on the following terms:- (i) The Committee is not entitled to any remuneration, unless otherwise ordered by the Court; (ii) The Committee is not required to give any security, unless otherwise ordered by the Court; (iii)The Committee be authorized to conduct the legal proceedings (including making a claim, defending, making a counterclaim, intervening in any proceedings, appearing in any proceedings, appealing against any decisions and/or opposing any appeals against any decisions) as set out in Annexure A in herein in the name of the Defendant and/or on his behalf; (iv) The Committee shall have all powers for the management of the estate of the Defendant; (v) The Committee shall be entitled to exercise all voting rights of the Defendant in relation to the shares of private limited 5 companies held by the Defendant as set out in Annexure B herein; [3] The Plaintiffs had initially filed their Originating Summons (Enclosure 1) dated 13.5.2015 on the basis of an Ex Parte application wherein together with the Ex Parte Originating Summons, the Plaintiffs had filed a certificate of urgency applying for an early date of hearing of Enclosure 1 citing Koo Lin Shen’s continuous deteriorating mental condition. [4] In view of the certificate of urgency filed, this Court had fixed Enclosure 1 for hearing on the 26.5.2015. [5] On 26.5.2015 this Court had granted prayer 1 of the Enclosure 1 that an inquiry be held to determine the state of Koo Lin Shen’s mental capacity. This Court had also ordered that Koo Li Shen be examined by an independent psychiatrist other than Dr Subash Kumar Pillai (Dr Subash), an Associate Professor and Consultant Psychiatrist from the University of Malaya who was attending to Koo Lin Shen’s health issues since 2013. The independent psychiatrist intended to be appointed must also be from a different hospital other than the University of Malaya Hospital. The matter 6 was then fixed for mention on 16.6.2015 pending examination by the independent psychiatrist on Koo Li Shen. [6] However, two months later, on the ground that they have legal and legitimate interest in the outcome of the Plaintiffs’ proceedings, being counter parties to several legal proceedings with KLS himself, the Plaintiffs and companies associated with KLS as well as the 2nd to the 11th Defendants had filed three (3) separate applications (Enclosures 29, 31 and Enclosure 37) to intervene the proceedings. In their applications to intervene the proceedings, the proposed interveners have also applied that this Court to determine the time or period of the onset of the decline in KLS’s mental state. The proposed interveners also sought for an order that their consultant psychiatrist in NeuroBehavioral Medicine from Penang Adventist Hospital Dr. Prem Kumar Chandrasekaran (Dr Prem Kumar) to review and provide his specialist’s views on KLS based on the various medical reports, any relevant documents including MRA/MRIs that may be available or which have been produced by the Plaintiffs. [7] The proposed interveners also sought for an order that based on Dr Prem Kumar’s advice, KLS be directed to attend before Dr 7 Prem Kumar for examination and evaluation to determine his mental state and the onset of his condition. [8] Subsequently the 2nd to the 11th Defendants {Charles Koo Ho Tung, Lydia Koo Chee Yung & Angela Koo Chi-Fong suing on behalf of herself and the beneficiaries of the estate of Koo Ling Ching, Deceased), HSBC International Trustee Limited (Company No: 1168 (Administrator Of The Estate Of Koo Ling Ching), Malaya Acid Works Sdn Bhd (Company No: 3202-D), Malaya Acid Works (Alum) Sdn Bhd (Company No: 5734-H), Koo Ho-Tung, Charles (UK Passport No.7612278793) Koo Chi-Fong, Angela (UK Passport No.:511077870), Koo Chee Yung, Lydia (UK Passport No.:510909424) and Koo Ho Liang, Henry (UK Passport No: 7612751284)} were made parties to this originating summons by the Order of this Court dated 30.7.2015 and 13.8.2015. respectively. [9] With these orders, KLS then became the 1st Defendant while the rest of the interveners were made the 2nd to the 11th Defendants. [10] This Court must also mention here that in view of avoiding the inconvenience to have KLS examined by multiple psychiatrists 8 (first, by the independent psychiatrist appointed by the Plaintiffs and second, a psychiatrist appointed by the 2nd to the 11th Defendants), all the parties had later agreed that a joint examination is to be conducted on KLS by two psychiatrists namely, Dr. Rajbans Singh Mukhtiar Singh of Pantai Hospital Kuala Lumpur (“Dr. Rajbans”) and Dr. Prem Kumar. The joint examination on KLS was conducted on 29.8.2015 at 11.00 a.m. at Dr. Rajbans’s clinic at Pantai Hospital Kuala Lumpur. To that, a joint report dated 17.9.2015 (“joint report”) was prepared by Dr. Rajbans and Dr. Prem Kumar. [11] However, before the substantive application (Enclosure 1) is heard, various parties including the Plaintiffs and the 2nd to the 11th Defendants had entered into a Global Settlement Agreement on 5.10.2015 (“GSA”). [12] When Enclosure 1 (for the remaining prayers) was called for hearing on 15.10.2015, the counsel for the Plaintiffs, Ms Shelby Chin had informed this Court that the parties have reached a global settlement in respect of all the related matters and they wish to record a consent order as per the draft consent order which was signed by all the parties. 9 [13] The consent order entered by the Plaintiffs and the 2nd to the 11th Defendants reads as follows: UPON THE APPLICATION of the 1st, 2nd and 3rd Plaintiffs in the above-captioned matter AND AFTER HEARING Shelby Chin, solicitors for the Plaintiffs, Rosli Dahlan, Yee Mei Ken, Ho Ai Ting and Teh Soo Jin, solicitors for the 2nd to 5th Defendants, V. Varunnath, solicitors for the 6th and 7th Defendants and Dato’ V.Sivaparanjothi, solicitors for the 8th to Defendants AND AFTER READING the Notice of Application dates 8-10-2015 (Enclosure 56), the Affidavit affirmed by Catherine Koo on 8-10-2015, the “Sijil Perakuan Segera” by Shelby Chin Pui Mun dated 8-10-2015 and the written submissions of the Plaintiffs AND AFTER HEARING the submissions by counsel IT IS BEFORE ORDERED in the presence of counsel and the 1st Defendant that:- 1. (i) the claims, counterclaims, third party proceedings, complaints and/or appeals by and/or against the 1st Defendant be settled as per the terms of the Global Settlement Agreement dated 5-10-2015 (“GSA”) annexed herewith as annexure “1”, (ii) the 5,040,000 ordinary shares of RM1.00 each in Malaya Acid Works Sdn Bhd registered in the name of the 1st Defendant be sold as per the terms of the agreed form of the Share Sale Agreement in respect 10 of shares in Malaya Acid Works Sdn Bhd in annexure A of the GSA; (iii) the 1,260,000 ordinary shares of RM1.00 each in Federal Fertilizer Co Sdn Bhd registered in the name of the 5th Defendant and the 255,000 ordinary shares of RM1.00 each in Federal Fertilizer Co Sdn Bhd registered in the name of the 2nd / 8th Defendant be purchased by the 1st Defendant as per the terms of the agreed form of the Share Sale Agreement in respect of shares in Federal Fertilizer Co Sdn Bhd in annexure B of the GSA; (iv) the 265,000 ordinary shares of RM1.00 each in Malaysia United Chemical Corporation Sdn Bhd registered in the name of the 5th Defendant be purchased by the 1st Defendant as per the terms of the agreed form of the Share Sale Agreement in respect of shares in Malaysia United Chemical Corporation Sdn Bhd in annexure C of the GSA; (v) the 18,500 ordinary shares of SGD100.00 each in the Chemical Corporation of Singapore (Private) Limited registered in the name of Regency Investment Limited, the 500 ordinary shares of SGD100.00 each 11 in The Chemical Corporation of Singapore (Private) Limited registered in the name of the 2nd / 8th Defendant and the 500 ordinary shares of SGD100.00 each in The Chemical Corporation of Singapore (Private) Limited registered in the name of the 11th Defendant be purchased by the 1st Defendant as per the terms of the agreed form of the Share Sale Agreement in respect of shares in The Chemical Corporation of Singapore (Private) Limited in annexure D of the GSA; 2. the committee of the estate of the 1st Defendant appointed by this Honourable Court be authorized to execute the following documents in the name of the 1st Defendant and on his behalf:- (i) The agreed form of the Accession Deed in annexure F of the GSA; (ii) The agreed form of the Share Sale Agreement in respect of shares in Malaya Acid Works Sdn Bhd in annexure A of the GSA; (iii) The agreed form of the Share Sale Agreement in respect of shares in Federal Fertilizer Co Sdn Bhd in annexure B of the GSA; 12 (iv) The agreed form of the Share Sale Agreement in respect of shares in Malaysia United Chemical Corporation Sdn Bhd in annexure C of the GSA; (v) The agreed form of the Share Sale Agreement in respect of shares in The Chemical Corporation of Singapore (Private) Limited in annexure D of the GSA; and (vi) All such instruments, conveyances, transfer forms, deeds, contracts and/or documents as may be necessary to give effect to any of the aforesaid agreements; 3. it shall be sufficient for any 2 out of the 3 members of the committee of the estate of the 1st Defendant to execute any documents in the name of and on behalf of the 1st Defendant, including but not limited to the documents in paragraphs 2 (i) to 2 (iv) above. [14] Upon having the consent order being recorded, the 2nd Defendant to the 11th Defendants had informed this Court that they now have no objection to the Plaintiffs’ application. 13 [15] This Court had then proceeded to scrutinize and evaluate the joint report. Upon due deliberation and consideration of the joint report, this Court opines that the mental capacity of KLS can be determined without the need to hold an inquiry as the joint report in itself would be sufficient and adequate for this Court to arrive to a decision. [16] On the same day, i.e 15.10.2015, this Court had allowed the Plaintiffs’ application and thereby granted order in terms in prayers 2 and 3 of Enclosure 1. The order granted by this Court reads as follows: UPON THE APPLICATION of the 1st, 2nd and 3rd Plaintiffs in the above-captioned matter AND AFTER HEARING Shelby Chin, solicitors for the Plaintiffs, Rosli Dahlan, Yee Mei Ken, Ho Ai Ting and Teh Soo Jin, solicitors for the 2nd to 5th Defendants, V. Varunnath, solicitors for the 6th and 7th Defendants and Dato’ V.Sivaparanjothi, solicitors for the 8th to Defendants AND AFTER READING the Originating Summons dates 13-5-2015 (Enclosure 1), the “Perakuan Segera” by Shelby Chin Pui Mun dated 13-5- 2015, the Affidavit affirmed by Catherine Koo on 13-5-2015, the affidavit of service affirmed by Ahmad Zukri bin Zakaria on 18-5- 2015, the affirmed by Catherine Koo on 19-5-2015, the Affidavit of 14 Service affirmed by Catherine Koo on 19-5-2015, the Affidavit affirmed by Catherine Koo on 20-05-2015, the Affidavit affirmed by Catherine Koo on 29-6-2015, the 2nd to 5th Defendants 2015, the Affidavit affirmed by Charles Koo Ho Tung on 29-6-2015 and the written submissions of the Plaintiffs AND AFTER HEARING the submissions by counsel IT IS BEFORE ORDERED in the presence of counsel and the 1st Defendant that:- 1. the 1st Defendant is found to be mentally disordered and incapable of managing himself and his affairs due to his mental disorder: (i) a committee of the 1st Defendant and the estate of the 1st Defendant comprising of the Plaintiffs (“Committee”) be appointed on the following terms:- (a) the Committee is not entitled to any remuneration, unless otherwise ordered by the Court; (b) the Committee is not required to give any security, unless otherwise ordered by the Court; (ii) the Committee be authorized to conduct the legal proceedings (including making a claim, defending, making a counterclaim, intervening in any proceedings, appearing in any proceedings, appealing against any 15 decisions and/or opposing any appeals against any decisions) as set out in Annexure A herein in the name of the 1st Defendant and/or on his behalf; (iii) the Committee shall have all powers for the management of the estate of the 1st Defendant; (iv) the Committee shall be entitled to exercise all voting rights of the Defendant in relation to the shares of private limited companies held by the 1st Defendant as set out in Annexure B herein; and 2. the 2nd, 3rd, 4th and 5th Defendants reserve the right to have an inquiry held for the purposes of determining the period during which the 1st Defendant has been mentally disordered pursuant to section 52(2) of the Mental Health Act 2001 subject to the terms of the Global Settlement Agreement dated 5-10- 2015. [17] Now, after more than a year after the order was issued by this Court declaring that KLS no longer able to manage himself, his affairs, businesses and financial matters, to which the Plaintiffs had already obtained what relief they sought for with the direct involvement of all 2nd to 11th Defendants, the Plaintiffs, the 16 progenitor of the order itself, now filed application in Enclosure 71, seeking for the following orders: i. the 2nd, 3rd, 4th, 5th 6th 7th, 8th, 9th ,10th and 11th Defendants to cease to be parties to the proceedings; ii. the intitulement of this action be amended by deleting the names of the 2nd, 3rd, 4th, 5th 6th 7th, 8th, 9th ,10th and 11th Defendants. [18] In other words, the Plaintiffs are now taking a massive and retrospective leap backwards and attempted to obtain an order to extricate or remove the 2nd to the 11th Defendants from the proceedings as well as orders that have been obtained by all parties before this Court on 15.10.2015. It is immensely pertinent to be reminded that the Order granted on 15.10.2015 was granted merely on the basis that a global settlement was entered to which all of the 2nd to 11th Defendants played a crucial and salient part of. The global settlement and the order would not have culminated if not for the crucial involvement of the 2nd to 11th Defendants. Even considering the sheer gravity of the 2nd to 11th Defendants’ involvement in the matter, the Plaintiffs still sought for an order that the 2nd to 11th Defendants to cease to be parties to the proceeding 17 and have the names of the 2nd, 3rd, 4th, 5th 6th 7th, 8th, 9th, 10th and 11th Defendants appearing on the intitulement of the originating summons be deleted. [19] It is pertinent to note that the Plaintiffs’ application in Enclosure 71 is not simply intended for prospective or consequential orders post-determination of the proceedings. But, the Plaintiffs’ application in Enclosure 71 was intended to have a retrospective effect in which the Plaintiffs intend to remove the involvement or the parties’ presence in the intitulement from the very beginning as though the 2nd to 11th Defendants were never part of the proceedings. It is akin to erasing records and distorting the historical integrity of the entire proceedings. [20] The Plaintiffs claim that their application was made pursuant to Order 15 rule 6 (2) (a) of the Rules of Court 2012. [21] Enclosure 71 had been served on the 2nd to 11th Defendants, however the 2nd to 11th Defendants takes a stance that they have no objections to the Plaintiffs’ application so long that there will be no admission on their part on the contents of Encl. 72 and there should be no order as to costs against them. 18 [22] Even though the Application was not objected by the 2nd to 11th Defendants, this Court had directed the Plaintiffs to submit the merits of the application. [23] Upon consideration of the submission and arguments of the counsel for the Plaintiffs, this Court is of the view that the Plaintiffs’ application is not only an ill-conceived and improper application but also an abuse of the process of the court. Hence, this Court had dismissed the Plaintiffs’ application in Enclosure 71. [24] Dissatisfied with the dismissal of their application, the Plaintiffs now filed a notice of appeal appealing against the said dismissal of their Enclosure 71. The Plaintiffs’ argument [25] The Plaintiffs had filed their Enclosure 71 purportedly relying on the provision of Order 15 rule 6 (2) (a) of the Rules of Court 2012 (ROC 2012). [26] Order 15 rule 6 (2) (a) of the ROC 2012 reads as follows: Order 15 rule 6 (2) (a): 19 (2) Subject to this rule, at any stage of the proceedings in any cause or matter, the Court may on such terms as it thinks just and either of its own motion or on application- (a) order any person who has been improperly or unnecessarily made a party or who has for any reason ceased to be proper or necessary party, to cease to be a party. [27] The counsel for the Plaintiffs had argued that this Court has jurisdiction to hear their application and is not functus officio. [28] It was contended by the counsel for the Plaintiffs that in respect of an order of mental disorder (“the order”), this Court has the jurisdiction to hear any application even though the order has been granted and perfected. The counsel for the Plaintiffs had submitted the following arguments: i. paragraph 2 of the Mental Disorder Order itself acknowledges that this Court has jurisdiction to hear the historical Issue post the Mental Disorder Order. ii. there are various provisions in the Mental Health Act, 2001 expressly provide for applications to be made and heard post 20 the Mental Disorder Order, namely; section 63, section 65 and section 74. iii. allegedly there are case laws whereby subsequent to the mental disorder Order, the High Court granted leave for proposed interveners to intervene as parties pursuant to Order 15 rule 6 (2) (b) of the Rules of Court, 2012. The counsel for the Plaintiffs had referred to a high court case of Ling Towi Sing & Ors V. Dato' Ng Kong Yeam; Kay Swee Pin & Anor (Proposed Interveners) [2017] 1 CLJ 221. A case which this Court respectfully distinguishes as the Plaintiffs’ Application shares very little to no significance at all with the facts and issues dealt with in Ling Towi. iv. the phrase “[a] any stage of the proceedings” under Order 15 rule 6 (2) (a) of the ROC 2012 covers post Mental Disorder Order. The phrase “at any stage of the proceedings” which also appears in Order 20 rule 5 (1) of the Rules of Court, 2012 has been construed by the English Court of Appeal to include after final judgment. The counsel for the Plaintiffs had referred to an English Court of Appeal case of Singh v Atombrook [1989] 1 WLR 810. 21 [29] Apart from the arguments above, the Plaintiffs’ counsel had also argued that in the present case, the 2nd to 11th Defendants’ interests in this action have ceased to exist as the Defendants themselves had informed this Court that they no longer wish to pursue with the historical Issue and they have no objection to the Plaintiffs’ Enclosure 71. The Court’s Decision [30] It is this Court’s finding and view that the Plaintiffs’ application to have the 2nd to 11th Defendants removed from the proceedings initiated by the Plaintiffs in 2015 although the 2nd to the 11th Defendants have been crucial parties to the proceedings since just 2 months after the filing of the matter is indeed a baseless application, devoid of merit and an abuse of process of this Court. The grounds that this Court views as such are deliberated below. [31] The Plaintiffs had filed the originating summons (Enclosure 1) in reliance to the provisions of the MHA 2001. Vide Enclosure 1, the Plaintiffs had applied to this Court for a declaration that that their father KLS, is a mentally disordered person under Section 51 of MHA 2001. 22 [32] Section 51 of the MHA 2001 defines mentally disordered person as: “any person found by due course of law to be mentally disordered and incapable of managing himself and his affairs.” [33] Meanwhile, “Mental Disorder” is defined under Section 2 of MHA 2001 as: “any mental illness, arrested or incomplete development of the mind, psychiatric disorder or any other disorder or disability of the mind however acquired; and “mentally disordered” shall be construed accordingly”. [34] At the time of the filing of Enclosure 1, the Plaintiffs are fully aware that the estate of KLS comprises of monies in bank accounts, and shares held in private limited companies (“Shares”). The Plaintiffs are also verily aware that the estate of KLS is entangled in numerous legal suits (“Suits”) in which KLS had been involved with in his personal capacity which were commenced in 2013 and 2014. The numerous legal proceedings KLS was involved either in his personal capacity or his companies or his family’s companies or his companies’ shares are as follows: 23 i. suits by companies that KLS holds/ previously held management positions (“Koo Family Companies”) against Defendants and others for allegations of breaches of fiduciary duties and/or conspiracy to defraud e.g.:- (a) allegations that KLS set up companies owned by himself and/or his family members (“KLS Family Companies”) in competition with Koo Family Companies; (b) allegations that KLS hived off business of KLS Family Companies to the detriment of Koo Family Companies; (c) allegations that KLS had caused Koo Family Companies to enter into contracts which unduly benefits KLS Family Companies; All of which relate to events occurring since the year 2005. ii. Suit against KLS and others for inter alia declarations that past events (such as transfer of shares in year 2001, extraordinary general meeting held in year 2004, resolutions 24 passed since year 2004) are invalid and for the register of members of the company to be rectified accordingly. iii. Suit against KLS and others for ownership of shares in a company, which relates to events since 1989. iv. Suit commenced against the Defendant for oppression of shareholders and suits initiated by the Defendant for the winding up of a company, which relates to events since the 1940s. v. Suit commenced by the Defendant against the current management of the Koo Family Companies for refusing to approve his request for the transfer of shares held in his name to third parties. vi. Suit commenced by the KLS Family Companies against Koo Family Companies for breach of contract i.e. for failure to pay rent; and defended on the grounds of allegations of breaches of fiduciary duties by the Defendant. 25 [35] This Court must also mention that throughout the years of 2013 and 2014, KLS’s medical reports by Dr Subash did not suggest any impairment in KLS’s ability to make informed decisions. During that time, the Plaintiffs had claimed that there were only assisting KLS in giving instructions to his solicitors in relation to the shares and legal suits, as they were of the view that their father, KLS was capable of managing affairs in relation thereto. [36] Then come the two medical reports by Dr Subash Kumar Pillai in 2015, namely the medical reports respectively dated 15.4.2015 and dated 5.5.2015. In these two reports, Dr Subash had found that KLS’s mental condition was as follows: i. KLS’s current cognitive functions will likely have an impact with him making informed decisions as he may not be able to remember what he had decided earlier. ii. he suffers from dementia”, which is described as “a broad category of brain diseases that cause a long term and often gradual decrease in the ability to think and remember”; iii. he could pose a danger to himself as he is “physically frail and also has dementia” and is at “higher risks for falls and getting lost”, 26 iv. he is not able to make any informed decisions regarding his shares in his companies” v. he is not able to “give proper instructions to his solicitors with the regards to the legal proceedings and a compromise”. [37] The Plaintiffs, faced with medical reports which found KLS is unable to make informed decision in respect of his estate, had come before this Court with a certificate of urgency seeking for an order to declare that their father is mentally disordered and thus incapable of managing himself and his affairs and upon such declaration, a committee of the person / his estate be appointed. [38] When the Plaintiffs commenced the proceedings, the 2nd to the 11th Defendants who claimed that they will be affected by such order had intervened into the proceedings and were made defendants. [39] Nonetheless, before this Court grants a declaration regarding KLS’s mental condition, the parties have informed this Court that all parties, particularly all 2nd to the 11th Defendants have reached a global settlement (GSA) and consequently parties have entered 27 and recorded a consent judgment with terms as recorded in Enclosure 56. [40] It is pertinent to highlight here that the consent judgment entered between the Plaintiffs and Defendants not only records the agreement of parties on the terms as stipulated in the GSA, but even goes to cover the parties’ agreement regarding the shares of numerous companies between the Plaintiffs and Defendants. [41] Consequentially from the recording of the said consent judgment on 15.10.2015, the 2nd to 11th Defendants have proceeded to inform this Court that they have no objections against the Plaintiff’s Application in Enclosure 1. [42] Considering the non-objection from the 2nd to 11th Defendants, this Court proceeded to critically and duly determine the joint report which was furnished into Court and based on the said joint report, this Court has made a finding that an inquiry is no longer required to be conducted to ascertain KLS’s mental condition as the said joint report is sufficient and comprehensive enough for this Court to determine KLS’s mental condition. 28 [43] Upon close scrutiny of the joint report on KLS, this Court is satisfied and declares that KLS is a mentally disordered person who is unable to manage himself and/or his affairs. With the granting of this declaration, the consequential order was the appointment of a committee to manage KLS’s affairs and matters. [44] To this Court, the declaration granted regarding KLS’s mental condition is a matter that is purely substantive in Enclosure 1, in which deems the proceedings of Enclosure 1 fully disposed of, determined upon merits, and ended. This Court has duly issued a final order with consequential directions in respect of KLS’s mental state or condition. [45] Enclosure 71 was filed only after some 20 months from the declaratory order declaring KLS is mentally disordered person was obtained by the Plaintiffs. The filing of Enclosure 71 by the Plaintiffs is obviously without merit, is baseless and constitutes an abuse process of court. [46] When this Court had declared that KLS is a mentally disordered person, this Court had handed down a final order, hence the proceedings had concluded and there is no longer any live 29 proceedings for the Plaintiffs return before to this Court for an order to extricate, delete or remove the names of the 2nd to 11th Defendants from the proceedings. In other words, this Court is functus officio upon granting an order in terms of Enclosure 1. This Court cannot simply add, remove or erase the involvement of parties who have played a crucial role in a proceeding, as though they were never part of the proceeding. [47] The application or operation of Order 15 rule 6(2)(a) of the ROC 2012 by the Plaintiffs in their Application is plainly misconceived. This Court has maintained since the beginning that the matter or substantive proceedings (the declaration of KLS’s mental condition) has already been determined or disposed of by this Court of which all the 2nd to 11th Defendants played salient and pertinent role in. [48] The order and the GSA had culminated only with the direct involvement of the 2nd to 11th Defendants. The declaration of KLS as a mentally disordered person and the appointment of a committee to manage KLS’s affairs was a final order, in view of the proceedings initiated by the Plaintiffs. 30 [49] Surely the Parliament would never intend to promulgate a law that allows erasure of records and manipulation of historical integrity. Though the provision may allow the addition or subtraction of parties supposedly at any time of the proceedings, clearly the provision would never promote erasure of records and distortion of historical integrity of proceedings. The operability of the provision only extends to further prospective determinations or consequential matters, and certainly does not cover retrospective erasure of involvements and records. [50] In the present case, the proceedings have already come to its end, fully determined on merits. There are no longer any proceedings before this Court under the enclosures previously filed in Court to allow the Plaintiffs to simply erase and alter the involvements of parties and the historical integrity of the proceedings. As and when, and at all material times that the 2nd to 11th Defendants were parties, the Plaintiffs cannot abuse the provision to delete or erase the 2nd to 11th Defendants’ involvement in the proceedings. The 2nd to 11th Defendants were crucial and inseparable from the determination of the proceedings. All parties have reaped benefits from the proceedings and parties cannot at their own whim and fancy erase, hide, or distort their involvement in the proceedings. 31 [51] Thereto, upon such stance of this Court, Order 15 rule 6(2)(a) of the ROC 2012 certainly cannot be relied upon by the Plaintiffs. [52] In this regard, this Court refers to the decision of Jeffrey Tan J (as he then was) in the case of Nite Beauty Industries Sdn Bhd & Anor v Bayer (M) Sdn Bhd [2000] 3 MLJ 314 in dismissing an application to intervene in which the Court there has held as follows at page 314:- “(3) Although O 15 r 6(2) states that such an application could be made at any stage of the proceedings, its scope should be limited to an application made before final judgment had been entered and not after because the proceedings would then have come to an end. Thus, the would-be intervener, who will be directly affected, either legally or financially, by any order which may be made in the action, must intervene before that order is perfected and whilst the court is still not functus officio. All proceedings came to an end upon the approval of the scheme of arrangement and compromise on 14 May 1999, thus the court no longer has any jurisdiction to make any order under O 15 r 6(2) (see pp 318H-319B, E, I).” (Emphasis is made) 32 [53] The principle enunciated in Nite Beauty Industries Sdn Bhd was affirmed in the Federal Court’s decision of Hong Leong Bank Berhad (formerly known as Hong Leong Finance Bhd) v Staghorn Sdn Bhd and other appeals [2008] 2 MLJ 622. [54] In Hong Leong Bank Berhad (formerly known as Hong Leong Finance Bhd) v Staghorn Sdn Bhd and other appeals [2008] 2 MLJ 622, the Federal Court had this to say in paragraphs 27 and 55: [27] Thus, we see that our courts have been every consistent regarding the scope of the proceedings …’ necessarily mean that there is a proceeding pending. Once the judgment is entered, the proceeding has come to an end. Further-more, O 15 is concerned with the very early stage of proceeding, to have all the necessary parties in before the trial begins. Thus, r 8 provides that, when the order under r 6 has been made, the plaintiff must accordingly amend the writ and serve the amended writ on the new defendant and upon service the new defendant is given the right to enter an appearance. All these happen before the trial. … [55] Secondly, an application for leave to intervene in order to set aside an order for sale by a party not already a party to the proceedings must be made under O 15 r 6 of the RHC. The application may be made ‘at any stage of the 33 proceedings’ meaning before judgment, otherwise the proceedings have concluded and there is no longer a proceeding in existence for the party to intervene in. The judge has also become functus officio. Even then, the application must be made promptly. Order 15 r 6 of the RHC applied to all civil proceedings whether commenced by a writ, motion or summons etc. (See also the Federal Court’s decision in Hock Hua Bank Bhd v Sahari bin Murid [1981] 1 MLJ 143 and Chew Hon Keong v Betterproducts Industries Sdn Bhd & Ors [2013] 7 MLJ 196) [55] This Court reiterates that, in the present case, when the section 56 of the MHA 2001’s order was granted, the parties before this Court includes both the Plaintiffs and the 2nd to 11th Defendants. This record and history of involvement at the material time cannot and shall not be erased or altered. All the parties here had obtained all the necessary and required orders pertaining KLS’s mental condition and all issues therein had been resolved and decided. [56] Clearly, the MHA proceedings regarding to KLS’s mental condition or mental state vide Enclosure 1 herein has come to an end. A final order has been pronounced by this Court and the order had been drawn up, perfected and sealed with all involved parties properly and appropriately recorded. As such, this Court with the 34 greatest respect is functus officio and is in no position or jurisdiction to undo or distort whatever involvement of parties had in the past. [57] This Court is minded that the Plaintiffs’ counsel had attempted to defend its Application in reliance to provisions of Sections 63, 65 and 74 of the MHA 2001. [58] These provisions are reproduced below: i. section 63 The Court may, if it appears to the Court to be just or for the benefit of the mentally disordered person, order that any property, movable or immovable, and whether in possession, reversion, remainder, contingency or expectancy, be sold or charged or otherwise disposed of as seem most expedient for the purpose of raising money to be applied for any of the following purposes: (a) the payment of his debts, including any debt or expenditure incurred for his maintenance or for his benefit; (b) the discharge of any encumbrance on his estate; (c) the payment of or provision for the expenses of his future maintenance and the maintenance of his family, including the expenses of his removal to any place in or outside Malaysia and all related expenses; 35 (d) the payment of the costs of any proceedings under this Act and of any costs incurred by order or under the authority of the Court. ii. section 65 Where a person who has contracted to sell or dispose of his estate or any part of his estate subsequently becomes mentally disordered, the Court may, if the contract is such as the Court deems ought to be performed, direct the committee of the estate of the mentally disordered person to execute such conveyances and to do such other acts in fulfillment of the contract as it deems proper. iii. section 74 (1) Where a person has been found to be incapable of managing himself and his affairs due to his mental disorder and it is subsequently shown to the Court— (a) on the application of that person; (b) on the application of a person acting on his behalf; or (c) on the information of any other person, that there is reason to believe that such incapability has ceased, the Court may make an order for an inquiry to determine whether the person is now capable of managing himself and his affairs. (2) The inquiry under subsection (1) shall be conducted in the same manner as that prescribed for an inquiry into whether a person alleged 36 to be mentally disordered is incapable of managing himself and his affairs. (3) Where upon an inquiry under this section the Court finds that the person is now capable of managing himself and his affairs the Court shall order all proceedings in the matter to cease or to be set aside on such terms and conditions as it deems proper. [59] With utmost respect, the Plaintiffs’ counsel’s reading of these provisions is erroneous and ill-conceived. Indeed the provisions allows for further and consequential orders from or stemming from an earlier order determining the mental state or condition of a person. However, none of these provisions allow a retrospective order to alter, delete, erase, and distort earlier records and direction or orders made by the Court. It is obviously plain to see that these provisions were intended to have a consequential and a prospective effect and certainly not a retrospective effect: i. Section 63 provides for sale of a mentally disordered person’s assets AFTER a person is determined to be mentally disordered; ii. Section 65 provides enforcement of contracts entered by a mentally disordered person at the time he is of sound mind 37 AFTER a person is determined to be mentally disordered; and iii. Section 74 provides for prospective discharge of a previous order declaring mental disorder AFTER a person is determined to be mentally disordered. [60] However, what the Plaintiffs intend to erase, manipulate and unduly distort here is the undeniable saliency, and involvement of the 2nd to 11th Defendants in the proceedings BEFORE KLS is determined to be mentally disordered. Clearly what is applied for by the Plaintiffs is the exact and direct opposite of what these provisions provide for. [61] None of these provisions provide for retrospective erasure of court records and distortion of the integrity of a proceeding. [62] The Plaintiffs’ application to erase the names of the 2nd to 11th Defendants from all proceedings at all material times regarding KLS’s mental condition is NOT a consequential order but instead is an unlawful attempt to erase, or distort the position and involvement of the 2nd to 11th Defendants from the proceedings in 38 which they played an integral to since the beginning of the proceedings as litigants. It would be unbecoming of the law, if this Court were to set a precedent to allow parties to simply erase and alter their litigious involvement in a litigation proceeding after the litigation proceeding has been determined. [63] To this Court’s mind, upon the declaration in the order regarding KLS’s mental state, all parties inclusive the Plaintiffs and the 2nd to 11th Defendants are undeniably parties involved and affected from the said declaration. Even more so, when the consequence of the declaration entails that all parties stand to benefit from the order. A party cannot reap benefits or face detriment from its litigation and subsequently simply erase records and pretend as though the litigation and involvement in litigation never occurred. [64] If this Court were to allow this Application by the Plaintiffs, it is akin to this Court allowing parties to, at their whim and fancy intervene into any proceedings and upon disposal of the proceeding, upon reaping benefits from the proceedings, suddenly and abruptly attempt to erase their involvement in the proceedings. 39 [65] This Court finds and maintains that the Plaintiffs’ application here is incredulous, ridiculous and appropriately should be dismissed. Adding further detriment to the Application, the Plaintiffs never furnished any real and substantive justification to the undue erasure and distortion of history and court records regarding the involvement of the 2nd to 11th Defendants. All that was furnished to Court was that there were no objections from the 2nd to 11th Defendants. This Court stresses that the judicial responsibility of this Court does not simply extend to allowing and granting directions that parties agree to. This Court must exercise its justicial discretion with due care and consideration to established principles of law. The underlying reasons and motive behind this bewildering Application is only known to the Plaintiffs. [66] The Plaintiffs purportedly also attempted to justify the Application on the notion that the 2nd to 11th Defendants’ interest have ceased to exist when the Defendants are no longer interested to pursue with the historical issues of the onset of KLS’s mental degradation. Notwithstanding the notion that the 2nd to 11th Defendants’ interest have ceased to exist, the diminishment of interests does not erase or diminish the fact of involvement in a proceeding. Interest may cease to exist, but the history and record of factual 40 involvement shall always remain. It is beyond this Court’s or any Court’s jurisdiction for that matter, to alter history and records. [67] Even if this Court were to unduly stretch the law and consider the Plaintiffs’ ill-conceived contentions, the historical issue on the onset of KLS’s mental state also offers no solace and support to the Plaintiffs’ Application. [68] This is particularly so as even the historical issue raised had already been fully disposed and determined with the integral involvement of the 2nd to 11th Defendants. This is obviously stated in the Plaintiffs’ own letter to this Court (Cheah Teh & Su letter) dated 8.10.2015. This Cheah Teh & Su letter was presented to this Court before to the consent judgment was entered regarding KLS’s mental state was recorded on 15.10.2015. Paragraphs 4 and 5 of the Cheah Teh & Su letter reads: 4. Lanjutan daripada itu, kami difahamkan bahawa Defendan- Defendan ke-2 hingga ke-11 tidak mempunyai bantahan terhadap prayer-prayer Lampiran 1 untuk deklarasi bahawa Defendan Pertama adalah pada masa kini bercelaru mental dan untuk perlantikan jawatankuasa untuk estet Defendan Pertama. 41 5. Berkenaan dengan isu sejak bila Defendan Pertama bercelaru mental, pihak-pihak bersetuju untuk menangguhkan penentuan isu tersebut. Sekiranya penyelesaian global tersebut diluluskan oleh Mahkamah dan dilaksanakan sepenuhnya, isu tersebut tidak perlu diputuskan oleh Mahkamah. ( Emphasis is made) [69] The letter itself reads and states that if the said GSA is recorded by this Court and enforced fully, the historical issue need not be delved into by this Court. Thus, with the advent of the GSA, and the recording of consent judgment, the historical issue is already deemed settled and determined. [70] This is even more apparent considering that this historical issue has even been integrated and embedded within the GSA courtesy of the integral involvement and agreement of the 2nd to 11th Defendants: Recitals A. Lydia, Angela, Charles and Henry are the beneficiaries of the Estate of Koo Ling Ching (KLC) (collectively, KLC Beneficiaries). 2 Conditions precedent 42 2.1 Agreement conditional (a)This agreement is conditional upon the KLS Family Members applying to the Shah Alam High Court and obtaining the following orders (Application) – (1) declaring KLS a mentally disordered person under the Mental Health Act 2001 (MHA Proceeding); (2) appointing a committee comprising the KLS (Committee) and (3) sanctioning KLS’ execution of the SSAs and this agreement . (b) The KLC parties who have intervened in the MHA proceeding hereby agree not to object to KLS Family members’ application as aforesaid but reserve the right to challenge the date on which KLS became mentally disordered Subject Always to clause 4.1(b) below. 4.10 Legal Proceedings … (c) KLC Parties shall take all necessary steps, actions or deeds as may be necessary to inform the Shah Alam High Court in writing that the KLC Parties no longer wish to investigate and/or wish to withdraw its 43 application for a determination as to when KLS became a mentally disordered person; [71] Therefore, as stated in the Cheah Teh & Su letter, when the GSA and consent judgment was recorded before this Court on 15.10.2015 and this Court issues the order declaring KLS being mentally disordered, thus, the historical issue regarding the onset of KLS’s mental disorder is deemed settled and ceases to be relevant. The Plaintiffs cannot now contradict its own stance and attempt to abuse this historical issue to unduly erase the 2nd to 11th Defendants’ involvement in the proceedings. This Court reiterates that all parties inclusive the Plaintiffs and the 2nd to the 11th Defendants are directly and pertinently involved in, as well as affected by the consent judgment entered and declaratory order granted by this Court. In fact, all parties have all obtained reaped benefits from the said orders. Thus, by no just means at all should this Court allow the undue erasure and distortion of records in having the names of parties be erased as though they were never involved in a proceeding which has already been fully determined and disposed of. Clearly the Plaintiffs’ Application here is a blatant abuse of the process of the Court. 44 [72] For the sake of completeness, it is apparent that the decision in Ling Towi Sing & Ors V. Dato' Ng Kong Yeam; Kay Swee Pin & Anor (Proposed Interveners) [2017] 1 CLJ 221 relied upon the Plaintiffs does nothing to support their contention. Indeed, in Ling Towi, the Court there has allowed an intervener’s application under Order 15 rule 6 (2)(a) of the ROC 2012 subsequent to an order declaring mental disorder of a person. But it is obvious to see that the nature of an application to intervene (which is an addition of undisposed interest/interest not yet determined) and a retrospective and erroneous application to erase, and distort previous records of proceeding (while reaping benefits of interests fully determined and disposed of) is utterly and thoroughly different. The case of Ling Towi lends no aid or relevance at all to the Plaintiffs’ case. [73] In view of the aforementioned findings, and deliberations this Court duly and appropriately dismiss the Plaintiffs’ Application in Enclosure 71. 45 …………………………………………….. (DATUK AZIMAH BINTI OMAR) Judge High Court Shah Alam Selangor Darul Ehsan Dated the 20th October, 2017 For the Plaintiff - Messrs Cheah Teh & Su Mr. KL Pang Ms. Shelby Chin (The counsel for the Plaintiffs is also mentioning on behalf of the counsels for 2nd to 11th Defendants) For the 2nd Defendant to 5th Defendant - Messrs Lee Hishamuddin Allen & Gledhill For the 6th and 7th Defendant - Messrs Kumar & Partnership For the 8th Defendant to 11th Defendant - Messrs V. Siva & Partners	51,305	Tika 2.6.0
22NCVC-12-03/2014	PLAINTIF MUHAMMAD FIKRI BIN GHAZALI DEFENDAN 1. ) TEE MENG HUAT 2. ) GUN HAM CHUEE @ GAN HAM CHUEE 3. ) ISLELAIDAH BTE ISHAK 4. ) ZAINUDIN MAKSOM 5. ) WAN NADZIM WAN MOHD. NORI 6. ) CHUA BOON TAI 7. ) R. RAJASINGAM 8. ) KARMINDER KAUR	null	20/10/2017	YA DATUK WIRA HALIJAH BINTI ABBAS	https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=8c377cc1-3db6-48d7-beaf-cc54a144c282&Inline=true	DALAM Mlmﬂgu TINGGV MALAVA Q MUAR NEGERI QHQﬁ \|2m_u_\|_'rAKzIM VI : N - T 17 JE 24 Ncvc-12m-aou MITARA MUHAMMAD FIKHI BIN GHAZALI PLAINTIF DAN TEE MENG HUAT DEFENDAN- euu HAM cause @ am HAM cause DEFENDAN lSLEU\IDAH ms ISHAK zawunm MAKSOM WAN NADZIM WAN MDHD. NONI CHUA soon TN R. FIAJASINGAM KARMINDER KAUH (oevemiarmatenaan ka 4 mm: ks a menmamn smalan an bavrah mime ﬂan cara -zamunnm WAN mnzm: CHUA & MAILINDA1 pN¢9+9Nr PENGHAKIMAN nncvtnat-zuuuulalmnvlnnimimuu V Inn:-nnuvnvuav mu [1] 1?] [31 W [5] u.m.z.u.n.uummm.....m.... v mmm...um... ndahul Plainlil (arkim adalah puamm yang menggarmkan pnannm yang asal, Ghaull cm H] Sukayal. yang wan msmnggal dunia peda 15m: Disember 2015 (s; Mali) 51 man adalah psmmk berdanar hanansh GM 2073 Lo: 2617 Mukim Linau, Daerah Batu Farm, Jnhol (Hannnlh tersebul) sehlngga term Ogns zowa. Dafsndan panama dan devendan kedua mam pemnik banana: rarklrv hananah tersabuL Datenaan keﬂae idalan aikamkan pambeh yang mun bamruaan dengan SI Mam. Deflendan keempul hinqge kalapan adelah mm kanqm Teluln Zalnudln Wm Nadzim Chua dan Mazlmda [F<vmalersebul). Pipe 2 «eran menyababkan sum instruman yang uaax san, lnstrumsn yang ndak saw: (vuid) slaupun udak memadai Iarssbul Isiah nlannakan unruk msmmdahmihk Hananah IBISBMII kepade dstandan panama dan aacaman kedua. .\|\ka inslmmsn yang lidak sah / camavar Ielah digunakan da\|am lransaksi pmdahmilrk. pandnlumn hakmilik kspuda dafeflﬂln panama nan kenua adalah Iemaval mengrkm selsyen 340 KTN 1965. Hakmilik davandan panama uan kedu: aaaxan hmeh dlsangkala [13] Memiuk kapada kmnomgi Imnsaksi ini, Jslas Iﬂllah hasral plamm (sx Mam‘) mgin mamual Hanamh milvknya hanya xapana sanrang yang hamgama Islam memandangkan kamdukan nananan tarletak di hadapan ssbuah masjld. Defendan Kenya tekan mengakm mangetahul syarat plairmv im ﬂan aelan melaksanakan Pariamlan Jual aali davaman kehqa alas dssav ayalal im. Kelarangan delenﬂun keug: mengsnal pariaksanaan Perianjian Juan Bell derfendan keuga Vangsung uoak dicabar oleh pagunm dsfendan perlama aan aaunnan kedua‘ mama! (Si Mali) Isiah dlperkanalkan oleh deiendan ksampat kepada delendan keliga yang uikacasmn mung yang berminat untuk membeil Harlanah Iersebnl. P\a‘mu1 qsy Mam telah mamnan vnlnmulurnun rum [1 9] zmcvnx kslalangan bahawa dia ledsh menanmangam semua dnkumen den (elah manammangani kesamus muka sun-It psvjanjxan xemmsuk paduumyu snkall. cash in dla aemamangnya pevmye hahawa Hlnanah lersehm akan dijnsl kepada saorsng yang berhangsa Merayu saperﬁ yang tslah dinialkunnya. Flainlii (Si Mai) Ildak mensnml spa-spa hayuan daxi dafendan keliga dan memandangkan hayaran Iidak ana dlbual kspadanya uleh defendun keempal, ma «exam msmbuat ssmakan a; Psilhal Tana?! den aelalah ssmakan dlbuil dla Ielah mendapuli Ianah mﬂlknyn talah dipindahmllik kapada aetenaan panama dam defendnn xeaua mitu herbanosn cmna. Plnirml (s. Marti) jugs dl delum kusmngannya max pemah manandaunganl dengan aevenunn panama dan aeaenaan kedua sehnrang norang 14A mahuaun perianjian Jualbelia Plalnm (Si Man) berasa keoewi nan berua tampu. set-Iusnya mem1aAlkan (lndakan ml. Apabila disoamalas oleh pegunm uevsndnn punama man kadua sama ma alsshabkan dla lelah mak menerima nayaran hasxl juahan Hananah hersebul mambuatkan ma Ingm manumul supaya mun oambux mkemnamuan kapadunyu, alamm (Si mm Mall) man menegaskan hahawa um um redha yang tanahnya anus: kspada orang bukan Islam. Plamﬁf (3: Man) helah msnyalakan sspem bellkul :7 "...saya ourunkan perianyiin dsngan aevenaan keaigs. says an: narianiian hssn dangnn dalandan knampal ﬂan defender: ksuga. saya Ink redns ﬂuma akmral zanan in: aqua! dsngan urang man Islam. Saya nak oranu Islam pusnl temper nu ad: mlsllﬂ. Say: nnk humlal mauld. saya xak nak mall besok ads (Xidak ]e\|as) celaka mi man lnilah sebahnya ada bends yang max baik. Mscam man: says nlk Ienmn dull. ni aenazz ma dun langglr Lann, saya bavalkan hellk. nu Oak kenal. Kalau ma Ialnak macnm mama ada uuamI...' [20] .\|e\as darn kelerangan p\a1nM (SP1) at alas ma udak henna! menjualksn hananan miuknya kapada detendan panama dan keﬂua. DI: uunx mahu menaavma usyalan jualan hanamhnya can seorang yang bukan Islam. Eerikutan daxi im dla rasa terﬁpu dan main memhalalkan perinmian karana perianjinn um ...m.mmm...m. mum vnmrmuu pa.-x3 [EU Karubul bukanlun yang dlmanxannya, nla menganggap dsfanﬂan kemga dan keempallelah melanqgarl nerjanjwan yang Ielnh di kahervdakinya dan lallh mshnpgar ayaul yang man ulnyacakannya. Persoaun nstemsnyn, uagaxmenakan Petjanjian Jual Ben delendan kelvga telnh dmbah kspadu perianjian dsngan aevenaan panama dan ksdua’? Mahkamah im telah meneml kanarangan defendln keuga yang man melatnkkan ksaemua Ianggunglawab dan kesilapnn keratin caveman ksempt-1L Malanqnya uavenaan ksampal bdak pernah namr ks mahkamah dun Iidak rnemlaﬂun ssbarang panynla pembehan. Jelas mnpa psmbaluan ﬂan ksnidak hanirannya dx mahkamah umuk msmberi kelenanuan, mankamah berpendlpal. dshndan kaampal lelah mangakui Imnum aan IakIa—lakta perlakuan ‘hand’ di dalum Iransalm\. Kepulusan Mahkimah Pavsekuluan dalam Kunarulzxman bin Omar I. on -v- Vnluub bin nuun A 0:. [mm] nu 1lll,psrenggan 191 when me am In mum. respondents med xo defend me claim, :1 snnum be assumed Ihal me appeﬂams nan made om mun against am good sense and logic, :1 mm. m fact, :0 mm that an auegalian, annougn unanswered, muslyel ha pmved..." Defanﬂan ksempac aualan seorang peguam dun an-mg yang (slah menenmu wang deposit dali aevenuan ketiga sabanyak RM :5.noo.uu, lam huyamn aepasn sebanynk iapuluh pemlus dam halga jualan RM :s5o.ooo.ou sepsnr yang diperselujlﬂ oleh pl:-1<nlIf(S\ Mann Dsvsnaan keliga mengakm Ielah malaksanakan pananjlan in! new dengan Si Mair dalnm hulan Julai 2010, mm selepas henumpn dsnqln defender: pmnma. [221 Defendan ksnaa telah manyacam bahawa ma «sum membaulknn oak umuk pemhayalan sehanyak RM ssmosoo Ielsebut selelah Iirlak ads maklumbelss uari defsndan keempat. Dia Ielnh mamheri katsmngan nannwa din liﬂuk mm m«.....m...... mengenali defenuan panama dun Defaman kedua. Dis tidak mengeunui bagalmana per]an]4an yang man aioanamanganinya baruuma plamw (Si Mad) uelah aimm kepada psvjsnpan pwamuv (5: Man) dengan delendan panama dun ksdua. [231 Mahkamah ml helah hsrhalI»nal\ dalam rnenunhengkan ketsrangan aevsnaan keuga lersebul Melami kstelangan sm iailu aelendan panama. mankamah dapall kamnngun aevenuun kallga tersehul yang menyatakan dis udak mengenal defsndnn pertama dan mga Hank boleh dinamayui aan lidak halah ananma cleh muhkamah lni. Dari keterangan daiendan penamn, sebelum dia msmbell hamnah mrsebm, dla telah mpermankan dervgan dafendan mag: di Arksd Mara, Jalan ﬁahmal Batu Fahal dalam bulan Jun, zmo. Menunn sm lagl, defmdun keﬂga lelah manyalakan bahlws defenuan kenga relan benlndak mugs: waku plainm (Si Mn!) unmk menjual sebndang Inna): pads harga HM570.125.00. Wslaubagaimanapun, sow mengakui udak ada sezmang ..wmu.....u....w..... v Invwtuulnnvwzl um u. dokumen pamknan yang telah munjukkan cleh uevaman Kenya. [24] Datendan katiga jugs selalah disoalbalas oleh peguam praumiv as‘ Ma1i) lelah menqakm bahawa sahelum ﬂia mamasukl penaniian Iualbeh dengan p\|aiI1M(SPI\| ualam bulan Juli! 2010. dla Isiah menemul defeman panama ﬂu’ Arked Mara tasebut dalam hulan Jun 2010. Keternngan delsndnn keliga sstarusnya adalan ma Isiah berunding dengan defsndan panama a; sebum kedal kupi mengsnal jualan Hananah vsrsebm pm harua RM amoooaoo. Rundlngan um adalah xalapas detendan keﬁga menﬂupal lahu mengenm hasral 5: Man unluk meruual Hsnanah (ersehul paaa harga RM 350900.00. Jelas di smi, nanghbatsn dafamnn kellqa dw dalnm nalakuan hand a. dalam Iransaksl um. ma «asan msmpevdaya phmﬂf [Si Man) unmk msnjual Hananan tarsebul kapadanya, dan kemudiannyn man msnjullkannyn kapada defendln panama aan ksdua dengan menggunakan penanjan yang Ielah dnandatanganinya dsngan puamm (Si Man). Perjanpan yang dllandatnngani dsngan plamlif (sv Mnlij Ie\ah zxuzvuun nuuumum Klnnmuu vvnulznmwnvun mm dilukav dengan Inndamngan delendan panama nan daﬁenﬂan ksdus. Defsndan keﬁga lam: memperuehi keumungan hssil dun peknlannya uengan deiendan kasrnpnl yang berlindsk ssbagm psguam ylng mewakrhnya. [251 Penemuan ﬂeianuan keﬂga asngun plainm udauah pnda bulan mm zom, manaknla panumpaannya dengan aevaman panama pada hulan Jun 20m. ssmsm penemuan aengan deiandan pemma nu, harga jullnn Hlrlanah remnux talah ﬂiletapkan amala ﬂsienﬂan panama dam kenga paaa RM 370,125.00. lni menunjukkan «amapnmya mat di prhak aefandnn keupa yang (Blah berknmplol dengnn dstenﬂan keempal unluk msnipu pcsmxir (51 Man‘) dalam transaksl In]. Delendan keﬁqa hsrpuna-pnra msnandmngum perianiian denqan plaimn (SI Mun ksrani din dun dwfendan kaempal mengecahm bahawx syavat peniualan Hananam tersebut uleh plamﬁl (s‘ Mam) adalah kepada an-ng ying baruwma lsiam annals. Mslaka mnu msrskn akan baraleh kwnlungan hasil dari lvansaksi terssbut kerana msraka Iahah bsmadang unmk menjunl Harlanah Iersehut kepaaa defendan panama danuan xxnlxmzm nn~umAuuI1nnuvI4cnu4I.I—vvnIlI1:IIMv\|7ua nus [25] havga ynng Vahlh nnggl am halga yang dilawarkan oxen pnainm. Tlndakan mslska adalah msmpakan sam fraud sspsm dipnluskan DISH kes ll Inr rl L Al ms :3] AA - unPl n and 111 Mankamah Inl luga tldak menenma keterangan defendan ksnga xnl yang mengatakan bahawa wang deposit yang lalah mbayav nlannyn kepana dafendan ksempal Isiah diblmlkan olahnya karuna mu ada unaaxan lanjm oleh dalendan ksempin urnuk menaksanakan Psnanjian Jual Bah dsfsudan ksbga. Kelerangannya musnnh dlsehuhkun kslemngan dslendan pennma «arsenal yang wish menunjukkan lerdapalnya psrjumpun amam mereka yang diadakan cenenin dahulu bemanding denunn pariumpannnya dengen plamul [SI Maxi]. Dacsnuan keuga jugs lelah mengakm’ bahaws dla bequmpa delendnn penams adalah berkenaan pemullan hanah Enmk Ghazaln Iailu plalnm (SV MBID. Walaupun pads mulanya dia menaﬁknnnya, aecenaan keuga ksmndiarmya mengakuu «em. Pal: w [27] melaksanakan Pevjanjhan dual Eeﬂ defendan ketiga selspas pemincangan ﬂsngan aeoendan penama. Kesimpulannyl, mahkamah inl berperldapal bahawa detenﬂan keliga idalah xembat dengan perlakuan vmua dengan msnukar Psnanjun Jual Bali devfervdan mg. kspadl psvlanﬂan amma deiendnn panama nan kedua uengan plainm 151 Man). oevenasn kamga man berkomptm dangan aavenaan keempal dsngan manlldikan delendnn knumpal peguam beninduk hegi plainlﬂ (5: Man) sedangkan plamm (5; Mali) linak pemah meiandk nsfendan keempal sebegai “makarmmsr mahupun psguam mg: pihnlrnyn. Dsfnndan panama (sow) talnh mambsri kelarangan bahawa ma Udak msngetahul Iardapalnya synmt yang ﬂlnyaukan nlah plmmiv (3: Man) 4am: pembeh Hananah Isrsebm mesman seerang yang berugama Islam. sm juua Islah menyatalcan aanawa din uaak mengemhui bahawn havga jualzm dinyalalmn alsh plamtif adalah RM 350,000.00. npzn [5] Detanaan kemjuh luga arlalan Iakan kungm terapi Isiah mamnggal dunia. m Tunlman plamlif. um. merumk kapada Si Man, aaaiah umuk Hananah Isrsabul dipindahmnlkkan semuls kepadanya karma dikamkln plnduhmilik Hananah Iavsehul kapedn defandan panama dan kedua aaalan secam waucr melalui salu aerannan jualbeli bennnkh am: Julai zma. [31 Derfandln keemplu Isiah gags! memasukkan kehadlran nan juga membsla limakan m4. Olen am mdakan ini lelah dileruskan lemadnnnya berikuran dangan Alumn Ia Kaedan 5(1) Kneﬂanxaedah Mankamah. 2012. Plain!" tldak meneruskan tunvulan tsrhadap defender: kenuuh kerana leiah meninggal ﬂunia. B. F Pk-mini! m Fli [9] Paul arm Juli! 2010, deisnaan keempnl man msmperkenalkln SI Mali dangan aelendan keﬁga ssbsgsi psmheli Hananah lersebut an uabuah najlhat an Eangunan xnmt mm umumnnimnnmnmvnllnmuuarnvum Y-«Z [291 Salanjutnyn Delendan panama (sun menyamknn nahawa semua urusan man drselahkan kspada peguamnya Encvk Ouek dari Tenuan Tun & Tan Teruan Tan .1. Tan Ielah mewnkili defandan pemma din xedua dr s\ru ﬂan Encik Ouak lelah meoghsdin senap hari pelﬂcaraan sehagai pegunm. so: telah menyerahkan wing nan men.Ind\|lang\ pennnjiln am nasihal den arahun peguamnya. Pemhayalan lelah mum olshnya memu: ask. sm tiﬂak mengstahul siapakah yang mengisw name penerimn CON dln melataklun Iarikhnyl‘ Jugs. an Iidak mengmahm terdapelnya sural msnyuval menganal pembavalin perjanpan kedun. Malah. sm «erar. mauaksannkan pevjanjian m4 Ianpe mengetuhui idannly pnnimn dan dis jugs liuak mempunyai pengevanuan mengenal ls\ kandungan penanjlan kerana semuanya adalah dalam Iangnn Enclk Ouek, ikm arahan Encik Dusk. Numun dnlnm keleranqannya SDI (Blah mangakui yang dia ada memima selumlah pempasan jlka perjanjlan mgin mbaulkan, soc (erah msngarankan peguamnya untuk msmhunt Iawlran ganlilugl 501 Aug: uahu bnhawa pinasnmmk Ianah Iarsebul tslan mengadi penikalan ﬂan selepas amen sm ﬁdak memasukl Harlanah Iersebut Dan,keI1ka nu z:u:vuz4n2Imr4vnu1m\|IvIKuI1lauuu m...mm.m... M21 sm Isiah bevselulu umuk manamalkan pananjlan luamsll (ersebur Ienalduk kepeda pampasan. [30] Defendan penamn nan ksdua lalah gags! umuk memanggll psguamnya isilu Encik Qusk unluk memaen kezerangan. Oleh ksrlna keterangun SDI sscnra keseluruhannyu adaleh IIBVIEWB ssgala umsan manganal jual hall bsvkenaan Isiah dlserahkan kspada dan drkendalikan oleh Enoik Duek. termasuk wga urusan pampazan umuk pennmamn parjaniian [MEI beli tersabul. Enclk Ouek hams ulpanggl sebagal sakst delendan panama nan kedua. [an Dsfennan panama ]uga lldak memanggu Enclk cmn lalnu orang yang xaran memperkenalkannya denaan oevenaan keiiaa. Fakla rnenganm syarnl panjualan mush hnnya kepeda mung Islam xanan hdak dlmaklumkan kepadanya telah gaga\ dmuklikan oleh aevenuan panama, Fakta ini aaauan malarial karana detendan panama Iidak pemah berjumpa dengan plaimi1(Sv Mam‘) Sebelnm manandmsngani penanjisn Olsh ilu. katarangan dlri peguam davenuan panama din juga FIRZZ kalerangan dnri mung yang bemnma Enc\k cmn aﬂalan dipnrlulun unmk menynkong kenerangan delendan panama unluk memmmikan ma mangemui mm lersabul. [32] ssma ada defendan panama aan deiendan kedna adalah ‘Dona ﬁde puvchaser om valua", Idllah liﬂlk Imavan kenana hakmllik yang mpamlamnya masih boleh ulsangkal jlka pemillkan Hananah hersebul has>I dam psmuararnaemuﬂan ateu rmnsnksi ynng dilakukan sews lrand aleh daisrvdan keuga ﬂan daennan keempaz. In! memamtangkan hahawa ueiendan uanama clan Defend-an Imdns sdmah merupakan ‘immediate pumhuer. Mahkamah ini xelan menquk kapada kes Inmln bln om r rs -v- Vukuh hln nu In ﬁg Lamb] 2 MLJ 1Q ‘ [4] ,,...Dn1y A subsequent puvcnaser is enmlaa to raise me smeld av indsieasibilily. An vmmadiale purchasev of a We Iainled by any ans of me v u ng elements acquires a We Inn! 5 run deleaslhle. It ﬂows vmm Tan Vlng Llgug man ms ma idea 01 an Immediate puvchsser Is nm a sniera m duﬁanaibdny. j:j.j_ nrkvuxu mm.“ umuu mm.um.m.. mus The dafaaslhls nus av a bona ﬂue purchaser Vs lill liable to be satasitte . - [46] we would surmavise the lmegomg and pass on me following, as a guide to mal nouns. wnensver a rsgrsleved we or interest is sought Is he sat Iside undev saw. an: aseenam whether the «me or inoeves! under challenge is regis1eved In me name of an immedma Dumhassr or a subsequent purchaser." [33] Dengan nu. mahkamah ini leknh menolak nujanan pagualn uevenuan Dermmn yang msngavakln bahswn ssksyen am (am) Kanun Tanuh Negura wees nﬂuk bsvopsrasi dalam hal keadaan kes im memanaangkan max ada dakwaan fraud di plidkan oleh nlavnm, din ekuran oari mu dafandin panama nan kedua um mungkin menjadi “parry m Ihe hand or pnvy lo me tvauui [341 Kopmusan Mahkamah Persskuluan dmalam kas Knlnlmlumln bin arm: A Q; tarsehut Ielsh menglkal mahkamah um Kapuluian kas lersahut jug: Ielah dinkuli dun dilerimu pakav nleh .2 ..m.nm.,..y.....».....r.n....a.m.u V In wmmm ..=. hr 2» Mahkamah Rayuan at dmam kes Chnl Kw-I Foong -11- mg‘ Cgg Mggg N] p lzln Abdullnh E0111 3 Mg 21g [35] Psgunm devtendan panama dun ksdua, jugs peguam delendam defendan yang «am tidak ads msnimhulkan alau mencabat akan kelevangun piairml (sv Mam yang mengsmm huhswu din telah tulunkan Iandavangan rmgkus .1: mukn aural Perlanjlan Jual Beh deiendan keliua den Landatanuannya selelah dia have can lahnm aarla lihal nlmi ueoandan keugn pane mnagmn pambeli sabelurn dis menandalanganinys. Perjanjlan dmgan defendan penama dan defendan kadun ads lamaparnya uanuacangan rinqkas dv rvluku aural bahugian Ievma dan syilul ﬂan dw muka Sural akin‘! iaim an Iuang Iandalnngannys Ismapal Iandavangan plawmif (Si Man). Jadual kapadi perjanjwan menaenai bmirrbuﬁv nananan, mugs jualan can can pamuayamn Ialah udak mengundungi tandalangan ringkss puazmiv. Berdasalkan hes Alk Mung (M) Sdn and -v- Chung Chlng cnmn c. 3 or. [1995] 3 Am: 2315, kmalungan plalnlﬂ ndalan manggap benar can diakul aleh aevenzsarmsvsnaan. Olen nu auras vmbangan ksbamngkahan‘ plain!!! tslah msmhuklikan bahawn 'ff:Ild" Ielah ﬂilukukan _..?L 2: nmmmuumum Page 15 dengan menukar Perjanﬂan Jua\ Ben aavenuan ketiua dengan pevjaniian dsngan delendan panama can Kedua, Huang yang unanaaungani oleh pnnmm mkekalkun, manakula hahlglen/mung name penmau dan Jadual an psnanpan Ielah digami dengan nama uetannan panama dun kedua nesena Jadual mangsnai harua iullan an new pambaynran. Ma yang keknl ananan Iandaungan plamm m dalam pananuan dan \|uga m Eorang plnuah milik Barang MA Olsh ilu mahkamah marmak hupahan peguam dciendan panama dan kedua bahawa pennnnan jual bell Darlnrikh am: Julsi zone sena Bursng MA yang nerkanan ndak dlbuknkan dan nlah yang danukian plaimﬂ Iellh glgal mambukﬁkin perjamlan aan pmdnhmlﬂk havksnaan. Peguam pnamm talah menmnman xepaua percuhaan membnknkan dakumsn vanpa mangamukakan yang aaal Dokumen-dokuman herkenaan lerialak dalam Bohaglan c lkalan dnkumen olen im saunan asal yang aama nams dikemukakan oleh datenuan panama dam ksdua [ae]De1sm1an kelima, kesnnm «an kelapln Ielah mengemukakan kslelangan bahawa mereka Iidak xannm dengan perlakuan aaaanaan keempal walaupun aevennan keemnal adalah rakan fig: 26 kange: msraka paaa mesa mmzsnal. Namun auaran Iidak dlperdkaikan oleh mareka bahawa mama ueveman keampal ada mdupat lemaml ax dalam kepala sum! ﬁrma mereka cswangan Muardan dmyalakan sebagnl rakan knngs: Puma Iersebul. [37] Kamangan aevsnsan kasnam iailu sue yang mengsndalikan ulusan mwangam Muar Kalah mengarakan Dsfendan keempat man bsmndak sandni den bukannya berlindak alas nsma ﬁrms. Detenusn keuma keenam dan kslapan tslan merujuk keplds kerterangnn plainm 15: Man) (SP1). SP1 Ielah mengavakan bahawa ma udak me4arm'k Devendan ksempal dari ﬁrrna Zainudm wan Nadz\m cnua & Maslinds sehagui peguam lranslksi peijanpsn jualbali tarsebul. Kmemngan SI‘-‘V Isiah msngalakan :- "5 Tap! sebsnamya Encik Gnazau lanlik ﬁrma Zainudin wan Nadzim? J Saya tak Ianok. S Tak Ianukz J Saya Iak rannk. Dis wma wakn daripsda ' Plamm juga Ielah mengmakan hahawa kau panama dia Deriumpa dengan Defendan kssmpal adaiah dx bangunan Mam unmk zanaavsngan borang MA. [as] Namun‘ kelemngan 502 lam: uatenaan kema tslah menganakan bahawn pembayaran deposit dibuat ulahnya mas nama Firma (ersshm SD2 juga mengavakan bahswa Fwma lersebul lelah -at >«nI1AnrIKI:rmuAuu.vvnI<neNu-wnvuu mm mewakiﬂ kedua-duunya mu dla ¢su2) sebaga: psmbeli dan plalnlnf (su Mall) sebagal penjual. Juga, Ierdapal kslsmngan dari sm iaﬂu ueteman panama uanawa urusan Jualbell ﬂan pembayalan ceran dlbuat aleh ﬁrma paguamnya Tan a. Tan dengnn Hrma (evsebut. Tsmaoa! juga kstzerangan umsan sum! menyural darn knmunlkasi anlara Temsn Tan & Tan dan Fmna lersebul. [as] Surat kepada Teluan Tan & Tan jugs tavah amamar melalm faks darn cawangan Muat Fwrns tersebul. man im kslelangan dan pemnanaan uetsmarmevsnaan kenma, kaenam dsn kelapnn yang mengalakan ﬁrma mereka lidak Iemhal wax dapat mpenanankan. Tamhahan pma laks yang amama: adalah pads waktu malam lanu pana pukul a.51 malam. Im msnurqukkan uscanaan keempat ada akses kepadu peiabal Muar ﬁrms lersebut. 140} soa hanya msngalakan “lidak vahu’ kapada semua soalan yang diqukan kepadarrya men peguam puaznm. Kelsvangannya adalah liaak munasabeh spam: we mengatakan dia max menuetanm menganal umsan ]ua\be\|i ml kersna dia Ialah mengalakan aetanaan keempat tidak mempunyal aksas ke pejahal yang diuruskannya ialw cawangan Muar. sna Hdak mslakukan sebarang siasalan sedangkan ma Isiah mengeiahui Isrdapalnya penggunaan kepah suns! ﬂrmanys ﬂan juga tsmapat psnggunaan mssin laksmull pejlbalnya unmk uuuan (ransaksi penanjiln jualbelnlersebol nncvnz ommumanm mm... v ma-».=mm..,.. Panza [41] Mahkaman mi juga ieiah menoiak hulanan delendan kehma. Keenam nan kelapan letsshul «ems walaupun ieiam dnskukan olen deiandan kaempax, perbualan nelendan keempal sdalah seiaku mxan knngsi Firms teisebm naiam uiusan bias: Fmna Iersehut sebagai salu Firma kepeguaman dan sudan pasli menglkal Flmu lalsebul. [421 Mnhkamah Inl ieian msmjuk kspada Am Pemongsian 1951 Iermamanya saksyen 12. Juga, mahkamah ini menenmapekai kepulusan kss zumie Egnk gmg -v- my orig}; a. I was Fr n \|eTIn so. Third 2012 u E, sepsm mana yang dirujuk aleh psguam plsinm. Kes Iersshul YSIEII memumskan dalam sllélm perkcngsian. vakan kongs: adalan ']oinIly and / or sevelally liabis, lot Iha noiaings oi each mnev." Ssksyen 12 memperunlukkan :- ‘When, by any wvongful an or nmisslon av any parlnar amlng in «nu nminary cuurse ohha ousinsss in me am. or me. me aumomy av his so-partners. loss at Injury is caused In any person no: being a pannev in me rm, nr any penalty is incurred. ine W!!! is name inereim In the same extent as the parlnsr so acﬁnq or mining to M, [431 Plhak-pihak usiendan iugs lelah msnghujahkan hahawa nihak pla Iif Isiah gags: menuemnkakan huixhan berkenaan dengan ‘ll)lEKI1Il$lIllh\|1UMﬂ4I‘IAEFIﬂl W...» v m-4.w...ma. Paul‘? gandmm iallu ganumgi kornplnl, maka mmmamunnnan perm duahalkan. Kagaganan plamm (avssbuuelah disnggap ptalnlif tidak Denna! unluk menaruskan mmmannya. [44] Mahkamah mi (shah menolak hupahan Iersehut kerana semapa: ax clalam penyana mmman plainm yang plamm memohcn umuk ganﬂmgl komplonraud lni dnxksnkan. Ini oelah mpwkan nan Ielah dipemmbangkan aleh mahkamall am am Aanya wmar mponon amu hdak seberum kapumsan dihuah D. Kgsirngulun 1. Telnn beriakunya pelakunn ‘fraud’ di dalam transaksi pmdanmilik Hananah tersehm nan plenum kepada detenaan panama dan kedua. 2.‘Fraud' telah dilakulran uleh aevendan ketiga dan ﬂeﬁemhn keempel yang lalah mengetxnm akan nisl plainm unluk memual Hananah lersehm hanya kepada orang IsLam. Psvjanpan urbuac dengsn delendan penams clan kedus yang bemangsa Gina dengan mengganukan psnanjlan asm yang ditandatangam obeh pnainm aengan defendan keliga. 3. Dsfendan kshma. keenam aan kelapan adalah benanggungsn hersama dengan zips-apa peﬂakuan yang dilskukan cleh vskan kongsi msteka ianu Defendan ksempat. Seksyen 12 Akla Perkongslan 1951 adalah levpaksi ama aumwlluunmmm mm. y ma.-aumamn mun Aked Mars. Jalan Rahmal. Batu Fahal. Jomr. Sernasa perjumpaan tersebul si Mali Islah menegaskan syalal Bahawa pemnsu hsndakmh berugamu Ishm k-rana ksdudukan Hananah lersebul bemadapan denqan masm. [IO] s1 Mari dun uefsnﬂan kauga lelah mslaksannkan psljanjlan jualbell. di mam delsndan keliga dinarnakan sahagal pembeli dan Si Mari ssbaga\ penjual Haninlh uarsenux. Sehuhunaan dengun mu nlhlk-pmak Ielah melaksanakun Borang Finﬂahmmk Borang HA. Helga ;ua<an namnah yang dmyalakan dalam perianuan ﬁuamall ia>ah RM 350,000.00. Periamvan \|uuIhe\|i lemabul adaluh n-nsnkn arm Ju\a\ 2010 Isalapas Am dllujuk sebagai Pent-mjisn Jual aeu aetenaan ksﬁgs) [ll] Pena mesa palaksanaan Perjanjlan Jualbsh amsman keliga ianu pada Zhh Jmal 2010, aevendan keuga telah menqemarkarv sekapinq nek Maybank lslnmic csk no 045912 bananom 02/07/2010 hsvjumlah RM 35,000.00 \|‘Csk aetenuan keliga Ierssbuf] sebagai wing daposil beliau Hannnah Iarsshut lnuulcnmnntullmnuu-v-rlxxwmnuwnvuu mu 4. Defendan-dertendan geﬂamu dun xeaua adalnh pembsll Ierus (immedme purcnasaq. onan nu. craua defendun ksugs dan keempal menjadikan hakmlhk caveman penama aan defendan dalam Hananan Iersshul holeh msangkal (indafaaslble) dan dengun llu saxsyen 340(2)(aJ Kanun Tanah Negsra I965 aaalan terpakal. 5. Ssksyen 340(2)(b) Kanun Tanah Nagara I965 luga adalah Iamakm dan dengan nu hakmilik yang dimlllkl man defendan panama aan kedua adalah bole?! msangkau ksrana pinoahmxlik dilakuxan dervgan msnggunakan dokuman yang max sah dan Iematal nasil dari pemuatan wand, Iidak kua mereka adalah terlibat dalam “vilisnng acts". Mahkamah merujuk kepsda kepulusan Mahkamah Hayuan dalam M-Iggy: 31;}; ng am:-u 5, Dengan nu atas imbangan kebarangkslian Mahkamah (alah mamben penghakiman aepeni benkm ams1alamnya:— Tsmaﬁap nevenuan panama ﬂan kedua :- (a) saw pengisyliharan bahawa psnaruian Jualbeli nenamm arm Julai zmu antsla pnaxnuv dengan Delendan panama dan kedua adalah mak sah din Ierhatal. Dan pindahmmk terseom adalah tidak sah ﬂan batal. mm Iunununmnnnnunnutanu vlilnnmnumuuu mm Temadap Defsndln ksﬂga. keuma, keenam den kenpan :- (3) Gunllruql uniuk lrnud. kompsan mm dltakslrkan. . (DAm Nﬂ ABAS) Hakim Mahkamah ‘rnggi Malaya Mua: Tarlkh: 20/10/2u\7 ﬁ5—KES uﬁ DIEUJUK 1, Lncn-ammo cnmn-v Algggmnn Q L Algggggan 1. Anal -v- socu: Plgygdon [2oIz\| I ms 31: 2. Kamuglggman hln 9g; 5 on -v- vnlqg p 9 main & 115 mu zulsa 3. Chgl gggl Foam -0- am‘ Q11: ulgg N; In bln Abdullgh [3911] mg 21g 4. Puhllg my Bung -v— Eu! cm-n g Agmciau {Fnnldg 1;; L :1 Third Pa MLJU I 5‘ Alk Ming (M) Sdn any -1- Chang cnlng ggygn a. 3 on [lﬁﬂ 3 AMR 2:15 5. M-Igmg Banldm and a an -v- mg § cw wan 120111 Mun m j —1 zmcv: nyzmcnunnnunnkunluauuu m.m......m..... PI[:S3 Pgugmcma Bag! Flﬂﬁ ﬁram [Plg n 1 1. TEFUAN ZAINUDIN WAN NADZIM CHUA A MAZUNDA No. 9 (aces), Jalun Pamanu 12, Tamsn Junm Perdana. Jalan Abdul Hanman euooa Muav, Jurwr. (Rujukan: ZWCM/L461/17) 2‘ TEFUAN sn VAP a. r-ms. Nn. sea. Jalnn 17/ta. sea on 17, man Felaﬁng Jays, SBVBIIQOI (Hujukan: yspshaolee@holmai\.I:nm) F uamcam 1PmakR Devendan TETUAN IMHAN SHAHAREEN 8. co Nu‘6A,1”\|ngkaI1‘ Jalan Maju Bqral. Tamar: Maju, aukm Pasu 63000 Batu Pahal. Johav [Rwukan : 09579/SB/PLF nmm..m.....,........ ..a.m.- vvnnIlum4vnwa run so [121 [131 [N] kepada ueienuan keempal. Csk mkeluarkan ans nama Fmna Iersebul. Pada 27m: ssmembev zmu, si man man membual semakan as Pqabat Tanah Batu Pahat. Dari samakan tsrsabut plaurmv mandanal Hananum tersehm man auum dun diplnuahmuuk Kepada dstenuan pennma dan defsndsn kedua. Si Main new: manghunung: defsndan ksempal. dan amendan Heempal Isiah berjanji umuk msnyalssaikan rnasalah Ierseuut renew Isiah gawl berbual dsmikian. SI Mal» mempemkxikan pemualsn kepada delsndan perlama dan dsfervdan ksdua cemaux dan menauaskan bahnwa pevlnrulnn juul bail hanys dengan nalendan kellga dan bukannya dengan nafendan perlamn ﬂan kedua. Si Man lelah mamhusl lnporan polis Nu 51' PAHAW022062/ID uemaram 2a/cs/zmu dun um kavsal psndanar number pelserahan 2618/2011 tslsh dirnasukkan pada suralan hakmwk Hanannh aersebulpana nhb Oktubsr20H. P23! 5 [15] Tumulan 3: Mali I plaiminamaaap defend:-nn-daienﬂan, amara lam. aualan :~ (a) saw uektarnau hahawa pindahmilik Harlanah larsebut kapadu aafenaan panama darn kedua adnlnn unak ssh dan tevbanal: dan (I1) supayn dslsnﬂan pemmu dun ksaua manyerahkan kepada plamtii a1au peguamcana plamnl, dokumen hakmilik kaluaran Hamanam lsrsebul dalam mesa ampar belns hari den lankh penmnh dlberlkan. (c) gantiruqx unluk penceroboman: (up sam akaun lerhadap kessmus hasll Jualan kelapn sswit den I alau \|uin~\|ain keunmnqan sane pendnpacsn yang cuperoiam olan delendan penama aan defendan kedua den Hananah Iersebut sens deklarasi hahaws dsfeman -n >-wand m..............- mcmuu Inlnvuzwuvnnu rapes pemama aan kedua memsgang yang same sshagax mas amanah unluk Si Man; (3) Davanaan panama ﬂan kedua msmbayar kapada nana pusaka 5: Man kssnmua Mai! iualan kalapa sawil dun / alnu Iain-Iain ksumungan sana penuapman yang diperolehi olan meraka aanpada Hananah carsecux daAam masa 14 hari dari Iankh perintah. (1) oaaaan dall ‘am 0903 2010 semngga psngermbalnan minkan kosnng hamanah. Tsrhldap delendan keﬂgn nmgga keenam. ketapan :A (an nanhruai umuk run kompnm (D) ganﬂrugl unxuk lraud (c) fusdah pads kadar 4% salahun dari 167:!) (>905 2010 sahinuna pevimxh penyelasamn penuh‘ C. \|§y~isu Yang Dihigﬁﬁgn zintvuzninunlnu-mnnuu I<mAxAu—v-v-In-aw:-«\|1u.c\ Pun 1. Sam: aaa umsan jualhell ﬂan plndahrruhk Hananah (ersebm kepada delendan panama clan kedua uipenakukan satana Iruud. 2. sum: aoa dsiendan panama dan kecm rnemilikx hskmmk ynng udak boleh disanukal (mdsfoasirzla Kills] ke Ilas Harllnnh «menu: 3. Same ads delandan kslima, keunsm ﬂan kevapan Iﬂnlah benanggungan ks mas lraud asiendan ksempal, sahagai rakan kuugsi inns Iersebut D. D Dn eul Mahk ah [V6] Mahkamah ini Iellh menaengav keterangan slksi-saksl uari ksaamua pihak din selelah menew kaferangan»kelerangan Ielsebux mahkamah lni merah merumuskan akan pembalaan dari kensumgan keumua dmeman sapeni henkul :- Dedendsn panama dan keuua manahkun penjuahn Harlnnah msobm kepadn meraka saws iraun. Meveka 21rwvuzm-xnuklmnwuvrluulluIz41Au-v-vlnmnuluvnuu Papa manghulahkan hahawn ndak ada katerangan yang membuklikan bah:-swa mereka (slah terlibnt avau manqamhll hahagiln dalam perlakuan ‘lraud‘ yang menjurus kepada Hunanah lersebul diplnﬂahmilik kept-Ida meveks. Mereka Isiah membuat bayaran narga hehan sabanyak HM 370,000.00 mulnlul ﬁrms poguamcan: den seterusnys pegnarncara mereka Isiah membut-It beyatan kepada pequamcara plaimi! / sa Man vnitu defendan kaempal. Jika Ida Izanmksl IIISBDLIK dllulankan saws komplol ﬂan fraud, penakuan (arsehm adalah di plnak Defsndan mag. ﬂan kesmnel, bukannva an pihak mereka. Olah ilu nakmlllk mereka malah lidlk hush dusangkal undeveasibte). Delemsn kmlga IGVBI1 menailknn yang dla Ielah terllhal dun mengemui akan perjsnjian walbeﬁ Hananah tevsehui kepuda defendan panama dun dsfendan kedua. Namun dertsndan xeuga xelah msngakul bahawa ma lelah barurus dengan sx Man dan meaaksanakan Derianiian jualbsli dengln Si Man sena Boring Flndahmihk nu. ma v nevenunn kenga juga man mambctl kelerangan bahawa dia Ielah menghsnliluan pembayamn melaluv Eek dufendan kenaalarsahm. Deiendan kenmn, keenam ﬂan kellpan Ielah menamknn hnnawn memka berlanggmgiawab ka alas lindakan caveman keempal. Mereka mengatakan bahaws pengulusan raJ<an»rakan kongsx ﬁrms adalah «emu kupnaa cawnngan maxing-musing. Uruasn cawangan Vlrllla a1 Mm: anaabn dan osumskan oleh defsndan ksenam. Umsan yang dalnm peﬂiksian Isiah diparlakukan olah amenam kesmnal yang bukannya cenmnx aaam pangwusan cawangsn «nna dx Muar. Kaslmpulannya, perllku-En tarsebm Isaiah dilakuklll oieh ddendan kesmpal sanaja. [171 Mahkamah Im calm manami semua kslerangan dun hulahan nenuns sumua pihak. D. dalam mambual kepnmsan, rnshkamah mi hsrpendapal bannwa ls: pengﬁbatan pihak- pmnx di dllam uansmi yang auakukan mam lluud yang p...m	30,907	Pytesseract-0.3.10
22NCVC-6-01/2015	PLAINTIF ESP SYNERGY SDN BHD (No. Syarikat: 887125-V) DEFENDAN KB ENVIRO SDN BHD (No. Syarikat: 526300-K)	null	18/10/2017	YA TUAN MOHD NAZLAN BIN MOHD GHAZALI	https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=f93ff9d7-f52e-43c6-b44e-beb55036b29e&Inline=true	DALAM MAHKAMAH TINGGI MALAYA DI JOHOR BHARU DALAM NEGERI JOHOR DARUL TAKZIM, MALAYSIA (BAHAGIAN SIVIL) GUAMAN SIVIL NO.: 22NCVC-6-01/2015 ANTARA ESP SYNERGY SDN BHD (No. Syarikat: 887125-V) …PLAINTIF DAN KB ENVIRO SDN BHD (No. Syarikat: 526300-K) …DEFENDAN DI HADAPAN YANG ARIF TUAN MOHD NAZLAN MOHD GHAZALI HAKIM JUDGMENT Introduction [1] This is an application by the plaintiff, documented in enclosure 88, filed during trial to amend its statement of claim. I heard the application after the conclusion of trial and allowed the same, and highlighted my primary reasons for the decision. This judgment contains the full reasons for my decision. Key Background Facts [2] The plaintiff and the defendant, both private limited companies, had entered into a joint venture agreement dated 22 April 2011 (“the JVA”) where the parties agreed that the defendant would lease a certain part of a land (“the Land”) and the plaintiff would build and own a slop oil treatment facility on the Land, with the profits from the sale of the processed slop oil, after deducting operating costs, to be shared on the basis of 70% be distributed to the plaintiff, and 30% to the defendant. [3] Following a dispute, the plaintiff initiated the present writ action, which is resisted by the defendant. Trial commenced in Johor Bahru (since the suit was filed thereat) and continued to be heard by me in Kuala Lumpur following my transfer and upon the request by parties. The plaintiff called 11 witnesses and the defendant 4. The plaintiff opened its case on 26 August 2015 and the defendant closed on 29 May 2017. The trial took 30 days in total. [4] Quite early on, during the case of the plaintiff, at the stage when the first witness was giving evidence, the counsel for the plaintiff started asking the witness questions which basically focussed on the contention of the plaintiff that the defendant had failed to supply slop oil to the plaintiff in violation of the JVA. The counsel for the defendant objected to this line of questioning, arguing that the issue was not pleaded. I recorded the objection but allowed the counsel for the plaintiff to proceed, instructing the parties to submit on the issue after the conclusion of the trial. [5] The questions revolving on the allegation that the defendant failed to supply slop oil to the plaintiff (in addition to a whole lot of other questions) continued to be asked by the counsel for the plaintiff of virtually all the other witnesses of both plaintiff and the defendant. Their answers are in evidence. The counsel for the defendant continued raising her objections, almost every time when this occurred. And I maintained the same approach of asking parties to submit on the matter at the end of trial. [6] When the Court was hearing evidence of the final witness for the defendant, the plaintiff filed this enclosure 88 seeking leave to amend its statement of claim, primarily, to expressly include the pleading that the defendant failed to supply the slop oil to the plaintiff. The other proposed amendments are in respect of stating the tenure of the tenancy agreement between the defendant and the landlord of the Land, with the pleading that the defendant had leased the Land to the plaintiff beyond the period the defendant was entitled to. The defendant contested this application. Hence, the proceedings before me. Essence of Contentions of Parties [7] The grounds stated by the plaintiff in its notice of application in support of the amendment request are fourfold. First, the amendments were necessary to strengthen the overall claim of the plaintiff; secondly, they were imperative to provide a true picture of the claim in the interest of justice; thirdly, the plaintiff would be prejudiced if the amendments were not allowed; and fourthly, the same was made bona fide with no prejudice to the defendant. [8] The defendant argued that the application was not made in good faith as it was not only filed towards the end of the defendant’s case when it could have been made much earlier but that the plaintiff should also have sought the amendment when the issue was first raised by the plaintiff and objected to by the defendant. [9] The defendant asserted that the application was an afterthought, since the plaintiff has now realised that it would be unable to prove its original pleaded case as contained in the statement of claim. Instead, contrary to established rules on pleading, the plaintiff is presently attempting to amend its claim to suit the new and un-pleaded facts and issues introduced by the plaintiff during trial. Evaluation & Finding of this Court The Law [10] The application is made pursuant to Order 20 r 5 and Order 92 r 4 of the Rules of Court 2012 (‘the RC 2012”). The latter concerns the inherent jurisdiction of the Courts. The focus of this application is essentially on Order 20 r 5 (1) which states as follows:- Subject to Order 15, rules 6, 6A, 7 and 8 and the following provisions of this rule, the Court may at any stage of the proceedings allow the plaintiff to amend his writ, or any party to amend his pleading, on such terms as to costs or otherwise as may be just and in such manner, if any, as it may direct. [emphasis added] [11] The plaintiff placed much reliance on the fact that the rule permits amendments to be made at any stage of the proceedings. It also referred to the decision of the High Court in Bumiputra Commerce Bank Bhd v Bumi Warna Indah Sdn Bhd [2004] 4 CLJ 825 which held that amendments to pleadings could be made at any stage from before trial and even during appeal of the suit which has concluded. More recently, the Court of Appeal in Suhaili bin Ismail v Syarikat Sribina Sdn Bhd [2015] 6 MLJ 556 affirmed the rule that amendments to pleadings could be sought at any stage of the proceedings, including after the close of pleadings. [12] As readily pointed out by the defendant, it is settled law that it is not the function of the Court to build a case for the parties inconsistent with their pleaded case. This is the “gold standard” in pleading rules and evidence, as pronounced by the Supreme Court in Yew Wan Leong v Lai Kok Chye [1990] 2 MLJ 152, in the following terms:- “It is not the duty of the court to make out a case for one of the parties when the party concerned does not raise or wish to raise the point. In disposing of a suit or matter involving a disputed question of fact, it is not proper for the court to displace the case made by a party in its pleadings and give effect to an entirely new case which the party had not made out in its own pleadings. The trial of a suit should be confined to the pleas on which the parties are at variance." [13] I think it is manifest that the Court may allow amendment to pleadings at any stage of the proceedings, even after the conclusion of trial, like the case presently before me. The issue is whether the Court should exercise its discretion to do so. [14] In that context, the defendant’s argument that parties are bound by their pleadings, which of course is a fundamental rule in civil litigation, is not exactly the real issue for determination before me since the plaintiff has applied to make amendments to the pleadings. [15] I need to refer only to two Federal Court decisions on the importance of pleadings. In Giga Engineering & Constructions Sdn Bhd v Yip Chee Seng & Sons Sdn Bhd & Anor [2015] 9 CLJ 537, Richard Malanjum CJ (Sabah & Sarawak) held thus:- [42] Now, it is trite law that the plaintiff is bound by its own pleadings. (See R Rama Chandran v. Industrial Court of Malaysia & Anor [1997] 1 CLJ 147; [1997] 1 MLJ 145; Anjalai Ammal & Anor v. Abdul Kareem [1968]1 LNS 8; [1969] 1 MLJ 22; Gimstern Corp (M) Sdn Bhd & Anor v. Global Insurance Co Sdn Bhd [1987] 1 CLJ 123; [1987] CLJ (Rep)102; [1987] 1 MLJ 302 SC; Joo Chin Kia v. Loh Seng Tek [1987] 1 CLJ194; [1987] CLJ (Rep) 662; KEP Mohamed Ali v. KEP Mohamad Ismail [1980] 1 LNS 169; [1981] 2 MLJ 10 FC). The plaintiff is not permitted to improve its pleading in any other manner other than by way of an application to amend.Otherwise it would be unfair and prejudicial to the defendants if the plaintiff could now be allowed to raise an issue that was not within the contemplation of the parties in the first place. (See Esso Petroleum Co Ltd v. South Port Corp [1956] AC 218; Playing Cards (Malaysia) Sdn Bhd v. China Mutual Navigation Co Ltd [1980] 1 LNS 57; [1980] 2 MLJ 182 FC). [emphasis added] [16] In another recent Federal Court decision in Samuel Naik Siang Ting v. Public Bank Bhd [2015] 8 CLJ 944, which was referred to by the defendant in its written submissions, Ramly Ali FCJ held instructively as follows: “[29] It is a cardinal rule in civil litigation that parties are bound by their pleadings and are not allowed to adduce facts and issues which they have not pleaded (see: State Government of Perak v. Muniandy [1985]1 LNS 117; [1986] 1 MLJ 490; and Anuar Mat Amin v. Abdullah Mohd Zain [1989] 1 LNS 74; [1989] 3 MLJ 313). In Blay v. Pollard & Morris [1930] 1 KB 628, Scrutton LJ ruled that: "Cases must be decided on the issues on the record; and if it is desired to raise other issues there must be pleaded on the record by amendment." [30] The Supreme Court in Lee Ah Chor v. Southern Bank Bhd [1991] 1CLJ 667; [1991] 1 CLJ (Rep) 239; [1991] 1 MLJ 428 , had also emphasised the importance of pleadings and ruled that where a vital issue was not raised in the pleadings it could not be allowed to be argued and to succeed on appeal (see also Ambank (M) Bhd v. Luqman Kamil Mohammed Don [2012] 3 CLJ 551; [2012] MLJU 56 FC). [31] On the same issue, HRH Raja Azlan Shah FJ (as HRH then was) in The Chartered Bank v. Yong Chan [1974] 1 LNS 178; [1974] 1 MLJ 157, had also pointed out that "as the trial judge had decided on an issue which was not raised in the pleadings, the judgment must be set aside and new trial ordered" (see also: Haji Mohamed Dom v. Sakiman [1955] 1 LNS 26; [1956] MLJ 45; and Kiaw Aik Hang Co Ltd v. Tan Tien Choy [1963] 1 LNS 59; [1964] MLJ 99).” [17] As such, it cannot be emphasised enough that parties are bound by their pleadings and any departure must be accompanied by an amendment to the original pleadings. Thus if the amendment application is allowed, the objection against the need to adhere to matters specifically pleaded would fall away, since the pleadings would be amended to include such matters previously un-pleaded. [18] The leading Federal Court decision in Yamaha Motor Co Ltd v Yamaha Malaysia Sdn Bhd 1 MLJ 213 was also referred to by the plaintiff, for the often-cited ruling that amendments should be considered favourably if the application is made in good faith, the amendments would not change the character of the suit and whether prejudice to the other party, if any, could be compensated by costs. [19] But the plaintiff did not refer to the more relevant and recent Federal Court decision in Hong Leong Finance Bhd v Low Thiam Hoe and another appeal [2016] 1 MLJ 301. In that case, the defendant had already filed his defence and counter-claim and the case had proceeded through five pre-trial case management sessions. After the matter was fixed for trial, the defendant filed an application to amend the defence, by introducing two new and distinct defences. [20] The High Court found that there was a gross delay in the filing of the application and that there was no credible explanation for the delay. In addition it was also found that the amendment would prevent the trial from proceeding. The Court of Appeal reversed the decision of the High Court. The Federal Court then allowed the appeal by the plaintiff. The headnotes of the judgment delivered by Zulkefli CJ (Malaya) (now PCA) stated thus:- “(1) Yamaha Motor was decided under the Rules of the High Court 1980. However, now under O 34 of the Rules of Court 2012, the progress of the case was no longer left in the hands of the litigants but with the court in the driver’s seat. Courts in Malaysia had consistently held that where there was a delay in making an amendment application, the onus was on the applicant to furnish a reasonable explanation for such as delay and this was in effect an additional factor to the Yamaha Motor’s rules. In the present case, there had been five case managements since 2011 and there had been no indication at all that an amendment application was contemplated by the defendant. The only explanation given by the defendant in his affidavit for the delay was that he had only discovered that these two new issues were not pleaded when preparing for trial. Such an explanation could not be acceptable. In the circumstances, the Court of Appeal fell into an error of law when it applied the principles in Yamaha Motor without appreciating that those principles by themselves were insufficient to deal with an application to amend, which introduced two new defences on the eve of a trial. The Court of Appeal had also failed to appreciate that the defendant had to bear the burden of producing material and cogent reasons to explain why the change was sought so late (see paras 18, 25, 27, 29 & 33)”. No surprise nor prejudice [21] It is, in the instant case before me, the primary contention of the defendant that the plaintiff had failed to provide any reasonable explanation for the delay in its application to amend its pleadings. This assertion is not without basis. Nothing has been stated in the affidavits in support of this application as to why the plaintiff decided to take this course of action only at this stage, and not earlier when the objection was first raised. [22] Is this fatal to the amendment application? After a careful examination of the circumstances and justice of the case, I ruled in the negative. At the hearing, counsel for the plaintiff agreed that the amendment application came late in the day, but maintained that the law as set out in Order 20 r 5 (1) of the RC 2012 envisages that leave could still be given for amendment to pleadings applied for at any stage of the proceedings, and that the decision whether or not to allow amendment is eminently within the discretion of the trial judge considering the circumstances of the case. [23] It should be stated that an important reason for the decision in Hong Leong Finance, as mentioned in the passage reproduced earlier is the introduction of the new RC 2012, in respect of which, it is worthy of emphasis, that Zulkefli CJ (Malaya) (now PCA) had also instructively held as follows:- “[18] …Nowadays the court recognises especially under the new case management regime that a different approach needs to be taken to prevent delay in the progress of a case to trial and for its completion. The progress of the case is no longer left in the hands of the litigants but with the court in the driver’s seat (see the case of Syed Omar bin Syed Mohamed v Perbadanan Nasional Bhd [2013] 1 MLJ 461; [2012] 9 CLJ 557). In particular when an application to amend the pleading is made at a very late stage as was done in the present case, the principles in Yamaha Motor ought not to be the sole consideration. This is because an order for compensation by payment of costs in such a case may not be an adequate remedy and it would also disrupt the administration of justice which affects the courts, the parties and the other users of the judicial process (see the case of Conlay Construction Sdn Bhd v Perembun (M) Sdn Bhd [2014] 1 MLJ 80)”. [24] The imperative of meeting the objective of the RC 2012 in ensuring timely disposal of cases is further highlighted by His Lordship in the following passages of the judgment:- “[26] It is to be stated here the requirement that a cogent explanation for such a delay must be furnished when making a late application to amend would be clearly in line with pre-trial case management procedures (introduced in year 2000). The management of cases by the courts prior to the trial is intended to ensure ‘just, expeditious and economical disposal’ of an action (see O 34 r 4(1) of the RHC 1980, now O 34 r 1(1) of the RC 2012) and the Practice Direction No 2 of 2014 issued by the Chief Judge of High Court in Malaya). Timely disposal of cases and the limitation of cost are now the primary considerations under the present regime. [27] In our instant case, there had been five case managements since 2011 and there was no indication at all that an amendment application was contemplated by the defendant. The only explanation given by the defendant in his affidavit for the delay was that he had only discovered that these new issues were not pleaded when preparing for trial. Such an explanation in our view surely cannot be acceptable”. [25] The application in the instant case before me is not one made before trial. But this is not to suggest that an application after trial has commenced is less objectionable than one before trial starts. Far from it. It must instead surely depend on the circumstances and facts of each case. But the important point is that there is absolutely no issue of the amendment application delaying the trial for it has started and even concluded. There could be a slight delay in that my decision on the amendment application should first be made before I give the decision on the main suit; but otherwise, the risk of the trial being delayed or postponed did not arise. [26] Thus in the circumstances of the case, the factor of time of application alone cannot, even in the absent of a cogent reason for the delay in making the application, without more, be a basis to decline the request, unless mala fide is shown. But none is shown by the defendant. [27] It is to be observed regardless that as submitted by the defendant, there is a distinction between an amendment application made before trial commences and one after conclusion of one. The latter, like the situation presently, could be said to confer on the apparently unsuccessful party who is seeking the amendment, an unfair opportunity to renew its claim against his opponent on the basis of an entirely new or different set of previously un-pleaded facts (see the Court of Appeal decision in Pfizer Ireland Pharmaceuticals v Ranbaxy (Malaysia) Sdn Bhd [2013] 2 CLJ 61). In this sense, the ground for the amendment concerning the need to strengthen the overall claim of the plaintiff, as stated by the plaintiff, as referred to earlier, is patently misconceived. [28] But in the instant case, the alleged un-pleaded issues (particularly on the duty to supply slop oil) had been raised by the plaintiff to its own and to the defendant’s witnesses. They all gave their versions of responses to those issues. And the defendant’s counsel had in response cross-examined the plaintiff’s witnesses on their replies to those issues, as did learned counsel for the defendant’s own witnesses, in re-examination. [29] In my observation, it became increasingly clearer, as the trial progressed, and as more testimonies were heard, that an especially key issue of controversy or primary bone of contention between the parties is the alleged failure of the defendant to supply slop oil to the plaintiff in violation of the JVA. All the relevant witnesses were asked questions on this, by both the counsel for the parties. It is the real question in controversy between the parties, and whilst bearing in mind the prevailing law as enunciated in Hong Leong Finance, it is nevertheless not for the Courts to punish the mistakes of the parties in the proceedings by disregarding this important question and rejecting the amendment application. [30] It would not be in the interest of justice that the true issue of controversy be disregarded by this Court only on account of it being un-pleaded as alleged by the defendant. Even though the issue was not specifically stated in the list of issues to be tried filed by the parties, the issue had in fact been raised and dealt with extensively by the answers given by most of the witnesses. In the exercise of my discretion to consider this amendment application, I must not only consider whether the amendment would cause injustice to the defendant, but more critically, also determine whether in the circumstances of this case, it is just for me to grant leave. [31] After all, the crux of the case of the plaintiff as presently pleaded is the alleged breach of the JVA by the defendant, principally by reason of the latter’s unlawful termination of the lease and the JVA, by having failed to maintain the infrastructure on the Land to ensure proper operations of the slop oil facility managed by the plaintiff, failed to perform any marketing of the business, and for having refused entry to the plaintiff to the Land, despite the plaintiff having expended much on machinery and development of the facility. [32] Thus, even though the defendant argued that the plaintiff did not state specifically the obligation of the defendant to deliver slop oil to the plaintiff in its statement of claim, it cannot be denied that it is a key term of the JVA that as part and parcel of and consistent with the contractual arrangement between the parties, where the defendant provided the Land and related infrastructure to enable the plaintiff to build and operate the slop oil treatment facility, it was clearly agreed that the plaintiff was to treat slop oil received from the defendant under the JVA, as indeed stipulated under clause 1.2 therein. [33] As such, I do not think that the defendant can be said to be genuinely prejudiced by the amendment now sought to be introduced. Even without a pleading on that specific clause, the thrust of the obligations of the defendant in the JVA included its alleged duty to deliver slop oil, which was the very subject matter of slop treatment facility business envisaged in the JVA. There is no new cause of action. There is no transformation of the character of the suit. It is still very much about the alleged breach of the JVA. And the JVA itself has been specifically pleaded. Neither has bad faith been shown. I agree the tardiness of the plaintiff in moving this application is far from laudatory. But this does not, without more, amount to bad faith. [34] In this regard, I can thus do no better than make reference to the following often-quoted passages from the judgment of Raja Azlan Shah CJ (Malaya) (as his Highness then was) in the Federal Court decision in KEP Mohamed Ali v KEP Mohamed Ismail [1981] 2 MLJ 10:- “In the present case, the material facts relating to the acknowledgement was not pleaded in the statement of claim; it was also not pleaded in the reply apart from stating that the law of limitation does not apply to the present action. That in our opinion is bad pleading. But it is a matter of indifference to the court whether the plea of acknowledgement is pleaded in the statement of claim or in the reply. If it is raised in the statement of claim, it would make a reply unnecessary and so reduce costs. A further advantage of pleading an acknowledgement in the statement of claim is that the defendant may thereby be led to refrain from raising the issue of limitation in the defence, thus narrowing the area of discovery and reducing costs: see Bullen & Leake (12th edition) at page 638. Since the material facts and circumstances were not pleaded in the statement of claim, it should have been pleaded in the reply. Be that as it may, this aspect of the case has been satisfactorily presented and developed in the proceedings before the High Court and we think there are materials on the record from which a decision to that effect could be arrived at. As one of the objects of modern pleadings is to prevent surprise, we cannot for one moment think that the defendant was taken by surprise. To condemn a party on a ground of which no material facts have been pleaded may be as great a denial of justice as to condemn him on a ground on which his evidence has been improperly excluded”. [emphasis added] [35] Similarly in the instant case, I did not think the defendant was truly taken by surprise. Even if it were, probably at the early stage when the issue had been first raised by the plaintiff and objected to by the defendant, the issue was subsequently dealt with by the witnesses in their answers such that it could be certainly said that it had been “satisfactorily presented and developed in the proceedings”. Exclusion of the testimony of the various witnesses on this issue by dismissing this application would in my judgment constitute a greater injustice to the parties and does little to promote the ends of justice. [36] The situation would in my view be somewhat, if not entirely different if the application was made after the conclusion of trial because it could in that event be said that even though the defendant had been able to cross examine and re-examine witnesses on the issue, the defendant did not have the knowledge that the plaintiff sought to formally apply to amend its pleadings. In that situation, the defendant could argue that if it had known or that if the application had been made before the conclusion of trial, the defendant could have exercised its right to recall witnesses or even to call new witnesses to deal with the issue. [37] But as it turned out, the plaintiff did apply before the end of trial, and the defendant was contented with the examination of the witnesses without making any application to recall witnesses who have been released or call new ones. [38] In a situation where an objection on a matter said to be un-pleaded is made and recorded, the fact that upon the exercise of judicial discretion, no ruling is made by the trial judge at that juncture whether to allow or disallow until after conclusion of the trial upon submission of the parties, which I believe is not uncommon, the objecting party, in this adversarial system of ours, certainly should not assume that the objection will be eventually sustained and not take steps during the course of trial in response thereto, in order to address the alleged un-pleaded issue by having the same rebutted by witnesses, including by seeking to call new ones or by tendering new documents. [39] This would be expected of the objecting party if the alleged un-pleaded issue had turned into one of the real questions in controversy, as indeed was the situation in the instant case, where it became crystal clear, at the latest, definitely by the close of the plaintiff’s case, in that the issue had become one of considerable importance in the proceedings. [40] This is not to suggest that the defendant did not in this case take steps to counter the alleged un-pleaded issue. The defence counsel had in fact reacted admirably in this regard by her meticulous examination and re-examination on virtually each and every answer given by the witnesses touching on this issue, as she indeed did on most other issues. In short, I do not think the defendant truly additionally intended to recall or call any other witnesses or introduce any new documents to deal with the alleged un-pleaded issues especially when I had permitted the tendering of documents not in the bundle, and as a result, where appropriate, the recall of witness in the course of trial. The defendant could have done so before the end of trial and in truth decided it did not have to. [41] Any suggestion on the part of the defendant, as indeed averred in the affidavit in reply by the defendant’s managing director to the plaintiff’s application herein that the amendment would result in the introduction of a new issue necessitating the calling of witnesses would in my view, considering the circumstances of this case as I have just described, be unconvincing and lacking in substance. No prejudice would thus be occasioned to the defendant if the amendment is allowed. Neither would it be unjust if it is allowed. [42] The Federal Court in Hong Leong Finance further held that the principles of Yamaha Motor should not be the sole consideration when an application to amend is made at a very late stage. The Federal Court then listed the following factors for consideration: a) When dealing with an application to amend the pleadings, which introduce new case in the claim or defence, on the eve of the trial, the principles of Yamaha Motor are not the sole considerations. b) The principles in Yamaha Motor applies to cases where the application to amend pleadings is made at an early stage of the proceedings. c) That there has to be cogent and reasonable explanation in the application’s affidavit as to why the application was filed late. d) That the application to amend the pleadings is not a tactical manoeuvre. e) That the proposed amendment must disclose full particulars for the court to ascertain if there is a real prospect of success in proving the same. f) That lateness in the application to amend the pleadings cannot necessarily be compensated by costs. [43] As I have stated, in the instant case, the lateness in the making of the amendment application is not in the context of the stage just before commencement of trial which would otherwise have the effect of potentially delaying trial and frustrating the objective of Order 34 of the RC 2012 to achieve the just, expeditious and economical disposal of cases. The delay was well after commencement of trial. [44] On the one hand, there would be a concern on the advantage to the plaintiff that could work unfairly against the defendant as observed above. But on the other hand, there is no real risk of postponement of trial. As such, in the instant case, the concern on the advantage to the plaintiff must be examined against the backdrop of the progress of the proceedings in order to determine if there is any real prejudice to the defendant, and whether it is just for the application to be allowed. [45] As I stated, the issue alleged to be un-pleaded has been satisfactorily presented and developed in the nature observed in KEP Mohamed Ali, with sufficient materials on the issue now available before the Court based on the testimony of and documents tendered by various witnesses that in my assessment, militates against the finding of prejudice to the defendant. [46] Additionally, the following observation of the Federal Court in Karuppannan a/l Ramasamy & Anor v Elizabeth Jeevamalar Ponnampalam & Ors (Sundaram a/l Marappa Goundan & Anor, interveners and Raya Realti, third party) and another appeal [2010] 1 MLJ 156 is no less relevant:- “[37] Nevertheless, in our judgment, the learned trial judge was right in not paying heed to this pleading issue, and we do not agree with the Court of Appeal that he had misdirected himself in this respect. The purpose of a pleading is to enable the other party to know the precise case that he has to meet. A defect in a pleading that does not catch the other party by surprise or embarrass or prejudice him ought not to bring harm to the case of the party pleading. In this case, as we have shown, the plaintiffs' failure to plead the option did not embarrass or prejudice the six defendants in any way. From the very outset they knew that it was the second option that was the true basis of the plaintiffs' claim. This is nothing but a trivial issue”. The issue of slop oil supply is already pleaded [47] The other reason for my allowing the amendment application is that a careful review of the pleadings would readily reveal that the issue of the alleged failure in the supply of slop oil by the defendant is in actuality not entirely absent from the pleadings of the plaintiff. This contention was not highlighted even by the plaintiff but the fact is, it was already stated in paragraph 4.3 (viii) of the statement of claim that the defendant was to undertake marketing activities for the slop oil business and in paragraph 13.3 that the defendant had failed to do any such activities. [48] Much more directly, paragraph 10.2 of the plaintiff’s reply to the defence specifically, and in unmistakable terms, stated that the defendant had failed in its obligation to supply slop oil. It reads thus:- “The Defendant at the time of entering the said Agreement had represented to the Plaintiff that the Defendant would obtain at least 20,000 cubic meters of slop oil per month to process. Based on that representation, Plaintiff has expended over RM6 million to set up the plant. When the plant was ready and operational, the Defendant failed in its obligation to supply or find suitable suppliers of 20,000 cubic meters of slop oil or at all”. [emphasis added] [49] A reply to defence is also part of pleadings under Order 18 of the RC 2012. In any event, surely, this averment in the statement of reply by the plaintiff to the defence of the defendant puts paid to any argument by the defendant that the latter had been caught by surprise or in any fashion prejudiced by the questions on the slop oil supply. On this basis alone, I find that the plaintiff’s application is in essence merely to further clarify what has already been pleaded, and should therefore be allowed. Conclusion [50] For the above reasons, in my judgment, the plaintiff has established its case for leave be granted to amend the statement of claim, as prayed for, albeit to the extent only of the proposed inclusion of the pleadings concerning the alleged failure of the defendant to supply slop oil to the plaintiff. I therefore allow enclosure 88 to such effect. Dated: 18 October 2017 t.t (MOHD NAZLAN BIN MOHD GHAZALI) Judge High Court NCC1 Kuala Lumpur Counsel: For the Plaintiff M Johnson Messrs Zain Johnson & Associates Petaling Jaya, Selangor Counsel For The Defendant Lam Wai Tze Messrs Lam Wai Tze & Co Petaling Jaya, Selangor Page 21 of 21	34,013	Tika 2.6.0
22NCVC-6-01/2015	PLAINTIF ESP SYNERGY SDN BHD (No. Syarikat: 887125-V) DEFENDAN KB ENVIRO SDN BHD (No. Syarikat: 526300-K)	null	18/10/2017	YA TUAN MOHD NAZLAN BIN MOHD GHAZALI	https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=f93ff9d7-f52e-43c6-b44e-beb55036b29e&Inline=true	DALAM MAHKAMAH TINGGI MALAYA DI JOHOR BHARU DALAM NEGERI JOHOR DARUL TAKZIM, MALAYSIA (BAHAGIAN SIVIL) GUAMAN SIVIL NO.: 22NCVC-6-01/2015 ANTARA ESP SYNERGY SDN BHD (No. Syarikat: 887125-V) …PLAINTIF DAN KB ENVIRO SDN BHD (No. Syarikat: 526300-K) …DEFENDAN DI HADAPAN YANG ARIF TUAN MOHD NAZLAN MOHD GHAZALI HAKIM JUDGMENT Introduction [1] This is an application by the plaintiff, documented in enclosure 88, filed during trial to amend its statement of claim. I heard the application after the conclusion of trial and allowed the same, and highlighted my primary reasons for the decision. This judgment contains the full reasons for my decision. Key Background Facts [2] The plaintiff and the defendant, both private limited companies, had entered into a joint venture agreement dated 22 April 2011 (“the JVA”) where the parties agreed that the defendant would lease a certain part of a land (“the Land”) and the plaintiff would build and own a slop oil treatment facility on the Land, with the profits from the sale of the processed slop oil, after deducting operating costs, to be shared on the basis of 70% be distributed to the plaintiff, and 30% to the defendant. [3] Following a dispute, the plaintiff initiated the present writ action, which is resisted by the defendant. Trial commenced in Johor Bahru (since the suit was filed thereat) and continued to be heard by me in Kuala Lumpur following my transfer and upon the request by parties. The plaintiff called 11 witnesses and the defendant 4. The plaintiff opened its case on 26 August 2015 and the defendant closed on 29 May 2017. The trial took 30 days in total. [4] Quite early on, during the case of the plaintiff, at the stage when the first witness was giving evidence, the counsel for the plaintiff started asking the witness questions which basically focussed on the contention of the plaintiff that the defendant had failed to supply slop oil to the plaintiff in violation of the JVA. The counsel for the defendant objected to this line of questioning, arguing that the issue was not pleaded. I recorded the objection but allowed the counsel for the plaintiff to proceed, instructing the parties to submit on the issue after the conclusion of the trial. [5] The questions revolving on the allegation that the defendant failed to supply slop oil to the plaintiff (in addition to a whole lot of other questions) continued to be asked by the counsel for the plaintiff of virtually all the other witnesses of both plaintiff and the defendant. Their answers are in evidence. The counsel for the defendant continued raising her objections, almost every time when this occurred. And I maintained the same approach of asking parties to submit on the matter at the end of trial. [6] When the Court was hearing evidence of the final witness for the defendant, the plaintiff filed this enclosure 88 seeking leave to amend its statement of claim, primarily, to expressly include the pleading that the defendant failed to supply the slop oil to the plaintiff. The other proposed amendments are in respect of stating the tenure of the tenancy agreement between the defendant and the landlord of the Land, with the pleading that the defendant had leased the Land to the plaintiff beyond the period the defendant was entitled to. The defendant contested this application. Hence, the proceedings before me. Essence of Contentions of Parties [7] The grounds stated by the plaintiff in its notice of application in support of the amendment request are fourfold. First, the amendments were necessary to strengthen the overall claim of the plaintiff; secondly, they were imperative to provide a true picture of the claim in the interest of justice; thirdly, the plaintiff would be prejudiced if the amendments were not allowed; and fourthly, the same was made bona fide with no prejudice to the defendant. [8] The defendant argued that the application was not made in good faith as it was not only filed towards the end of the defendant’s case when it could have been made much earlier but that the plaintiff should also have sought the amendment when the issue was first raised by the plaintiff and objected to by the defendant. [9] The defendant asserted that the application was an afterthought, since the plaintiff has now realised that it would be unable to prove its original pleaded case as contained in the statement of claim. Instead, contrary to established rules on pleading, the plaintiff is presently attempting to amend its claim to suit the new and un-pleaded facts and issues introduced by the plaintiff during trial. Evaluation & Finding of this Court The Law [10] The application is made pursuant to Order 20 r 5 and Order 92 r 4 of the Rules of Court 2012 (‘the RC 2012”). The latter concerns the inherent jurisdiction of the Courts. The focus of this application is essentially on Order 20 r 5 (1) which states as follows:- Subject to Order 15, rules 6, 6A, 7 and 8 and the following provisions of this rule, the Court may at any stage of the proceedings allow the plaintiff to amend his writ, or any party to amend his pleading, on such terms as to costs or otherwise as may be just and in such manner, if any, as it may direct. [emphasis added] [11] The plaintiff placed much reliance on the fact that the rule permits amendments to be made at any stage of the proceedings. It also referred to the decision of the High Court in Bumiputra Commerce Bank Bhd v Bumi Warna Indah Sdn Bhd [2004] 4 CLJ 825 which held that amendments to pleadings could be made at any stage from before trial and even during appeal of the suit which has concluded. More recently, the Court of Appeal in Suhaili bin Ismail v Syarikat Sribina Sdn Bhd [2015] 6 MLJ 556 affirmed the rule that amendments to pleadings could be sought at any stage of the proceedings, including after the close of pleadings. [12] As readily pointed out by the defendant, it is settled law that it is not the function of the Court to build a case for the parties inconsistent with their pleaded case. This is the “gold standard” in pleading rules and evidence, as pronounced by the Supreme Court in Yew Wan Leong v Lai Kok Chye [1990] 2 MLJ 152, in the following terms:- “It is not the duty of the court to make out a case for one of the parties when the party concerned does not raise or wish to raise the point. In disposing of a suit or matter involving a disputed question of fact, it is not proper for the court to displace the case made by a party in its pleadings and give effect to an entirely new case which the party had not made out in its own pleadings. The trial of a suit should be confined to the pleas on which the parties are at variance." [13] I think it is manifest that the Court may allow amendment to pleadings at any stage of the proceedings, even after the conclusion of trial, like the case presently before me. The issue is whether the Court should exercise its discretion to do so. [14] In that context, the defendant’s argument that parties are bound by their pleadings, which of course is a fundamental rule in civil litigation, is not exactly the real issue for determination before me since the plaintiff has applied to make amendments to the pleadings. [15] I need to refer only to two Federal Court decisions on the importance of pleadings. In Giga Engineering & Constructions Sdn Bhd v Yip Chee Seng & Sons Sdn Bhd & Anor [2015] 9 CLJ 537, Richard Malanjum CJ (Sabah & Sarawak) held thus:- [42] Now, it is trite law that the plaintiff is bound by its own pleadings. (See R Rama Chandran v. Industrial Court of Malaysia & Anor [1997] 1 CLJ 147; [1997] 1 MLJ 145; Anjalai Ammal & Anor v. Abdul Kareem [1968]1 LNS 8; [1969] 1 MLJ 22; Gimstern Corp (M) Sdn Bhd & Anor v. Global Insurance Co Sdn Bhd [1987] 1 CLJ 123; [1987] CLJ (Rep)102; [1987] 1 MLJ 302 SC; Joo Chin Kia v. Loh Seng Tek [1987] 1 CLJ194; [1987] CLJ (Rep) 662; KEP Mohamed Ali v. KEP Mohamad Ismail [1980] 1 LNS 169; [1981] 2 MLJ 10 FC). The plaintiff is not permitted to improve its pleading in any other manner other than by way of an application to amend.Otherwise it would be unfair and prejudicial to the defendants if the plaintiff could now be allowed to raise an issue that was not within the contemplation of the parties in the first place. (See Esso Petroleum Co Ltd v. South Port Corp [1956] AC 218; Playing Cards (Malaysia) Sdn Bhd v. China Mutual Navigation Co Ltd [1980] 1 LNS 57; [1980] 2 MLJ 182 FC). [emphasis added] [16] In another recent Federal Court decision in Samuel Naik Siang Ting v. Public Bank Bhd [2015] 8 CLJ 944, which was referred to by the defendant in its written submissions, Ramly Ali FCJ held instructively as follows: “[29] It is a cardinal rule in civil litigation that parties are bound by their pleadings and are not allowed to adduce facts and issues which they have not pleaded (see: State Government of Perak v. Muniandy [1985]1 LNS 117; [1986] 1 MLJ 490; and Anuar Mat Amin v. Abdullah Mohd Zain [1989] 1 LNS 74; [1989] 3 MLJ 313). In Blay v. Pollard & Morris [1930] 1 KB 628, Scrutton LJ ruled that: "Cases must be decided on the issues on the record; and if it is desired to raise other issues there must be pleaded on the record by amendment." [30] The Supreme Court in Lee Ah Chor v. Southern Bank Bhd [1991] 1CLJ 667; [1991] 1 CLJ (Rep) 239; [1991] 1 MLJ 428 , had also emphasised the importance of pleadings and ruled that where a vital issue was not raised in the pleadings it could not be allowed to be argued and to succeed on appeal (see also Ambank (M) Bhd v. Luqman Kamil Mohammed Don [2012] 3 CLJ 551; [2012] MLJU 56 FC). [31] On the same issue, HRH Raja Azlan Shah FJ (as HRH then was) in The Chartered Bank v. Yong Chan [1974] 1 LNS 178; [1974] 1 MLJ 157, had also pointed out that "as the trial judge had decided on an issue which was not raised in the pleadings, the judgment must be set aside and new trial ordered" (see also: Haji Mohamed Dom v. Sakiman [1955] 1 LNS 26; [1956] MLJ 45; and Kiaw Aik Hang Co Ltd v. Tan Tien Choy [1963] 1 LNS 59; [1964] MLJ 99).” [17] As such, it cannot be emphasised enough that parties are bound by their pleadings and any departure must be accompanied by an amendment to the original pleadings. Thus if the amendment application is allowed, the objection against the need to adhere to matters specifically pleaded would fall away, since the pleadings would be amended to include such matters previously un-pleaded. [18] The leading Federal Court decision in Yamaha Motor Co Ltd v Yamaha Malaysia Sdn Bhd 1 MLJ 213 was also referred to by the plaintiff, for the often-cited ruling that amendments should be considered favourably if the application is made in good faith, the amendments would not change the character of the suit and whether prejudice to the other party, if any, could be compensated by costs. [19] But the plaintiff did not refer to the more relevant and recent Federal Court decision in Hong Leong Finance Bhd v Low Thiam Hoe and another appeal [2016] 1 MLJ 301. In that case, the defendant had already filed his defence and counter-claim and the case had proceeded through five pre-trial case management sessions. After the matter was fixed for trial, the defendant filed an application to amend the defence, by introducing two new and distinct defences. [20] The High Court found that there was a gross delay in the filing of the application and that there was no credible explanation for the delay. In addition it was also found that the amendment would prevent the trial from proceeding. The Court of Appeal reversed the decision of the High Court. The Federal Court then allowed the appeal by the plaintiff. The headnotes of the judgment delivered by Zulkefli CJ (Malaya) (now PCA) stated thus:- “(1) Yamaha Motor was decided under the Rules of the High Court 1980. However, now under O 34 of the Rules of Court 2012, the progress of the case was no longer left in the hands of the litigants but with the court in the driver’s seat. Courts in Malaysia had consistently held that where there was a delay in making an amendment application, the onus was on the applicant to furnish a reasonable explanation for such as delay and this was in effect an additional factor to the Yamaha Motor’s rules. In the present case, there had been five case managements since 2011 and there had been no indication at all that an amendment application was contemplated by the defendant. The only explanation given by the defendant in his affidavit for the delay was that he had only discovered that these two new issues were not pleaded when preparing for trial. Such an explanation could not be acceptable. In the circumstances, the Court of Appeal fell into an error of law when it applied the principles in Yamaha Motor without appreciating that those principles by themselves were insufficient to deal with an application to amend, which introduced two new defences on the eve of a trial. The Court of Appeal had also failed to appreciate that the defendant had to bear the burden of producing material and cogent reasons to explain why the change was sought so late (see paras 18, 25, 27, 29 & 33)”. No surprise nor prejudice [21] It is, in the instant case before me, the primary contention of the defendant that the plaintiff had failed to provide any reasonable explanation for the delay in its application to amend its pleadings. This assertion is not without basis. Nothing has been stated in the affidavits in support of this application as to why the plaintiff decided to take this course of action only at this stage, and not earlier when the objection was first raised. [22] Is this fatal to the amendment application? After a careful examination of the circumstances and justice of the case, I ruled in the negative. At the hearing, counsel for the plaintiff agreed that the amendment application came late in the day, but maintained that the law as set out in Order 20 r 5 (1) of the RC 2012 envisages that leave could still be given for amendment to pleadings applied for at any stage of the proceedings, and that the decision whether or not to allow amendment is eminently within the discretion of the trial judge considering the circumstances of the case. [23] It should be stated that an important reason for the decision in Hong Leong Finance, as mentioned in the passage reproduced earlier is the introduction of the new RC 2012, in respect of which, it is worthy of emphasis, that Zulkefli CJ (Malaya) (now PCA) had also instructively held as follows:- “[18] …Nowadays the court recognises especially under the new case management regime that a different approach needs to be taken to prevent delay in the progress of a case to trial and for its completion. The progress of the case is no longer left in the hands of the litigants but with the court in the driver’s seat (see the case of Syed Omar bin Syed Mohamed v Perbadanan Nasional Bhd [2013] 1 MLJ 461; [2012] 9 CLJ 557). In particular when an application to amend the pleading is made at a very late stage as was done in the present case, the principles in Yamaha Motor ought not to be the sole consideration. This is because an order for compensation by payment of costs in such a case may not be an adequate remedy and it would also disrupt the administration of justice which affects the courts, the parties and the other users of the judicial process (see the case of Conlay Construction Sdn Bhd v Perembun (M) Sdn Bhd [2014] 1 MLJ 80)”. [24] The imperative of meeting the objective of the RC 2012 in ensuring timely disposal of cases is further highlighted by His Lordship in the following passages of the judgment:- “[26] It is to be stated here the requirement that a cogent explanation for such a delay must be furnished when making a late application to amend would be clearly in line with pre-trial case management procedures (introduced in year 2000). The management of cases by the courts prior to the trial is intended to ensure ‘just, expeditious and economical disposal’ of an action (see O 34 r 4(1) of the RHC 1980, now O 34 r 1(1) of the RC 2012) and the Practice Direction No 2 of 2014 issued by the Chief Judge of High Court in Malaya). Timely disposal of cases and the limitation of cost are now the primary considerations under the present regime. [27] In our instant case, there had been five case managements since 2011 and there was no indication at all that an amendment application was contemplated by the defendant. The only explanation given by the defendant in his affidavit for the delay was that he had only discovered that these new issues were not pleaded when preparing for trial. Such an explanation in our view surely cannot be acceptable”. [25] The application in the instant case before me is not one made before trial. But this is not to suggest that an application after trial has commenced is less objectionable than one before trial starts. Far from it. It must instead surely depend on the circumstances and facts of each case. But the important point is that there is absolutely no issue of the amendment application delaying the trial for it has started and even concluded. There could be a slight delay in that my decision on the amendment application should first be made before I give the decision on the main suit; but otherwise, the risk of the trial being delayed or postponed did not arise. [26] Thus in the circumstances of the case, the factor of time of application alone cannot, even in the absent of a cogent reason for the delay in making the application, without more, be a basis to decline the request, unless mala fide is shown. But none is shown by the defendant. [27] It is to be observed regardless that as submitted by the defendant, there is a distinction between an amendment application made before trial commences and one after conclusion of one. The latter, like the situation presently, could be said to confer on the apparently unsuccessful party who is seeking the amendment, an unfair opportunity to renew its claim against his opponent on the basis of an entirely new or different set of previously un-pleaded facts (see the Court of Appeal decision in Pfizer Ireland Pharmaceuticals v Ranbaxy (Malaysia) Sdn Bhd [2013] 2 CLJ 61). In this sense, the ground for the amendment concerning the need to strengthen the overall claim of the plaintiff, as stated by the plaintiff, as referred to earlier, is patently misconceived. [28] But in the instant case, the alleged un-pleaded issues (particularly on the duty to supply slop oil) had been raised by the plaintiff to its own and to the defendant’s witnesses. They all gave their versions of responses to those issues. And the defendant’s counsel had in response cross-examined the plaintiff’s witnesses on their replies to those issues, as did learned counsel for the defendant’s own witnesses, in re-examination. [29] In my observation, it became increasingly clearer, as the trial progressed, and as more testimonies were heard, that an especially key issue of controversy or primary bone of contention between the parties is the alleged failure of the defendant to supply slop oil to the plaintiff in violation of the JVA. All the relevant witnesses were asked questions on this, by both the counsel for the parties. It is the real question in controversy between the parties, and whilst bearing in mind the prevailing law as enunciated in Hong Leong Finance, it is nevertheless not for the Courts to punish the mistakes of the parties in the proceedings by disregarding this important question and rejecting the amendment application. [30] It would not be in the interest of justice that the true issue of controversy be disregarded by this Court only on account of it being un-pleaded as alleged by the defendant. Even though the issue was not specifically stated in the list of issues to be tried filed by the parties, the issue had in fact been raised and dealt with extensively by the answers given by most of the witnesses. In the exercise of my discretion to consider this amendment application, I must not only consider whether the amendment would cause injustice to the defendant, but more critically, also determine whether in the circumstances of this case, it is just for me to grant leave. [31] After all, the crux of the case of the plaintiff as presently pleaded is the alleged breach of the JVA by the defendant, principally by reason of the latter’s unlawful termination of the lease and the JVA, by having failed to maintain the infrastructure on the Land to ensure proper operations of the slop oil facility managed by the plaintiff, failed to perform any marketing of the business, and for having refused entry to the plaintiff to the Land, despite the plaintiff having expended much on machinery and development of the facility. [32] Thus, even though the defendant argued that the plaintiff did not state specifically the obligation of the defendant to deliver slop oil to the plaintiff in its statement of claim, it cannot be denied that it is a key term of the JVA that as part and parcel of and consistent with the contractual arrangement between the parties, where the defendant provided the Land and related infrastructure to enable the plaintiff to build and operate the slop oil treatment facility, it was clearly agreed that the plaintiff was to treat slop oil received from the defendant under the JVA, as indeed stipulated under clause 1.2 therein. [33] As such, I do not think that the defendant can be said to be genuinely prejudiced by the amendment now sought to be introduced. Even without a pleading on that specific clause, the thrust of the obligations of the defendant in the JVA included its alleged duty to deliver slop oil, which was the very subject matter of slop treatment facility business envisaged in the JVA. There is no new cause of action. There is no transformation of the character of the suit. It is still very much about the alleged breach of the JVA. And the JVA itself has been specifically pleaded. Neither has bad faith been shown. I agree the tardiness of the plaintiff in moving this application is far from laudatory. But this does not, without more, amount to bad faith. [34] In this regard, I can thus do no better than make reference to the following often-quoted passages from the judgment of Raja Azlan Shah CJ (Malaya) (as his Highness then was) in the Federal Court decision in KEP Mohamed Ali v KEP Mohamed Ismail [1981] 2 MLJ 10:- “In the present case, the material facts relating to the acknowledgement was not pleaded in the statement of claim; it was also not pleaded in the reply apart from stating that the law of limitation does not apply to the present action. That in our opinion is bad pleading. But it is a matter of indifference to the court whether the plea of acknowledgement is pleaded in the statement of claim or in the reply. If it is raised in the statement of claim, it would make a reply unnecessary and so reduce costs. A further advantage of pleading an acknowledgement in the statement of claim is that the defendant may thereby be led to refrain from raising the issue of limitation in the defence, thus narrowing the area of discovery and reducing costs: see Bullen & Leake (12th edition) at page 638. Since the material facts and circumstances were not pleaded in the statement of claim, it should have been pleaded in the reply. Be that as it may, this aspect of the case has been satisfactorily presented and developed in the proceedings before the High Court and we think there are materials on the record from which a decision to that effect could be arrived at. As one of the objects of modern pleadings is to prevent surprise, we cannot for one moment think that the defendant was taken by surprise. To condemn a party on a ground of which no material facts have been pleaded may be as great a denial of justice as to condemn him on a ground on which his evidence has been improperly excluded”. [emphasis added] [35] Similarly in the instant case, I did not think the defendant was truly taken by surprise. Even if it were, probably at the early stage when the issue had been first raised by the plaintiff and objected to by the defendant, the issue was subsequently dealt with by the witnesses in their answers such that it could be certainly said that it had been “satisfactorily presented and developed in the proceedings”. Exclusion of the testimony of the various witnesses on this issue by dismissing this application would in my judgment constitute a greater injustice to the parties and does little to promote the ends of justice. [36] The situation would in my view be somewhat, if not entirely different if the application was made after the conclusion of trial because it could in that event be said that even though the defendant had been able to cross examine and re-examine witnesses on the issue, the defendant did not have the knowledge that the plaintiff sought to formally apply to amend its pleadings. In that situation, the defendant could argue that if it had known or that if the application had been made before the conclusion of trial, the defendant could have exercised its right to recall witnesses or even to call new witnesses to deal with the issue. [37] But as it turned out, the plaintiff did apply before the end of trial, and the defendant was contented with the examination of the witnesses without making any application to recall witnesses who have been released or call new ones. [38] In a situation where an objection on a matter said to be un-pleaded is made and recorded, the fact that upon the exercise of judicial discretion, no ruling is made by the trial judge at that juncture whether to allow or disallow until after conclusion of the trial upon submission of the parties, which I believe is not uncommon, the objecting party, in this adversarial system of ours, certainly should not assume that the objection will be eventually sustained and not take steps during the course of trial in response thereto, in order to address the alleged un-pleaded issue by having the same rebutted by witnesses, including by seeking to call new ones or by tendering new documents. [39] This would be expected of the objecting party if the alleged un-pleaded issue had turned into one of the real questions in controversy, as indeed was the situation in the instant case, where it became crystal clear, at the latest, definitely by the close of the plaintiff’s case, in that the issue had become one of considerable importance in the proceedings. [40] This is not to suggest that the defendant did not in this case take steps to counter the alleged un-pleaded issue. The defence counsel had in fact reacted admirably in this regard by her meticulous examination and re-examination on virtually each and every answer given by the witnesses touching on this issue, as she indeed did on most other issues. In short, I do not think the defendant truly additionally intended to recall or call any other witnesses or introduce any new documents to deal with the alleged un-pleaded issues especially when I had permitted the tendering of documents not in the bundle, and as a result, where appropriate, the recall of witness in the course of trial. The defendant could have done so before the end of trial and in truth decided it did not have to. [41] Any suggestion on the part of the defendant, as indeed averred in the affidavit in reply by the defendant’s managing director to the plaintiff’s application herein that the amendment would result in the introduction of a new issue necessitating the calling of witnesses would in my view, considering the circumstances of this case as I have just described, be unconvincing and lacking in substance. No prejudice would thus be occasioned to the defendant if the amendment is allowed. Neither would it be unjust if it is allowed. [42] The Federal Court in Hong Leong Finance further held that the principles of Yamaha Motor should not be the sole consideration when an application to amend is made at a very late stage. The Federal Court then listed the following factors for consideration: a) When dealing with an application to amend the pleadings, which introduce new case in the claim or defence, on the eve of the trial, the principles of Yamaha Motor are not the sole considerations. b) The principles in Yamaha Motor applies to cases where the application to amend pleadings is made at an early stage of the proceedings. c) That there has to be cogent and reasonable explanation in the application’s affidavit as to why the application was filed late. d) That the application to amend the pleadings is not a tactical manoeuvre. e) That the proposed amendment must disclose full particulars for the court to ascertain if there is a real prospect of success in proving the same. f) That lateness in the application to amend the pleadings cannot necessarily be compensated by costs. [43] As I have stated, in the instant case, the lateness in the making of the amendment application is not in the context of the stage just before commencement of trial which would otherwise have the effect of potentially delaying trial and frustrating the objective of Order 34 of the RC 2012 to achieve the just, expeditious and economical disposal of cases. The delay was well after commencement of trial. [44] On the one hand, there would be a concern on the advantage to the plaintiff that could work unfairly against the defendant as observed above. But on the other hand, there is no real risk of postponement of trial. As such, in the instant case, the concern on the advantage to the plaintiff must be examined against the backdrop of the progress of the proceedings in order to determine if there is any real prejudice to the defendant, and whether it is just for the application to be allowed. [45] As I stated, the issue alleged to be un-pleaded has been satisfactorily presented and developed in the nature observed in KEP Mohamed Ali, with sufficient materials on the issue now available before the Court based on the testimony of and documents tendered by various witnesses that in my assessment, militates against the finding of prejudice to the defendant. [46] Additionally, the following observation of the Federal Court in Karuppannan a/l Ramasamy & Anor v Elizabeth Jeevamalar Ponnampalam & Ors (Sundaram a/l Marappa Goundan & Anor, interveners and Raya Realti, third party) and another appeal [2010] 1 MLJ 156 is no less relevant:- “[37] Nevertheless, in our judgment, the learned trial judge was right in not paying heed to this pleading issue, and we do not agree with the Court of Appeal that he had misdirected himself in this respect. The purpose of a pleading is to enable the other party to know the precise case that he has to meet. A defect in a pleading that does not catch the other party by surprise or embarrass or prejudice him ought not to bring harm to the case of the party pleading. In this case, as we have shown, the plaintiffs' failure to plead the option did not embarrass or prejudice the six defendants in any way. From the very outset they knew that it was the second option that was the true basis of the plaintiffs' claim. This is nothing but a trivial issue”. The issue of slop oil supply is already pleaded [47] The other reason for my allowing the amendment application is that a careful review of the pleadings would readily reveal that the issue of the alleged failure in the supply of slop oil by the defendant is in actuality not entirely absent from the pleadings of the plaintiff. This contention was not highlighted even by the plaintiff but the fact is, it was already stated in paragraph 4.3 (viii) of the statement of claim that the defendant was to undertake marketing activities for the slop oil business and in paragraph 13.3 that the defendant had failed to do any such activities. [48] Much more directly, paragraph 10.2 of the plaintiff’s reply to the defence specifically, and in unmistakable terms, stated that the defendant had failed in its obligation to supply slop oil. It reads thus:- “The Defendant at the time of entering the said Agreement had represented to the Plaintiff that the Defendant would obtain at least 20,000 cubic meters of slop oil per month to process. Based on that representation, Plaintiff has expended over RM6 million to set up the plant. When the plant was ready and operational, the Defendant failed in its obligation to supply or find suitable suppliers of 20,000 cubic meters of slop oil or at all”. [emphasis added] [49] A reply to defence is also part of pleadings under Order 18 of the RC 2012. In any event, surely, this averment in the statement of reply by the plaintiff to the defence of the defendant puts paid to any argument by the defendant that the latter had been caught by surprise or in any fashion prejudiced by the questions on the slop oil supply. On this basis alone, I find that the plaintiff’s application is in essence merely to further clarify what has already been pleaded, and should therefore be allowed. Conclusion [50] For the above reasons, in my judgment, the plaintiff has established its case for leave be granted to amend the statement of claim, as prayed for, albeit to the extent only of the proposed inclusion of the pleadings concerning the alleged failure of the defendant to supply slop oil to the plaintiff. I therefore allow enclosure 88 to such effect. Dated: 18 October 2017 t.t (MOHD NAZLAN BIN MOHD GHAZALI) Judge High Court NCC1 Kuala Lumpur Counsel: For the Plaintiff M Johnson Messrs Zain Johnson & Associates Petaling Jaya, Selangor Counsel For The Defendant Lam Wai Tze Messrs Lam Wai Tze & Co Petaling Jaya, Selangor Page 21 of 21	34,013	Tika 2.6.0
WA-24C-64-04/2017 & WA-24C-82-05/2017	PLAINTIF SQA Builders Sdn Bhd DEFENDAN Luxor YRM Sdn Bhd	Adjudication Decision - applications to enforce and to set aside the Adjudication Decision - whether the Adjudicator is in breach of the rules of natural justice in calculating or recalculating the LAD that the Respondent is entitled to set-off from the Claimant’s Claim - whether the Adjudicator had breached the rules of natural justice when she awarded interest up to 9.11.2016 without inviting parties to submit on the issue and notwithstanding the Claimant’s claim for interest only up to 6.6.2016 - whether the Adjudicator had acted in excess of jurisdiction when she computed interest up to 9.11.2016 when the Claimant had only claimed interest up to 30.9.2016, i.e. the date the Payment Claim was served - Construction Industry Payment and Adjudication Act 2012 [Act 746], section 12(7) & (8), 13(c), 15, 25(o), 28; Contracts Act 1950 [Act 136], section 75; Arbitration Act 2005 [Act 646], section 37(1) (b) (ii) and 37(2) (b); Rules of Court 2012, Order 7, 28, 42 rule 12, 92 rule 4.	18/10/2017	YA DATO' LEE SWEE SENG	https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=16efa76a-ace3-4226-a9b7-83d440156f9e&Inline=true	IN THE HIGH COURT OF MALAYA AT KUALA LUMPUR IN THE STATE OF WILAYAH PERSEKUTUAN, MALAYSIA (CIVIL DIVISION) ORIGINATING SUMMONS NO: WA-24C-64-04/2017 In the matter of an adjudication between SQA Builders Sdn Bhd and Luxor YRM Sdn Bhd And In the matter of the Adjudication Decision dated 06.03.2017 and 20.03.2017 by Low Pei Voon And In the matter of Section 28 of the Construction Industry Payment and Adjudication Act 2012 (“CIPAA”) And In the matter of Order 92 of the Rules of Court 2012 BETWEEN SQA BUILDERS SDN BHD (Company No. 455815-D) … PLAINTIFF AND 2 LUXOR YRM SDN BHD (Company No. 165198-V) … DEFENDANT (Heard together with) IN THE HIGH COURT OF MALAYA AT KUALA LUMPUR IN THE STATE OF WILAYAH PERSEKUTUAN, MALAYSIA (CIVIL DIVISION) ORIGINATING SUMMONS NO: WA-24C-82-05/2017 In the matter of Section 15 of the Construction Industry Payment and Adjudication Act 2012 (“CIPAA”); And In the matter of an Adjudication Decision by Low Pei Voon made on 6th March 2017 and revised on 20th March 2017 pursuant to Adjudication Proceedings between SQA Builders Sdn Bhd and Luxor YRM Sdn Bhd (Adjudication Reference No: KLRCA/D/ADJ-0556-2016); And In the matter of Order 7, 28 and 92 Rule 4 of the Rules of Court 2012 BETWEEN 3 LUXOR YRM SDN BHD (Company No. 165198-V) … PLAINTIFF AND SQA BUILDERS SDN BHD (Company No. 455815-D) … DEFENDANT THE JUDGMENT OF YA LEE SWEE SENG [1] There are 2 applications by way of originating summons, one filed by SQA Builders Sdn Bhd (“SQA”) as Plaintiff against Luxor YRM Sdn Bhd (“Luxor”) as Defendant to enforce the Adjudication Decision made under the Construction Industry Payment and Adjudication Act 2012 (“CIPAA”) in OS WA-24C-64-04/2017. [2] The other is OS WA-24C-82-05/2017 where Luxor is the Plaintiff against SQA as Defendant to set aside the Adjudication Decision. [3] For the avoidance of confusion as to who is Plaintiff and Defendant the parties shall be referred to as SQA and Luxor and sometimes as they were referred to in the Adjudication as Claimant and Respondent respectively where appropriate in the context of this judgment. 4 Project [4] By a Letter of Award dated 27.11.2012 (“the LOA”), Luxor had appointed SQA as the Contractor for a project known as “Building Works for Proposed Industrial/Office Development on Lot PT 9922, Jalan Teknologi, Kota Damansara, PJU 5, Daerah Petaling, Selangor Darul Ehsan” for a contract sum of RM10,718,794.54. The Standard PAM form of Agreement and Schedule of Conditions of Building Contract, Private Edition – 2006 (Without Quantities) (“PAM Contract”) was incorporated and forms part of the contract between the parties. The LOA and PAM Contract are collectively referred to as the Contract. [5] Disputes arose between the parties. SQA argued that it was entitled to payment for amounts certified under Interim Payment Certificates nos. 25 – 28 and Luxor contending that it has a right to deduction of accrued Liquidated and Ascertained Damages (“LAD”) arising from SQA’s delay in completion of the works. Proceedings in Adjudication [6] SQA served a Payment Claim on 30.9.2016 on Luxor seeking payment of Interim Payment Certificates nos. 25 – 28 together with late payment interest at the rate of 7.85% to a total of RM1,058,880.29 and 5 payment of the 2nd moiety of the retention sum in the amount of RM162,624.50. The total amount sought by SQA is RM1,221,504.79. [7] Luxor in turn served its Payment Response on SQA on 17.10.2016 acknowledging that payment was due for Interim Payment Certificates nos. 25 – 28 and the 2nd moiety however highlighting that LAD in the amount of RM527,850.00 should be deducted from the same. SQA’s tabulation of interests in the Payment Claim was not agreed. [8] A Notice of Adjudication was served by SQA on Luxor on 18.10.2016 and in line with CIPAA, an Adjudicator was appointed in due course. [9] SQA served its Adjudication Claim dated 6.12.2016 (“the Adjudication Claim”) inter alia raising the following issues: (a) no valid Payment Response has been issued and/or served and as such, no valid defence has been raised by Luxor; (b) payment for Interim Payment Certificates nos. 25 – 28 together with interest at the rate of 7.85% amounting to a total of RM1,058,880.29 was due and owing; and (c) the 2nd moiety of the Retention Sum in the amount of RM162,624.50 was due and owing. 6 [10] Luxor served its Adjudication Response dated 21.12.2016 inter alia raising the following issues: (a) the Payment Response was issued within the time line provided by Section 6 of CIPAA 2012; (b) the fact that payment of monies are due to SQA is acknowledged but the quantum claimed is in dispute; (c) Luxor is entitled to deduct liquidated damages as provided in the Payment Response in the amount of RM527,850.00 by virtue of Clause 22 of the PAM Contract. [11] SQA served its Adjudication Reply dated 29.12.2016 inter alia raising the following issues: (a) there is no valid Payment Response from Luxor and therefore no right to rely on the defence of set-off for liquidated damages; (d) in any event, the LAD claimed by Luxor is based on a superseded Certificate of Non-Completion and is still subject to proof of the loss and damage suffered. [12] The Adjudicator issued her decision on 6.3.2017 (“the Original Adjudication Decision”) with a revision to the same on 20.3.2017 (“the 7 Revised Adjudication Decision”) and both decisions shall be referred to collectively as the “Adjudication Decision”. [13] The Adjudication Decision is as follows: “IN DETERMINATION Pursuant to the CIPA Act 2012, I determine that: (a) The amount to be paid by the Respondent to the Claimant is RM638,446.16 and interest of the sum RM66,640.94 calculated until 9 November 2016. The total amount of RM705,087.10 is recorded as the adjudicated sum. (b) ... (c) ... (d) The rate of interest payable is 5% simple interest per annum from 10 November 2016 until payment of the adjudicated sum.” [14] Following a written request made by the Respondent Luxor in the Adjudication on ground of typographical or computational errors made by the Adjudicator, the Adjudicator in her Revised Adjudication Decision 8 made the following correction the material part of which is in bold and crossed-out is as follows: “IN DETERMINATION Pursuant to the CIPA Act 2012, I determine that: (a) The amount to be paid by the Respondent to the Claimant is RM638,446.16 and interest of the sum RM62,678.92 calculated until 9 November 2016. The total amount of RM701,125.08 is recorded as the adjudicated sum. (b) ... (c) ... (d) The rate of interest payable is 5% simple interest per annum from 10 November 2016 until the payment of the adjudicated sum, excluding the period between 6 March 2017 and 27 March 2017.” (emphasis added) [15] The Adjudicator had also ordered costs of the Adjudication Proceedings to be borne by Luxor in the amount of RM31,486.60. The Adjudicated Sum shall be paid to the Claimant no later than 27.3.2017. 9 Prayers [16] The Respondent Luxor being aggrieved by the Adjudication Decision had applied to set it aside under section 15 CIPAA on the ground of breach of natural justice and that of excess of jurisdiction. [17] The grounds set out in the application are as follows: 1. The Adjudicator had breached the rules of natural justice when she recalculated the LAD that Luxor is entitled to set- off from SQA’s Claim without inviting parties to submit on the issue; 2. The Adjudicator had breached the rules of natural justice when she awarded interest up to 9.11.2016 without inviting parties to submit on the issue and notwithstanding SQA’s claim for interest only up to 6.6.2016; 3. The Adjudicator had acted in excess of jurisdiction when she computed interest up to 9.11.2016 when her jurisdiction only stretched to 30.9.2016, i.e. the date the Payment Claim was served. Principles [18] Section 15 CIPAA under which the Plaintiff has made this application to set aside the Adjudication Decision reads as follows: 10 “An aggrieved party may apply to the High Court to set aside an adjudication decision on one or more of the following grounds: (a) The adjudication decision was improperly procured through fraud or bribery; (b) There has been a denial of natural justice; (c) The adjudicator has not acted independently or impartially, or (d) The adjudicator has acted in excess of his jurisdiction.” (emphasis added) Whether the Adjudicator is in breach of the rules of natural justice in calculating or recalculating the LAD that the Respondent is entitled to set-off from the Claimant’s Claim [19] As it is not very clear what was meant by “recalculating” the LAD claimed, I shall consider it both from the perspective of the Adjudicator arriving at an amount of LAD different from the amount claimed by Luxor by way of a set-off as well as the recalculated sum following the request for correction by Luxor leading to a Revised Adjudication Decision. [20] The powers of an Adjudicator to make corrections of his Decision is confined to computational or typographical error under section 12(7) CIPAA which reads: 11 “The adjudicator may at any time correct any computational or typographical error on the adjudicator’s own initiative or at the request of any party.” [21] Section 12(8) further provides that any correction made is deemed to take effect from the date of the original Adjudication Decision. The Respondent through its learned counsel, contended that the Adjudicator is not entitled to recalculate the LAD otherwise than to calculate based on the sum of RM2,550.00 per day as contractually agreed in Clause 9) c) ii) of the LOA for Lot 3 for the 207 days of delay from the new Completion Date of 27 November 2014 to date of Certificate of Practical Completion on 25 June 2015. That according to the Respondent works out to RM527,850.00. The Respondent was not happy that the Adjudicator had only allowed RM510,000.00 as can be seen in the calculation at Appendix A to the Adjudication Decision. [22] Apparently the Adjudicator had not allowed the said sum claimed on the following grounds stated at item 30 of her Adjudication Decision as follows: “30. I disagree to the calculation for Liquidated Damages and interest provided by the Respondent for the following reasons: 12 i. The Liquidated Damages in this case could only be imposed with the two conditions mentioned in Item 13 above being fulfilled; ii. Interest applied on the outstanding sum prior to the same conditions being fulfilled is calculated up to 14 September 2015, the day before the issuance of the Respondent letter as stated in item 19 of this section. iii. Interest applied on the outstanding sum after the same conditions being fulfilled is calculated up to 9 November 2016, the day before the Claimant lodge the request to appoint adjudicator.” [23] In item 13 the Adjudicator stated as follows: “Pursuant to Clause 22 of the PAM conditions of contract, the Respondent is entitled to deduct Liquidated Damages from the payment owing to the Claimant with the conditions that Certification of Non-Completion is issued to the Claimant and the Respondent informs the Contractor in writing of such deduction.” [24] As the issue of how much of the set-off in the nature of an LAD Claim was before the Adjudicator, there was no need for her to disclose to the parties that she would allow part of it and to ask the parties for 13 further submission as to whether it was proper for her to go down that path. [25] Learned counsel for the Respondent had cited the case of Humes Building Contracts Limited v Charlotte Homes (Surrey) Ltd, HHJ Gilliland QC sitting at the TCC in Salford made the following remarks at paragraph 20 of his judgment as follows: “The Adjudicator during the Adjudication did not raise the point with the parties and it is clear that the defendant did not have any opportunity to make submissions to the Adjudicator on his rejection or proposed rejection of the defendant's claims for defects and liquidated damages. If a court had acted in this way and decided issues on a ground which had not been raised before it and where the parties had not been given an opportunity to make submissions on the point, there is little doubt but that the Decision would be open to challenge on the grounds of breach of natural justice.” (emphasis added) [26] The above proposition must be confined to cases where an Adjudicator decides on issues not raised properly before him. [27] I cannot comprehend how the Adjudicator can be said to have breached the rules of natural justice when both parties have taken 14 diametrically opposite positions and the Adjudicator has given his reasons why the sum of RM510,000.00 is a justified claim by the Respondent by way of a set-off. [28] The Adjudicator had dismissed the objection raised by the Claimant that the original Payment Response has named the Respondent as Luxor Holdings Sdn Bhd instead of Luxor YRM Sdn Bhd and thus no valid Payment Response was filed within time by the right Respondent. There was a related project involving Lot 1 where the Respondent there was Luxor Holdings Sdn Bhd and that was how the typographical had crept in with no prejudice to the parties as in their submissions the correct name of the Respondent has been referred to. Further that it was an error that the Claimant had also inadvertently fell into when they had addressed to Luxor Holdings Sdn Bhd for the release of outstanding payment for the works for Lot 3. The Adjudicator allowed an amendment to the Original Payment Response where the incorrectly spelled name of the Respondent was concerned. [29] The Adjudicator at item 18 of the Adjudication Decision rejected the Claimant’s contention that there is no valid Certificate of Non Completion because the Certificate of Non Completion had been revoked by the Certificate of Extension of Time as been unsubstantiated. The Adjudicator further went on to find as a matter of fact that Certificate 15 of Non Completion No.3 was not revoked by any subsequent Certificate of Extension of Time and it remains valid. [30] The Claimant had also raised the fact that under section 75 Contracts Act 1950 the Respondent’s claim of a set-off arising out of the LAD is subject to proof. Surely after hearing both parties on what should be the proper amount of set-off arising out of the LAD claimed, the Adjudicator is not bound to accept one of both positions but to arrive at a fair, reasonable and justified amount having regard to the provisions in the Contract. The net result was that Luxor was required to pay SQA the Adjudicated sum of RM 638,446.16 (excluding interest and cost). [31] All that the rules of natural justice require of an Adjudicator is that both sides be heard on an issue or matter in dispute. Here it is with respect to the Defence of Set-off and the amount that should be allowed. It does not mandate the Adjudicator to decide in a particular manner as the parties would want the Adjudicator to decide. That would be a breach of natural justice as he would be seen to be bias in favour of one side as against the other. The Adjudicator is not obliged to give a Decision in accordance with what a party is passionately and polemically convinced of his position in fact and law. [32] In Gazzriz Sdn Bhd v Hasrat Gemilang Sdn Bhd [2016] MLJU 1054 this Court has occasion to observe as follows: 16 “[45] It cannot be overstated that the unsuccessful party in an Adjudication must not simply raise the ground of breach of natural justice in setting aside an Adjudication Award just because that party now disagrees with the interpretation of law or finding of facts based on the evidence or both. The ground of breach of natural justice should not be used as a backdoor way to set aside an Adjudication Decision made after both parties have been given the opportunity to submit their Payment Claim and Payment Response and followed by Adjudication Claim and Adjudication Response and if need be an Adjudication Reply after that. A Respondent who does not avail itself of the opportunity to file the Payment Response and Adjudication Response cannot be heard to shout and scream that there had been a breach of natural justice. It is singularly devoid of merits and will not be entertained by the Courts. [46] I recall the Singapore case of Am Associates (Singapore) Pte Ltd v Laguna National Golf and Country Club Ltd [2009] SGHC 260, and the dicta Judith Prakash J, in a context not dissimilar to ours: “23. There are two rules of natural justice: the first is that a man should not be the judge in his own cause and the 17 second is that the judge or Adjudicator or other arbiter must hear both side of the dispute. The second rule is often referred to by its Latin tag, audi alteram partem. Laguna’s submission, while not specifically identifying which rule of natural justice had been breached, appeared to refer to the second one. 24. Laguna submitted that the Adjudicator had failed to comply with the rules of natural justice in that in coming to the Adjudication Determination, he had failed to take into consideration and/or give proper weight to materials tendered by AMA which showed a discrepancy in AMA’s claim, in particular, its claim that the Concept Design had been approved. Its submissions went into the evidence in order to establish the alleged discrepancy and it then argued that if the Adjudicator had given proper consideration and weight to such discrepancy and had taken into consideration the relevant evidence tendered by the parties, he would have held that all payment claim made by AMA had been made prematurely. 25. Although the paragraph above contains only a brief summary of Laguna’s contentions, it can be gathered from 18 such summary that what Laguna was complaining about was not really a failure on the part of the Adjudicator to hear both sides of the dispute but a failure on his part to decide the dispute as Laguna considered it should be decided. The audi alteram partem rule required the Adjudicator to receive both parties submissions and consider them; it did not require him to decide the dispute in accordance with Laguna’s submissions. It was clear from the Adjudication Determination that the Adjudicator had conducted the adjudication in accordance with the principles of natural justice: he had called an adjudication conference at which both parties were able to make their submissions, an opportunity which Laguna had availed itself of. Thereafter, as the Adjudication Determination itself made plain, the Adjudicator gave consideration to all points raised and he then came to certain conclusions for which he gave his reasons. However dissatisfied Laguna may be with those decisions, it cannot ask for the Adjudication Determination to be set aside because it considers the decisions to be against the weight of the evidence. 19 26. The principles of natural justice are concerned with the provision of a fair hearing to contending parties. They do not mandate any particular result. As long as the parties have been given a fair hearing, the decision cannot be set aside for failure to comply with natural justice. A party who is dissatisfied with the decision on its merits cannot use the principles of natural justice to have the decision set aside...” (emphasis added) [47] That ‘error’ if there be will have to be corrected at Arbitration or Litigation as the Adjudication Decision is only of interim finality and will be overtaken by the fully final Arbitral Award or Litigation Judgment. However to this day the Respondent has not proceeded with any Arbitration or Litigation to correct the so-called error or wrong decision.” (emphasis added) [33] One may be permitted to draw an analogy from the ground of a breach of natural justice for setting aside an Arbitral Award under our section 37(1)(b)(ii) and 37(2)(b) of the Arbitration Act 2005. The requirement of natural justice is that there should be procedural fairness in the way the Adjudicator conducts the proceedings before him. This ground of setting aside, be it an Arbitral Award or Adjudication Decision 20 would not bite unless the most basic notion of morality and justice is offended. [34] The case of Soh Beng Tee & Co. Pte Ltd v Fairmount Development Pte. Ltd [2007] 3 SLR 86, a decision of the Singapore Court of Appeal, is both instructive and illustrative, at page 119: "It is almost invariably the case that parties propose diametrically opposite solutions to resolve a dispute. They may expect the arbitrator to select one of these alternative positions. The arbitrators, however, is not bound to adopt an either/or approach. He is perfectly entitled to embrace a middle path (even without appraising the parties of his provisional thinking or analysis) so long as it is based on evidence that is before him. Similarly, an arbitrator is entitled - indeed, it is his obligation, to come to his own conclusions or inferences from the primary facts placed before him. In this context, he is not expected to inexorably accept the conclusions being urged upon him by parties, neither is he expected to consult the parties on his thinking process before finalizing the award unless it involves a dramatic departure from what has been presented to him. Each case should be decided within its own factual matrix. It must always be borne in mind that it is not the function of the court to 21 assiduously comb an arbitral award microscopically in attempting to determine if there was any blame or fault in the arbitral process; rather an award should be read generously such that only meaningful breaches of the rules of natural justice that have actually caused prejudice are ultimately remedied." (emphasis added) [35] What is true of the ground of a breach of natural justice for setting aside an Arbitral Award would apply with even greater force to an Adjudication Decision as by its very nature, it is only provisional and having only interim finality under section 13(c) CIPAA “unless the dispute is finally decided by arbitration or the court.” [36] The analysis of the cases by Justice Cookson J in Primus Build Limited v Pompey Centre Limited & Slidesilver Limited [2009] EWHC 1487 is relevant for our consideration: “29 Generally speaking, the rules of natural justice apply to adjudication, but they cannot always be fully applied, given the short timetable and ‘the crude methodology’ sometimes involved: see Balfour Beatty Construction Ltd v London Borough of Lambeth [2002] EWHC 597. Any alleged breach must be examined critically (Amec Capital Projects Ltd v Whitefriars City Estates Ltd [2005] BLR 1) and must be material or of significance to the decision 22 actually made by the adjudicator: see Kier Regional Ltd (t/a Wallis) v City & General (Holborn) Ltd [2006] EWHC 848 TCC and Cantillon Ltd v Urvasco Ltd [2008] EWHC 282 TCC. In other words, if there has been a breach of natural justice, but it cannot be demonstrated that it goes to the heart of the adjudicator’s decision, it will not affect the enforcement of that decision. 30 There are a number of reported cases in which an adjudicator’s decision has not been enforced, because it relied heavily on something which had not come from either of the parties but from the adjudicator himself, in circumstances where the parties had not even had the opportunity to comment on this new approach. Thus, in Balfour Beatty Construction Ltd v London Borough of Lambeth the adjudicator, with the help of his own programming expert, provided a critical path analysis which then formed the basis of his decision, even though that analysis was not shared with the parties and was not even seen by them until the decision was published. HHJ Lloyd QC held that, in consequence, there had been a breach of natural justice and the adjudicator’s decision was invalid. 23 31 Similarly, in RSL (South West) Ltd v Stansell Ltd [2003] EWHC 1390 (TCC), the adjudicator relied on an independent report, again without notification to the parties. HHJ Seymour QC said that, whilst the adjudicator was entitled to obtain such a report, he should not have had any regard to it without giving both parties the chance to consider the contents of that report and to comment upon it. He also found that the breach was plainly material because the adjudicator had relied on the report in coming to his decision. 32 However, this issue will always be a matter of fact and degree. So, in Multiplex Constructions (UK) Ltd v West India Quay Development Company (Eastern) Ltd [2006] EWHC 1569 TCC, Ramsey J worked through the various aspects of an adjudicator’s decision which, so it was said, the parties had not had an opportunity to comment upon. He concluded that, unlike the adjudicator in Balfour Beatty, the adjudicator had not adopted his own methodology, but had instead carefully assessed the contractor’s own programming analysis and made due allowance for his concerns about various aspects of it. There was, therefore, no breach of the rules of natural justice, because the 24 adjudicator’s decision was based upon the material properly before him, on which both parties were seeking to rely. ... 40 As I have said, these things are always a matter of fact and degree. An adjudicator cannot, and is not required to, consult the parties on every element of his thinking leading up to a decision, even if some elements of his reasoning may be derived from, rather than expressly set out in, the parties’ submissions. But where, as here, an adjudicator considers that the referring party’s claims as made cannot be sustained, yet he himself identifies a possible alternative way in which a claim of some sort could be advanced, he will normally be obliged to raise that point with the parties in advance of his decision. It seems to me that that principle must apply a fortiori in circumstances where the document from which the alternative approach is to be derived, is a document which the adjudicator was told by the parties to ignore. In those circumstances, common sense demands that, before reaching any conclusion, the adjudicator must ask the parties for their submissions on that alternative approach.” (emphasis added) 25 [37] As to the recalculation of interest by the Adjudicator, the revision to the Adjudication Decision was done at the request of Luxor. Luxor had contended more than conceded that there were computational errors that may require the Adjudicator to revise its decision on the interests and if one may compare the Appendix A setting out the calculation of interest in both the Original Adjudication Decision and the Revised Adjudication Decision, one would see that the computational errors have arisen only in the “Interest Calculation as at 9/11/2016” column with the result that the interest should be only RM62,678.92 yielding an adjudicated sum of RM701,125.08 instead of interest of RM66,640.94 giving an adjudicated sum of RM705,087.10. [38] Having requested for the correction of the computational errors and the errors having been corrected in favour of the Respondent, it is hardly a ground for complaint by the Respondent on a breach of natural justice. [39] Therefore whether it was a calculation of the amount of LAD or a recalculation of the LAD with respect to the interest on the amount to be set-off from the Claimant’s claim, it was a decision that the Adjudicator had made after hearing both sides and having regard to the documents submitted before her and certainly cannot be said to be in breach of natural justice. 26 Whether the Adjudicator had breached the rules of natural justice when she awarded interest up to 9.11.2016 without inviting parties to submit on the issue and notwithstanding the Claimant’s claim for interest only up to 6.6.2016 [40] The Learned Adjudicator is entitled to interpret the terms of the contract, peruse the document submitted by both parties and decide on the calculation of claim or LAD. It is for the adjudicator to deal with how the adjudication proceedings are to proceed. See the case of Ranhill E & C Sdn Bhd v Tioxide (Malaysia) Sdn Bhd & Another case [2015] 1 LNS 1435. [41] In ACFM Engineering & Construction Sdn Bhd v Esstar Vision Sdn Bhd and Another Appeal [2016] MLJU 1776 the Court of Appeal laid down the principles with regard to an allegation of breach of natural justice in the context of CIPAA. The Court of Appeal at paragraph 19 held that “when one speaks of natural justice, it is nothing more than what we call the concept of ‘procedural fairness’ which needs to be accorded to the parties in dispute of a hearing”. [42] Under section 25(o) CIPAA an Adjudicator has broad powers to award financing costs and interest. The Respondent submitted that the Adjudicator is still duty bound to determine this issue based on what has 27 been submitted to her and not to conjure interest time-frames based on her own perceptions and in isolation from the parties. [43] By the same token I would say that even if no interest has been prayed for the Adjudicator in exercising her vast powers under section 25(o) CIPAA would be at liberty to grant interest from the period that she deems fair and reasonable having regard to the contractual provisions of the Contract. When one looks at Form 1 Payment Claim under the KLRCA Adjudication Rules & Procedures there is no specific plea of interest and the period from which it is to run. [44] It is true that the Adjudicator had awarded contractual interest up to 9.11.2016 as evident from paragraph 30 iii. of the Adjudication Decision being the day before the Claimant lodged the request to appoint an Adjudicator, whilst the interest claimed by SQA was only up to 6.6.2016. [45] Contractual interest was at the rate of 7.85% per annum whereas simple interest at 5% per annum was to run from 10.11.2016 until the payment of the adjudicated sum. [46] One can thus see that the difference if at all is the difference between 7.85% and 5% which is 2.85% for the period between 6.6.2016 and 9.11.2016 for if she had awarded contractual interest up to 6.6.2016 28 as contended, then she would have awarded simple interest running from 7.6.2016 instead of from 10.11.2016. Correspondingly interest on the set-off amount was also correspondingly calculated till 9.11.2016 and any excess in interest is more or less even out. [47] Looking at the big picture, that is at most an error in calculation and not so much a breach of natural justice. [48] This is not so much a case where the Adjudicator had gone on a frolic of her own but that in her anxiety to get the calculation precisely correct, she had forgotten for a moment that the Claimant had only claim interest until 6.6.2016. Moreover the Claimant had pleaded for interest at any rate and for such period that the Adjudicator may determine at paragraph 25 of its Adjudication Claim, thus giving a broad discretion to the Adjudicator where the calculation of interest is concerned. [49] It is at the end of the day an error in calculation of interest and not a material one that justifies the setting aside of the whole of the Adjudication Decision. It is an error that can be corrected in Arbitration or Litigation. It does not affect the substance of the Decision. [50] If it is a breach of natural justice it is only of a peripheral nature and does not affect substantially the outcome of the case. 29 [51] I agree with learned counsel for Luxor that the rules on breach of natural justice have been succinctly set out in the case of Cantillon Ltd v Urvasco Ltd [2008] EWHC 282 (TCC) where the Court held at paragraph 57 of the judgment; “From this and other cases, I conclude as follows in relation to breaches of natural justice in Adjudication cases: (a) It must first be established that the Adjudicator failed to apply the rules of natural justice; (b) Any breach of the rules must be more than peripheral; they must be material breaches; (c) Breaches of the rules will be material in cases where the Adjudicator has failed to bring to the attention of the parties a point or issue which they ought to be given the opportunity to comment upon if it is one which is either decisive or of considerable potential importance to the outcome of the resolution of the dispute and is not peripheral or irrelevant. (d) Whether the issue is decisive or of considerable potential importance or is peripheral or irrelevant 30 obviously involves a question of degree which must be assessed by any judge in a case such as this. (e) It is only if the Adjudicator goes off on a frolic of his own, that is wishing to decide a case upon a factual or legal basis which has not been argued or put forward by either side, without giving the parties an opportunity to comment or, where relevant put in further evidence, that the type of breach of the rules of natural justice with which the case of Balfour Beatty Construction Company Ltd -v- The Camden Borough of Lambeth was concerned comes into play.” (emphasis added) [52] The above approach was followed in Econpile (M) Sdn Bhd v IRDK Ventures Sdn Bhd and another case [2017] 7 MLJ 732 at paragraph [90]. [53] In an even more glaring computational mistake in calculating the amount outstanding in the English Court of Appeal case of Bouygues UK Ltd v Dahl-Jensen UK Ltd [2000] EWCA Civ 507 the Court of Appeal held that the decision of the Adjudicator was enforceable. Lord Justice Buxton outlines the brief facts and held as follows: 31 “9. Mr Gard [the Adjudicator] then took three further steps. First he deducted from the £7,240,000 a sum of £647,000 that he awarded to Bouygues in respect of damages arising out of the termination, and he expressed the result in his award as the "contract sum minus deductions" of £6,593,000, again stated to be "gross". Second, he deducted from that revised "contract sum" the amount actually paid by Bouygues under the sub-contract of £6,772,000, to produce a balance in favour of Bouygues of £179,000, stated to be gross. Third, he then added back to the earlier contract sum of £7,240,000 an award of £387,000 that he had made to Dahl- Jensen in respect of additional works performed by Dahl-Jensen and claims for damages sustained by them while the contract was subsisting. That addition increased the gross "contract sum minus deductions" due to Dahl-Jensen from the figure stated above of £6,593,000 to £6,979,000. That in turn altered the overall calculation from the balance in favour of Bouygues of £179,000 to a balance in favour of Dahl-Jensen of, in round terms, £208,000. Mr Gard's award was therefore that Bouygues should pay that sum of £208,000 to Dahl-Jensen. ... 32 14. ...What went wrong was that in making the calculations to answer the question of whether the payments so far made under the sub-contract represented an overpayment or an underpayment, he overlooked the fact that that assessment should be based on the contract sum presently due for payment, that is the contract sum less the retention, rather than on the gross contract sum. That was an error, but an error made when he was acting within his jurisdiction. Provided that the Adjudicator acts within that jurisdiction his award stands and is enforceable.” (emphasis added) [54] I would thus conclude that there is no breach of natural justice as in the Adjudicator having gone on a frolic of her own and that even if there is a breach of natural justice it is not material enough for this Court to intervene in a setting aside having regard to the insubstantial difference in the adjudicated sum that may easily be corrected in Arbitration or Litigation. Whether the Adjudicator had acted in excess of jurisdiction when she computed interest up to 9.11.2016 when the Claimant had only claimed interest up to 30.9.2016, i.e. the date the Payment Claim was served. 33 [55] The Adjudicator certainly has the jurisdiction to decide on interest payable on the sum claimed under a Payment Claim whether or not it is pleaded. When it is so pleaded, the Adjudicator would certainly have jurisdiction to decide. [56] In this case the Adjudicator has jurisdiction to decide on the interest payable and the fact that she had calculated the contractual interest up to the date of Notice of Adjudication of 9.11.2016 instead of up to 30.9.2016 the date the Payment Claim was served, is at best an error within jurisdiction and not an error of excess of jurisdiction. [57] Even if the element of interest had not been raised in the Payment Claim, the Adjudicator would have acted within jurisdiction if she had awarded interest under her vast powers under section 25(o) CIPAA. When it has been raised, I would say that ordinarily an Adjudicator would not grant interest more that what was claimed with respect to when the interest should end but he would not have exceeded his jurisdiction if he had granted contractual interest for a period in excess of the period claimed because as a matter of prudence as well as practice interest is always granted until the adjudicated sum is paid and so if at all there is any difference, it would be the difference between contractual interest and the general default interest of 5% per annum that a Court of Law would give under Order 42 rule 12 Rules of Court 2012 read together 34 with the Practice Direction of the Chief Justice No. 1 of 2012 effective from 1.8.2012.. [58] The dicta of Lord Justice Chadwick would ring true in Bouygues case (supra) as follows: “22. Section 108(1) of the Housing Grant, Construction and Regeneration Act 1996 confers on a party to a construction contract the right to refer a dispute arising under the contract for adjudication under a procedure complying with that section. Section 108(3) is in these terms: "(3) The contract shall provide that the decision of the adjudicator is binding until the dispute is finally determined by legal proceedings, by arbitration (if the contract provides for arbitration or the parties otherwise agree to arbitration) or by agreement." 23. It is not in dispute that the contract in the present case is a construction contract for the purposes of section 108 of the 1996 Act. Nor is it in dispute that the parties, as they were entitled to do, referred disputes which had arisen between them under that contract to an adjudicator. They did so not under the terms of the contract itself, nor under the terms of the statutory scheme 35 contained in Statutory Instrument 1998 649, but under the Model Adjudication Procedure, Second Edition, published by the Construction Industry Council. 24. Paragraph 4 of the Model Adjudication Procedure reflects the provisions of section 108(3) of the Act. Paragraph 5 provides that: "5. The Parties shall implement the Adjudicator's decision without delay whether or not the dispute is to be referred to legal proceedings or arbitration." 25. Paragraphs 30 and 31 are in these terms: "30.The Parties shall be entitled to the redress set out in the decision and to seek summary enforcement, whether or not the dispute is to be finally determined by legal proceedings or arbitration. No issue decided by the Adjudicator may subsequently be referred for decision by another adjudicator unless so agreed by the Parties. 31.In the event that the dispute is referred to legal proceedings or arbitration, the Adjudicator's decision shall not inhibit the right of the court or arbitrator to determine the Parties' rights or obligations as if no adjudication had taken place." 36 26. The purpose of those provisions is not in doubt. They are to provide a speedy method by which disputes under construction contracts can be resolved on a provisional basis. The adjudicator's decision, although not finally determinative, may give rise to an immediate payment obligation. That obligation can be enforced by the courts. But the adjudicator's determination is capable of being reopened in subsequent proceedings. It may be looked upon as a method of providing a summary procedure for the enforcement of payment provisionally due under a construction contract. 27. The first question raised by this appeal is whether the adjudicator's determination in the present case is binding on the parties - subject always to the limitation contained in section 108(3) and in paragraphs 4 and 31 of the Model Adjudication Procedure to which I have referred. The answer to that question turns on whether the adjudicator confined himself to a determination of the issues that were put before him by the parties. If he did so, then the parties are bound by his determination, notwithstanding that he may have fallen into error. As Knox J put it in Nikko Hotels (UK) Ltd v MEPC PLC [1991] 2 EGLR 103 at page 108, letter B, in the passage cited by Buxton LJ, if the adjudicator has answered the right question 37 in the wrong way, his decision will be binding. If he has answered the wrong question, his decision will be a nullity. 28. I am satisfied, for the reasons given by Buxton LJ, that in the present case the adjudicator did confine himself to the determination of the issues put to him. This is not a case in which he can be said to have answered the wrong question. He answered the right question. But, as is accepted by both parties, he answered that question in the wrong way. That being so, notwithstanding that he appears to have made an error that is manifest on the face of his calculations, it is accepted that, subject to the limitation to which I have already referred, his determination is binding upon the parties.” (emphasis added) [59] The Adjudicator had asked herself the right question on the amount interest she should give and at most she arrived at the wrong answer in allowing contractual interest until 9.11.2016 instead of 30.6.2016 and that is no justification for setting aside the Adjudication Decision. [60] I would say, with the greatest of respect to learned counsel for the Respondent, that the matter of interest was a matter within the jurisdiction of the Adjudicator and the fact that she had granted it more than what was claimed for the period in which contractual interest should 38 end and general interest takes over, is a matter within her discretion. At most, it is an error within jurisdiction and not in excess of jurisdiction, and certainly does not justify a setting aside of the whole of the Decision. Pronouncement [61] The application to set aside the Adjudication Decision was thus dismissed. Correspondingly the enforcement of the Adjudication Decision by SQA the Claimant was allowed and as both applications were heard together I had ordered a single costs of RM5,000.00 to be paid by Luxor to SQA. Dated: 18 October 2017. sgd Y.A. LEE SWEE SENG Judge High Court, Kuala Lumpur For the Plaintiff : S Raven, Vishal Kumar and Siti Nuramira (Messrs S Ravenesan) For the Defendant : Lam Wai Loon and Serene Hiew (Messrs Harold & Lam Partnership) Dates of Decision: 13 June 2017.	44,864	Tika 2.6.0
WA22NCC-1-01/2017	PLAINTIF GOBI A/L LOGANATHAN DEFENDAN ALLIANZ GENERAL INSURANCE COMPANY (M) BERHAD	Civil Procedure - Setting aside - The plaintiff applied to set aside the Court declaration given to the defendant - whether the plaintiff had locus standi to bring the suit against the defendant - whether the declaration obtained by the defendant was contrary to the provision of the law - whether notice to the plaintiff’s solicitors could be deemed good notice to the plaintiff - whether the plaintiff was entitled to claim damages - Road Transport Act 1987 [Act 333], section 96(3), 118(1)	18/10/2017	YA TUAN MOHD NAZLAN BIN MOHD GHAZALI	https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=e1a6c271-50ca-4f5d-bfb6-2462c2ef6ed0&Inline=true	DALAM MAHKAMAH TINGGI MALAYA DI KUALA LUMPUR DALAM NEGERI WILAYAH PERSEKUTUAN, MALAYSIA (BAHAGIAN DAGANG) GUAMAN NO.: WA-22NCC-1-01/2017 ANTARA GOBI A/L LOGANATHAN (K/P No.: 920215-05-5431) ...PLAINTIF DAN ALLIANZ GENERAL INSURANCE COMPANY (M) BERHAD (Company No.: 735426-V) ...DEFENDAN DI HADAPAN YANG ARIF TUAN MOHD NAZLAN BIN MOHD GHAZALI HAKIM JUDGMENT Introduction [1] This is a writ action seeking to set aside a Court declaration given to the defendant insurer pursuant to Section 96 of the Road Transport Act 1987. At the conclusion of trial, I allowed the claim and highlighted to the parties the principal reasons for the same. This judgment contains the full reasons for my decision, and includes some discussions on the rights of third parties vis-à-vis an insurer under the Act. Key Background Facts [2] The plaintiff is an individual who claimed to have been involved in a road accident on 10 February 2015 when a motorcycle number WWX 2497 he was riding on collided with a motor car number BKL 6586 registered under and driven by one Suganthi a/p Munusamy (“Ms Suganthi”). The motor car was insured with the defendant, which is an insurance company, under Policy No. 14VML080568 for the coverage period between 30 September 2014 and 29 September 2015. [3] The plaintiff had, following the accident, on 21 May 2015 instituted a suit against Ms Suganthi at the Klang Sessions Court (Suit 591). The defendant, as the insurer for Ms Suganthi’s BKL 6586, appointed Messrs Othman Hashim & Co to act for her. In the defence filed for Ms Suganthi on 20 November 2015, it was admitted that at the time and date specified in the claim, the car driven by Ms Suganthi was involved in an accident. [4] Subsequently, on 15 December 2015, in the same Suit 591, the lawyers for Ms Suganthi filed an application to amend the defence, on the principal basis that Ms Suganthi now claimed, in a statutory declaration dated 22 October 2015, that her car was not involved in any accident at the material time. She also affirmed not knowing the plaintiff and admitted having made a police report about the accident which she now denied. [5] This amendment application was dismissed by the Sessions Court. Ms Suganthi did not appeal against this decision. The Sessions Court then transferred the suit to the Magistrate Court by reason of the claim amount being within the proper jurisdiction of the latter (Suit 501). [6] The defendant then in Suit 501 engaged Messrs S.G Lingam & Co to file an application to intervene in that Suit 501 and be made the second defendant therein. In the main, the defendant asserted its suspicions, following investigations, that there were elements of fraud and collusion in that suit and its right to disclaim liability could be adversely affected if it was not allowed to intervene in that Suit 501. It was averred in the affidavit supporting the application to intervene that the inclusion of the defendant herein as the second defendant in Suit 501 would enable all issues affecting all parties to be ventilated and adjudicated by the Magistrate Court. [7] By consent of parties, the defendant herein became the second defendant in Suit 501. Consequently, soon as newly made a party, the second defendant on 27 September 2016 filed its defence in Suit 501, principally asserting that it was not liable as an insurer to any judgment that could be entered in favour of the insured, Ms Suganthi, by reason of her collusion in a fraud concerning the alleged motor vehicle accident. The defendant herein, as the second defendant in that Suit 501 had also pleaded in its defence, the statutory declaration by Ms Suganthi on her denial of the accident, as referred to earlier. The trial of Suit 501 was fixed for 28 February 2017. [8] However, and this is crucial, the defendant herein on 6 September 2016 filed an action by way of an originating summons in the High Court in Kuala Lumpur (Suit 373) in pursuance of Section 96(3) of the Road Transport Act 1987 (“the RTA”) to obtain a declaration that the insurance policy between the defendant and Ms Suganthi was void by reason of the fraudulent claim. It is crucial to note that the plaintiff claimed that he had no knowledge of Suit 373. He was also not made a party to the Suit 373. Ms Suganthi herself did not appear at the hearing of Suit 373. The Order in Suit 373 was on 29 November 2016 thus granted to the defendant herein uncontested. This Order in Suit 373 is the subject of the instant claim to have it set aside. [9] It is the crux of the contention of the plaintiff in this claim that the Order in Suit 373 would affect the right of the plaintiff to enforce any judgment that could be obtained by him in Suit 501 against the first defendant, and her insurer (the second defendant therein); and yet, the very same issues of fraud and collusion pleaded by the defendant in Suit 501 were then again raised by the defendant in Suit 373 which resulted in the Order for the defendant, well before the earlier scheduled trial for Suit 501. [10] As such, the plaintiff in the instant case is seeking to impeach and set aside the Order of the High Court in Suit 373 on account of the grounds that the Order was obtained by the defendant either by fraud, or non-disclosure of material facts or active concealment of material facts or by deliberately misleading the Court or contrary to express statutory provision or by an abuse of the process of the Court, or due to illegality or lack of jurisdiction. [11] On the same day the defendant filed its defence, it also initiated an application for the striking out of this claim by the plaintiff. Which I had refused. Hence the trial before me. Essence of Contentions of the Parties [12] As just stated, given the background facts, the plaintiff is pursuing this suit to impeach and set aside the Order in Suit 373 by reason that the Order, it was alleged, had been obtained by the defendant either by fraud, or non-disclosure of material facts or active concealment of material facts or by deliberately misleading the Court; or contrary to express statutory provision or by an abuse of the process of the Court, or due to illegality or lack of jurisdiction. [13] The primary contention of the defendant insurer in contesting this claim is that Suit 373 was entirely between an insurer and an insured; and the argument that the governing insurance policy was founded on contractual principles. The plaintiff, according to the defendant, was never a party to that insurance contract. As such, the plaintiff has no locus to bring this suit against the defendant. [14] Secondly, the defendant argued that the plaintiff had failed to prove that the Order in question had been obtained by the defendant fraudulently or by active concealment of material facts or by any deliberate misleading of the Court. This is especially given the fact that the plaintiff produced only one witness who did not give any evidence on such purported improprieties on the part of the defendant. [15] Thirdly, the defendant maintained that this suit was an abuse of Court process. This is on the basis that notice of Suit 373 had been given to the solicitors for the plaintiff on 7 September 2016 as per Section 96(3) of the RTA. Thus, the plaintiff had full knowledge of Suit 373 but chose not to take any steps at the material time to be made a party to that Suit 373. His filing of this instant suit is therefore an attempt at having a second bite at the cherry and is an abuse of process. The Trial & the Witness [16] The trial heard only one witness, who was the plaintiff himself. The defendant did not call any witnesses. The proceedings concluded in the same morning of the trial itself. And the decision of the Court was delivered in the same morning after a short adjournment after the close of the defendant’s case. Evaluation & Findings of this Court Plaintiff has no contractual nexus in insurance contract in Suit 373? [17] It is undeniable that the plaintiff is not a party to the contract of insurance between the defendant and Ms Suganthi which had been declared as void by the Order in Suit 373. Neither was he a party in Suit 373. As such, it was argued that the plaintiff has no locus to commence this instant suit against the defendant. [18] I agree that action by the defendant under Section 96 of the RTA concerns the contract of insurance to which the plaintiff is not privy. But the very scheme of Section 96, whilst enabling an insurer to seek a Court declaration to avoid the relevant policy, also confers on the third party who claimed to have been involved in an accident with a vehicle insured with the insurer under the relevant coverage to apply to be made a party and to oppose the granting of such declaration. The plaintiff is the third party to this insurance contract vis-à-vis the said accident. [19] It is apposite that I reproduce the relevant parts of Section 96 of the RTA, as follows:- 96 Duty of insurers to satisfy judgements against persons insured in respect of third party risks (1) If, after a certificate of insurance has been delivered under subsection 91(4) to the person by whom a policy has been effected, judgement in respect of any such liability as is required to be covered by a policy under paragraph 91(1)(b) (being a liability covered by the terms of the policy) is given against any person insured by the policy, then notwithstanding that the insurer may be entitled to avoid or cancel, or may have avoided or cancelled the policy, the insurer shall, subject to this section, pay to the persons entitled to the benefit of the judgement any sum payable thereunder in respect of the liability, including any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any written law relating to interest on judgements. (2) No sum shall be payable by an insurer under subsection (1)- ……..….… (3) No sum shall be payable by an insurer under subsection (1) if before the date the liability was incurred, the insurer had obtained a declaration from a court that the insurance was void or unenforceable: Provided that an insurer who has obtained such a declaration as aforesaid in an action shall not thereby become entitled to the benefit of this subsection as respects any judgement obtained in proceedings commenced before the commencement of that action unless, before or within seven days after the commencement of that action, he has given notice thereof to the person who is the plaintiff in the said proceedings specifying the grounds on which he proposes to rely, and any person to whom notice of such an action is so given shall be entitled if he thinks fit to be made a party thereto. …………………….” [emphasis added] [20] Thus, the argument of the defendant on the absence of contractual nexus as equating to lack of locus standi in respect of that suit (Suit 373) or the instant claim is misconceived because Section 96(3) of the RTA plainly confers on the third party such right to contest the declaration despite the patent absence of any contractual relationship between the plaintiff as the third party with either the insured (Ms Suganthi) or, what more, with the insurer or the defendant herein. As such, the argument that simply focuses on the absence of a contractual relationship on the part of the third party is wholly devoid of merit in the face of the clear provisions of Section 96(3) of the RTA. [21] The defendant, on the other hand, referred to the decisions of the Supreme Court in Government of Malaysia v Lim Kit Siang [1988] 2 MLJ 12, and of the Federal Court in Ikatan Kelab-kelab Melayu Negeri Pulau Pinang & Ors v Yayasan Bumiputra Pulau Pinang & Ors and another appeal [2014] 1 MLJ 27 which held that the requisite locus standi must be in place before the initiation of any proceedings. However I think the said cases are of little consequence to the instant proceedings given that those cases concerned the issue of locus standi generally, and not in the context of the relevance of Section 96(3) of the RTA, like presently. [22] No clearer judicial pronouncement on the right of the third party under Section 96(3) has probably been made other than by the Court of Appeal in Pacific & Orient Insurance Co Berhad v Rasip bin Hamsudi & Ors [2017] 4 CLJ 572, a case cited by the defendant itself, as follows:- “[20] This interest of the first, second and third respondents was statutorily and expressly recognised by virtue of the terms of the proviso to s. 96(3) of the RTA. Any third party (like in this instance, the first, second and third respondents as plaintiffs) bringing a claim in court involving a vehicle (the subject of the mandatory third party risk insurance under RTA) was a recognised party named in the proviso to s. 96(3) as being entitled to be notified by the insurer (in this case the appellant) before or within seven days of the commencement of any proceedings under s. 96(3) to declare the relevant insurance policy to be void and unenforceable. Such notice, it would also be noticed, required the appellant to specify the grounds that would be relied on by the insurer in such an application”. [23] Thus the argument that the plaintiff lacks locus standi to maintain thus suit is devoid of merit given the provisions in Section 96(3) of the RTA. The plaintiff able to prove Order in Suit 373 was obtained fraudulently, by active concealment of material facts or by the defendant misleading the Court, etc? [24] In the instant case, the plaintiff seeks the setting aside of the declaration as per the Order in Suit 373 which had rendered void and unenforceable the relevant insurance contract between the defendant insurer and Ms Suganthi. He claims that instead of the matter, including particularly, the allegation of fraud and collusion, having already been fixed for trial involving all three principal parties, namely, the insurer, the insured and the third party, the defendant had misled the High Court in pre-emptively granting the declaration in a separate court proceeding, in the absence of the plaintiff (with the insured choosing not to appear) despite the plaintiff, as the third party, having the right under Section 96(3) of the RTA to be made a party to the proceedings initiated by the insurer. [25] It is crystal clear that Suit 501 certainly included the primary issue of whether the defendant, as the insurer, could avoid liability under the insurance contract with Ms Suganthi, the trial of which all parties had full knowledge would commence on 28 February 2017. It was certainly a live issue in Suit 501 when the defendant sought to (and did manage to) separately avoid the very same policy in Suit 373 filed later in time. [26] At the stage of the proceedings for the striking out of the suit, which I had earlier refused, I ruled that there were aspects about the claim of the plaintiff that in my view call for a full and proper adjudication at trial. These included the assertion by the plaintiff that the statutory declaration (by Ms Suganthi denying the accident which formed the crux of the defence of the insurer in Suit 501 and its application in Suit 373) is itself fraudulent because it was dated on 22 October 2015 being a date prior to the filing of the defence in the original Suit 591 on 20 November 2015 which had to the contrary earlier admitted the road accident. [27] Secondly, I noted the allegation that the defendant did not disclose to the High Court which granted the Order of the fact that the same issue on the liability of the insurer was already before the Magistrate Court in Suit 501. Although the cause papers for Suit 501 were exhibited to support its application in Suit 373, such papers did not reflect the position subsequent to the inclusion of the defendant as the second defendant in Suit 501 following the intervener application referred to earlier. [28] Further, neither did the defendant exhibit its defence already filed in Suit 501 which would clearly show the very same grounds subsequently relied on by the defendant in Suit 373. The defence of the second defendant in Suit 501 (the insurer) was indeed filed after the filing of Suit 373. Then I considered it less than clear whether at the hearing of Suit 373 itself the Court had been apprised by the parties of the insurer’s involvement as a party in Suit 501 on substantially the same issues. [29] However, notwithstanding these issues that required further arguments at the trial proper, the plaintiff chose not to seriously address these concerns through any of his witnesses. To start with, the plaintiff only called himself as the sole witness, who testified for not more than half an hour in total (see further below). No other witnesses were called to explain the various cause papers referred to by the plaintiff at all. [30] As such I find little difficulty in agreeing with the submission of the defendant that the plaintiff had failed to prove his case on a balance of probabilities in relation to any the allegations of fraud, or non-disclosure of material facts or active concealment of material facts or deliberate misleading of the Court. There was an obvious paucity of evidence to support the case of the plaintiff on this allegation that could cross the threshold of the standard of proof of balance of probabilities. [31] In this connection, I must make a brief mention of the decision of the Court of Appeal in Juahir Sadikon v. Perbadanan Kemajuan Ekonomi Negeri Johor [1996] 4 CLJ 1 which reaffirms the rule that “he who asserts must prove”, whereby Siti Norma Yaakob JCA (as she then was) instructively held as follows:- “He who alleges must prove such allegation and the onus is on the appellant to do so. See section 103 of the Act. Thus, it is incumbent upon the appellant to produce Tan Sri Basir as his witness to prove the allegation. The fact that the appellant was unable to secure the attendance of Tan Sri Basir as a witness does not shift the burden to the respondent to produce the witness and testify as to what he had uttered, as firstly, the respondent never raised such an allegation and, secondly, has denied even making one. For this very reason, the adverse inference under section 114(g) of the Act relied upon by the appellant cannot be accepted as establishing that if the witness had been produced, his evidence would work against the respondent. There is no obligation in law for the respondent to produce the witness as that obligation rests with the appellant, the party who alleges, and the fact that the appellant was unable to do so is fatal to his case. For this very reason too, the adverse inference under section 114(g) is invoked against the appellant”. [32] This the plaintiff did not succeed in proving. But this is not to say that he failed to prove all allegations. His testimony did try to focus on the issue of whether he had personal notice of the proceedings in Suit 373. His evidence did concern the contention of the plaintiff that the Order was granted to the defendant contrary to an express statutory provision, and possibly also at the same time, illegally due to lack of jurisdiction. [33] Thus while the evidence at trial do not sufficiently substantiate allegations of fraud or related contentions on wrongful concealment of facts on the part of the defendant, I consider that the only issue of substance raised and pleaded by the plaintiff is on whether the declaration obtained by the defendant earlier in Suit 373 was contrary to the provision of the law. And the provision in question is the requirement of notice to the third party under Section 96(3) of the RTA 1987. This relates also to the third line of the resistance of the defendant to this suit. Did plaintiff have knowledge of Suit 373 but refused to join as party? [34] The defendant alleged that the filing of this instant suit to impeach the Order is an abuse of court process because the plaintiff had knowledge of the commencement of Suit 373 by the defendant but the plaintiff refused to be made a party in that Suit 373. As stated earlier, the defendant filed Suit 373 on 6 September 2016 and gave notice of the same to the plaintiff’s solicitors the day after on 7 September 2016. The plaintiff simply failed to exercise his statutory right to be made a party under Section 96(3) of the RTA despite the notice. Thus the instant suit, according to the defendant, is also an abuse of the process of the Court. [35] I cannot agree with the position taken by the defendant. Section 96(3), as set out earlier, clearly states that for the declaration (for the insurer) to be effective, notice must be given to the person who is the plaintiff in the underlying proceedings on accident liability before or within seven days after the date of the action. Here it was given a day after. But it was given to Messrs Sodhi Chambers. Not to the plaintiff personally. This fact is not in dispute. [36] Messrs Sodhi Chambers are the solicitors for the plaintiff in Suit 501. But crucially they denied that they acted or had instructions to act for the plaintiff in Suit 373. The notice was therefore, according to Messrs Sodhi Chambers not communicated to the plaintiff. Suits 501 and 373 are, after all, different proceedings. The defendant or its solicitors could not simply assume that Messrs Sodhi Chambers were also acting for the plaintiff in Suit 373. [37] In fact at that stage, the plaintiff could not have decided whether or not to be made a party in Suit 373 and in any event it is not automatic that under Section 96(3) of the RTA the third party will be made a party in an action brought by the insurer against the insured over the policy between the latter two. It is for the third party to make that election. Thus it would have been more appropriate for the notice be sent directly to the third party personally. [38] The issue then is whether notice to Messrs Sodhi Chambers could be deemed good notice to the plaintiff. My answer is in the negative by reason of the clear provision of Section 118(1) of the RTA on service of notice, the relevant parts of which read:- (1) Any notice required to be given or served under this Act may, unless some other form of service is prescribed, be served on the person affected thereby as follows: (a) by giving the original copy of the notice personally to such person; (b) by affixing a copy of the notice on any conspicuous part of the house or any other place such person usually resides; (c) by affixing a copy of the notice on any conspicuous part of such person's motor vehicle; or (d) by sending the notice through registered post. [39] In the instant case, the defendant could not show that the notice had been either personally served on the plaintiff under (a) or that, the said notice of Suit 373 had been sent by registered post under (d) to the plaintiff’s own address as against that of Messrs Sodhi Chambers. Neither has it been shown that the notice was affixed at his house or on his motor vehicle under items (b) or (c). [40] I cannot emphasise enough that the scheme of Section 96(3) is quite unmistakable. It seeks to protect the competing interests of the insurer, the insured and the third party. That is why the statutory provision makes it manifest that any declaration obtained by the insurer can only be effective if notice of the proceedings is sent to the third party. [41] The Court of Appeal in Pacific & Orient Insurance Co Berhad v Rasip bin Hamsudi & Ors referred to earlier made it manifest that the notice requirement is mandatory, as follows:- "[22] On the facts of this case, there was no issue that the appellant had not served the requisite notice on the first, second and third respondents as stipulated in the proviso. The declaratory order obtained by the appellant under saman pemula-1 was clearly in violation of the provisions of s. 96(3) of the RTA. The appellant's omission therefore amounted to not just an infringement of that statutory provisions but had the effect of denying the first, second and third respondents of their right to be made a party and be heard on the matter in saman pemula-1. There was no two ways about this. It was our view that if the relevant cause papers had been served by the appellant, it would have satisfied the two limbs of the requirement, namely, of notice of the saman pemula-1 proceedings and also of the grounds that was being relied upon by the appellant in such an application". ……………… [42] In view that any such declaration, as is the Order in Suit 373, could potentially render any judgment that the third party secures against the liability of an insured in a motor vehicle accident to be illusory given the invalidity of the underlying insurance contract, the law would insist, if not common sense would dictate, that there must be clear evidence that the third party was indeed served with the notice or that such could be presumed by reason of any evidence of registered post to the address of the third party, or the plaintiff herein. [43] However, absolutely no such evidence is forthcoming from the defendant in the instant case. As such, the defendant’s argument on the plaintiff having knowledge of Suit 373 but refusing to be a party thereto is unsubstantiated and as a result unsustainable. [44] I reiterate that in my view, ‎ notice to Messrs Sodhi Chambers could not be deemed good notice to the plaintiff himself because the provisions of Section 96(3) and Section 118(1) of the RTA on service of notice must be strictly complied with. [45] I should refer to the leading authority in the Federal Court decision in Badiaddin bin Mohd Mahidin & Anor v Arab Malaysian Finance Bhd [1998] 1 MLJ 393 which permits the setting aside of a High Court judgment on account of among others, it having been made in breach of legislation. Gopal Sri Ram JCA (as he then was) held thus:- “It is one thing to say that an order of a court of unlimited jurisdiction must be obeyed until it is set aside. It is quite a different thing to say that a court of unlimited jurisdiction may make orders in breach of written law. Isaacs v. Robertson is certainly not authority for the latter proposition. I take it to be well settled that even courts of unlimited jurisdiction have no authority to act in contravention of written law. Of course, so long as an order of a court of unlimited jurisdiction stands, irregular though it may be, it must be respected. But where an order of such a court is made in breach of statute, it is made without jurisdiction and may therefore be declared void and set aside in proceedings brought for that purpose. It is then entirely open to the court, upon the illegality being clearly shown, to grant a declaration to the effect that the order is invalid and to have it set aside. It is wrong to assume that such an order may only be corrected on appeal”. [emphasis added] [46] The defendant referred to a recent Court of Appeal decision in L. Aruul a/l S Lurthusamy v Ringganazall a/l Ponnigilee & Anor [2017] 2 MLJ 51 where the Court of Appeal, in reversing the decision of the High Court which had set aside an order of another High Court, held:- “[24] There was in this instant case no breach of any written law or statute occasioned by the orders made by the High Court in the 2013-Saman Pemula. It was regularly obtained from a court who had jurisdiction and was competent to deal with such an application and issue those orders. The learned judge who gave those orders might perhaps have misdirected himself in law or on the facts surrounding the grievance or issue. That was however a matter to be taken up in a proper appeal to be brought against that decision by an aggrieved party. [25] We have also now the benefit of further observations of the Federal Court on this issue. In the judgment in Serac Asia Sdn Bhd v Sepakat Insurance Brokers Sdn Bhd [2013] 5 MLJ 1. Abdull Hamid Embong FCJ shed further light on this subject in the following passages: [35] We are thus in agreement with the appellant’s stand that an earlier judgment can only be impeached when it is prohibited by statute; and that Badiaddin to us merely reaffirmed that rule and does not extend the inherent jurisdiction of the court to correct a perfected order or judgment beyond any statutory prohibition. … We think that the Badiaddin’s phrase ‘to intervene and correct a serious defect in the order’ should be read in the context of where an order was obtained in a manner which contravened a statute, resulting in that order being illegal or made outside the jurisdiction of the court. It is in this respect that the court’s inherent jurisdiction may be exercised, to strike out an earlier order, ex debito justitiae and without the need for file a fresh unit. [36] As regards the appellant’s submission on the court being functus officio and that a fresh suit needs to be filed to strike out a previous regularly obtained order on the ground of fraud, we adopt the finding of this court in Hock Hua Bank Bhd v Sahari bin Murid [1981] 1 MLJ 143 which we think has settled these issues. The headnotes from the report in that case, which need no further explanation, or expansion, is now reproduced as our answer to those related questions: ……………………. [26] Having given the matter our utmost consideration, we were of the view that the recourses validly open to the respondents in the circumstances was, either: (a) to appeal against the order of court of 27 March 2014 in the 2013-Saman Pemula, and therein possibly apply for material further or fresh evidence to be adduced, to have any order made therein reversed; or (b) to institute separate proceedings by way of a writ action to impeach any of the orders issued in the 2013-Saman Pemula on the grounds that those orders had been obtained by the appellant upon a fraud or deception being perpetrated on the court to secure those orders. [27] The learned judge had therefore in this case, with respect, clearly misdirected himself on the law in proceeding to entertain and consequently granting the orders sought in his 2014-Saman Pemula including the declaration the appellant’s marriage to Chitradevi was invalid in law and of no effect. [47] It is to be readily appreciated that in the above case, the critical basis for the decision was that there was no breach of statute. In the instant case, I have established that absence of evidence of personal notice to the third party breaches the mandatory notice requirements of Section 96(3) read with Section 118 of the RTA. [48] As such, consistent with Badiaddin, the case of L. Aruul in fact further supports the case of the plaintiff. [49] If the position on the notice requirement were otherwise, the omission by a lawyer with notice of the action filed by an insurer, to notify his third party client of the same, either by design or negligently, would still render the third party to be deemed to have the notice, even though he actually has no notice of the insurer's action. This cannot be correct as the law in Section 96(3) also seeks to protect the interest of the third party. [50] The notice requirement as spelt out in Section 118 is a necessary pre-requisite to the application of a declaration under Section 96(3). The onus is on the insurer to demonstrate that notice has been served on the third party in accordance with Section 118 of the RTA. Without it, no such declaration can be lawfully given. Plaintiff entitled to damages? [51] Finally, the plaintiff has also prayed for damages in his claim against the defendant. However the plaintiff has not adduced any evidence whatsoever to show the loss for which the damages are being claimed. Neither is this prayer adequately dealt with in the plaintiff's written submissions. [52] It is settled law that in a claim for damages, it is not sufficient for the plaintiff to merely state the amount of damages that he is claiming, for he must prove the damage that he had in fact suffered to the satisfaction of the Court. The plaintiff must therefore adduce at least sufficient evidence to enable the Court to make a fair and reasonable assumption of loss. The often quoted dictum of Lord Goddard CJ in Bonham Carter v Hyde Park Hotel [1948] TLR 177 would be most apt in the context, and it is worth reiterating what had been said, as follows:- “Plaintiffs must understand that, if they bring actions for damages it is for them to prove their damage; it is not enough to write down particulars and, so to speak, throw them at the head of the court, saying: ‘This is what I have lost, I ask you give me these damages’. They have to prove it”. [53] I am also guided by the Federal Court case of Datuk Mohd Ali Bin Hj Abdul Majid & Anor (Both Practising As Messrs Mohd Ali & Co.) v Public Bank Berhad [2014] 6 CLJ 269 where it was held by His Lordship Arifin Zakaria CJ as follows:- “[32] It is trite law that a claimant claiming damages must prove that he has suffered the damage. The claimant has the burden of proving both liability and quantum of damages, before he can recover the sum claimed. This follows from the general rule that the burden of proving a fact is upon him who alleges it and not upon him who denies it, so that where a particular allegation forms an essential part of a person's case, the proof of such allegation falls on him. (See s. 103 of the Evidence Act 1950). If he fails to prove both the liability and the quantum of damages, he loses the action. [33] Therefore, in a claim for damages, it is not sufficient for the plaintiff to merely state the amount of damages that he is claiming, he must prove the damage that he had in fact suffered to the satisfaction of the court. This principle is borne out in the case of Bonham-Carter v. Hyde Park Hotel [1948] 64 TLR 177 where Lord Goddard CJ observed: ……………………. This statement was cited with approval by Edgar Joseph JR FCJ in Tan Sri Khoo Teck Puat & Anor v. Plenitude Holdings Sdn Bhd [1995] 1 CLJ 15; [1994] 3 MLJ 777. [34] The claim by the plaintiff in the present case is for general and special damages arising out of breach of contract and/or negligence. Therefore, the burden rests on the plaintiff to prove the damages and it is not sufficient for the plaintiff to merely assert that he had suffered such damages without proving it. (See The Susquehanna [1926] AC 655 and Bolag v. Hutchison [1905] AC 515). In the circumstances, we hold that the learned High Court Judge was right in ordering that summary judgment be entered on liability with damages to be assessed. (See Dummer v. Brown and Another [1953] 1 QB 710; Tan Ah Chim & Sons Sdn Bhd lwn. Lim Kean Siew Dan Lain-Lain [2000] 1 LNS 206; [2000] 6 MLJ 670)”. [54] In fact, in the instant case, the plaintiff has not even written the particulars of the alleged loss, let alone attempted to prove it. The plaintiff has not even prayed the amount of damages he is claiming, much less any evidence to support such claim. Neither did the plaintiff demonstrate the basis for his claim for aggravated and exemplary damages. As such, there is no basis for the award of any damages by this Court to the plaintiff. In my judgment, I am constrained therefore to hold that the plaintiff has so patently not on a balance of probabilities sufficiently proven its loss given the lack of evidence. Its claim for general, aggravated and exemplary damages is thus not allowed. ‎Conclusion [55] Accordingly, in the instant case, since there is absolutely no evidence that notice had been personally given to the plaintiff, in violation of the mandatory requirement of Section 96(3) of the RTA, the Order in Suit 373 had clearly been granted contrary to a statutory provision, and must therefore be set aside. I therefore allow the setting aside of the Order in Suit 373 on this basis, with costs. However, the claim for damages is declined. Dated: 18 October 2017 t.t (MOHD NAZLAN BIN MOHD GHAZALI) Judge High Court NCC1 Kuala Lumpur Counsel: Counsel for Plaintiff Datuk R S Sodhi Messrs Sodhi Chambers Kuala Lumpur Counsel for Defendant R.Ratha Messrs S. G. Lingam & Co. Kuala Lumpur Page 16 of 16	36,539	Tika 2.6.0
WA22NCC-1-01/2017	PLAINTIF GOBI A/L LOGANATHAN DEFENDAN ALLIANZ GENERAL INSURANCE COMPANY (M) BERHAD	Civil Procedure - Setting aside - The plaintiff applied to set aside the Court declaration given to the defendant - whether the plaintiff had locus standi to bring the suit against the defendant - whether the declaration obtained by the defendant was contrary to the provision of the law - whether notice to the plaintiff’s solicitors could be deemed good notice to the plaintiff - whether the plaintiff was entitled to claim damages - Road Transport Act 1987 [Act 333], section 96(3), 118(1)	18/10/2017	YA TUAN MOHD NAZLAN BIN MOHD GHAZALI	https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=e1a6c271-50ca-4f5d-bfb6-2462c2ef6ed0&Inline=true	DALAM MAHKAMAH TINGGI MALAYA DI KUALA LUMPUR DALAM NEGERI WILAYAH PERSEKUTUAN, MALAYSIA (BAHAGIAN DAGANG) GUAMAN NO.: WA-22NCC-1-01/2017 ANTARA GOBI A/L LOGANATHAN (K/P No.: 920215-05-5431) ...PLAINTIF DAN ALLIANZ GENERAL INSURANCE COMPANY (M) BERHAD (Company No.: 735426-V) ...DEFENDAN DI HADAPAN YANG ARIF TUAN MOHD NAZLAN BIN MOHD GHAZALI HAKIM JUDGMENT Introduction [1] This is a writ action seeking to set aside a Court declaration given to the defendant insurer pursuant to Section 96 of the Road Transport Act 1987. At the conclusion of trial, I allowed the claim and highlighted to the parties the principal reasons for the same. This judgment contains the full reasons for my decision, and includes some discussions on the rights of third parties vis-à-vis an insurer under the Act. Key Background Facts [2] The plaintiff is an individual who claimed to have been involved in a road accident on 10 February 2015 when a motorcycle number WWX 2497 he was riding on collided with a motor car number BKL 6586 registered under and driven by one Suganthi a/p Munusamy (“Ms Suganthi”). The motor car was insured with the defendant, which is an insurance company, under Policy No. 14VML080568 for the coverage period between 30 September 2014 and 29 September 2015. [3] The plaintiff had, following the accident, on 21 May 2015 instituted a suit against Ms Suganthi at the Klang Sessions Court (Suit 591). The defendant, as the insurer for Ms Suganthi’s BKL 6586, appointed Messrs Othman Hashim & Co to act for her. In the defence filed for Ms Suganthi on 20 November 2015, it was admitted that at the time and date specified in the claim, the car driven by Ms Suganthi was involved in an accident. [4] Subsequently, on 15 December 2015, in the same Suit 591, the lawyers for Ms Suganthi filed an application to amend the defence, on the principal basis that Ms Suganthi now claimed, in a statutory declaration dated 22 October 2015, that her car was not involved in any accident at the material time. She also affirmed not knowing the plaintiff and admitted having made a police report about the accident which she now denied. [5] This amendment application was dismissed by the Sessions Court. Ms Suganthi did not appeal against this decision. The Sessions Court then transferred the suit to the Magistrate Court by reason of the claim amount being within the proper jurisdiction of the latter (Suit 501). [6] The defendant then in Suit 501 engaged Messrs S.G Lingam & Co to file an application to intervene in that Suit 501 and be made the second defendant therein. In the main, the defendant asserted its suspicions, following investigations, that there were elements of fraud and collusion in that suit and its right to disclaim liability could be adversely affected if it was not allowed to intervene in that Suit 501. It was averred in the affidavit supporting the application to intervene that the inclusion of the defendant herein as the second defendant in Suit 501 would enable all issues affecting all parties to be ventilated and adjudicated by the Magistrate Court. [7] By consent of parties, the defendant herein became the second defendant in Suit 501. Consequently, soon as newly made a party, the second defendant on 27 September 2016 filed its defence in Suit 501, principally asserting that it was not liable as an insurer to any judgment that could be entered in favour of the insured, Ms Suganthi, by reason of her collusion in a fraud concerning the alleged motor vehicle accident. The defendant herein, as the second defendant in that Suit 501 had also pleaded in its defence, the statutory declaration by Ms Suganthi on her denial of the accident, as referred to earlier. The trial of Suit 501 was fixed for 28 February 2017. [8] However, and this is crucial, the defendant herein on 6 September 2016 filed an action by way of an originating summons in the High Court in Kuala Lumpur (Suit 373) in pursuance of Section 96(3) of the Road Transport Act 1987 (“the RTA”) to obtain a declaration that the insurance policy between the defendant and Ms Suganthi was void by reason of the fraudulent claim. It is crucial to note that the plaintiff claimed that he had no knowledge of Suit 373. He was also not made a party to the Suit 373. Ms Suganthi herself did not appear at the hearing of Suit 373. The Order in Suit 373 was on 29 November 2016 thus granted to the defendant herein uncontested. This Order in Suit 373 is the subject of the instant claim to have it set aside. [9] It is the crux of the contention of the plaintiff in this claim that the Order in Suit 373 would affect the right of the plaintiff to enforce any judgment that could be obtained by him in Suit 501 against the first defendant, and her insurer (the second defendant therein); and yet, the very same issues of fraud and collusion pleaded by the defendant in Suit 501 were then again raised by the defendant in Suit 373 which resulted in the Order for the defendant, well before the earlier scheduled trial for Suit 501. [10] As such, the plaintiff in the instant case is seeking to impeach and set aside the Order of the High Court in Suit 373 on account of the grounds that the Order was obtained by the defendant either by fraud, or non-disclosure of material facts or active concealment of material facts or by deliberately misleading the Court or contrary to express statutory provision or by an abuse of the process of the Court, or due to illegality or lack of jurisdiction. [11] On the same day the defendant filed its defence, it also initiated an application for the striking out of this claim by the plaintiff. Which I had refused. Hence the trial before me. Essence of Contentions of the Parties [12] As just stated, given the background facts, the plaintiff is pursuing this suit to impeach and set aside the Order in Suit 373 by reason that the Order, it was alleged, had been obtained by the defendant either by fraud, or non-disclosure of material facts or active concealment of material facts or by deliberately misleading the Court; or contrary to express statutory provision or by an abuse of the process of the Court, or due to illegality or lack of jurisdiction. [13] The primary contention of the defendant insurer in contesting this claim is that Suit 373 was entirely between an insurer and an insured; and the argument that the governing insurance policy was founded on contractual principles. The plaintiff, according to the defendant, was never a party to that insurance contract. As such, the plaintiff has no locus to bring this suit against the defendant. [14] Secondly, the defendant argued that the plaintiff had failed to prove that the Order in question had been obtained by the defendant fraudulently or by active concealment of material facts or by any deliberate misleading of the Court. This is especially given the fact that the plaintiff produced only one witness who did not give any evidence on such purported improprieties on the part of the defendant. [15] Thirdly, the defendant maintained that this suit was an abuse of Court process. This is on the basis that notice of Suit 373 had been given to the solicitors for the plaintiff on 7 September 2016 as per Section 96(3) of the RTA. Thus, the plaintiff had full knowledge of Suit 373 but chose not to take any steps at the material time to be made a party to that Suit 373. His filing of this instant suit is therefore an attempt at having a second bite at the cherry and is an abuse of process. The Trial & the Witness [16] The trial heard only one witness, who was the plaintiff himself. The defendant did not call any witnesses. The proceedings concluded in the same morning of the trial itself. And the decision of the Court was delivered in the same morning after a short adjournment after the close of the defendant’s case. Evaluation & Findings of this Court Plaintiff has no contractual nexus in insurance contract in Suit 373? [17] It is undeniable that the plaintiff is not a party to the contract of insurance between the defendant and Ms Suganthi which had been declared as void by the Order in Suit 373. Neither was he a party in Suit 373. As such, it was argued that the plaintiff has no locus to commence this instant suit against the defendant. [18] I agree that action by the defendant under Section 96 of the RTA concerns the contract of insurance to which the plaintiff is not privy. But the very scheme of Section 96, whilst enabling an insurer to seek a Court declaration to avoid the relevant policy, also confers on the third party who claimed to have been involved in an accident with a vehicle insured with the insurer under the relevant coverage to apply to be made a party and to oppose the granting of such declaration. The plaintiff is the third party to this insurance contract vis-à-vis the said accident. [19] It is apposite that I reproduce the relevant parts of Section 96 of the RTA, as follows:- 96 Duty of insurers to satisfy judgements against persons insured in respect of third party risks (1) If, after a certificate of insurance has been delivered under subsection 91(4) to the person by whom a policy has been effected, judgement in respect of any such liability as is required to be covered by a policy under paragraph 91(1)(b) (being a liability covered by the terms of the policy) is given against any person insured by the policy, then notwithstanding that the insurer may be entitled to avoid or cancel, or may have avoided or cancelled the policy, the insurer shall, subject to this section, pay to the persons entitled to the benefit of the judgement any sum payable thereunder in respect of the liability, including any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any written law relating to interest on judgements. (2) No sum shall be payable by an insurer under subsection (1)- ……..….… (3) No sum shall be payable by an insurer under subsection (1) if before the date the liability was incurred, the insurer had obtained a declaration from a court that the insurance was void or unenforceable: Provided that an insurer who has obtained such a declaration as aforesaid in an action shall not thereby become entitled to the benefit of this subsection as respects any judgement obtained in proceedings commenced before the commencement of that action unless, before or within seven days after the commencement of that action, he has given notice thereof to the person who is the plaintiff in the said proceedings specifying the grounds on which he proposes to rely, and any person to whom notice of such an action is so given shall be entitled if he thinks fit to be made a party thereto. …………………….” [emphasis added] [20] Thus, the argument of the defendant on the absence of contractual nexus as equating to lack of locus standi in respect of that suit (Suit 373) or the instant claim is misconceived because Section 96(3) of the RTA plainly confers on the third party such right to contest the declaration despite the patent absence of any contractual relationship between the plaintiff as the third party with either the insured (Ms Suganthi) or, what more, with the insurer or the defendant herein. As such, the argument that simply focuses on the absence of a contractual relationship on the part of the third party is wholly devoid of merit in the face of the clear provisions of Section 96(3) of the RTA. [21] The defendant, on the other hand, referred to the decisions of the Supreme Court in Government of Malaysia v Lim Kit Siang [1988] 2 MLJ 12, and of the Federal Court in Ikatan Kelab-kelab Melayu Negeri Pulau Pinang & Ors v Yayasan Bumiputra Pulau Pinang & Ors and another appeal [2014] 1 MLJ 27 which held that the requisite locus standi must be in place before the initiation of any proceedings. However I think the said cases are of little consequence to the instant proceedings given that those cases concerned the issue of locus standi generally, and not in the context of the relevance of Section 96(3) of the RTA, like presently. [22] No clearer judicial pronouncement on the right of the third party under Section 96(3) has probably been made other than by the Court of Appeal in Pacific & Orient Insurance Co Berhad v Rasip bin Hamsudi & Ors [2017] 4 CLJ 572, a case cited by the defendant itself, as follows:- “[20] This interest of the first, second and third respondents was statutorily and expressly recognised by virtue of the terms of the proviso to s. 96(3) of the RTA. Any third party (like in this instance, the first, second and third respondents as plaintiffs) bringing a claim in court involving a vehicle (the subject of the mandatory third party risk insurance under RTA) was a recognised party named in the proviso to s. 96(3) as being entitled to be notified by the insurer (in this case the appellant) before or within seven days of the commencement of any proceedings under s. 96(3) to declare the relevant insurance policy to be void and unenforceable. Such notice, it would also be noticed, required the appellant to specify the grounds that would be relied on by the insurer in such an application”. [23] Thus the argument that the plaintiff lacks locus standi to maintain thus suit is devoid of merit given the provisions in Section 96(3) of the RTA. The plaintiff able to prove Order in Suit 373 was obtained fraudulently, by active concealment of material facts or by the defendant misleading the Court, etc? [24] In the instant case, the plaintiff seeks the setting aside of the declaration as per the Order in Suit 373 which had rendered void and unenforceable the relevant insurance contract between the defendant insurer and Ms Suganthi. He claims that instead of the matter, including particularly, the allegation of fraud and collusion, having already been fixed for trial involving all three principal parties, namely, the insurer, the insured and the third party, the defendant had misled the High Court in pre-emptively granting the declaration in a separate court proceeding, in the absence of the plaintiff (with the insured choosing not to appear) despite the plaintiff, as the third party, having the right under Section 96(3) of the RTA to be made a party to the proceedings initiated by the insurer. [25] It is crystal clear that Suit 501 certainly included the primary issue of whether the defendant, as the insurer, could avoid liability under the insurance contract with Ms Suganthi, the trial of which all parties had full knowledge would commence on 28 February 2017. It was certainly a live issue in Suit 501 when the defendant sought to (and did manage to) separately avoid the very same policy in Suit 373 filed later in time. [26] At the stage of the proceedings for the striking out of the suit, which I had earlier refused, I ruled that there were aspects about the claim of the plaintiff that in my view call for a full and proper adjudication at trial. These included the assertion by the plaintiff that the statutory declaration (by Ms Suganthi denying the accident which formed the crux of the defence of the insurer in Suit 501 and its application in Suit 373) is itself fraudulent because it was dated on 22 October 2015 being a date prior to the filing of the defence in the original Suit 591 on 20 November 2015 which had to the contrary earlier admitted the road accident. [27] Secondly, I noted the allegation that the defendant did not disclose to the High Court which granted the Order of the fact that the same issue on the liability of the insurer was already before the Magistrate Court in Suit 501. Although the cause papers for Suit 501 were exhibited to support its application in Suit 373, such papers did not reflect the position subsequent to the inclusion of the defendant as the second defendant in Suit 501 following the intervener application referred to earlier. [28] Further, neither did the defendant exhibit its defence already filed in Suit 501 which would clearly show the very same grounds subsequently relied on by the defendant in Suit 373. The defence of the second defendant in Suit 501 (the insurer) was indeed filed after the filing of Suit 373. Then I considered it less than clear whether at the hearing of Suit 373 itself the Court had been apprised by the parties of the insurer’s involvement as a party in Suit 501 on substantially the same issues. [29] However, notwithstanding these issues that required further arguments at the trial proper, the plaintiff chose not to seriously address these concerns through any of his witnesses. To start with, the plaintiff only called himself as the sole witness, who testified for not more than half an hour in total (see further below). No other witnesses were called to explain the various cause papers referred to by the plaintiff at all. [30] As such I find little difficulty in agreeing with the submission of the defendant that the plaintiff had failed to prove his case on a balance of probabilities in relation to any the allegations of fraud, or non-disclosure of material facts or active concealment of material facts or deliberate misleading of the Court. There was an obvious paucity of evidence to support the case of the plaintiff on this allegation that could cross the threshold of the standard of proof of balance of probabilities. [31] In this connection, I must make a brief mention of the decision of the Court of Appeal in Juahir Sadikon v. Perbadanan Kemajuan Ekonomi Negeri Johor [1996] 4 CLJ 1 which reaffirms the rule that “he who asserts must prove”, whereby Siti Norma Yaakob JCA (as she then was) instructively held as follows:- “He who alleges must prove such allegation and the onus is on the appellant to do so. See section 103 of the Act. Thus, it is incumbent upon the appellant to produce Tan Sri Basir as his witness to prove the allegation. The fact that the appellant was unable to secure the attendance of Tan Sri Basir as a witness does not shift the burden to the respondent to produce the witness and testify as to what he had uttered, as firstly, the respondent never raised such an allegation and, secondly, has denied even making one. For this very reason, the adverse inference under section 114(g) of the Act relied upon by the appellant cannot be accepted as establishing that if the witness had been produced, his evidence would work against the respondent. There is no obligation in law for the respondent to produce the witness as that obligation rests with the appellant, the party who alleges, and the fact that the appellant was unable to do so is fatal to his case. For this very reason too, the adverse inference under section 114(g) is invoked against the appellant”. [32] This the plaintiff did not succeed in proving. But this is not to say that he failed to prove all allegations. His testimony did try to focus on the issue of whether he had personal notice of the proceedings in Suit 373. His evidence did concern the contention of the plaintiff that the Order was granted to the defendant contrary to an express statutory provision, and possibly also at the same time, illegally due to lack of jurisdiction. [33] Thus while the evidence at trial do not sufficiently substantiate allegations of fraud or related contentions on wrongful concealment of facts on the part of the defendant, I consider that the only issue of substance raised and pleaded by the plaintiff is on whether the declaration obtained by the defendant earlier in Suit 373 was contrary to the provision of the law. And the provision in question is the requirement of notice to the third party under Section 96(3) of the RTA 1987. This relates also to the third line of the resistance of the defendant to this suit. Did plaintiff have knowledge of Suit 373 but refused to join as party? [34] The defendant alleged that the filing of this instant suit to impeach the Order is an abuse of court process because the plaintiff had knowledge of the commencement of Suit 373 by the defendant but the plaintiff refused to be made a party in that Suit 373. As stated earlier, the defendant filed Suit 373 on 6 September 2016 and gave notice of the same to the plaintiff’s solicitors the day after on 7 September 2016. The plaintiff simply failed to exercise his statutory right to be made a party under Section 96(3) of the RTA despite the notice. Thus the instant suit, according to the defendant, is also an abuse of the process of the Court. [35] I cannot agree with the position taken by the defendant. Section 96(3), as set out earlier, clearly states that for the declaration (for the insurer) to be effective, notice must be given to the person who is the plaintiff in the underlying proceedings on accident liability before or within seven days after the date of the action. Here it was given a day after. But it was given to Messrs Sodhi Chambers. Not to the plaintiff personally. This fact is not in dispute. [36] Messrs Sodhi Chambers are the solicitors for the plaintiff in Suit 501. But crucially they denied that they acted or had instructions to act for the plaintiff in Suit 373. The notice was therefore, according to Messrs Sodhi Chambers not communicated to the plaintiff. Suits 501 and 373 are, after all, different proceedings. The defendant or its solicitors could not simply assume that Messrs Sodhi Chambers were also acting for the plaintiff in Suit 373. [37] In fact at that stage, the plaintiff could not have decided whether or not to be made a party in Suit 373 and in any event it is not automatic that under Section 96(3) of the RTA the third party will be made a party in an action brought by the insurer against the insured over the policy between the latter two. It is for the third party to make that election. Thus it would have been more appropriate for the notice be sent directly to the third party personally. [38] The issue then is whether notice to Messrs Sodhi Chambers could be deemed good notice to the plaintiff. My answer is in the negative by reason of the clear provision of Section 118(1) of the RTA on service of notice, the relevant parts of which read:- (1) Any notice required to be given or served under this Act may, unless some other form of service is prescribed, be served on the person affected thereby as follows: (a) by giving the original copy of the notice personally to such person; (b) by affixing a copy of the notice on any conspicuous part of the house or any other place such person usually resides; (c) by affixing a copy of the notice on any conspicuous part of such person's motor vehicle; or (d) by sending the notice through registered post. [39] In the instant case, the defendant could not show that the notice had been either personally served on the plaintiff under (a) or that, the said notice of Suit 373 had been sent by registered post under (d) to the plaintiff’s own address as against that of Messrs Sodhi Chambers. Neither has it been shown that the notice was affixed at his house or on his motor vehicle under items (b) or (c). [40] I cannot emphasise enough that the scheme of Section 96(3) is quite unmistakable. It seeks to protect the competing interests of the insurer, the insured and the third party. That is why the statutory provision makes it manifest that any declaration obtained by the insurer can only be effective if notice of the proceedings is sent to the third party. [41] The Court of Appeal in Pacific & Orient Insurance Co Berhad v Rasip bin Hamsudi & Ors referred to earlier made it manifest that the notice requirement is mandatory, as follows:- "[22] On the facts of this case, there was no issue that the appellant had not served the requisite notice on the first, second and third respondents as stipulated in the proviso. The declaratory order obtained by the appellant under saman pemula-1 was clearly in violation of the provisions of s. 96(3) of the RTA. The appellant's omission therefore amounted to not just an infringement of that statutory provisions but had the effect of denying the first, second and third respondents of their right to be made a party and be heard on the matter in saman pemula-1. There was no two ways about this. It was our view that if the relevant cause papers had been served by the appellant, it would have satisfied the two limbs of the requirement, namely, of notice of the saman pemula-1 proceedings and also of the grounds that was being relied upon by the appellant in such an application". ……………… [42] In view that any such declaration, as is the Order in Suit 373, could potentially render any judgment that the third party secures against the liability of an insured in a motor vehicle accident to be illusory given the invalidity of the underlying insurance contract, the law would insist, if not common sense would dictate, that there must be clear evidence that the third party was indeed served with the notice or that such could be presumed by reason of any evidence of registered post to the address of the third party, or the plaintiff herein. [43] However, absolutely no such evidence is forthcoming from the defendant in the instant case. As such, the defendant’s argument on the plaintiff having knowledge of Suit 373 but refusing to be a party thereto is unsubstantiated and as a result unsustainable. [44] I reiterate that in my view, ‎ notice to Messrs Sodhi Chambers could not be deemed good notice to the plaintiff himself because the provisions of Section 96(3) and Section 118(1) of the RTA on service of notice must be strictly complied with. [45] I should refer to the leading authority in the Federal Court decision in Badiaddin bin Mohd Mahidin & Anor v Arab Malaysian Finance Bhd [1998] 1 MLJ 393 which permits the setting aside of a High Court judgment on account of among others, it having been made in breach of legislation. Gopal Sri Ram JCA (as he then was) held thus:- “It is one thing to say that an order of a court of unlimited jurisdiction must be obeyed until it is set aside. It is quite a different thing to say that a court of unlimited jurisdiction may make orders in breach of written law. Isaacs v. Robertson is certainly not authority for the latter proposition. I take it to be well settled that even courts of unlimited jurisdiction have no authority to act in contravention of written law. Of course, so long as an order of a court of unlimited jurisdiction stands, irregular though it may be, it must be respected. But where an order of such a court is made in breach of statute, it is made without jurisdiction and may therefore be declared void and set aside in proceedings brought for that purpose. It is then entirely open to the court, upon the illegality being clearly shown, to grant a declaration to the effect that the order is invalid and to have it set aside. It is wrong to assume that such an order may only be corrected on appeal”. [emphasis added] [46] The defendant referred to a recent Court of Appeal decision in L. Aruul a/l S Lurthusamy v Ringganazall a/l Ponnigilee & Anor [2017] 2 MLJ 51 where the Court of Appeal, in reversing the decision of the High Court which had set aside an order of another High Court, held:- “[24] There was in this instant case no breach of any written law or statute occasioned by the orders made by the High Court in the 2013-Saman Pemula. It was regularly obtained from a court who had jurisdiction and was competent to deal with such an application and issue those orders. The learned judge who gave those orders might perhaps have misdirected himself in law or on the facts surrounding the grievance or issue. That was however a matter to be taken up in a proper appeal to be brought against that decision by an aggrieved party. [25] We have also now the benefit of further observations of the Federal Court on this issue. In the judgment in Serac Asia Sdn Bhd v Sepakat Insurance Brokers Sdn Bhd [2013] 5 MLJ 1. Abdull Hamid Embong FCJ shed further light on this subject in the following passages: [35] We are thus in agreement with the appellant’s stand that an earlier judgment can only be impeached when it is prohibited by statute; and that Badiaddin to us merely reaffirmed that rule and does not extend the inherent jurisdiction of the court to correct a perfected order or judgment beyond any statutory prohibition. … We think that the Badiaddin’s phrase ‘to intervene and correct a serious defect in the order’ should be read in the context of where an order was obtained in a manner which contravened a statute, resulting in that order being illegal or made outside the jurisdiction of the court. It is in this respect that the court’s inherent jurisdiction may be exercised, to strike out an earlier order, ex debito justitiae and without the need for file a fresh unit. [36] As regards the appellant’s submission on the court being functus officio and that a fresh suit needs to be filed to strike out a previous regularly obtained order on the ground of fraud, we adopt the finding of this court in Hock Hua Bank Bhd v Sahari bin Murid [1981] 1 MLJ 143 which we think has settled these issues. The headnotes from the report in that case, which need no further explanation, or expansion, is now reproduced as our answer to those related questions: ……………………. [26] Having given the matter our utmost consideration, we were of the view that the recourses validly open to the respondents in the circumstances was, either: (a) to appeal against the order of court of 27 March 2014 in the 2013-Saman Pemula, and therein possibly apply for material further or fresh evidence to be adduced, to have any order made therein reversed; or (b) to institute separate proceedings by way of a writ action to impeach any of the orders issued in the 2013-Saman Pemula on the grounds that those orders had been obtained by the appellant upon a fraud or deception being perpetrated on the court to secure those orders. [27] The learned judge had therefore in this case, with respect, clearly misdirected himself on the law in proceeding to entertain and consequently granting the orders sought in his 2014-Saman Pemula including the declaration the appellant’s marriage to Chitradevi was invalid in law and of no effect. [47] It is to be readily appreciated that in the above case, the critical basis for the decision was that there was no breach of statute. In the instant case, I have established that absence of evidence of personal notice to the third party breaches the mandatory notice requirements of Section 96(3) read with Section 118 of the RTA. [48] As such, consistent with Badiaddin, the case of L. Aruul in fact further supports the case of the plaintiff. [49] If the position on the notice requirement were otherwise, the omission by a lawyer with notice of the action filed by an insurer, to notify his third party client of the same, either by design or negligently, would still render the third party to be deemed to have the notice, even though he actually has no notice of the insurer's action. This cannot be correct as the law in Section 96(3) also seeks to protect the interest of the third party. [50] The notice requirement as spelt out in Section 118 is a necessary pre-requisite to the application of a declaration under Section 96(3). The onus is on the insurer to demonstrate that notice has been served on the third party in accordance with Section 118 of the RTA. Without it, no such declaration can be lawfully given. Plaintiff entitled to damages? [51] Finally, the plaintiff has also prayed for damages in his claim against the defendant. However the plaintiff has not adduced any evidence whatsoever to show the loss for which the damages are being claimed. Neither is this prayer adequately dealt with in the plaintiff's written submissions. [52] It is settled law that in a claim for damages, it is not sufficient for the plaintiff to merely state the amount of damages that he is claiming, for he must prove the damage that he had in fact suffered to the satisfaction of the Court. The plaintiff must therefore adduce at least sufficient evidence to enable the Court to make a fair and reasonable assumption of loss. The often quoted dictum of Lord Goddard CJ in Bonham Carter v Hyde Park Hotel [1948] TLR 177 would be most apt in the context, and it is worth reiterating what had been said, as follows:- “Plaintiffs must understand that, if they bring actions for damages it is for them to prove their damage; it is not enough to write down particulars and, so to speak, throw them at the head of the court, saying: ‘This is what I have lost, I ask you give me these damages’. They have to prove it”. [53] I am also guided by the Federal Court case of Datuk Mohd Ali Bin Hj Abdul Majid & Anor (Both Practising As Messrs Mohd Ali & Co.) v Public Bank Berhad [2014] 6 CLJ 269 where it was held by His Lordship Arifin Zakaria CJ as follows:- “[32] It is trite law that a claimant claiming damages must prove that he has suffered the damage. The claimant has the burden of proving both liability and quantum of damages, before he can recover the sum claimed. This follows from the general rule that the burden of proving a fact is upon him who alleges it and not upon him who denies it, so that where a particular allegation forms an essential part of a person's case, the proof of such allegation falls on him. (See s. 103 of the Evidence Act 1950). If he fails to prove both the liability and the quantum of damages, he loses the action. [33] Therefore, in a claim for damages, it is not sufficient for the plaintiff to merely state the amount of damages that he is claiming, he must prove the damage that he had in fact suffered to the satisfaction of the court. This principle is borne out in the case of Bonham-Carter v. Hyde Park Hotel [1948] 64 TLR 177 where Lord Goddard CJ observed: ……………………. This statement was cited with approval by Edgar Joseph JR FCJ in Tan Sri Khoo Teck Puat & Anor v. Plenitude Holdings Sdn Bhd [1995] 1 CLJ 15; [1994] 3 MLJ 777. [34] The claim by the plaintiff in the present case is for general and special damages arising out of breach of contract and/or negligence. Therefore, the burden rests on the plaintiff to prove the damages and it is not sufficient for the plaintiff to merely assert that he had suffered such damages without proving it. (See The Susquehanna [1926] AC 655 and Bolag v. Hutchison [1905] AC 515). In the circumstances, we hold that the learned High Court Judge was right in ordering that summary judgment be entered on liability with damages to be assessed. (See Dummer v. Brown and Another [1953] 1 QB 710; Tan Ah Chim & Sons Sdn Bhd lwn. Lim Kean Siew Dan Lain-Lain [2000] 1 LNS 206; [2000] 6 MLJ 670)”. [54] In fact, in the instant case, the plaintiff has not even written the particulars of the alleged loss, let alone attempted to prove it. The plaintiff has not even prayed the amount of damages he is claiming, much less any evidence to support such claim. Neither did the plaintiff demonstrate the basis for his claim for aggravated and exemplary damages. As such, there is no basis for the award of any damages by this Court to the plaintiff. In my judgment, I am constrained therefore to hold that the plaintiff has so patently not on a balance of probabilities sufficiently proven its loss given the lack of evidence. Its claim for general, aggravated and exemplary damages is thus not allowed. ‎Conclusion [55] Accordingly, in the instant case, since there is absolutely no evidence that notice had been personally given to the plaintiff, in violation of the mandatory requirement of Section 96(3) of the RTA, the Order in Suit 373 had clearly been granted contrary to a statutory provision, and must therefore be set aside. I therefore allow the setting aside of the Order in Suit 373 on this basis, with costs. However, the claim for damages is declined. Dated: 18 October 2017 t.t (MOHD NAZLAN BIN MOHD GHAZALI) Judge High Court NCC1 Kuala Lumpur Counsel: Counsel for Plaintiff Datuk R S Sodhi Messrs Sodhi Chambers Kuala Lumpur Counsel for Defendant R.Ratha Messrs S. G. Lingam & Co. Kuala Lumpur Page 16 of 16	36,539	Tika 2.6.0
Q-05(LB)-454-12/2016	PERAYU PUBLIC PROSECUTOR … APPELLANT RESPONDEN 1. SOHA BETA 2. HERNA MOLLA	Criminal Law — Murder — Appeal against order of acquittal and discharge — Cause of death — Both accused charged with murder — Identification — Circumstantial evidence to establish a prima facie case — Whether prosecution made out prima facie case against both respondents — Criminal Procedure Code [Act 593], s 180(1);Penal Code [Act 574], s 34, s 302	17/10/2017	YA DATUK DR HAJI HAMID SULTAN BIN ABU BACKERKorumYA DATUK DR HAJI HAMID SULTAN BIN ABU BACKERYA DATO' UMI KALTHUM BINTI ABDUL MAJIDYA DATO' ABDUL RAHMAN BIN SEBLI	https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=0c7e9d42-c155-46a1-b9cb-e99d9484d85f&Inline=true	1 IN THE COURT OF APPEAL OF MALAYSIA (APPELLATE JURISDICTION) CRIMINAL APPEAL NO: Q-05(LB)-454-12/2016 BETWEEN PUBLIC PROSECUTOR … APPELLANT AND 1. SOHA BETA … RESPONDENTS 2. HERNA MOLLA [In The Matter of Criminal Trial No: MYY-45B-2/7-2014 In the High Court in Sabah and Sarawak At Miri] BETWEEN PUBLIC PROSECUTOR AND 1. SOHA BETA 2. HERNA MOLLA CORAM: Hamid Sultan Bin Abu Backer, JCA Umi Kalthum binti Abdul Majid, JCA Abdul Rahman bin Sebli, JCA Hamid Sultan Bin Abu Backer, JCA (Delivering Judgment of The Court) 2 GROUNDS OF JUDGMENT [1] The appellant/Public Prosecutor appeals against the decision of the learned High Court judge who acquitted and discharged both the respondents of a charge under section 302 of the Penal Code read with section 34 of the said Code. [2] The said charge reads as follows: "Bahawa kamu, bersama-sama, pada 26.11.2013, jam lebih kurang 3.30 petang, bertempat di Lereng Bukit, Jalan Ladang Alamwasa Sdn. Bhd. Suai, Batu Niah, di dalam Daerah Miri, dalam negeri Sarawak, didapati dengan niat bersama melakukan pembunuhan dengan menyebabkan kematian ke atas seorang bayi lelaki (tiada nama) umur lebih kurang 2 hari, oleh yang demikian, kamu telah melakukan satu kesalahan di bawah Seksyen 302 Kanun Keseksaan dan dibaca bersama dengan Seksyen 34 Kanun yang sama." [3] What is important to note in this case is the respondents are biological parents of the deceased/infant. Both were accused of burying the infant alive about 48 hours after the birth of the infant. Both were last seen in the Hospital with the infant. Subsequently, there was one eye witness to say that both brought and buried the infant, in the vicinity of a factory where the eye witness was working in the factory. The dead body of the infant was recovered by the police team. The eye witness evidence in this case is one where the identification of two persons could not be clearly established and in consequence the prosecution relies on 3 the jurisprudence of circumstantial evidence to establish a prima facie case. [4] The petition of appeal reads as follows: “1. The Learned Judicial Commissioner had erred in fact and in law when his Lordship ruled that the prosecution failed to prove a prima facie case under section 302 Penal Code read together with section 34 of the same Code against the weight of the evidence. 2. The Learned Judicial Commissioner had erred in fact and in law when his Lordship ruled that, "...I find that the baby was already dead due to asphyxia before he was buried at Ladang Alamwasa on 26.11.2013. I made my finding after reading all the prosecution's evidence and in particular the evidence of PW13, PW18 and PW19..." 3. The Learned Judicial Commissioner erred in fact and in law when his Lordship failed to consider PW18's evidence that when the deceased baby's body was found buried it was wrapped in 2 (two) layers of green and white clothing and that would explain why the deceased baby's nostrils and mouth had no soil in it. 4. The Learned Judicial Commissioner erred in fact and in law when his Lordship failed to consider these facts that:- (a) The deceased baby which was born alive, died under the care of Respondent 1 and Respondent 2; (b) Respondent 1 and Respondent 2's conduct in burying the baby themselves at the oil palm estate secretly; and (c) Leaving the burial place in a hasty manner without informing family members or authorities, 4 whereas, the Respondents need to explain their conduct under section 9 of the Evidence Act 1950. 5. The Learned Judicial Commissioner erred in fact and in law when his Lordship failed to order the Respondents to enter their defence whereas the totality of the evidence adduced shows that a prima facie case had been made out against the Respondents under the original charge.” [5] The basic ingredients for this offence are quite straight forward and the facts of the case will show nexus to the respondents and death of the infant. The debatable issue will only be related to whether the infant died of asphyxia by burying the infant alive or the death of the infant took place before burial. In jurisprudential term related to culpable homicide, this issue may have little relevance. There was medical evidence as well as circumstantial evidence to support the prosecution ’s case that the infant was buried alive. The respondents may have a different version for the cause of death of the infant and the subsequent burial which may lead to an acquittal or reduce charge but that can only be done at the defence stage. As per the charge, the ingredients of the offence the prosecutor have to establish by direct and/or circumstantial evidence are as follows: (i) the infant was the biological child of the respondents; (ii) infant had died of asphyxia; (iii) the respondents with common intention had buried the infant alive. 5 Brief Facts [6] The brief facts of the case have been summarized by the learned Deputy Public Prosecutor and inter alia read as follows: 1. The 2nd appellant had given birth to a baby boy on the 23.11.2013 at Miri Hospital. Both the 2nd appellant and the infant were confirmed fit and healthy. The 2nd appellant and the infant were allowed to be discharged from the Miri Hospital on the 24.11.2013. 2. Merely about 48 hours after the infant was discharged, the infant was found dead, buried underneath the soil. 3. Immediately before the discovery of the infant underneath the soil, PW13 had seen the 1st appellant and a female who carried a baby in a "kain sarong batik" entering the plantation from the main road facing towards PW13's guard house. PW13 could see the 1st appellant's face but could not see the face of the female since she was facing down and carrying the infant. 4. When they reached at the junction near the pond, the 1st appellant and the female together with the infant made a right turn to the bushes (the place where the infant was found buried) and PW13, from his guard house, could not see what was happening inside the bushes. 6 5. After 10 minutes; PW13 saw them coming out from the bushes and walking towards the main road. At this particular time, PW13 saw the 1st appellant washed his hands in the pool of water collected in the tyre track and PW13 saw the female was no longer carrying anything. She was merely carrying an empty sarong and it was the same sarong carried by her earlier. 6. Later, PW13 heard sounds of infant crying. It was two times and came from the direction of bushes. PW13 went to the said direction for checking and further saw a patch of earth that had recently been dug up and covered with white fertilizer plastic bag that had been used. PW13 used his foot to push the soil aside near the white fertilizer plastic bag but he did not manage to see anything. Then PW13 returned to his guard house to take the hoe. By using the hoe, PW13 tried to remove the top soil slowly and suddenly he saw a leg sticking out from the ground. PW13 saw no movement of the infant. 7. The police was called to investigate the matter and the infant was brought to Miri General Hospital for post mortem. Green and White cloths printed with words "UNTUK KEGUNAAN HOSPITAL SAHAJA" were also found wrapping the body of the infant underneath the soil. 8. The Miri police managed to trace the appellants somewhere in Bintulu and they were arrested. 7 9. Based on this arrest; the police had seized several clothings belonging to the 2nd appellant which had been worn by her during her admission to Miri Hospital and during the commission of the offence, the clothes belonging to the 1st appellant which had been worn by him during the commission of the offence. 10. The DNA analysis conducted confirmed that the appellants were the biological parent of the infant. Other than that, the DNA of the infant was also detected on the clothing worn by the appellants during the commission of the offence. 11. The post mortem of the infant confirmed that the cause of death was Asphyxia and the Pathologist was of the opinion that if the infant was buried alive underneath the soil, it can cause Asphyxia. The pathologist further testified that the act of burying the infant underneath the soil was sufficient in the ordinary course of nature to cause death to the infant and the chance of survival of the infant was "NIL". [7] In the instant case, any reasonable tribunal appraised of the fact and law would have to come to the conclusion that the ingredients of the offence had been satisfied principally by PW19 - the pathologist, PW13 - the security guard, the DNA evidence, direct evidence of hospital staff at the time of birth, etc. The nexus of the infant, the respondents and the cause of death per se can be said to establish a prima facie case based on direct and/or circumstantial evidence. Support for the proposition is found in a number of cases. To name a few are as follows: 8 (i) In Public Prosecutor v Azilah bin Hadri & Anor [2015] 1 MLJ 617, the Federal Court had this to say at paragraph 119, page 653 - "… in the absence of direct evidence, the prosecution may resort to adducing circumstantial evidence to discharge its burden. Crimes are usually committed in secret and under condition where concealment is highly probable. If direct evidence is insisted under all circumstances, a successful prosecution of vicious criminals, who have committed heinous crimes in secret or secluded places, would be near impossible. …' (ii) In the case of Sunny Ang v PP [1967] 2 MLJ 195, the accused was charged with the murder of his lover by allowing her to dive in unsafe waters. The prosecution led evidence to show that the accused was a bankrupt and had taken life insurance policies in which the accused was the beneficiary. The accused made a claim with the insurance company within 24 hours after her disappearance. Basing on the circumstantial evidence the court convicted and sentenced the accused to death. The trial judge in his summing up and as quoted by the Federal Court at page 198 stated: "The second question to which I must draw your attention is that the question in this case, depending as it does on circumstantial evidence, is whether the cumulative effect of all the evidence leads you to the irresistible conclusion that it was the accused who committed this crime. Or is there some reasonably possible explanation such, for example, Was it an accident?, … 9 Now, as I told you earlier on, one of the points about circumstantial evidence is its cumulative effect. Any one of these points taken alone might, you may think, be capable of explanation. The question for you is: where does the totality of them, the total effect of them all, lead you to? Adding them together, considering them not merely each one in itself, but altogether, does it or does it not lead you to the irresistible inference and conclusion that the accused committed this crime? Or is there some other reasonably possible explanation of those facts? The prosecution case is that the effect of all this evidence drives you inevitably and inexorably to the one conclusion and one concluding only: that it was the accused who intentionally caused the death of this young girl". (iii) The Supreme Court of India, in the case of Chandmal & Anor v State of Rajasthan [1970] SC 917 propounded a three-fold test to convict based on circumstantial evidence. The test suggested was as follows: (i) the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; (ii) those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; (iii) the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and no one else. 10 [8] It is now well established that when the courts had to decide merely on circumstantial evidence at the prosecution or defence stage it must consider the following, namely: (i) every fact or circumstance on which the prosecution relies had been clearly proven; (ii) the incriminating circumstances must lie incompatible with the innocence of the accused and incapable of explanation upon any other hypothesis other than the guilt of the accused; (iii) the circumstances from which the conclusion of guilt is to be drawn should be fully established, i.e. there must be a complete chain of evidence that will not leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must show that, within all human probability, the act must have been done by the accused; and (iv) the circumstances should be of a conclusive nature and tendency. [9] Common intention is a statutory formula and case laws do not require mens rea to be established. The close nexus of the accuseds to the crime and the fact that the crime was committed will prima facie be sufficient for the prosecution to invoke section 34. That does not mean that the defence at the defence stage will not be able to demolish the allegation and proof of common intention. It all depends on the facts as well as the version of the defence story at the defence stage. There are a 11 number of cases which has dealt with the jurisprudence of common intention. In Ravindran a/I Ramasamy v Public Prosecutor [2013] 4 MLJ 665 Hamid Sultan bin Abu Backer JCA on the issue of common intention had this to say: (i) … section 34 of the Penal Code which deals with common intention is that one need not be the principal offender to be liable for the offence. Association in the crime and failing to show satisfactory disassociation from the crime or principal offender will attract the charge as well as the sentence as per decided cases in this area of jurisprudence. [10] It is also well settled in relation to section 34 that at times it is difficult if not impossible to procure direct evidence to prove the intention of an individual. In most cases it has to be inferred from his act or conduct or other relevant circumstances of the case. [See Suresh v State U. P. (2001) SCC; see also Janab’s Key To The Law of Evidence, 4 t h edn. Revised by Dato Mah Weng Kwai]. [11] We were satisfied that the prosecution had made out a prima facie case and this is a fit and proper case for appellate intervention to direct defence to be called and set aside the order of acquittal and discharge. We hereby ordered so. Dated: 17 October 2017 sgd (DATUK DR. HJ. HAMID SULTAN BIN ABU BACKER) Judge Court of Appeal Malaysia 12 Note: Grounds of Judgment subject to correction of error and editorial adjustment etc. Counsel for Appellant: Encik Wan Shaharuddin bin Wan Ladin Deputy Public Prosecutor Bahagian Perbicaraan dan Rayuan Jabatan Peguam Negara Putrajaya. Counsel for Respondent: Mr. Ranbir Singh Sangha Messrs Ranbir S. Sangha & Co Advocates & Solicitors 2nd Floor, Lot 1372, Centre Point Commercial Centre Phase II, Jalan Kubu 98000 Miri Sarawak.	15,944	Tika 2.6.0
P-02 (NCVC)(W)-1527-08/2016	PERAYU TAN KOK SIANG [I.C. NO.: 740313-02-5457] … APPELLANT RESPONDEN KEMUNING SETIA SDN BHD [CO. NO.: 785064-V] … RESPONDEN T	Contract — Appeal — Oral contract of employment —Whether appellant had breached the employment contract — Claim for repayment of money advanced by respondent — Appellant counterclaimed for payment promised and owed to him and delivery of vacant possession — Whether respondent entitled to recover money from appellant — Whether appellant entitled to reliefs sought in counterclaim — Contracts Act 1950[ Act 136], section 40, section 65, section 66, section 74; Housing Development (Control and Licensing) Act 1966 [Act 118 ], section 24; Housing Development (Control and Licensing) Regulations 1989 [P.U.(A) 58/1989], Regulation 11, Schedule G	16/10/2017	YA DATO' MARY LIM THIAM SUANKorumYAA TAN SRI DATO' ABANG ISKANDAR BIN ABANG HASHIMYA DATUK DR BADARIAH BINTI SAHAMIDYA DATO' MARY LIM THIAM SUAN	https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=fa8295b8-988b-4776-b76d-48c006d5c0aa&Inline=true	1 IN THE COURT OF APPEAL, MALAYSIA (APPELLATE JURISDICTION) CIVIL APPEAL NO: P-02 (NCVC)(W)-1527-08/2016 BETWEEN TAN KOK SIANG [I.C. NO.: 740313-02-5457] … APPELLANT AND KEMUNING SETIA SDN BHD [CO. NO.: 785064-V] … RESPONDENT [In the Matter of the High Court of Malaya at Pulau Pinang (Civil Division) Civil Action No: 22NCVC-211-12/2015 Between Kemuning Setia Sdn Bhd [Co. No.: 785064-V] … Plaintiff And Tan Kok Siang [I.C. No.: 740313-02-5457] … Defendant] 2 CORAM: ABANG ISKANDAR BIN ABANG HASHIM, JCA BADARIAH SAHAMID, JCA MARY LIM THIAM SUAN, JCA JUDGMENT OF THE COURT Background [1] In the claim before the High Court, the respondent, a housing developer and the appellant, an individual, had two contractual relationships. [2] The first was via an oral contract made in 2009. In this oral contract, Tan Swee Leong [PW1], better known as Steven Tan, the Chief Executive Officer [CEO] of the respondent approached the appellant with an offer that the appellant work as its project manager in its housing project known as 98 Greenlane Lintang Gangsa [the project]. The appellant was required to serve as project manager until the completion of that project. For ease of reference, this will be referred to as the ‘employment contract’. [3] The amount of consideration under this employment contract is disputed. The appellant maintains that it was for RM1 million whereas the respondent claimed that it was for RM500,000.00. The respondent 3 claimed that it had advanced the appellant this sum of RM500,000.00 via a discount for the same amount in the second contractual relationship between the parties. [4] The second contractual relationship between the parties arose when the appellant purchased from the respondent one unit of 3-storey terrace house in the project vide sales and purchase agreement dated 10.1.2013. For this purchase, the respondent gave the appellant a discount of RM500,000.00 off the purchase price of RM1,068,000.00. A credit note was issued on 12.5.2014. The appellant took out a housing loan to finance the payment of the balance of the purchase price. This second contractual arrangement will be referred to as the ‘Sales and Purchase Agreement’ [SPA]. [5] The appellant resigned before the project was completed. He resigned on 17.7.2014 after having worked for the respondent for 5 years. His letter of resignation was accepted by PW1, without protest. [6] It is not in dispute that during his tenure as project manager, the appellant played a key role. Amongst others, the appellant liaised with the relevant authorities in procuring the necessary approvals of the local authority for planning and for building plans, liaised with various persons such as the consultants for the project, the landowners and solicitors and also generally assisted in the eviction of squatters on the land so that the project could be built. [7] A year after the appellant resigned, PW1 met the appellant at Starbucks Café at Seagate, Penang. There, PW1 informed the appellant that the respondent wanted the appellant to refund the 4 discount of RM500,000.00 together with interest because the appellant had resigned prematurely. PW1 also suggested the appellant sell the 3 - storey terrace house as the value of the house was said to be in the region of RM1.3 million. According to PW1, the respondent wanted the refund because it was disappointed and shocked with the appellant’s resignation as he had left the respondent’s employment at a time when his services was most needed. The respondent was left in a quandary and the appellant’s resignation had delayed the respondent’s project. PW1 testified that the respondent decided to wait for the project to complete before claiming the refund from the appellant. The project was completed in March 2015; it was then ready for delivery. When the appellant refused to refund the RM500,000.00, the respondent sued. [8] The appellant counterclaimed for payment of the balance of agreed remuneration, delivery of vacant possession of the property under the SPA, and liquidated damages. Decision of the High Court [9] The learned High Court Judge allowed the respondent’s claim and ordered a refund of the RM500,000.00 after finding that the appellant was in breach of the employment contract. The counterclaim was dismissed on the basis that the appellant was not entitled to delivery of vacant possession and liquidated damages. The learned High Court Judge found that since the appellant had refused to perform the employment contract in its entirety, the appellant had in fact repudiated the contract and was not entitled to payment under section 40 of the Contracts Act 1950. Consequently, the appellant’s argument that he had 5 substantially performed part of the contract, as much as 90% and hence is entitled to keep the money, was rejected by the learned Judge. According to the learned Judge: “The concern of the Court is not what the defendant has performed. But what he has promised. In this case, the defendant has admitted he had breached his promise. When he resigned prematurely, the defendant agreed he had d isabled himself from performing his promise in its entirety. The effect of which, the plaintiff is entitled to apply section 40 of the Contracts Act 1950 and put an end to the agreement.” [10] The learned Judge proceeded to find that the respondent had rightly accepted the appellant’s repudiation, “and the contract no longer exists. Since the defendant is not entitled to gain any benefit under the contract, he had to return the said RM500,000.00 to the plaintiff pursuant to section 66 of the Contracts Act 1950.” The appellant, therefore, had to repay the advance received, together with interest. The learned High Court Judge cited Berjaya Times Square Sdn Bhd v M Concepts Sdn Bhd [2010] 1 MLJ 597 in support. Decision of this Court [11] After hearing respective learned counsel and upon due consideration of their oral submissions, written submissions and the records of appeal, we allowed the appeal. We essentially took the view that the learned High Court Judge erred on both counts, in allowing the 6 claim and in dismissing the counterclaim. We found the learned Judge’s findings, views and application of section 40 of the Contracts Act 1950 plainly erroneous and must be set right. We further found the termination by the respondent wrong and unlawful, and that the appellant had substantially performed his contractual obligations under the oral employment contract. Even if the appellant was in breach, which we did not find to be the case, we also found that the respondent was not entitled to rescission of contract. Consequently, we were amply satisfied that this was a suitable case for appellate intervention and we allowed the appeal and set aside the decision of the High Court. These are our reasons in full. Section 40 of the Contracts Act 1950 [12] Leaving aside for the moment the question of whether the agreed sum payable to the appellant is RM500,000.00 or RM1 million, we observe that the sole basis of the respondent’s claim is section 40 of the Contracts Act 1950. The respondent’s claim is that because the appellant resigned before the agreed event or time, which is when the project is completed, the appellant has disabled himself from performance of the employment contract. Thus, the respondent is entitled to terminate the contract and sue for recovery of monies paid to the appellant. The reliefs sought included declaratory orders recognizing the respondent’s entitlement and an order that the appellant refund the RM500,000.00 that was advanced together with interest. [13] The learned Judge found the claim proved, that the employment contract was a “conditional contract in the sense that the defendant is 7 entitled to receive the sum of RM500,000.00 only if he continues to serve as the plaintiff’s project manager until the project is completed .” The money was however, paid to the respondent in advance. According to the learned Judge, when the appellant ‘accepted the RM500,000.00 in advance, he has contractually agreed that he will carry out his duty as the project manager until the project is completed.” For this reason, the learned Judge concluded that this is the “contract for its entirety”; that the relationship between the parties is “not like main contractor and sub- contractor where the amount of work done can be measured by a quantity surveyor”; it is, in effect, a “one off contract for completion of the project.” Her Ladyship found that the appellant knew the respondent “relied on his services to complete the project without any gl i tches. He also agreed that because of his premature resignation, he had ca used hardship to the plaintiff and delay in the project. For these reasons, he ought to have known that the purpose the money was paid in advance was to ensure that he would not leave the plaintiff without fulfilling his promise. The defendant must understand if he resigned before the project is completed, he is not entitled to get RM500,000.00.” [14] Put another way, the appellant had agreed to be project manager until the project was completed; and it is at that point in time that he will be paid. It is in that sense that the learned Judge understood the contract is “for” its entirety. The fact that the payment was in the form of an advance did not alter that agreement. In the learned Judge’s understanding, the ‘entirety’ of the contract refers to the appellant staying until the end of the project. Until and unless the project is completed, the appellant cannot leave and will not in fact be paid or be entitled to any payment. Therefore, by all accounts, leaving any sooner 8 would amount to a repudiation of contract entitling the respondent to rescind the contract. [15] With respect, this conclusion and understanding by the learned Judge is plainly erroneous and demonstrates misapprehension of section 40 of the Contracts Act 1950. That section reads as follows: When a party to a contract has refused to perform, or disabled himself from performing his promise in its entirety, the promisee may put an end to the contract, unless he has signified by words or conduct, his acquiescence in its continuances. [16] Two illustrations are given in section 40. Although neither illustration describes the present circumstances, they are insightful as to the meaning and application of section 40. Both illustrations concerned a contract to perform, that is, to sing for certain number of nights per week for 2 months. The payments in both cases was at a certain rate per night of performance. In the first illustration, the singer fails to turn up after six nights in which case the manager, the innocent party, is at liberty to put an end to the contract. In the second illustration, the singer similarly fails to turn up on a promised night but turns up subsequently with the assent of the manager. In the second scenario, the contract cannot be put to an end. The remedy is only in damages for the night when the singer did not perform. [17] To understand section 40, we will need to “hearken to first principles, for it is a failure to appreciate these, we apprehend, which is the cause of confusion in the mind of the appellant…” per Gopal Sri Ram 9 JCA [as he then was] in Ching Yik Development Sdn Bhd v Setapak Heights Development Sdn Bhd [1996] 3 MLJ 675, 681. From the provisions of section 40, it is apparent that a contract is not automatically brought to an end by a repudiatory breach. The right to terminate or rescind a contract is not available in every case of repudiation. That right is dependent on inter alia the nature of the term breached, and the conduct of the parties, “whether the breach is of sufficient gravity to allow the other party to rescind the contract” – see Visu Sinnadurai on the “Law of Contract” [supra], page 941. In the Court of Appeal’s decision in Ching Yik Development Sdn Bhd v Setapak Heights Development Sdn Bhd [1996] 3 MLJ 675, the “first principles” were reminded and it is the function of the trial Court to examine all the evidence led and determine the real facts in order to come to a decision on those material first principles: “Now, in every contract, be it for the sale of land or any other commodity, there are, generally speaking, some terms that are of fundamental importance and others of less or minor importance. The law creates the distinction for the purpose of determining the kind of remedy that is to be made available to an innocent party, i.e. the party who is not guilty of the breach. Where the term that has been flouted is fundamental to the contract, the innocent party is entitled to treat himself as being discharged from further obligations under it. But where the obligation that has been breached is only subsidiary or minor in nature, the innocent party may not treat himself as being free of his obligations under the contract, although he may sue and recover damages for the non-performance of the subsidiary term. The rules that operate in this area of the law of obligations produce a further consequence. A party who terminates a contract or treats it as having come to an end in reliance upon the breach of a non-fundamental term is himself guilty of a breach of a contract. 10 Whether a particular term is fundamental to the contract or merely a term of subsidiary importance depends very much on the way in which the particular contract is constructed.” [18] At page 682, the Court of Appeal further opined: “Another approach to the problem in cases that involve synallagmatic contracts is to look at the consequences of the breach of the term in question. If the breach is of such a nature that it goes to the root of the contract, then the term broken is fundamental in nature. On the other hand, if the consequences of the breach complained of are not serious in the sense that they do not go to the root of the contract, then the term in question is a subsidiary one entitling the innocent party to recover damages but not to treat the contract as being at an end.” [19] Where that right properly exists in law and on the facts, the innocent party can elect to either terminate or rescind or, carry on with the contract. The common law doctrine of election applies. This was explained by Seah FJ in Ganam Rajamany v Somoo Sinniah [1984] 2 MLJ 290: “A wrongful repudiation by one party cannot, except by the election of the other party, so to treat it, put an end to an obligation; if the other party still insists on performance of the contact the repudiation is what is called brutum fulman that is, the parties are left with their rights and liabilities as before.” 11 [20] This was also discussed by the Court of Appeal in Leong Weng Choon v Consolidated Leasing (M) Sdn Bhd [1998] 3 MLJ 860: “In other words, the plaintiff could either accept the repudiation by terminating the agreement or he could ignore the breach by treating the contract as alive and subsisting. As a matter of fact as well as on the pleadings, the plaintiff did not terminate the contract despite the repudiation by the first defendant so that the contract is still subsisting.” [21] Where the innocent party elects to affirm the contract, the contract is treated as still continuing with the rights and obligations of both parties still intact and, each party has a right to sue the other for damages – see Visu Sinnadurai on the “Law of Contract” [Fourth Edition Lexis Nexis], pages 938 to 940. However, where the election is to terminate, rescind or end the contract by reason of the breach, the innocent party is itself released from further performance of the contract. This was explained by Sir George Rankin in Muralidhar Chatterjee v International Film Co Ltd AIR 1943 30 PC 34, 38; [1942] LR 70 IA 35, PC. In that case, the Privy Council was dealing with section 39 of the Indian Contract Act, which is similar to section 40 of our Contracts Act 1950: “In a case within section 39, the party who rightly ‘puts an end to’ or ‘rescinds’ the contract is entitled to damages for the defaulting party’s breach. In this sense, the contract has not ceased to be ‘enforceable by law’. On the other hand, neither party is any longer bound to perform his promise – indeed an offer to do so, if made by either party, could properly be rejected by the other. The election of the party rescinding, as Cotton LJ once put it, ‘relieves the other party from any further obligation under the contract and enables 12 both parties to make arrangements for the future on the footing that the contract has been once for all broken and is at an end’: Johnstone v Milling (1886) 16 QBD 470.” [Emphasis added]. [22] The right to terminate may also be waived as happened in the case of Sim Cho Huat v Wong Ted Fui [1983] 1 MLJ 151. There, the Federal Court examined the conduct of the parties to see if the right to rescind the contract upon the occurrence of a repudiatory breach had been waived by the other party. Upon examination, the Federal Court found that there was evidence of waiver; consequently, the right to rescind was no longer available and the contract was deemed to be still subsisting. [23] Further, the right to terminate may be lost where the party terminating the contract is in fact guilty of some wrongdoing. In Gimstern Corporation (M) Sdn Bhd & Anor v Global Insurance Co Sdn Bhd [1987] 1 MLJ 302, the Supreme Court observed: “The rule is that if a stipulation in a contract be that the contract shall be void on the happening of an event which one or either of the parties can by his own act or omission bring about, then the party who by his own act or omission brings that event about, cannot be permitted either to insist upon the stipulation himself or to compel the other party who is blameless, to insist upon it, because to permit the blameable party to do either would be to permit him to take advantage of his own wrong to put an end to the contract, vide the judgment of Lord Atkinson in New Zealand Shipping Company Ltd v SDAECD France [1919] AC 1.” 13 [24] See also Court of Appeal’s decisions in Ramli bin Shahdan v Motor Insurance Bureau of West Malaysia [2006] 2 MLJ 116; Su Wee Lip @ Philip Su v Hj Lassim Abdul Rahman [2009] 1 MLJ 580, Ezzen Heights Sdn Bhd v Ikhlas Abadi Sdn Bhd (Soo Yuh Mian – Intervenor) [2011] 2 AMR 281. [25] In order to determine the rights and obligations of the parties, the terms of the oral contract would have to be established. The trial judge was obliged to determine not just the promise or what the promise was all about, but also the terms surrounding that promise. Of course, if there were none, it would be proper for the trial judge to rightly say that the promise and thereby the contract was only about the appellant working as the respondent’s project manager until the project is completed at which time the respondent will pay the appellant RM500,000.00. Because the employment contract is an oral contract, the trial judge must test the oral testimonies against any contemporaneous documents produced and admitted at trial, and explain why one set of evidence is preferred over the other. [26] The learned Judge claimed to have done that; and in so doing found the appellant’s agreement to carry out his duty as the project manager until the project is completed to be a one-off contract for completion of the project, and in that sense, a contract for its entirety. The learned Judge accepted the respondent’s claim that the purpose for which the money was paid in advance was to ensure that the appellant did not leave the respondent without fulfilling his promise. The learned Judge rejected the appellant’s version of the employment contract because the documentary evidence did not support it. 14 [27] Again, with respect, the learned Judge fell into error. In Pollack & Mulla: Indian Contract and Specific Relief Acts, 12th Edition Vol. 1, p 1000, the learned authors explained that a refusal to perform any part of the contract, however small, is a refusal to perform the contract ‘in its entirety’. The “kind of refusal contemplated in section 40 is one which affects a vital part of the contract, and prevents the promisee from getting in substance what he bargained for.” Section 40 is not about non-performance of contracts for its entirety but about performing contracts in its entirety. This points to the significance of the particular term of the contract which is not performed; it may be a small part or it may be the whole of the agreement; and the issue of substantial performance of that term is also relevant. If the term is not a fundamental term of the contract, and there has been substantial performance, the termination is unlawful. This was inter alia determined by the Federal Court in Berjaya Times Square Sdn Bhd v M Concepts Sdn Bhd [2010] 1 MLJ 597: “Special attention should be paid to the phrase ‘in its entirety’. Under the section, the right in a non-defaulter to repudiate a contract only accrues when the defaulter has refused to perform or has disabled himself or herself from performing the whole of his promise. If there is part performance by the defaulting party, the innocent party may not put an end to the contract.” [28] It is interesting to see the pleaded case of the respondent. At paragraph 2 of the Statement of Claim, the respondent pleaded that the appellant was the “former Project Manager of Pearl Island Resort Development Sdn Bhd and the plaintiff until 17-07-14”. At paragraphs 3 , 4 and 5, the respondent alleged: 15 3. Sometime in 2009 whilst in the employ of Pearl Island Resort Development Sdn Bhd, the defendant orally agreed with the plaintiff for valuable consideration to act and serve as the plaintiff’s Project Manager for the project known as 98 Greenlane Lintang Gangsa until the completion of the said project. 4. In consideration thereof, the plaintiff specially set aside for the defendant a unit of 3 storey Terrace House, Plot 31, Lot No, 10131 held under HSD 17851, Section 5, DTL George Town, Penang priced at RM1,068,000.00 less RM500,000.00. 5. On 17-07-14 the defendant tendered his resignation to Pearl Island Resort Development Sdn Bhd as its Project manager with effect from 17-04-14 and at the same time, disabled himself from the further performance of his promise to the plaintiff in its entirety when the plaintiff’s project was still pending completion. [29] To this, the appellant avers at paragraphs 2, 4 and 5 of the Defence and Counterclaim, that he was never the respondent’s Project Manager. He was its General Manager for the respondent’s project. The appellant claimed that he was appointed by Pearl Island Resort Development Sdn Bhd to be its Project Manager. This issue was later, not pursued. [30] The appellant claimed that he was not paid any salary by the respondent. Instead, the respondent orally agreed to pay the appellant RM500,000.00 when the building plans for the project were approved and a further sum of RM500,000.00 when the project was completed. When the plans were approved, the respondent did not pay the appellant 16 the RM500,000.00 that was agreed. The respondent instead, issued the appellant a credit note in the form of a discount for the same amount for the purchase of the unit earlier described. [31] This version was rejected by the learned Judge on the basis that it was an afterthought, not supported by contemporaneous documents and by the overall circumstances of the case. The contemporaneous documents referred to by the learned Judge appear to be the respondent’s solicitors’ notice of demand which was unanswered by the appellant. In the learned Judge’s view, if the appellant “strongly believed he is entitled to RM1 million, he should have replied immediately to the notice of demand, putting his case and claim for RM500,000.00.” The appellant’s explanation that he was advised by his lawyer to not reply was rejected by the Court. [32] We are of the view that in the first place, the notice of demand is not contemporaneous documentary evidence of the employment contract. This notice was issued in anticipation of a civil claim. It was incumbent on the trial Judge to inquire as to the terms and conditions of the employment contract, what were the particular functions of a project manager, whether there was any truth or explanation as to the matters relied on by the appellant. Surely the employment contract cannot be about being a project manager for a duration, period. That engagement must logically and reasonably entail certain responsibilities and functions required of the appellant as project manager. These matters required examination in order to answer the issue of fundamental term. Had the learned Judge examined the evidence properly, her Ladyship would have found that the respondent did not dispute the functions described by the appellant; that in fact, the respondent agreed that the appellant 17 was responsible for and had procured the necessary approvals and re- approvals when the plans were amended. [33] In this regard, the evidence show that the planning permission was given by the local authority on 16.12.2009 while the building plan was approved on 19.5.2010. Subsequently, an amended building plan was submitted and this amended plan was approved on 18.4.2012. Not only are there minutes of meetings to support these various actions of the appellant [see pages 191, 195 and 201 of the Record of Appeal Jil. 2], but as already mentioned, the respondent has actually admitted to this effect. These are all silent, incontrovertible, independent and contemporaneous documentary evidence which the learned Judge failed to have given any due regard. These pieces of evidence support the appellant’s version of the terms of the employment contract, that he was engaged not just as project manager but as the person responsible for liaising with the relevant authorities so that the relevant approvals necessary for the project may be procured. This role is indeed an important role for the appellant as the lack of approvals will have adverse implications on the progress of the project. The absence of approvals must mean that the project simply cannot proceed. [34] The learned Judge did not give any weight to these evidence but instead, focused almost completely on the question of duration of the employment. We are of the view that this is erroneous given that this is an oral contract and it was incumbent upon the learned Judge to ascertain the precise terms of the contract. Aside from that, it cannot be denied that there has been substantial performance of the employment contract by the appellant. This means that even if the appellant was in breach for leaving the respondent’s employment before the completion 18 of the project, the respondent is not entitled to terminate the employment contract under section 40. [35] We further find irresistible inference offered by the SPA which supports the appellant’s case, which evidence was ignored by the learned Judge. The SPA for the sale of the 3-storey house to the appellant is dated 10.1.2013 and the documents issued in relation to the SPA are more consistent with the appellant’s version of the terms of the agreement. Again, this was not considered by the learned Judge. From the pleaded case that was pointed out earlier, the respondent’s case is that the RM500,000.00 was advanced. This must have been around 2009, when the appellant was first engaged as project manager. Yet, the evidence at trial was that the SPA was not signed until 10.1.2013. The SPA was followed by a credit note issued on 12.5.2014 and the respondent issued a letter dated 15.5.2014 to the appellant’s lawyers in respect of the sale [see pages 259 and 212 of the Record of Appeal Jil. 2]. The dates of the SPA, credit note and the letter to the lawyers for the SPA indicate that RM500,000.00 was discounted from the sale of the property with a credit note for the balance were events which took place long after the employment contract had come into existence in 2009. All this shows that the terms of the employment contract are as explained by the appellant. [36] The appellant’s promise to stay until the end of the project is not a term which is fundamental to or is at the root of the employment contract. What is fundamental are the significant responsibilities that the appellant was entrusted with and which he had attended to successfully. Consequently, while the appellant may have left the respondent’s employment at a date earlier than anticipated, he was not in breach of a 19 fundamental term when he left. On examination of the reasons for that action, it is apparent that the appellant’s decision to leave was brought about by the respondent’s own breach in not paying the appellant the agreed sum of RM1 million, after he had substantially and successfully performed the duties expected of him. As the party in breach, the respondent is not entitled to terminate the contract. [37] What is further overlooked by the learned Judge is the fact that even if for a moment the respondent has a right to terminate, the respondent has waived that right when it accepted the appellant’s resignation without reservation or terms. Again, this is not in dispute. In our view, the respondent’s demand, issued more than a year later, is more in the nature of an afterthought. At the material time of acceptance of resignation, there was no reference to the letter of appointment or to its terms; if it is as critical as now suggested by the respondent. Consequently, the respondent is not entitled to terminate the oral employment contract and to a refund of the advance. [38] We are compelled to add that we agree with learned counsel for the appellant that the respondent has in any case, not adduced any evidence of loss. The sum of RM500,000.00 cannot be ordered to be returned under sections 65 and 66 of the Contracts Act 1950 given that the validity of the oral contract was never in issue. If any compensation was due to the respondent, it would be by virtue of section 74 and not, as discussed by the learned Judge. [39] For all the foregoing reasons, the appeal against the decision in respect of the respondent’s claim must be allowed with costs. 20 [40] As for the counterclaim for delivery of vacant possession, this was dismissed by the learned Judge on the basis that the appellant was disentitled to his claim under the SPA by reason of his conduct under the employment contract. [41] Once again, we find this determination clearly erroneous on the facts and in law. The arrangements between the parties in relation to the SPA are entirely separate and distinct from those that arise under the employment contract. Undisputedly, the appellant has paid the full purchase price - see the credit note and the bank loan. Under the terms of the SPA, the respondent is further required to deliver up vacant possession. This would have been on 2.3.2015. In the event the respondent, as vendor under the SPA fails to deliver up vacant possession, clause 22 of the SPA provides: 22. Time for delivery of vacant possession (1) Vacant possession of the said Building shall be delivered to the Purchaser in the manner stipulated in clause 23 within twenty four (24) calendar months from the date of this Agreement. (2) If the Vendor fails to deliver vacant possession of the said Building in the manner stipulated under clause 23 within the time stipulated in sub-clause (1), the Vendor shall be liable to pay to the Purchaser liquidated damages calculated from day to day at the rate of ten per cent, (10%) per annum of the purchase price from the expiry date of the delivery of vacant possession of the said Building. Such liquidated damages shall be paid by the Vendor to the Purchaser immediately upon the date the Purchaser takes vacant possession of the said Building. (3) For the avoidance of doubt, any cause of action to claim liquidated damages by the Purchaser under this clause shall accrue on the date the Purchaser takes vacant possession of the said Building. 21 [42] Clause 23 of the SPA provides: 23. Manner of delivery of vacant possession (1) The Vendor shall let the Purchaser into possession of the said Property upon the following: (a) the issuance of a certificate of completion and compliance certifying that the said Building has been duly constructed and completed in conformity with the approved plans and the requirements of the Street, Drainage and Building Act 1974 and any bylaws made thereunder; (b) water and electricity supply are ready for connection to the said Building; and (c) the Purchaser having paid all monies payable under sub-clause 4(1) in accordance with the Third Schedule and all other monies due under this Agreement and the Purchaser having perfumed and observed all the terms and covenant on his part under this Agreement. (2) The delivery of vacant possession by the vendor shall be supported by a certificate of completion and compliance certifying that the said Building is safe and fit for occupation and includes the handing over of the keys of the said Building to the Purchaser. (3) Upon the expiry of fourteen days from the date of a notice from the Vendor requesting the Purchaser to take possession of the s aid Property, whether or not the Purchaser has actually entered possession or occupation of the said Property, the Purchaser shall be deemed to have taken delivery of vacant possession. [43] The SPA under consideration is a standard statutory contract prescribed under section 24 of the Housing Development (Control and Licensing) Act 1966 read together with Regulation 11 of the Housing Development (Control and Licensing) Regulations 1989 and Schedule G to the Regulations. Since it is not in dispute that the subject property 22 under the SPA was completed in January 2015 and ready for delivery of vacant possession in March 2015, the respondent’s failure and refusal to deliver vacant possession under the SPA to the appellant amounts to a breach of the clear terms of the SPA. Even if the appellant was in breach of the oral employment contract, which we do not find to be the case, that breach is unrelated to the respondent’s obligations under the SPA. [44] For the reasons set out above, the appellant is entitled to an order for specific performance of the terms of the SPA. The respondent is obliged to hand over vacant possession and pay liquidated damages for the late delivery as per the terms of clause 22. Liquidated damages for such late delivery shall run from 10.1.2015 at the rate of 10% per annum of the purchase price, which we take should be the full and not the discounted price. [45] Consequently, the appeal on the cross-appeal is also allowed. The decision of the High Court is set aside. The respondent’s claim is dismissed and the appellant’s counterclaim is allowed in the terms sought with costs of RM30,000.00 subject to payment of allocator. The deposit is ordered to be refunded to the appellant. Dated: 16 October 2017 Signed by (MARY LIM THIAM SUAN) Judge Court of Appeal, Putrajaya Malaysia 23 Counsel/Solicitors For the appellant: Simon Murali (Jamie Ting Cheng Ning with him) Messrs Lio & Partners No. 17-1-3, Bayan Point Medan Kampung Relau 11900 Bayan Lepas Pulau Pinang For the respondent: Tan Beng Hong Messrs Tan Beng Hong & Company 11-A, Jalan Nyiur Cabang 11200 Tanjung Bungah Pulau Pinang	37,274	Tika 2.6.0
W-02(NCVC)(W)-717-04/2016	PERAYU LEMBAGA PENGGALAKAN PELANCONGAN MALAYSIA … PERAYU RESPONDEN ONE BIG OPTION SDN BHD [No. Syarikat: 682932-T] … RESPONDEN	Contract — Agreement — Sponsorship agreement — Whether the Sponsorship Agreement had been varied — Whether the Plaintiff’s claim was time-barred — Defendant submitted a no case to answer and called no witness to testify	16/10/2017	YA DATO' SRI HASNAH DATO' MOHAMMED HASHIMKorumYAA TAN SRI ROHANA BINTI YUSUFYA DATUK VERNON ONG LAM KIATYA DATO' SRI HASNAH DATO' MOHAMMED HASHIM	https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=997d2d8b-d8bb-4cec-b8d2-d1fe6a2ff970&Inline=true	1 DALAM MAHKAMAH RAYUAN MALAYSIA (BIDANGKUASA RAYUAN) RAYUAN SIVIL NO. : W-02(NCVC)(W)-717-04/2016 ANTARA LEMBAGA PENGGALAKAN PELANCONGAN MALAYSIA … PERAYU DAN ONE BIG OPTION SDN BHD [No. Syarikat: 682932-T] … RESPONDEN [Dalam Mahkamah Tinggi Malaya di Kuala Lumpur Dalam Wilayah Persekutuan Malaysia Guaman Sivil No.: 22NCVC-332-05/2013 Antara One Big Option Sdn Bhd [No. Syarikat: 682932 –T] … Plaintif Dan Lembaga Penggalakan Pelancongan Malaysia … Defendan] 2 CORAM: ROHANA BINTI YUSUF, JCA VERNON ONG LAM KIAT, JCA HASNAH BINTI DATO’ MOHAMMED HASHIM, JCA JUDGMENT OF THE COURT [1] The appeal before us was against the decision of the learned High Court Judge in Kuala Lumpur High Court Civil Suit No. S-23(NCVC)-95- 11/2013 given on 26.3.2015 allowing the Respondent’s (the Plaintiff in the High Court) claim. We had, after perusing the record of appeal and considering the written and oral submissions of learned counsels for the Appellant and the Respondent, unanimously allowed the appeal in part with costs. We set aside the High Court Order and ordered the deposit to be refunded. Our reasons appear below. [2] For the purpose of this judgment, the parties will be referred to as they were referred to in the High Court. 3 Factual Background [3] A production company based in India known as ‘Popcorn Entertainment Pte. Ltd.’ (“Popcorn”) conceptualised an event known as the ‘Global Indian Film Awards’ (“GIFA”). GIFA is a yearly event highlighting the Indian film industry. Sometime in 2005, the Plaintiff participated in a bid to host the 2006 Global Indian Film Awards (‘GIFA 2006’) and succeeded in acquiring the sole right to host the GIFA 2006 in Kuala Lumpur. [4] The Plaintiff submitted a sponsorship proposal dated 14.9.2005 of the Ministry of Tourism requesting that the Defendant be the main sponsor of the GIFA 2006. On 4.10.2006 Popcorn entered into an agreement with the Plaintiff to organise and carry out promotional activities in respect of the GIFA 2006. [5] The Defendant agreed to be the main sponsor. Subsequently, on 14.11.2006, the Defendant and the Plaintiff entered into a sponsorship agreement in respect of the GIFA 2006 (the “Sponsorship Agreement”). Under the said Sponsorship Agreement the Defendant agreed to sponsor the GIFA 2006 for sum of RM10 million (‘the Grant’) subject to terms and conditions as expressly stipulated in the said agreement. 4 [6] In respect of the Grant, on the request of the Plaintiff, the Defendant made 2 payments amounting to RM7 million to the Plaintiff. It is the Plaintiff’s pleaded case that the Plaintiff is entitled to the remaining balance of the RM3 million as stipulated in the Sponsorship Agreement. [7] On 9.12.2006 the GIFA 2006 event concluded. The Plaintiff demanded payment for the balance sum RM3 million of the grant vide a letter dated 19.1.2007. Together with the demand a report dated 26.12.2006 in support of the payment was submitted. [8] The Defendant on 16.2.2007 informed the Plaintiff that the Defendant disputed the sum demanded. By a letter dated 20.2.2009 the Defendant informed the Plaintiff that after reviewing and verifying the claim submitted the Defendant approved only a sum of RM249,800.71, out of the RM3 million demanded. [9] Dissatisfied with the decision the Plaintiff filed the suit in the High Court on 3.3.2013. The Defendant filed its counterclaim seeking for a declaration that the Plaintiff breached the terms of the Sponsorship Agreement. 5 [10] After the close of the Plaintiff’s case the Defendant submitted a no case to answer and called no witness to testify. It was contended by the Defendant that the Plaintiff case should fail on the basis that: (i) the Plaintiff’s claim was time-barred; and (ii) further or in the alternative, there is no evidence that the Sponsorship Agreement had been varied, and the Plaintiff had failed to fulfil the terms of Clause 4(c) of the Sponsorship Agreement to claim the remainder RM3 million from the Sponsorship Grant. [11] The learned High Court Judge found in favour of the Plaintiff and allowed the Plaintiff’s claim with costs and interest, and dismissed the Defendant’s counterclaim. The High Court Findings [12] In view of the submission of no case to answer at the close of the Plaintiff’s case, the learned High Court Judge had to deal with how the Plaintiff’s claim ought to be considered. Her Ladyship’s findings and conclusion, can be summarised as follows: (i) There was a variation of the Sponsorship Agreement. The Defendant had made two payments in the absence of any 6 written agreement pursuant to Clause 15(b) of the Sponsorship Agreement. The Defendant is thus estopped from insisting on a written agreement as proof of their dealings. (ii) By unilaterally issuing the five cheques, the Plaintiff’s contention that the Defendant had breached the Sponsorship Agreement, is not without basis. (iii) The Plaintiff did not breach the Sponsorship Agreement. (iv) The Plaintiff had submitted the full report as required pursuant to Clause 4 (c) of the Sponsorship Agreement and that the said report was not rejected by the Defendant. (v) There was overwhelming evidence to show that the Plaintiff had complied with Clause 4 (c) of the Sponsorship Agreement to submit their claim for the balance sum of RM3 million. The Defendant is obliged to pay unless the full report submitted was not in compliance with the requirements of Clause 4 (c) of the aforesaid Agreement. (vi) That the Plaintiff’s claim was not time barred. The report was submitted on 19.1.2007 in compliance with Clause 4 (c) of the Sponsorship Agreement. Section 26 (2) of the Limitation Act 1953 is applicable in this case. 7 (vii) The Title Sponsor was never granted to any third party and there was no profit involved. Therefore, the Defendant did not suffer any loss. The Appeal [13] In the Memorandum of Appeal the Defendant raised several grounds. The main thrust of the Defendant's appeal was that the learned High Court Judge had failed to judicially evaluate and appreciate the evidence before the court. Learned counsel for the Defendant invited us to intervene as it was the Defendant’s contention that the learned trial judge had erred in the findings of facts. Learned counsel for the Defendant focused his submissions on the following grounds – (i) The learned High Court Judge failed to consider that the Sponsorship Agreement could not be varied unless made in writing. In light of the evidence from the Plaintiff’s own witnesses, the Plaintiff had yet to fulfil the conditions as stipulated in Clause 4 of the Sponsorship Agreement; and (ii) the learned High Court Judge failed to consider that the statutory limitation period should be strictly applied and thus, the Plaintiff’s claim is time-barred. 8 [14] We will address each ground advanced by learned counsel for the Defendant in turn. Decision No case to answer [15] On the effect of a submission of no case to answer, we are guided by the decision of the apex Court in Syarikat Kemajuan Timbermine Sdn Bhd v. Kerajaan Negeri Kelantan Darul Naim [2015] 2 CLJ 1037 . In dealing with the issue of whether the appellate court can and ought to disturb findings of fact reached by the trial court where the evidence led by the plaintiff are assumed to be true when the defendant elected not to call any witnesses, the Federal Court made the following observations at page 1059: “[56]... The first is that the principle on which an appellate court could interfere with findings of fact by the trial court is the plainly wrong test (see Gan Yook Chin & Anor v. Lee Ing Chin & Ors [2004] 4 CLJ 309; [2005] 2 MLJ 10 and UEM Group Genisys Integrated Engineers Pte Ltd & Anor [2010] 9 CLJ 785). And, the second is that the burden of proof at all times is of course borne by the plaintiff to establish on the balance of probability the existence of a legally enforceable javascript:DispCase=window.open('/Members/DisplayCase.aspx?CaseId=2992832642&SearchId=1hakim154','_DisplayCase','');DispCase.focus() javascript:DispCase=window.open('/Members/DisplayCase.aspx?CaseId=2992832642&SearchId=1hakim154','_DisplayCase','');DispCase.focus() javascript:DispCase=window.open('/Members/DisplayCase.aspx?CaseId=2744123905&SearchId=1hakim154','_DisplayCase','');DispCase.focus() javascript:DispCase=window.open('/Members/DisplayCase.aspx?CaseId=2744123905&SearchId=1hakim154','_DisplayCase','');DispCase.focus() javascript:DispCase=window.open('/Members/DisplayCase.aspx?CaseId=2888630785&SearchId=1hakim154','_DisplayCase','');DispCase.focus() javascript:DispCase=window.open('/Members/DisplayCase.aspx?CaseId=2888630785&SearchId=1hakim154','_DisplayCase','');DispCase.focus() 9 settlement agreement (see Ranbaxy (Malaysia) Sdn Bhd v. El Du Pont De Nemours and Company [2011] 1 LNS 16; [2011] 1 AMCR 857). In other words, it was upon the plaintiff itself, and certainly not the defendant, to discharge the burden of showing the settlement agreement had come into existence. It is for the plaintiff to prove its case and satisfy the Court that its claim is well-founded before the Court grants judgment on the claim (see Pemilik Dan Kesemua Orang Lain Yang Berkepentingan Dalam Kapal "Fordeco No 12" Dan "Fordeco No 17" v. Shanghai Hai Xing Shipping Co Ltd [2000] 1 CLJ 695; [2000] 1 MLJ 449; Maju Holdings Sdn Bhd v. Fortune Wealth (HK) Ltd & Other Appeals [2004] 4 CLJ 282; [2004] 4 MLJ 105 and Teh Swee Lip v Jadewell Holdings Sdn Bhd [2014] 8 CLJ 451; [2013] 6 MLJ 32). It is true that in the present case the defendant elected not to call any witnesses. However, it is imperative to bear in mind that from the outset the legal burden of the existence of the settlement agreement was with the plaintiff as the claimant in the present action. By reasons of the legal principles, the fact that the defendant led no evidence or call no witnesses did not absolve the plaintiff from discharging its burden in law. In this regard, in adopting the approach of the case of Storey v. Storey [1961] P 63, Suriyadi JCA (as His Lordship then was) in Mohd Nor Afandi Mohamed Junus v. Rahman Shah Alang Ibrahim & Anor javascript:DispCase=window.open('/Members/DisplayCase.aspx?CaseId=2899446273&SearchId=1hakim154','_DisplayCase','');DispCase.focus() javascript:DispCase=window.open('/Members/DisplayCase.aspx?CaseId=2899446273&SearchId=1hakim154','_DisplayCase','');DispCase.focus() javascript:DispCase=window.open('/Members/DisplayCase.aspx?CaseId=2634482689&SearchId=1hakim154','_DisplayCase','');DispCase.focus() javascript:DispCase=window.open('/Members/DisplayCase.aspx?CaseId=2634482689&SearchId=1hakim154','_DisplayCase','');DispCase.focus() javascript:DispCase=window.open('/Members/DisplayCase.aspx?CaseId=2634482689&SearchId=1hakim154','_DisplayCase','');DispCase.focus() javascript:DispCase=window.open('/Members/DisplayCase.aspx?CaseId=2634482689&SearchId=1hakim154','_DisplayCase','');DispCase.focus() javascript:DispCase=window.open('/Members/DisplayCase.aspx?CaseId=2746287105&SearchId=1hakim154','_DisplayCase','');DispCase.focus() javascript:DispCase=window.open('/Members/DisplayCase.aspx?CaseId=2746287105&SearchId=1hakim154','_DisplayCase','');DispCase.focus() javascript:DispCase=window.open('/Members/DisplayCase.aspx?CaseId=2956460290&SearchId=1hakim154','_DisplayCase','');DispCase.focus() javascript:DispCase=window.open('/Members/DisplayCase.aspx?CaseId=2956460290&SearchId=1hakim154','_DisplayCase','');DispCase.focus() javascript:DispCase=window.open('/Members/DisplayCase.aspx?CaseId=2818900995&SearchId=1hakim154','_DisplayCase','');DispCase.focus() javascript:DispCase=window.open('/Members/DisplayCase.aspx?CaseId=2818900995&SearchId=1hakim154','_DisplayCase','');DispCase.focus() 10 [2008] 2 CLJ 369 recognised this to be the case as can be seen from the following passage of His Lordship's judgment: “There are, however, two sets of circumstances under which a defendant may submit that he has no case to answer. In the one case there may be a submission that, accepting the plaintiff's evidence at its face value, no case has been established in law, and in the other that the evidence led for the plaintiff is so unsatisfactory or unreliable that the Court should find that the burden of proof has not been discharged.” [57] We therefore agree with the submission of learned counsel for the defendant to the effect that despite the fact the defendant did not call any witness and that even if the plaintiff's evidence is unopposed (and therefore presumed to be true), this does not automatically equate to that evidence satisfying the burden of proving the existence of the settlement agreement borne by the plaintiff, or mean that the burden of proving on the balance of probabilities no longer applies, or that a case to answer is automatically made out. The evidence adduced by the plaintiff must still be sufficient to prove the existence of the settlement agreement. This crucial point was overlooked by the learned High Court Judge. On the factual matrix of the case, it is patently clear that the plaintiff has not discharged the burden. On this basis, the Court of Appeal was in every respect javascript:DispCase=window.open('/Members/DisplayCase.aspx?CaseId=2818900995&SearchId=1hakim154','_DisplayCase','');DispCase.focus() 11 justified in holding that the learned High Court Judge was plainly wrong in making a ruling of law that the settlement agreement had come into existence based on the conduct of the both parties. Indeed, the election by the defendant to call no evidence at trial does not preclude the reversal of a plainly wrong finding of the learned High Court Judge by the Court of Appeal.” [16] Guided by the abovementioned case we remind ourselves that at all times, the burden of proof lies with the Plaintiff. The Plaintiff has to establish its case on a civil burden of probabilities. The fact that the Defendant did not call any witness and that even if the Plaintiff's evidence is unopposed does not necessarily mean that the evidence of the Plaintiff satisfied the burden of proving that there was a variation agreed by the parties, and that the burden of proving on the balance of probabilities no longer applies, or that a case to answer is automatically made out. The evidence adduced by the Plaintiff must still be sufficient to prove the existence of the purported variation and that the Plaintiff was entitled to the payment of RM3 million. [17] Where the Defendant does not lead evidence to prove its defence or discharge the onus of proof which may have shifted to the Defendant, then all that would be available for the court to examine in order to 12 determine the claim would only be the Plaintiff's version of the facts. As espoused by the Federal Court in Syarikat Kemajuan Timbermine Sdn Bhd, "even if the plaintiff's evidence is unopposed (and therefore presumed to be true), this does not automatical ly equate to that evidence satisfying the burden of proving the existence of the settlement agreement borne by the plaintiff, or mean that the burden of proving on the balance of probabilities no longer applies, or that a case to answer is automatically made out. The evidence adduced by the plaintiff must still be sufficient to prove the existence of the settlement agreement." [18] Therefore, even though the Defendant had elected to a “no case to answer” the trial court is not absolved of its duty to look at the entire evidence of the Plaintiff and his witnesses, which also includes the answers given under cross-examination in order to determine whether the Plaintiff had adequately discharged his burden. The trial court must evaluate the evidence of the Plaintiff in its entirety. That evaluation is by considering inter alia whether the Plaintiff's evidence is challenged successfully in cross-examination and also based on the documentary evidence adduced. [19] It is important to bear in mind that the learned trial Judge came to the conclusion as a matter of fact and law that there was sufficient 13 evidence to conclude that there was a variation both oral and documentary. She had also concluded that since the Defendant had made the two payments in the absence of any written agreement pursuant to clause 15(b) of the Sponsorship Agreement was sufficient proof that the Defendant agreed to the arrangement and was estopped from insisting on any written agreement as proof of their dealings. [20] Suriyadi JCA (as His Lordship then was) in Mohd Nor Afandi Mohamed Junus v. Rahman Shah Alang Ibrahim & Anor [2008] 2 CLJ 369 elucidated in his judgement as follows: “There are, however, two sets of circumstances under which a defendant may submit that he has no case to answer. In the one case there may be a submission that, accepting the plaintiff's evidence at its face value, no case has been established in law, and in the other that the evidence led for the plaintiff is so unsatisfactory or unreliable that the Court should find that the burden of proof has not been discharged.” [21] The Plaintiff’s witness, PW2 (Satnam Singh Dhillon a/l Harjeet Singh, a director of the Plaintiff) had affirmed that the obligation of the Defendant to pay arose on 19.1.2007 and that there was no evidence that the Sponsorship Agreement had been varied in writing. The evidence javascript:DispCase=window.open('/Members/DisplayCase.aspx?CaseId=2818900995&SearchId=5hakim154','_DisplayCase','');DispCase.focus() javascript:DispCase=window.open('/Members/DisplayCase.aspx?CaseId=2818900995&SearchId=5hakim154','_DisplayCase','');DispCase.focus() javascript:DispCase=window.open('/Members/DisplayCase.aspx?CaseId=2818900995&SearchId=5hakim154','_DisplayCase','');DispCase.focus() 14 adduced by the Plaintiff must be sufficient to prove the existence of the variation. With respect, given the factual matrix of this case and having perused the learned Judge's grounds of judgment as well as the notes of evidence we are of the considered view it is patently clear that the Plaintiff has not discharged the burden to prove its case on a balance of probabilities. Whether the learned High Court Judge failed to consider that there could be no variation to the Sponsorship Agreement unless made in writing and in light of the evidence from the Plaintiff’s own witnesses, the Plaintiff had yet to fulfil the conditions in Clause 4 of the Sponsorship Agreement [22] By a letter dated 19.10.2006 the Defendant agreed to sponsor the GIFA 2006.The terms and conditions of the sponsorship was specified, itemised and stipulated in detail in the Sponsorship Agreement executed between the parties. The Defendant will make payment in accordance with the terms of the Agreement provided all the terms and conditions of the said Agreement have been complied with by both parties. In consideration of the rights granted to the Defendant and the undertakings by the Plaintiff, the Defendant agreed to grant the Plaintiff a total sum of RM10 million (‘the Sponsorship Grant’) subject to the terms and conditions of the Agreement: 15 “Clause 4 SPONSORSHIP GRANT (a) In consideration of the rights granted to TM and the undertakings by OBO under this Agreement, TM shall grant to OBO a total sum of Ringgit Malaysia Ten Million (RM10,000,000.00) Only (hereinafter referred to as the ‘Sponsorship Grant”) subject to the terms and conditions hereinafter appearing…” [23] Clause 4 (c) of the said Sponsorship Agreement further stipulates as follows: “The Sponsorship Grant payable by TM to OBO under this Agreement shall be paid after the conclusion of the event and subject always to the submission of the full report by OBO to TM which shall include all the activities involving costs, expenses and revenue (if any) of the Event supported by third party invoices and any other supporting documents to proof that all deliverables of the sponsorship benefits as specified in schedule 1, have been delivered together with proof of delivery of benefits such as photographs , printed materials, brochures , CDs, slides or any other proof of deliverables.” 16 [24] It was the Plaintiff’s pleaded claim that the Defendant had agreed to make an advance payment of the Sponsorship Grant in the sum of RM7 million before GIFA 2006 based on the Plaintiff’s need to make urgent payments to kick start GIFA 2006 and that it was agreed that the balance sum of RM3 million would be paid after the conclusion of GIFA 2006. [25] According to the testimony of PW2 the parties had agreed that the drawdown of the Sponsorship Grant of RM10 million shall be paid to the Plaintiff in the following manner: (i) the Defendant would make an advance payment of the Sponsorship Grant to the Plaintiff in the sum of RM7 million before the start of the GIFA 2006. (ii) the Defendant would make the advance payment to the Plaintiff before the start of the GIFA 2006 based on the Plaintiff’s need to make payments which were urgent and important to kick start the said event; and (iii) the Defendant would pay the balance of the Sponsorship Grant in the sum of RM3 million to the Plaintiff after the conclusion of the GIFA 2006. (Re: Q/A14 of PW 2’s Witness Statement). 17 [26] In the same witness statement PW2 had also stated that: “This variation of the terms contained in clause 4(a) and (c) of the Sponsorship Agreement was agreed to by both the Plaintiff as well as the Defendant.” [27] However, PW2 did not adduce any documentary evidence to support his contention that the parties had agreed to a variation of the Agreement. The Plaintiff contended that on 30.11.2006 the Defendant paid the sum of RM3,452,462.00 to the Plaintiff vide five (5) cheques. Prior to the said payment the Plaintiff did not submit any supporting documents in respect of the GIFA 2006 to the Defendant. Learned counsel for the Plaintiff submitted that by its conduct of making the payments the Defendant had in essence varied the terms of the Sponsorship Agreement. [28] The Defendant did not deny that prior to the commencement of GIFA 2006 the Defendant had made payments in the sum of RM3,452,462.00 through five (5) cheques all dated 30.11.2006 after verification of the expenses with the supporting documents as required by the terms of the Agreement as follows: 18 Cheque No. Payment Voucher Amount 131436 0609154 RM882,940.00 131437 0609155 RM729,522.00 131438 0609156 RM736,000.00 131439 0609157 RM846,400.00 131440 0609158 RM257,600.00 Total Advance Payment RM3,452,462.00 [29] The GIFA 2006 concluded on 9.12.2006. However, the Plaintiff only submitted its report to the Defendant on 19.1.2007. After verification the Defendant paid a further sum of RM3,547,538.00 to the Plaintiff on 12.2.2007. The Defendant issued a letter dated 16.2.2007 to the Plaintiff seeking clarification on the discrepancies of the financial statements in particular invoice C-0008-INV-0001 dated 5.2.2007. In the same letter the Defendant stated that the two progressive payments were made in accordance to the terms of the Agreement that is, after verification of the expenses with the supporting documents, invoices and third party bills. [30] It was also highlighted by the Defendant in the said letter that the Plaintiff was in breach of clause 13 (c) of the Agreement as an entity known as “Provogue” was involved in all major promotional materials for GIFA 2006 without the written consent of the Defendant. 19 [31] Clause 4 (d) of the said Agreement stipulates that the Defendant may withhold or suspend any payment in whole or in part until the Plaintiff performed its obligations under the aforesaid Agreement and all the documents required for payment has been submitted: “Without limiting TM’s rights, TM may withhold or suspend any payment in whole or in part until OBO performed its obligations under this Agreement and all the documents required for payment has been submitted.” [32] The Plaintiff argued that clauses 4 (a) and (c) of the Agreement have been varied by conduct and that the Defendant was obliged to make payment of the balance sum of RM 3 million to the Plaintiff without having to fulfil the terms as stipulated in clause 4 (c). Accordingly, the Defendant’s obligation to pay the Plaintiff arose on 19.1.2007. The Plaintiff in evidence stated that since the Defendant had made the two progressive payments without any supporting evidence the Defendant had by its own conduct varied the agreement in particular Clause 4 (c). [33] The Defendant took a different position. It was argued by the Defendants that the payments were made after verifications were made as explained in their letter dated 16.2.2007. The Plaintiff in their letter in response dated 15.3.2007 did not deny that verifications were made 20 before the two (2) payments were. It was only when PW2 gave evidence did he testified that there were no supporting documents submitted to justify the payments. [34] Clause 15 (b) of the Sponsorship Agreement further stipulates that any variation or modification of the Agreement must be mutually agreed by the parties: “The Agreement can only be modified by mutual agreement between the parties in writing.” [35] It was the evidence of the Plaintiff that there was a variation of the terms of the Agreement. According to the Plaintiff the Defendant had agreed to pay the advance payment of RM7 million before the commencement of GIFA 2006 and the balance sum of RM3 million after the event concluded. The learned High Court Judge accepted the evidence of PW2 that the Defendant agreed that the drawdown should be paid on an immediate basis and that no supporting document was required. The learned High Court Judge acknowledged the fact that based on the evidence there was no other agreement for the GIFA 2006 other than the Sponsorship Agreement. If the Defendant had not agreed to a variation of clauses 4 (a) and (c) there would be no monies paid. Her Ladyship stated, in paragraph.37 of the judgement that: 21 “The reason for the payment, whether it be due to an appeal by the plaintiff of goodwill gesture on their part, is in my view immaterial. Contemporaneous documentary evidence showed that apart from the payment of RM3,452,462.00 on 30.11.2006, the defendant made another payment of RM3,547,538.00 on 12.2.2007 even before the matters relating to the full and final report was finalised.” [36] The learned High Court Judge was of the view that the since the Defendant had elected not to call any witnesses it had denied the Court of the best evidence. The failure of the Defendant to explain, entitled the court to presume that the evidence of the Defendant’s witness would not support its case and an adverse inference under section 114(g) of the Evidence Act should be invoked. [37] In her Grounds of Judgement her Ladyship opined that sections 91 and 92 of the Evidence Act 1950 does not apply in this case when she said: “It is my finding that the provisions of sections 91 and 92 of the Evidence Act 1950 does not apply to this instant case. The plaintiff is not restricted from proving and claiming the variation using extrinsic evidence. Variation was permissible under clause 15 (b) of the Sponsorship Agreement. What is wanting is an agreement in 22 writing. It must be said in all fairness that there is abundant evidence showing that there was a variation both oral and documentary.” [38] The learned High Court Judge failed to elucidate the evidence which she had relied on to determine and conclude that the parties varied the agreement. Her Ladyship did not refer to any of the “abundant evidence” oral and documentary she had stated in her grounds of judgment to support her findings that there was a variation. On the contrary, the documentary evidence that was before the court suggest otherwise. PW2 in his evidence testified that since the Defendant had paid the said sum to the Plaintiff the Defendant had varied the Sponsorship Agreement however, he offered no other evidence and any explanation in support of his contention. In fact, PW2 admitted from his testimonies before the court that there was no document produced to support that the Sponsorship Agreement had been varied neither were there any documents which corroborated with the invoices tendered by the Plaintiff in support of its claim of the balance RM3 million: “D1: can you please show this court one document form the Plaintiff asking for RM7 million before the GIFA event on 6.12.2006? PW2: before 6.12.2006. Any documents from OBO? There is none Yang Arif.” 23 (Re: page 216; Rekod Rayuan [Jilid 2(1)-Bahagian B]); and “D1: you would agree with me that in clause 15 (b) of the agreement entered between the parties there is no written document by mutual agreement between parties on the variation that you are saying? PW2: you mention no written agreement “D1: yes PW2: yes Yang Arif. There was no written agreement.” (Re: page 229; Rekod Rayuan [Jilid 2(1)-Bahagian B]). [39] An appellate court will not intervene unless the trial court is shown to be plainly wrong in arriving at its conclusion and where there has been insufficient judicial appreciation of the evidence. Justice Raus Sharif (President of the Court of Appeal as he then was) elucidated that the appellate court will intervene in a case where the trial court has so fundamentally misdirected itself (Merita Merchant Bank Singapore Ltd v. Dewan Bahasa dan Pustaka [2014] 9 CLJ 1064). The Federal Court in Dream Property Sdn Bhd v. Atlas Housing Sdn Bhd [2015] 2 CLJ 453 reiterated the principle to be adopted by an appellate court when reversing the findings of fact by a trial court: javascript:DispCase=window.open('/Members/DisplayCase.aspx?CaseId=2988703873&SearchId=8hakim154','_DisplayCase','');DispCase.focus() javascript:DispCase=window.open('/Members/DisplayCase.aspx?CaseId=2988703873&SearchId=8hakim154','_DisplayCase','');DispCase.focus() javascript:DispCase=window.open('/Members/DisplayCase.aspx?CaseId=2994798721&SearchId=8hakim154','_DisplayCase','');DispCase.focus() 24 "... It is now established that the principle on which an appellate court could interfere with findings of fact by the trial court is "the plainly wrong test" principle; see the Federal Court in Gan Yook Chin & Anor (P) v. Lee Ing Chin @ Lee Teck Seng & Anor [2004] 4 CLJ 309; [2005] 2 MLJ 1 (at p. 10) per Steve Shim CJ SS. More recently this principle of appellate intervention was affirmed by the Federal Court in UEM Group Berhad v. Genisys Integrated Pte ltd [2010] 9 CLJ 785 where it was held at p. 800: "It is well-settled law that an appellate court will not generally speaking, intervene with the decision of a trial court unless the trial court is shown to be plainly wrong in arriving at its decision. A plainly wrong decision happens when the trial court is guilty of no or insufficient judicial appreciation of evidence. (see Chow Yee Way & Anor v. Choo Ah Pat [1978] 1 LNS 32; Watt v. Thomas [1947] AC 484; and Gan Yook Chin & Anor v. Lee Ing Chin & Ors [2004] 4 CLJ 309." [40] Therefore, the failure of the High Court Judge to consider the entirety of the evidence and material issues or the failure to make findings of fact or the making of bare findings of fact will invite appellate intervention. Such omissions by a trial judge will require the appellate courts to take on the role of first instance judge and review the evidence javascript:DispCase=window.open('/Members/DisplayCase.aspx?CaseId=2744123905&SearchId=8hakim154','_DisplayCase','');DispCase.focus() javascript:DispCase=window.open('/Members/DisplayCase.aspx?CaseId=2744123905&SearchId=8hakim154','_DisplayCase','');DispCase.focus() javascript:DispCase=window.open('/Members/DisplayCase.aspx?CaseId=2744123905&SearchId=8hakim154','_DisplayCase','');DispCase.focus() javascript:DispCase=window.open('/Members/DisplayCase.aspx?CaseId=2888630785&SearchId=8hakim154','_DisplayCase','');DispCase.focus() javascript:DispCase=window.open('/Members/DisplayCase.aspx?CaseId=2888630785&SearchId=8hakim154','_DisplayCase','');DispCase.focus() javascript:DispCase=window.open('/Members/DisplayCase.aspx?CaseId=2114621441&SearchId=8hakim154','_DisplayCase','');DispCase.focus() javascript:DispCase=window.open('/Members/DisplayCase.aspx?CaseId=2114621441&SearchId=8hakim154','_DisplayCase','');DispCase.focus() javascript:DispCase=window.open('/Members/DisplayCase.aspx?CaseId=2744123905&SearchId=8hakim154','_DisplayCase','');DispCase.focus() javascript:DispCase=window.open('/Members/DisplayCase.aspx?CaseId=2744123905&SearchId=8hakim154','_DisplayCase','');DispCase.focus() 25 in its entirety afresh. In the oft quoted case of Lee Ing Chin @ Lee Teck Seng v. Gan Yook Chin [2003] 2 CLJ 19; [2003] 2 MLJ 97 the Court of Appeal held as follows: “A judge who is required to adjudicate upon a dispute must arrive at his decision on an issue of fact by assessing, weighing and, for good reasons, either accepting or rejecting the whole or any part of the evidence placed before him. He must, when deciding whether to accept or to reject the evidence of a witness test it against relevant criteria. Thus, he must take into account the presence or absence of any motive that a witness may have in giving his evidence. If there are contemporary documents, then he must test the oral evidence of a witness against these. He must also test the evidence of a particular witness against the probabilities of the case. A trier of fact who makes findings based purely upon the demeanour of a witness without undertaking a critical analysis of that witness' evidence runs the risk of having his findings corrected on appeal. It does not matter whether the issue for decision is one that arises in a civil or criminal case: the approach to judicial appreciation of evidence is the same.” [41] Based on both the oral and documentary evidence we agree with learned counsel for the Defendant’s submission that the Defendant’s obligation to disburse the RM3 million from the Sponsorship Grant could javascript:DispCase=window.open('/Members/DisplayCase.aspx?CaseId=2707489793&SearchId=0hakim154','_DisplayCase','');DispCase.focus() javascript:DispCase=window.open('/Members/DisplayCase.aspx?CaseId=2707489793&SearchId=0hakim154','_DisplayCase','');DispCase.focus() 26 not have arisen as the Plaintiff failed to fulfil its obligations pursuant to Clause 4(c) of the Sponsorship Agreement. We found that the learned judge, with respect, had failed to give sufficient judicial appreciation of the evidence before her. On a perusal of the notes of evidence we found that the Plaintiff's own witness (PW2) had admitted that there was no written agreement of a variation of the Agreement as required under the said Agreement. In her Grounds of Judgment the learned High Court Judge did not specify or identify the documents she had relied upon to arrive at her conclusion and findings that the parties had varied the Sponsorship Agreement. Her Ladyship had totally disregarded the cross examination of the Plaintiff’s witnesses by the Defendant’s counsel challenging the evidence of the witnesses. [42] We find guidance in the case of Tindok Besar Estate Sdn Bhd v. Tinjar Co [1979] 1 LNS 119; [1979] 2 MLJ 229 where the trial judge had found the plaintiff in that case guilty of fraudulent misrepresentation based on the veracity of the defendant and its witnesses. On appeal, the Federal Court reversed his finding of fraud. Chang Min Tat FJ said: “Nevertheless the learned trial judge expressed himself to be completely satisfied with the veracity of the respondent's witnesses and their evidence. He purported to come to certain findings of fact on the oral evidence but did not notice or consider that the javascript:DispCase=window.open('/Members/DisplayCase.aspx?CaseId=2131493377&SearchId=0hakim154','_DisplayCase','');DispCase.focus() javascript:DispCase=window.open('/Members/DisplayCase.aspx?CaseId=2131493377&SearchId=0hakim154','_DisplayCase','');DispCase.focus() 27 respondent's oral evidence openly clashed with its contemporaneous documentary evidence. For myself, I would with respect feel somewhat safer to refer to and rely on the acts and deeds of a witness which are contemporaneous with the event and to draw the reasonable inferences from them than to believe his subsequent recollection or version of it, particularly if he is a witness with a purpose of his own to serve and if it did not account for the statements in his documents and writings. Judicial reception of evidence requires that the oral evidence be critically tested against the whole of the other evidence and the circumstances of the case. Plausibility should never be mistaken for veracity.” [43] We have carefully perused the appeal record and considered the respective submissions of the parties that the findings of the learned High Court Judge are without any supporting evidence or reasoning. We are satisfied that the learned High Court Judge failed to judicially appreciate the evidence and fell into serious error with regard to Her Ladyship's findings. 28 The learned High Court Judge failed to consider that the statutory limitation period should be strictly applied and thus, the Plaintiff’s claim is time-barred [44] Learned counsel for the Defendant submitted that the Plaintiff’s claim is time barred pursuant to section 6 (1) of the Limitation Act 1953 for the following reasons: (i) The 2 conditions which must be fulfilled before the Defendant’s obligation to disburse the Sponsorship Grant arises: a) only after the conclusion of the 2006 GIFA; and b) the submission of the complete report with the supporting documents to the Defendant. (ii) It was the Plaintiff’s case that Clauses 4(a) and (c) of the Sponsorship Agreement have been varied to the extent that the Defendant was obliged to make payment notwithstanding the agreed terms of the aforesaid Agreement whereby the Plaintiff is required to submit a report and supporting documents. If this were so then the Defendant’s obligation would be at the conclusion of GIFA 2006, on 9.12.2006. (iii) The Plaintiff’s own witness in his evidence had testified that the payment was due on 19.1.2007 when the Plaintiff submitted a report pursuant to Clause 4 (c) of the Sponsorship Agreement. 29 The learned High Court Judge found that the report submitted on 19.1.2007 fulfilled the terms of Clause 4 (c). Thus time began to run either from 9.12.2006 or 19.1.2007. (iv) The acknowledgement by the Defendant only extended to RM249,800.71 as stipulated in the Defendant’s letter dated 20.2.2009. [45] It is trite that limitation accrues from the earliest time when there is a complete cause of action. In Nadefinco Ltd v. Kevin Corporation Sdn Bhd [1978] 1 LNS 127 [1978] 2 MLJ 59, the Federal Court was of the view that the cause of action in that case accrued the instant the mining company failed to pay the first instalment due and therefore the action was barred by limitation , the action was commenced more than six years after the cause of action arose.The Federal Court referred to the general rule as stated by Willes J in the Court of Common Pleas in Wilkinson v. Verity (1871) LR 6 CP 206, 209 as follows: “It is a general rule that where there has once been a complete cause of action arising out of contract or tort, the statute [of limitation] begins to run, and that subsequent circumstances which would but for the prior wrongful act or default have constituted a cause of action are disregarded. As, for instance, in the case of a bill of exchange drawn at so many months after sight, and refused javascript:DispCase=window.open('/Members/DisplayCase.aspx?CaseId=2111504897&SearchId=2hakim154','_DisplayCase','');DispCase.focus() javascript:DispCase=window.open('/Members/DisplayCase.aspx?CaseId=2111504897&SearchId=2hakim154','_DisplayCase','');DispCase.focus() 30 acceptance, the cause of action is complete and the statute begins to run upon the refusal of acceptance, and no new cause of action arises upon refusal of payment.." [46] The Plaintiff‘s witness PW2 gave evidence that the payment to the Plaintiff was due since 19.1.2007 when they had demanded for payment with the report they had submitted: “D1: Mr. Satnam, this amount is due and payable from the year 2006, would you agree with me? The grant that you are seeking to claim, the 3 million? PW2: I think it is due and payable to my company since the date that I submitted my complete GIFA report which was dated on, the letter dated 26.12.2006 but it was endorsed on 19.1.2007.” (Re: Record of Appeal Vol 2 (1); pg 235). [47] When PW2 was further questioned that based on all the letters the Plaintiff’s report was incomplete on 19.1.2007, PW2 disagreed. The learned High Court Judge concluded that the Plaintiff had fulfilled its obligations pursuant to Clause 4 (c) of the Sponsorship Agreement with the submission of the full report on 19.1.2007 and that the claim filed was not time barred. In arriving at this conclusion, this is what the learned judge said: 31 “86. It is my finding that the plaintiff’s case is not time barred…The submission of the said full report was in compliance with the requirement of clause 4 of the Sponsorship Agreement and as described by learned counsel for the plaintiff, was purely a neutral act. There was no breach of the Sponsorship Agreement on either part of the plaintiff or the defendant at this point in time. The factual matrix of the case show that even on 19.1.2007 the plaintiff had declared that a handful of documents were yet to be submitted. Even as at 6.7.2007 and 10.8.2007, the defendant had asked for documents.” [48] It was the intention of the parties as stipulated in the Sponsorship Agreement that the Defendant’s obligation to pay arises only at the conclusion of the GIFA 2006, which was on 9.12.2006 and upon the submission of the full report by the Plaintiff. This was confirmed by the Plaintiff’s own witness who gave evidence that the Defendant’s obligation arose when the Respondent submitted its report on 19.1.2007. [49] For these reasons, we are unable to agree with the learned judge that the Plaintiff’s claim was not barred by limitation. The claim is clearly time barred by virtue of section 6(1) of the Limitation Act 1953, which stipulates that a claim founded on contract or tort must be brought within javascript:DispAct=window.open('/Members/DisplayAct.aspx?CaseActCode=MY_FS_ACT_1981_254&ActSectionNo=6.&SearchId=4hakim154','_DisplayAct','');DispAct.focus() 32 six years from the date of accrual of the cause of action. Hence, when the action was filed in 2013 limitation has set in, except for the amount of RM249,800.71 which was acknowledged by the Defendant on 20.2.2009. Conclusion [50] On those grounds and for the other reasons discussed and elaborated above, we allowed the appeal in part with no order as to costs. We set aside the Order of the Learned High Court Judge and we made an order for the Defendant to pay the balance sum of RM249,800.71 to the Plaintiff. The deposit to be refunded. sgd (HASNAH BINTI DATO’ MOHAMMED HASHIM) Judge Court of Appeal, Malaysia Putrajaya. Date: 16 Oktober 2017 33 Counsels for the Appellant: Mr. Khoo Guan Huat Miss Grace Teoh Wei Shan Tetuan Skrine & Co. Advocates and Solicitors Wisma UOA Damansara, 50, Jalan Dungun, Damansara Heights 50490 Kuala Lumpur. Counsels for the Respondent Mr. Sukhdev Singh Randhawa Mr. Muhamed Faris b. Mohd Ali Tetuan Azlan Shah & Sukhdev & Co. Advocates and Solicitors No. 34-2, Tingkat 1, Jalan 14/22, Petaling Jaya, Selangor Darul Ehsan	45,469	Tika 2.6.0
W-02(NCC)(A)-1320-07/2016	PERAYU 1. GANDA SETIA CEMERLANG SDN BHD (CO. NO.: 160480-T) 2. ULUNG NIAGA SDN BHD (CO. NO.: 931269-A) … APPELLANTS RESPONDEN MAIKA HOLDINGS BERHAD (CO. NO.: 89912-H) (IN LIQUIDATION) … RESPONDEN T	Companies and Corporations — Winding up — Voluntary winding up — Application for leave to commence proceedings against wound up company — Leave of the winding up Court must be procured either before an action or proceeding is commenced or if already commenced, proceeded with — Test being whether the claim intended to be filed or proceeded with can be dealt with adequately in the winding up or the remedy sought cannot be given in the winding up proceeding — Companies Act 1965 [Act 125],section 211, section 226(3), section 254, section 255, section 263(2)	16/10/2017	YA DATO' MARY LIM THIAM SUANKorumYAA TAN SRI DATUK SERI PANGLIMA DAVID WONG DAK WAHYA DATUK DR HAJI HAMID SULTAN BIN ABU BACKERYA DATO' MARY LIM THIAM SUAN	https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=f85bd7d0-ffc7-46fc-bdc8-6012b84137b6&Inline=true	1 IN THE COURT OF APPEAL, MALAYSIA (APPELLATE JURISDICTION) CIVIL APPEAL NO: W-02(NCC)(A)-1320-07/2016 BETWEEN 1. GANDA SETIA CEMERLANG SDN BHD (CO. NO.: 160480-T) 2. ULUNG NIAGA SDN BHD (CO. NO.: 931269-A) … APPELLANTS AND MAIKA HOLDINGS BERHAD (CO. NO.: 89912-H) (IN LIQUIDATION) … RESPONDENT [In the Matter of the High Court of Malaya at Kuala Lumpur In the Federal Territory, Malaysia (Commercial Division) (Originating Summons No: WA-24NCC-69-02/2016) In the Matter of section 254 of the Companies Act 1965; And In the Matter of section 263(2) of the Companies Act 1965; 2 And In the Matter of Order 88 Rule 2 of the Rules of Court 2012; And In the Matter of Order 28 and Order 92 Rule 4 of the Rules of Court 2012. Between 1. Ganda Setia Cemerlang Sdn Bhd (Co. No.: 160480-T) 2. Ulung Niaga Sdn Bhd (Co. No.: 931269-A) … Plaintiffs And Maika Holdings Berhad (Co. No.: 89912-H) (In Liquidation) … Defendant] CORAM: DAVID WONG DAK WAH, JCA HAMID SULTAN BIN ABU BACKER, JCA MARY LIM THIAM SUAN, JCA 3 JUDGMENT OF THE COURT [1] The appellants sought leave under section 263(2) of the Companies Act 1965 to commence proceedings against the respondent as the respondent was voluntarily wound up under section 254 of the Companies Act 1965 on 20.5.2015. The application was opposed by the liquidators of the respondent. Leave was refused. [2] At the appeal, we unanimously allowed the appeal and set aside the decision of the High Court. Our reasons in full are set out below. Brief facts [3] Prior to being wound up, the respondent entered into an agreement dated 21.3.2011 wherein subject to various terms and conditions, the respondent agreed to sell to the 1st appellant two plots of lands for a total purchase consideration of RM3,312,000.00. In respect of the first piece, the respondent together with various individual owners were the registered proprietors of an undivided portion of land held under Geran 94160, Lot 5732, Mukim Batu, Daerah Kuala Langat, Negeri Selangor. Effectively, the respondent sold its shares representing 22.4163 acres to the appellants. This was known as the “bigger plot” and it was sold for RM218,550.60. The other plot, known as the “smaller plot” comprised 1.5837 acres of land held under Geran 50209, Lot 1870, Mukim Batu, Daerah Langat, Negeri Selangor. The 4 respondent was the sole registered proprietor of this plot which it sold to the 1st appellant for RM3,093,449.40. [4] Under the terms and conditions of the sale and purchase agreement, the respondent agreed to: i. submit an application to sub-divide the bigger plot and ultimately see to the issuance of individual titles with the names of the appellants endorsed therein; and ii. evict or remove all and any squatters or unlawful occupiers from the lands sold. [5] There was also a temple sited on the bigger plot which the appellants alleged that the respondent agreed to relocate. These conditions were not fulfilled. The bigger plot remained un-sub-divided and some squatters remain on the affected plot. The appellants take the position that since a portion of the purchase monies paid were retained by solicitors then engaged by the respondent, the respondent had acknowledged its obligation to attend to the removal of squatters and the relocation of the temple. [6] On 9.11.2012, the two plots were registered in the names of the appellants after full payment was affected. The bigger plot was registered in the name of the two appellants while the smaller plot was registered in the 1st appellant’s name. The respondent remained the registered proprietor of 94837/470100 share of the bigger plot. Despite repeated requests from the appellants, the two conditions mentioned above and the matter of the temple remained unresolved. The 5 appellants decided to sue the respondent for breach of contract se eking primarily an order of specific performance of these two obligations under the sale and purchase agreement. Because the respondent was wound up, though voluntarily, the appellants were required to obtain leave of the winding up Court before commencing its claim. The three liquidators of the respondent opposed the application for leave. Two of the three liquidators are former directors of the respondent. [7] On the matter of the squatters, the respondent denied owing any obligation as alleged and further contended that in any event, all squatters had already been removed. As for the relocation of the temple, the respondent also denied owing any obligation since this only arose after the appellants had taken possession of the lands. According to the respondent, it had since sold a further 7 acres of the bigger plot to a company known as “TS Land Management Sdn Bhd”. The balance share of the bigger plot was said to be held by the respondent on trust for a Tamil school located on the plot. Given that the respondent was therefore no longer the registered proprietor of the two plots of land, the respondent argued that it was in no position to take any action against the squatters, or even to subdivide the bigger plot. Any effort in these respects will not only be futile or “doomed to fail” but will also result in unnecessary litigation and costs. The respondent also contended that the appellants’ interest was really monetary in value as the appellants could initiate action themselves in the two respects, and then recover any related expenses from the respondent by filing a proof of debt with the liquidators. 6 Decision of the High Court [8] The learned Judge refused to exercise discretion under section 263(2) of the Companies Act 1965 in the appellants’ favour and the application for leave was dismissed for the following reasons. [9] First, having established that leave under section 263(2) was required even where the winding up was voluntary, the learned Judge found that the appellants had nevertheless failed to establish a prima facie case which is required when securing leave of the Court. The learned Judge agreed with the respondent that the appellants’ claim was misconceived because the appellants were the newly registered proprietors of the two plots. With that registration, the respondent was divested of all interest in the two plots and was not in the position to attend to the complaints of the appellants. The learned Judge added that the appellants were aware of this position as reflected in the alternative relief sought by the appellants, that the appellants be given leave to evict the squatters themselves. The learned Judge further agreed with the respondent that it was for the appellants to apply for the subdivision of land and to evict the unlawful occupants or squatters, and then recover the related expenses from the liquidators through the filing of a proof of debt. [10] It was also the view of the learned Judge that leave ought not to be given because the order of specific performance sought would render financial hardship on the respondent. This was said to be contrary to the purpose of winding up, which is that the assets of the company are to be preserved for fair distribution and not exhausted unnecessarily. 7 Decision of the Court of Appeal [11] This appeal calls for the consideration of section 263(2) of the Companies Act 1965. Section 263(2) requires leave of Court to be obtained before any action or proceeding may be commenced or proceeded with where the company has been wound up, though voluntarily. In this case, the respondent was wound up voluntarily by its members on 20.5.2015. Three of its members, namely T. Tamil Selvan a/l Tangavellu, Ramesh a/l Alagu and Arasu a/l M Thangaveloo were appointed as its liquidators. On behalf of the respondent, T. Tamil Selvan together with Arasu a/l M Thangaveloo signed the SPA dated 21.3.2011 that is the subject of the intended action. T. Tamil Selvan a/l Tangavellu has since passed away. [12] We observe from the authorities cited by both parties that some of those cases in fact concerned not section 263(2) but, section 226(3) of the Companies Act 1965. Having examined the provisions and the case law, we feel compelled to make some observations on the two provisions. These provisions read as follows: Copy of order to be lodged, etc. 226. (1) Within seven days after the making of a winding up order the petitioner shall lodge with the registrar notice of- (a) the order and its date; and (b) the name and address of the liquidator. (2) On the passing … 8 Actions stayed on winding up order (3) When a winding up order has been made or a provisional liquidator has been appointed no action or proceeding shall be proceeded with or commenced against the company except- (a) by leave of the Court; and (b) in accordance with such terms as the Court imposes. Property and proceedings. 263. (1) Any attachment, sequestration, distress or execution put in force against the estate or effects of the company after the commencement of a creditor’s voluntary winding up shall be void. (2) After the commencement of the winding up no action or proceeding shall be proceeded with or commenced against the company except by leave of the Court and subject to such terms as the Court imposes. [13] Both sections are part of Part X of the Companies Act 1965. Part X deals with matters relating to the winding up of a company. Part X contains 5 Divisions: Division 1 - Preliminary matters Division 2 - Winding up by the Court Division 3 – Voluntary winding up Division 4 – Provisions applicable to every mode of winding up Division 5 – Winding up of unregistered companies 9 [14] In law, a company may be wound up either by the Court or voluntary by the company itself – see section 211 of Division 1. Once a company has been wound up by the Court, or once the winding up Court has appointed a provisional liquidator, section 226(3) mandates that leave of the winding up Court must be procured either before an action or proceeding is commenced or if already commenced, proceeded with. [15] Where the company is wound up voluntarily, and that may be by special resolution of the company, or due to the expiration of the duration of the company fixed either in its memorandum or articles of association and a general resolution has been passed to that effect [see section 254] or even on grounds of insolvency and a statutory declaration to that effect has been lodged with the Registrar of Companies and with the Official Receiver [see section 255], section 263(2) carries a similar requirement on leave as that found in section 226(3). [16] In both situations, the Court may impose terms when granting leave. The difference, however, between the two scenarios is when leave must be procured. In the case of a company which has been wound up by the Court, it will be upon pronouncement of the order to wind up the company or a provisional liquidator has been appointed. In the case of a company which has been wound up voluntarily, leave must be sought either at the time of the passing of the resolution to wind up the company, or in the case where a provisional liquidator has been appointed, upon lodgment of the statutory declaration with the Registrar of Companies and with the Official Receiver – see section 255(6). 10 [17] Moving on and given that this requirement for leave exists under both scenarios, the issue then is whether the exercise of discretion in the granting of leave is subject to or upon the same considerations. In this respect, the decisions of the Court of Appeal in Shencourt Sdn Bhd v Perumahan NCK Sdn Bhd [2008] 2 MLJ 446 and Westech Sdn Bhd (in voluntary liquidation) v Thong Weng Lock (as surviving partner of Thong Kee Trading Co) [2014] 3 MLJ 427 are instructive. In both decisions, the company in question had been wound up voluntarily. [18] In both appeals, the Court of Appeal applied the test or approach that was laid down in Mosbert Berhad (In Liquidation) v Stella D’Cruz [1985] 2 MLJ 446. That test being whether the claim intended to be filed or proceeded with can be dealt with adequately in the winding up or the remedy sought cannot be given in the winding up proceedings. If all reliefs sought may be obtained in the winding up Court, then leave will be refused. Quoting an old English decision of Re Cuthbert Lead Smelting Co Ltd (1886) WN 84, speaking for the Supreme Court, Seah SCJ said: In Re Cuthbert Lead Smelting Co Ltd it was held that if the applicant could obtain all the relief in the winding up leave would be refused. In short, the Court will always give an applicant leave if his claim cannot be dealt with adequately in the winding up or if the remedy he seeks cannot be given him in the winding up proceedings. [emphasis added] [19] As mentioned earlier, this test was applied in Shencourt Sdn Bhd v Perumahan NCK Sdn Bhd. According to the Court of Appeal, at 11 page 134, leave to proceed would be granted where a claim cannot be adequately dealt with in the winding up by the company’s liquidators : [11] On the guiding principle for the Court to grant leave with a view to commencing action against a company that has been wound-up we could like to refer to the case of Mosbert Berhad (In Liquidation) v Stella D’Cruz [1985] 2 MLJ 446 wherein Seah SCJ, in delivering the judgment of the Supreme Court at p 447 had this to say: In Re Cuthbert Lead Smelting Co Ltd it was held that if the applicant could obtain all the relief in the winding up leave would be refused. In short, the Court will always give an applicant leave if his claim cannot be adequately in the winding up or if the remedy he seeks cannot be given to him in the winding up proceedings. [12] it is clear based on the above cited case authority leave to proceed would only be granted when the plaintiff’s claim cannot be adequately dealt with in winding up of the defendant’s company or when the plaintiff is seeking a remedy which cannot be given in the winding up of the defendant’s company. [20] Similarly, in Westech Sdn Bhd (in voluntary liquidation) v Thong Weng Lock (as surviving partner of Thong Kee Trading Co) , the Court of Appeal opined that the “real test” for an application of section 263(2) is not whether the company is wound up voluntarily by its members or otherwise; but the test as laid down in Mosbert Berhad (In Liquidation) v Stella D’Cruz [supra]. The same view expressed by the Seah SCJ in Mosbert Berhad was once again quoted by the Court of Appeal: 12 [35] On this point we disagree with the view expressed by learned counsel for the plaintiff that s 263 of the Companies Act 1965 does not apply to voluntary winding up. Case laws have established that the test for an application of s 263 of the Companies Act 1965 is not whether the winding up is voluntary by members or otherwise. The real test is laid down by the then Supreme Court in Mosbert Bhd which is stated in this form: In Re Cuthbert Lead Smelting Co Ltd it was held that if the applicant could obtain all the relief in the winding up leave would be refused. In short, the Court will always give an applicant leave if his claim cannot be adequately in the winding up or if the remedy he seeks cannot be given him in the winding up proceedings. [21] Now, what needs to be pointed out is that in Mosbert Berhad (In Liquidation) v Stella D’Cruz, the application for leave was one made under section 226(3) and not section 263(2) of the Companies Act 1965. This was because Mosbert had been wound-up by an order of Court and not upon voluntary liquidation. Consequently, the application for leave to commence action was properly initiated under section 226(3). [22] We are however, of the considered opinion that having examined the rationale and the basis for requiring such leave, the test remains the same regardless of how the liquidation of the company was set afoot. Save for the timing when such an application is to be made, no distinction needs to be drawn between the two situations envisaged under sections 226(3) and 263(2), particularly since no useful or meaningful purpose will be served. 13 [23] The rationale for this requirement for leave was carefully explained by the Supreme Court in Mosbert Berhad. In explaining why applications for leave must be made inter partes, the Supreme Court said: “…, it cannot be disputed that the primary object of winding up is the collection and distribution of the assets of the company pari passu amongst unsecured creditors after payment of preferential debts. And the purpose of the statutory provision is to ensure that all claims against the company in liquidation which can be determined by cheap and summary procedure available in a winding up are not made the subject of expensive litigation. The provision is designed to prevent unnecessary multiplicity of suits which may result in dissipating the assets of the company. It is for this reason that application under section 226(3) of the Companies Act 1965 should be made inter partes so that the summons could be served on the Official Receiver who should be heard before the discretion of the Court is exercised. Without hearing the Official Receiver, the Court cannot be said to have exercised the discretion judicially. [24] This underlying rationale not only explains why all parties concerned must be heard at the time of the application, it also indicates why those persons must be heard. It reminds that the primary object of winding up of a company is to collect and distribute “the assets of the company pari passu amongst unsecured creditors after payment of preferential debts.” The leave mechanism ensures “that all claims against the company in liquidation which can be determined by cheap and summary procedure available in a winding up are not made the subject of expensive litigation. The provision is designed to prevent unnecessary multiplicity of suits which may result in dissipating the assets of the company.” Although this has been explained as the 14 availability of remedy test, that if the relief sought can be obtained in the liquidation proceedings through the filing of a proof of debt, leave must be refused, the reasoning for this test must not be overlooked. At the end of the day, it is what is available for distribution pari passu amongst the unsecured creditors of the company that is paramount. The concerns on costs of expensive litigation including multiple suits litigation are obviously legitimate and not misplaced. [25] Both parties have cited to us the more recent decision of Mesuntung Property Sdn Bhd v Kimlin Housing Development Sdn Bhd [2014] 7 CLJ 202. The appeal in Mesuntung Property arose from a refusal to grant leave under section 226(3) and not under section 263(2), which is our present focus of attention. Kimlin Housing Deveopment Sdn Bhd, the respondent, was wound up by the Court on 27.2.1989. [26] In allowing the appeal against the decision of the High Court which had rejected the application for leave, the Court of Appeal examined what was the “threshold test envisaged in s. 226(3) of the Companies Act 1965 before leave is granted”. The Court of Appeal considered the approach by the local Courts thus far and compared it with that adopted in Australia before drawing the conclusion that an applicant for leave under section 226(3) must satisfy a “two criteria” test. We shall return to this test shortly. [27] As far as the local cases are concerned, the Court of Appeal considered first, the approach adopted by the High Court in Bruno Phillip Fehrenbach v Pegawai Penerima Malaysia [1999] 6 CLJ 177 where Abdul Malik Ishak J held that leave under section 226(3) would 15 “readily be given by the Court if all requirements are fulfilled .” His Lordship then examined how judicial discretion under section 371(2) of the Australian Companies Act 1961 is exercised by the courts in Australia. Section 371(2) is in pari materia with section 226(3) but it was amended and replaced by section 471B of the Australian Companies Act 1989. Section 471B is slightly different in wording from our section 226(3). Citing Re Gordon Grant & Grant Pty Ltd [1983] 2 Qd R 314; Re Stuart Bros Pty Ltd [1995] 16 ACSR 451; and Speiser v Locums Financial Management Pty Ltd [1997] 22 ACSR 478 in support, Abdul Malik Ishak J said that the Court considers whether leave to proceed should be granted by “looking at the nature of the plaintiff’s claim, the balance of convenience and the justice of the case .” Again citing Re Gordon Grant & Grant Pty Ltd [supra] and Ex p Walker [1982] 6 ACLR 423, his Lordship opined that leave will be granted “as a matter of course” where “it is unlikely that the plaintiff will obtain any advantage over the creditors and that no prejudice will be caused either to the creditors or to the orderly winding up of the company. His Lordship further agreed with the view expressed in Re Coastal Constructions Pty Ltd (In Liquidation) [1994] 13 ACSR 329, that in determining whether leave to proceed should be granted: “…there was a necessity to examine the amount and seriousness of the claim, the degree of complexity of the legal and factual issues involved and lastly, the stage which the proceedings have reached. It must not be forgotten that the applicant too must establish that he or she has a prima facie case meaning that the applicant must show that there is a real dispute between the parties. (Zempilas v JN Taylor Holdings Ltd (In Prov Liq) [1991] 3 ACRS 755 (SC SA); Vagrand Pty Ltd (In Liq) v Fielding [1993] 41 FCR 550 [113 ALR 128]).” 16 [28] We have no issue with the test propounded and followed in the Australian jurisdiction, but, we must point out that the discussion of the High Court on this test is obiter since the primary question before the Court was whether section 226(3) applied in the case of a derivative action. The applicant plaintiff was a minority shareholder in the defendant company that was wound up. The plaintiff contended that a derivative action is an action for the benefit of, and not an action against, the company. The applicant plaintiff was seeking a declaration to that effect. The High Court agreed with the plaintiff. In the course of deliberations, the High Court saw it fit to consider the Australian approach on section 226(3) before concluding that the plaintiff was not required to apply for leave under section 226(3) since a derivative action is not an action against the wound up company. The declaratory order was accordingly, given. The approach of the Australian Courts or for that matter, our Courts, though enlightening, is irrelevant to the central issue of application of section 226(3) to a derivative action. [29] Returning to Mesuntung Properties and the proper test or approach in a case where the primary issue is whether leave ought to be allowed under section 226(3), the Court of Appeal went on to consider the decision of Shencourt Sdn Bhd v Perumahan NCK Sdn Bhd [supra], discussed earlier, noting that the Court of Appeal in that case had followed the approach laid down by the Supreme Court in Mosbert Berhad – see paragraph 21 at page 210. [30] The Court of Appeal however, did not stop there and simply apply the test in Mosbert Berhad. Like Abdul Malik Ishak J in Bruno Phillipe, the Court of Appeal similarly turned to examine the approach in Australia 17 on the threshold question of leave. This time, the Court of Appeal considered two decisions, one of which was cited in Bruno Phi l lipe, that is Vagrand Pty Ltd (In Liq) v Fielding [supra]; and Capita Financial Group Ltd v Rothwells Ltd (No.2) [1989] 7 ACLC 634. [31] In Vagrand Pty Ltd, the Federal Court of Australia also discussed the rationale for imposing a requirement for leave, that as explained by Manning J in Thomson v Mulgoa Irrigation Co Ltd [1893] 4 BC (NSW) 33, it was to safeguard a company in liquidation from being harassed and its assets wasted by unnecessary litigation. In order to do that, the Federal Court is obliged to investigate the intended litigation. The Federal Court accepted that this did not mean that all the elements of an intended claim must be proved. That would be burdensome and shut out many meritorious claims. The Federal Court recognized that it is commonplace for actions against companies to depend upon documentary evidence and such evidence may be not be available until discovery has taken place or witnesses interrogated or subpoenaed. [32] In Capita Financial Group Ltd, the Court also adopted the same approach, going further to state that provisional liquidators and liquidators are “entitled to be protected from involvement in Court proceedings which may be perhaps only of a nuisance nature, or which may be thought to be totally devoid of any substance. The resources of the company in liquidation should not be frittered away in defending baseless claims.” The consistent and uniform approach of the Court “over the years is to demand that there be evidence showing a prima facie case.” 18 [33] Having examined these authorities, both local and from Australia, the Court of Appeal then concluded: [24] From the above authorities, the appellant has the burden of satisfying the Court of two criteria: (a) the appellant’s claim cannot be adequately dealt with by the winding up Court; (b) the appellant has a prima facie case against the respondent. [34] The Court of Appeal first found the appellant’s claim for the remedy of specific performance and not for monetary returns could not be dealt with by the winding up Court. On the issue of what amounts to a prima facie case in the context of section 226(3), the Court said that the Court has to be satisfied that “there is a serious dispute between litigants which warrant a trial to determine the truth of the combating allegations.” The Court of Appeal likened the approach to that applied when “dealing with an application to strike out under O 18 r 19 Rules of Court 2012 despite the consideration that the liquidator ought not to be burdened with wasteful financial resources in defending frivolous legal actions.” According to the Court of Appeal, “that consideration in our view is also a consideration for other suits not involving wound up companies as all defendants should also not be burdened with financial resources to defend frivolous legal actions.” [35] The Court of Appeal in Mesuntung Property then set about examining the putative claim. The Court of Appeal found that the appellant, itself a wound up company, was seeking leave to initiate a suit for specific performance of a sale and purchase agreement [SPA] 19 entered into between the parties. In that SPA, the respondent had agreed to sell 121 lots of land in its abandoned housing project to the appellant. The appellant paid 10% of the purchase consideration of RM3.5 million as deposit together with other expenses. The time for payment of the balance purchase price was extended on condition that the appellant pay a further RM100,000,00. The appellant did not pay the RM100,000.00. Neither did the appellant pay the balance purchase price by the extended date; and so, the respondent terminated the SPA. The respondent then sold 90 of the 121 lots to a third party. The appellant’s main complaint in the intended claim is the respondent’s unilateral imposition of RM100,000.00 for the extension of time. The Court of Appeal noted that by this time, the appellant had already paid almost RM1 million. [36] The Court of Appeal was of the view that this complaint or question “is a serious dispute between the appellant and the respondent. That question prima facie raises a reasonable cause of action and not to give the appellant the chance to argue that the unilateral imposition of the RM100,000 is unlawful would be contrary to the basic right of the appellant of having his day in Court. Not granting leave amounts to shutting the appellant and it is a drastic action which Courts should be slow to use.” [37] We are aware that although Shencourt Sdn Bhd and Mosbert Berhad were referred to by the Court of Appeal in Mesuntung Properties, the Court of Appeal went further to consider and compare the approach to the equivalent section 226(3) under the Australian jurisdiction. After all, the Companies Act 1965 is structured after the Australian corporations law and its then section 371(2) of the Australian 20 Companies Act 1981 was in pari materia with our section 226(3). Having taken that route, the Court of Appeal concluded with the two tests that we pointed out above and which the parties before us, just as they did in the Court below, have both submitted. The parties have proceeded on the basis that there are now two tests that must be satisfied. The appellants argued that the tests had been met while the respondent argued otherwise; contending that not meeting the first test was enough to knock out the application and hence, this appeal. [38] We pause to emphasize that the decision in Mesuntung Properties does not set down any new test; what the decision has done, in effect, is to put into clearer terms the test laid down in Mosbert Berhad. That test now better clarified and which applies regardless whether the application is made under section 226(3) or 263(2), has been consistently applied in our jurisdiction. [39] Returning to Mesuntung Properties, we agree with the approach enunciated therein. The requirement of leave is necessary to ensure that companies in liquidation and the liquidators of wound up companies are not embroiled in time consuming and expensive litigation which, indirectly will impact on returns to creditors of the wound up company. Since there is already in place a statutory mechanism for resolving disputes and debts by way of lodgment of proofs of debts, there must be some good, cogent or just reason why there should be a departure from that established procedure. The availability of the remedy sought before the winding up Court is only one of the reasonable reasons that may be articulated for such departure. We can see complexities of legal and factual issues or even the status of proceedings already underway, being other relevant considerations in the weighing in of exercise of 21 discretion. This is the balancing exercise discussed by Abdul Malik Ishak J in Bruno Phillipe that the winding up Court will have to weigh when considering whether to exercise judicial discretion to grant or refuse leave to proceed against a company in liquidation. The onus is on the appellants to demonstrate why it is more appropriate in the particular facts and circumstances to proceed by separate civil action instead of by lodgment of a proof of debt. [40] In the present appeal, the appellants seek the principal remedy of specific performance of the SPA in relation to the two obligations of sub - division and eviction of squatters. Although the learned Judge found that the relief sought could not be “adequately” dealt with by the liquidators, the learned Judge was nevertheless persuaded by the presence of the alternative relief of eviction by the appellants themselves in the event the respondent failed to evict the squatters. Where that happens, the appellants seek recovery of the related costs from the respondent. It was, in this sense, that the learned Judge concluded that the appellants’ claim could be reduced to monetary value and therefore provable in liquidation. [41] With respect, we cannot agree with the learned Judge. Contrary to the view of the learned Judge, the remedy of specific performance remains one which the winding up Court cannot make; and certainly, it is not a remedy that can be resolved through the lodgment of a proof of debt with the liquidators of the respondent. That order is properly in the jurisdiction of the Court in exercise of its civil jurisdiction, and granted, if at all, after trial. The presence of the alternative prayer (b) in the terms set out at page 81 of the Record of Appeal does not alter that view. There may be a difference, perhaps, if the relief was couched as an 22 additional relief. The order of specific performance is a discretionary remedy and the law on pleadings allows for this alternative remedy in the event this specific performance is not granted. That however, does not diminish the significance of the remedy as a primary or main remedy. In the weighing of discretion, the Court will always question the issue of adequateness of damages as an alternative remedy. It is precisely because damages is not an adequate remedy that specific performance is sought; but in the event the Court is not with the appellants, then the appellants want to be allowed this avenue. We do not see how by this alternative plea, leave to commence action against the respondent should be denied. [42] Moving next to the second test, the learned Judge found that the appellants had failed to establish a prima facie case because the appellants have become the registered proprietors of the plots. That, supposedly, leaves the respondent in no position to evict the squatters or even apply for sub-division of the bigger plot. [43] Again, here, we are reminded of what is required in establishing a prima facie case. In Mesuntung Properties, it was clearly explained that in the context of section 226(3), what needs to be shown is that there is a serious dispute between the parties that warrants a trial to determine the truth. The Court does not delve into the merits of the dispute but examine the complaints, to see if these complaints are genuine or are they baseless and devoid of any substance. If the answer is in the affirmative, resources of the respondent ought not to be wasted defending a baseless or frivolous claim. 23 [44] The existence of the SPA is not in dispute. In their affidavit in reply to the appellants’ application, the respondent has however, denied the existence of the two obligations – see paragraphs 6 and 23 at pages 18 and 23 of the Record of Appeal [2/1]. [45] We have had a look at the SPA, and contrary to the contentions of the respondent, the SPA dated 21.3.2011 does contain terms concerning the sub-division of the bigger plot and the eviction of squatters; for instance recital B and clauses 13(a)(iv) and (b): Recital B: The other owners stated in recital A and their respective share in the bigger plot are as follows: 1. Low Far Ke (NRIC No. 600607-10-5941) 2000/47010 2. Low Huat Cheng… … 3. Low Huat Lee … 4. Low Huat Meng … 5. Low Huat Hui … 6. Low Wei Hui … (hereinafter collectively referred to as “the other owners”) 7. Maika Holdings Berhad 3190/4701 (hereinafter referred to as the Vendor’s plot as demarcated in red in the layout plan annexed hereto as Annexure 1). For avoidance of doubt, the other owners have expressly agreed or otherwise have no objections for the Vendor to sub-divide the bigger plot and that the portion shaded in yellow in Annexure 1 (“other owners’ plot”) shall be ultimately be issued with an individual title with their names endorsed therein as the registered proprietors. (the smaller plot and the Vendor’s plot are hereafter collectively referred to as “the Vendor’s properties”) Clause 13. Parties’ Representations and Warranties (a) The Vendor hereby covenants, declares, represents, warrants and undertakes with the Purchaser as follows: (i) the Vendor is the registered owner of the said Property; (ii) … 24 (iii) … (iv) within four (4) months from the date of this Agreement, evict or remove all and any squatters or unlawful occupiers of the said property. (b) The Vendor hereby expressly agree and acknowledge that the Purchaser is entering this Agreement and agreeing to purchase the said Property in reliance upon the covenants, declarations, warranties set forth hereinabove including the recitals to the Agreement. [46] The appellants have also complained that there are still squatters on the land. This is denied by the respondent – see paragraphs 16 and 19 of the respondent’s affidavit in reply at pages 24 and 25 of the Record of Appeal [2/1]. In addition to the SPA, the appellants have alluded to correspondence exchanged between the parties, post payment and registration, on these matters. In at least one letter dated 5.12.2012 from the respondent’s solicitors, the respondent had informed the appellants that “most of the squatters occupying the land then, and that there is now only 2 families still occupying a small part of the said land” – see page 150 of the Record of Appeal [2/1]. Photos of the presence of the squatters or occupiers and the temple have also been exhibited – see pages 212 to 222 of the Record of Appeal [2/1]. [47] It is not for this Court to evaluate to see the truth of these warring contentions and to determine the real position of the squatters or even the matter of location or relocation of a temple on the subject land; that is for the civil Court to hear and determine. The same goes for the responsibility to apply for sub-division of the bigger plot; whether the respondent, who retains a portion of the bigger plot, though held on trust, can still make such an application. For the purposes of section 263(2), the appellants need to show that their dispute is real, genuine and serious and that they have a prima facie case. We have no doubt that in 25 that regard; the appellants have amply satisfied those considerations. The allegation of breaches of agreement by the respondent are not baseless or without substance. They cannot be said to be frivolous and an attempt to waste the respondent’s funds or even to score an advantage over the creditors of the respondent. [48] Finally, we note that the learned Judge had expressed the view that the order of specific performance cannot be granted against the respondent because it will cause financial hardship; or be counter- productive to the object of winding up the respondent, which is to preserve the assets of the respondent for fair distribution. Here, once again, we must remind that it is not for the winding up Court to decide whether an order of specific performance ought to be granted on the particular facts; that is the function and role of the civil Court in the event leave to commence litigation is allowed. The winding up Court should not be second guessing what that Court, may or may not eventually decide on the merits. That is entirely within the purview of the civil Court. [49] In this regard, we cannot ignore that the signatories to the SPA who signed on behalf of the respondent are two of the liquidators, although one of them has since passed away. Such persons would be best placed to explain the conflicting versions of obligations. [50] In this regard too, and, on the concern of hardship, the appellants have shown that there was a retention of some monies amounting to RM993,000.00, 30% of the purchase consideration by the solicitors of the respondent. This sum is said to have been retained for issues related to private caveat and existing squatters on the subject land. The 26 retention of the sum post SPA is said to confirm the existence of the obligations as alleged by the appellants and address the concerns of the respondent. Conclusion [51] For all the reasons stated above, we are of the unanimous view that appellate intervention is appropriate in this appeal. The appeal is allowed with costs of RM5,000.00 here and below subject to the payment of allocator fee. The decision of the High Court is hereby set aside and leave pursuant to section 263(2) of the Companies Act 1965 is granted to the appellants to commence action against the respondent. Dated: 16 October 2017 Signed by (MARY LIM THIAM SUAN) Judge Court of Appeal, Putrajaya Malaysia 27 Counsel/Solicitors For the appellant: Sugandra Rao a/l Naidu Messrs Rao & Co. No. 11 & 11-1, Jalan KL 3/13 Taman Kota Laksamana Seksyen 3 75200 Melaka For the respondent: Anantha Krishnan a/l Gopala Krishnan (Orpheus M. Modili with him) Messrs Anantha Krishnan G8, Tingkat 3 Taman Tunku Bukit Tunku 50480 Kuala Lumpur	42,144	Tika 2.6.0
WA-24C-55-03/2017	PLAINTIF Bertam Development Sdn Bhd DEFENDAN R&C Cergas Teguh Sdn Bhd	null	13/10/2017	YA DATO' LEE SWEE SENG	https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=50ddc3df-ec18-48fe-80a3-0c23460b941c&Inline=true	1 IN THE HIGH COURT OF MALAYA AT KUALA LUMPUR IN THE STATE OF WILAYAH PERSEKUTUAN, MALAYSIA (CIVIL DIVISION) ORIGINATING SUMMONS NO: WA-24C-55-03/2017 In the matter of an Adjudication between R&C Cergas Teguh Sdn Bhd and Bertam Development Sdn Bhd And In the matter of Adjudication Decision dated 19.02.2017 And In the matter of Sections 15(d) of the Construction Industry Payment and Adjudication Act, 2012 And In the matter of Order 92 Rule 4, Rules of Court 2012 BETWEEN BERTAM DEVELOPMENT SDN BHD (COMPANY NO: 45881-X) ... PLAINTIFF AND R&C CERGAS TEGUH SDN BHD (COMPANY NO: 520886-X) ... DEFENDANT 2 THE JUDGMENT OF Y.A. LEE SWEE SENG [1] The Plaintiff here, as Respondent in an Adjudication, has applied to set aside the Adjudication Decision dated 19.2.2017. The Defendant here is the Claimant in the Adjudication conducted under the Construction Industry Payment and Adjudication Act 2012 (“CIPAA”). Project [2] The Plaintiff as the developer and the Defendant as the main contractor had entered into a written construction Contract consisting of a Letter of Award dated 18.4.2013 followed by the PAM Contract dated 16.5.2013 that stipulated the original contract sum of RM29.2 million. The Contract was for the following Works: Building, Infrastructure Works-Civil, Internal Electrical, SMATV and Telephone System Installation and M&E Infrastructure Work Installation for a project to build 47 units of 2 ½ storey houses on a piece of land in Langkawi (“the Project”). [3] The said contract sum was revised subsequently on 1.7.2014 and by this revision, the contract sum was then reduced to RM22 million with some omissions of Works. The Defendant was not required to build 14 houses and hence only 33 houses were built. Further the Defendant was not required to do landscape Works. 3 [4] The Defendant as Claimant was not paid for the Architect’s Interim Certificates No. 23, 24, 25, 26, 27 and 29 for a total certified sum of RM2,404,394.84. The Defendant also claimed that they were not paid a further sum of RM3,414,158.24 being Variation Works instructed by the Plaintiff and duly completed by the Defendant but which the Architect had failed to certify. Hence the Defendant claimed as Claimant in the Adjudication the sum of RM5,818,553.08 against the Plaintiff as Respondent together with interests and costs. Proceedings in Adjudication [5] A Payment Claim to that effect was served by the Claimant as the Unpaid Party on the Respondent as the Non-Paying Party under section 5 CIPAA on 4.7.2016. The due date for payment under the various Interim Certificates issued was stated as 21.4.2016 or latest by 30.4.2016 (30 days from Progress Claim No. 29). [6] With respect to the claim for the Variation Works completed but not certified, it was stated that the Certificate of Practical Completion (CPC) was issued on 23.10.2015 and the Defect Liability Period would expire on 22.10.2017. The due date for payment was 21.4.2016 or latest by 30.4.2016 (30 days from Progress Claim No. 29). 4 [7] There was no Payment Response filed. Under section 6(4) CIPAA the Plaintiff as the non-paying Party is deemed to have disputed the entire Payment Claim. [8] However in the Adjudication Response filed by the Plaintiff as Respondent in the Adjudication, the Plaintiff had raised that the Variation Works were without the consent of the Architect or that the Claimant failed to adhere to the sum fixed by the Respondent’s Architect. The Respondent also raised the argument that the Variation Order was submitted late and that no extension of time was obtained from the Architect for the late submission of the Variation Order. [9] In addition the Respondent also submitted a cross/counter claim of RM1,937,000.00 being Liquidated and Ascertained Damages (“LAD”) calculated from 1.6.2015 until 27.10.2015 being a delay of 149 days at the rate of RM13,000.00 per day. [10] The Architect had issued the Certificate of Non Completion on 10.6.2015 to the Defendant which stated that there was a failure to complete by the extended completion date of 31.5.2015 and that the Plaintiff was entitled under Clause 22.1 of the PAM Contract to LAD of RM13,000.00 per day until due completion of the construction works by the Defendant and that such LAD sum would be a debt to be deducted from monies due under the contract to the Defendant. 5 [11] The Respondent further cross claimed a sum of RM469,292.96 being damages for late delivery of the 33 Purchasers pursuant to the Sale and Purchase Agreement entered into between the Respondent and the 33 Purchasers. Prayers [12] The Adjudicator decided on 19.2.2017 inter alia as follows in his Adjudication Decision: 1. that the Plaintiff is liable to pay the Defendant a sum of RM4,657,267.73 consisting of: (i) the amount of the unpaid interim certificates Nos. 23, 24, 25, 26, 27 & 29 for RM2,404,394.84 (“unpaid certified amount”) and (ii) the amount for Works not certified but duly completed for the sum of RM2,252,872.89 (“the uncertified amount”). 2. the Defendant is liable for LAD from 11.9.2015 until 23.10.2015 which is for a sum of RM546,000.00. 3. in summary, the Plaintiff is liable to pay the Defendant the sum of RM4,111,267.73 (Adjudication Sum) together with interest at the rate of 7.65% per annum based on Maybank Base Lending Rate from 27.5.2016 until full payment of the Adjudication Sum and costs. 6 [13] The LAD amount was reduced by the Adjudicator to 42 days amounting to RM546,000.00 after the Adjudicator had allowed the second Extension of Time (“EOT”) application that was rejected earlier by the Architect. [14] The Plaintiff sought to set aside the whole of the Adjudication Decision on ground of excess of jurisdiction under section 15(d) CIPAA. Principles [15] Section 15 CIPAA under which the Plaintiff has made this application to set aside the Adjudication Decision reads as follows: “An aggrieved party may apply to the High Court to set aside an adjudication decision on one or more of the following grounds: (a) The adjudication decision was improperly procured through fraud or bribery; (b) There has been a denial of natural justice; (c) The adjudicator has not acted independently or impartially, or (d) The adjudicator has acted in excess of his jurisdiction.” (emphasis added) 7 [16] As the focus is on issues relating to the Adjudicator having acted in excess of jurisdiction under section 15(d) CIPAA, this Court shall deal with these issues in the discussion below. Whether the Adjudicator has exceeded his jurisdiction by invoking the default provision of section 36 CIPAA with respect to the uncertified claims [17] Learned counsel for the Plaintiff submitted that the Adjudicator had exceeded his powers with respect to the uncertified claims for Variation Works when he had ignored the opening words of Section 36(1) of CIPAA that reads “unless otherwise agreed by the parties” and also that the default provision in Section 36 of the CIPAA could only be invoked when contractual terms as to payment are not to be found in writing. [18] It was pointed out that the PAM written contract which had clearly set out the mechanism for making payment to the Defendant, which the parties had contractually agreed. It was argued that the Adjudicator could not determine the terms for payment as if such terms of payment were not found in the PAM Contract. The Adjudicator therefore could not have invoked Section 36(1) of CIPAA when the terms of payment were already found in the written contract of the parties as in the case before this Court. 8 [19] The Plaintiff contended that the process by which the decision of assessing the uncertified amount was done by the Adjudicator in reliance on section 36 of CIPAA was flawed and it was done in excess of his jurisdiction. [20] The Plaintiff said that the Defendant were bound by the PAM Contract and it was wrong to allow the Defendant to resile from the agreed terms of certification of payment as agreed and provided under the PAM written contract entered into with the Plaintiff. Learned counsel for the Plaintiff maintained that the Defendant could not, as Claimant in the Adjudication, refer the uncertified amount to the Adjudication when the Defendant had agreed to the payment mechanism to be determined as provided under the PAM Contract. In other words, according to learned counsel for the Plaintiff, the Defendant was bound to follow the terms of the PAM Contract to secure certification for payment for works done through the mandate of the Architect. [21] Learned counsel for the Plaintiff had summarized the terms for certification and payment as found in Clause 30.1 of the PAM Contract as follows: i) The right to certify payment was agreed to be done by the Architect under the said clause of the PAM Contract. 9 ii) The interim certification could only be issued as and when the amount could be ascertained by the Architect in the event where the Certificate of Practical Completion has been issued. iii) This means it was contractually agreed that after the certificate of practical completion, interim certificate could only be issued by the Architect when the Architect was able to ascertained the amount payable as provided under the said clause of the PAM Contract. [22] I must say that the above summary of what is contained in Clause 30.1 of the PAM is not quite accurate. The relevant parts of Clause 30.1 of the PAM Contract reads: “The Contractor shall submit a payment application at the Interim Claim Interval stated in the Appendix with complete details and particulars, the Architect shall, within twenty one (21) Days from the date of receipt of the Contractor’s application, issue an Interim Certificate to the Employer with a copy to the Contractor, and the Employer shall thereafter pay the amount certified to the Contractor within the Period of Honouring Certificates...” [23] The above submission is completely misplaced. This is a case where the Architect had for reasons best known to himself, failed to certify 10 the amount outstanding under the Variation Works. Surely the Architect and the Employer cannot rely on their own breach of Clause 30.1 to refuse to make payments to the Main Contractor for the Variation Works done. Otherwise Employers and Architects could always refuse to certify claims for Works done and then contend that until the Architect do certify, there is no claim due and no payment need to be made! [24] Little wonder that under the broad powers of an Adjudicator, he is empowered under section 25(n) CIPAA to decide or declare on any matter notwithstanding no certificate has been issued in respect of the matter. [25] This is also a case where the Architect had issued the CPC on 23.10.2015 and the Payment Claim was only served on 5.7.2016. As the claim for uncertified Variation Works was duly made in the Payment Claim and as there was no Payment Response filed, the Respondent in the Adjudication is deemed to have disputed this Claim and thus it falls within the jurisdiction of the Adjudicator to decide on whether the Claimant is entitled to the whole of the uncertified Variation Works or a part of it or none at all. [26] His jurisdiction is carved out by the Payment Claim served under section 5 CIPAA and the Payment Response (none here) under section 6 CIPAA and he must confine himself to the matters raised in the Payment 11 Claim and Payment Response (none here) for these are the 2 documents that confer jurisdiction on him. Section 27(1) CIPAA declares as follows: “27. Jurisdiction of Adjudicator 1) Subject to subsection (2), the adjudicator’s jurisdiction in relation to any dispute is limited to the matter referred to adjudication by the parties pursuant to sections 5 and 6.” [27] This is not a case, as contended by the Plaintiff, where the Adjudicator had in assessing the uncertified amount in the sum of RM2,252,872.89, re-written the contract between the parties. Where the Architect has failed or refused to certify or has certified an amount that the Claimant is disputing, it is open to the Adjudicator to harness and deploy his vast powers under section 25 CIPAA to decide the dispute. Section 25(m) CIPAA as referred by the Adjudicator is also relevant. It reads that an Adjudicator shall have the powers to: “(m) Review and revise any certificate issued or to be issued pursuant to a construction work contract, decision, instruction, opinion or valuation of the parties or contract administrator relevant to the dispute;” (emphasis added) [28] Neither is it a case, as contended by the Plaintiff, where the Adjudicator has exceeded his jurisdiction by altering the agreement of the 12 parties found under Clause 30.1 of the PAM Contract. Much less is it a case where the Adjudicator could only assume the function of the Architect if both parties had mutually agreed to avoid the application of Clause 30.1 of the PAM Contract by submitting as an agreed issue under Section 27(2) CIPAA. [29] To be clear section 27(2) CIPAA provides as follows: “(2) The parties to adjudication may at any time by agreement in writing extend the jurisdiction of the adjudicator to decide on any other matter not referred to the adjudicator pursuant to sections 5 and 6.” (emphasis added) [30] As the issue of the validity of the claim for uncertified Variation Works is a matter referred to in the Payment Claim and hence within the jurisdiction of the Adjudicator to decide, there is no need for a further Agreement in writing of the parties to confer jurisdiction on the Adjudicator to decide as it were, in place of the Architect. It is precisely because of non-certification by the Architect and with that no payment by the Plaintiff as Employer that we have here a reference to Adjudication with respect to a Payment Claim consisting of the amount certified in the various Interim Certificates of Payment and the amount in the uncertified Variation Works. 13 [31] The uncertified amount for Variation Works comes within the meaning of a “Payment Claim” as a “Payment” in section 4 CIPAA is defined as a claim for work done or services rendered under the express terms of a construction contract. [32] A “Payment Claim” under section 5(2) shall be in writing and shall include: “(a) The amount claimed and due date for payment of the amount claimed; (b) Details to identify the cause of action including the provision in the construction contract to which the payment relates; (c) Description of the work or services to which the payment relates; and (d) A statement that it is made under this Act.” (emphasis added) [33] The presence or issuance of a Certificate of Payment is not a pre- requisite of a Payment Claim. It was a finding of fact of the Adjudicator at para p) of page 27 of the Adjudication Decision that the Architect’s Instruction (AI) No. 6 issued on 18.6.2015 is basically to reaffirm the Engineer’s Instructions pertaining to the Variation Works. In addition to the AI No. 6, the Adjudicator also found few other instructions were issued to the Contractor and copied to the Respondent’s Architect and he 14 summarized the 14 instructions of the Architect, M&E Engineer and Civil Engineer at pages 28-29 of the Adjudication Decision together with the various dates of the instructions, the type of instruction and the description of the instructions. [34] The Adjudicator had also at para q) at page 29 of his Decision listed out the 8 submissions made by the Claimant to the Respondent’s Architect on the estimated costs and time implication on Variation Works arising out of the instructions issued by the Architect, M&E Engineer and Civil Engineer and the dates of submission from 28.5.2014 to 8.11.2015. [35] The Adjudicator found as a matter of fact at para r) of page 29 of his Decision that the Claimant had been submitting diligently his estimation on the Variation works since 28.5.2014 and sufficient notification had been provided to the Respondent’s Architect on the costs implication arising out of the Variation Orders. [36] In answer to the objection raised by the Respondent that the Contractor had failed to give his written notice of his intention to claim for additional expenses within 28 days from the date of the AI or CAI giving rise to his claim under Clause 11.7(a) and to submit particulars of his claim for such Variations within 28 days of completing the Variations under Clause 11.7(b) and as such the Contractor is deemed to have waive his rights to any such additional expenses, the Adjudicator made 15 the following finding of facts at para s) of the Decision at page 29 as follows: “As such, the Adjudicator is able to CONCLUDE that the Claimant’s Variation Order submission dated 8.11.2015 is not a NEW SUBMISSION arising out of the Architect’s Instruction No. 6 dated 18.6.2015. The Claimant had already submitted the Variation Orders on 28.5.2014, 26.1.2015 and 11.5.2015 to the Respondent’s Architect and the Variation Order dated 8.11.2015, in particular the summary of Variation Order and the summary of the Variation Order found in the Variation Order dated 11.5.2015 are essentially the same. The Claimant in fact is just summarizing the previous Variation Order dated 11.5.2015.” [37] The Adjudicator concluded in para t) at page 30 of the Decision as follows: “Hence, the Adjudicator CONCURS with the Claimant that sufficient notification on the costs estimation arising out of the Variation Orders has been given to the Respondent’s Architect in accordance with the Clause11.7 of PAM Agreement and therefore, the Adjudicator accepts the fact that the Variation Orders were made in timely manner and shall be payable in accordance with section 36(1)(c) subject to final valuation and approval from the 16 Respondent’s Architect as provided for under Clause 11.2 PAM Agreement.” [38] The Adjudicator had properly relied on section 36(1)(c) CIPAA as the Respondent’s Consultants appeared not to be able to agree on the rates for the Variation Works. The Adjudicator unknotted the conundrum as follows, expressing his bewilderment, baffled as to the conduct of the various Consultants at para i) of page 33 of his Decision: “i) The intriguing questions are why the Respondent’s Consultants comprising M&E Engineer, Civil Engineer and Architect did not raise any objections to the earlier submissions if they have found that the Variation Orders are being overpriced as alleged by the Respondent? And why did the Respondent’s Architect had to wait until 22.3.2016 before rejecting the Claimant’s Variation Order s submission made on 8.11.2015 and also the previous submissions? Why did the Respondent’s Architect allow the Variation Works to be continued by the Claimant upon realizing the unit rates are unacceptable?” (emphasis added) [39] These are fair questions to raise. The Adjudicator then undertook the arduous task of going through meticulously each and every of the 16 Variation Orders at page 35 of his Decision with the methodology employed at page 34 of his Decision as follows: 17 “m) After reviewing the Architect’s valuation report dated 22.3.2016, the Adjudicator finds that the Civil Engineer has adopted JKR & JPS Rate Year 2015 which the Adjudicator has no objection since the variation works were carried out during the same period of time. As such, the Adjudicator also agrees with Civil Engineer’s method to establish build up rates based on the JKR & JPS Rate for Year 2015 and to be adopted in the re-valuation. Meanwhile, on the valuation done by the M&E Engineer, the Adjudicator finds the unit rates adopted are much lower than the rates originally used in the contract. The Adjudicator disagrees with the M&E Engineer method to adopt lower rates to calculate VO addition and meanwhile using higher rates to calculate VO omission, despite the nature of works still remain same.” [40] It was thus an exercise of his powers under section 25(m) and (n) and falling back on the default provision of section 36(1)(c) and 36(2)(b) CIPAA in arriving at a fair value on what was being disputed with respect to the Variation Works; the dispute being not on the certified quantities of the Variation Works but merely on the rates. As pointed out by the Adjudicator in para n) of page 34 of his Decision, in carrying out this exercise of determining the reasonable rates or work he was also guided by Clause 11.6(a) & (b) of the PAM Contract as follows: 18 “11.6(a) where work is of a similar character to, is executed under similar condition as, and does not significantly change the quantity of work as set out in the Contract Documents, the rates and prices in the Schedule or Rates shall determine the valuation; 11.6(b) where work is of a similar character to work as set out in the Contract Documents but not executed under similar conditions or is executed under similar conditions but there is significant change in the quantity of work carried out, the rates and prices in the Schedule of Rates shall be the basis for determining the valuation which shall include a fair adjustment in the rates to take into account such differences;” [41] The end result was that the Adjudicator allowed only a sum of RM2,252,872.89 out of the sum of RM3,414,158.24 claimed. It is to be noted that the Architect had in his Report dated 22.3.2016 submitted a lower sum of RM1,004,686.18 as particularized at para [98] at page 30 of his Decision with a comparison with the same items as submitted and claimed by the Claimant. [42] Section 36 CIPAA reads as follows: “36 Default Provisions in the Absence of Terms of Payment 19 (1) Unless otherwise agreed by the parties, a party who has agreed to carry out construction work or provide construction consultancy services under a construction contract has the right to progress payment at a value’ calculated by reference to— (a) The contract price for the construction work or construction consultancy services; (b) Any other rate specified in the construction contract; (c) Any variation agreed to by the parties to the construction contract by which the contract price or any other rate specified in the construction contract is to be adjusted; and (d) ... (2) In the absence of any of the matters referred to in paragraphs (1)(a) to (d), reference shall be made to: (a) fees prescribed by the relevant regulatory board under any written law; or (b) If there are no prescribed fees referred to in paragraph (a), the fair and reasonable prices or rates prevailing in the construction industry at the time of the carrying out of 20 the construction work or the construction consultancy services. (3) The frequency of progress payment is: (a) Monthly, for construction work and construction consultancy services; and (b) Upon the delivery of supply, for the supply of construction materials, equipment or workers in connection with a construction contract. (4) The due date for payment under subsection (3) is thirty calendar days from the receipt of the invoice.” (emphasis added) [43] As can be seen, the provisions of Section 36(1)(c) and (2)(b) encapsulate the methodology and principle captured by Clauses 11.6(a) and 11.6(b) of the PAM Contract in determining the rates of Variation Works when parties cannot agree. This then is undisputedly a finding of fact and even if it be wrong, that is to be corrected not in a setting aside under section 15 CIPAA for this is not an appeal on merits but to be corrected in Arbitration if the parties are minded to proceed. There is singularly no merits in the argument of the Plaintiff as Respondent in the Adjudication, that by deciding on the matter of a dispute on the sum due 21 under the uncertified Variation Works, the Adjudicator had exceeded his jurisdiction. Whether the Adjudicator had exceeded his jurisdiction by deciding on the number of days that should have been granted following a Second Application for EOT [44] Learned counsel for the Plaintiff submitted that the matter for determining the application for an EOT was also agreed contractually to be determined by the Architect in the terms agreed under the said PAM Contract, being the written contract of the parties. He further argued that on the one hand the Adjudicator had ignored the fact that the matter of the second EOT application was not even an issue that was agreed to be raised or referred to the Adjudicator under Section 27(2) of CIPAA. Learned counsel for the Plaintiff pointed out that, on the other hand, the Adjudicator had wrongly exercised his powers to review the second EOT application that was rejected by the Architect when the Adjudicator had no power to do so under the provisions of the law in CIPAA unless it was agreed in writing to be an issue to be referred pursuant to Section 27(2) of CIPAA, which provision was not complied with. [45] Strictly speaking the Respondent’s Defence of a cross claim or Counterclaim raised as a set-off should not even be considered as it was not raised in the Payment Response; there being no Payment Response 22 filed. The Claimant was right to have followed the dicta of Justice Mary Lim (now JCA) in View Esteem Sdn Bhd v Bina Puri Holdings Sdn Bhd [2015] MLJU 695 where her Ladyship observed: “[60] Subsection 27(1) limits the Adjudicator’s jurisdiction to the matters referred to adjudication pursuant to sections 5 and 6; namely the claims in the Payment Claim and the responses or defences in the Payment Response. This limitation is subject to subsection 27(2) which allows the parties to the adjudication to extend that jurisdiction by written agreement to matters beyond or outside sections 5 and 6. In the absence of such agreement, the Adjudicator’s jurisdiction does not extend to or include matters in the Adjudication Claim and the Adjudication Response or even Adjudication Reply found in sections 9, 10 and 11. It is obvious from subsections 27(1) and (2) that where the parties feel that the Adjudicator’s jurisdiction is insufficient to deal with their particular dispute; the parties can sit down and agree on extending that jurisdictional cover. In the present case, the parties could have dealt with this through a written agreement amongst themselves. There was no such effort; and the Court is not required to look into the reasons for the lack of such an effort. View Esteem could easily have brought up these three additional defences, responses or 23 matters in its Payment Response; but it chose not, for whatever reason it may have. Having exercised that option, it is not open to View Esteem to now complain.” [46] This proposition has the further support of Justice Ravinthran Paramaguru J in Bina Puri Construction Sdn Bhd v Hing Nyit Enterprise Sdn Bhd [2015] MLJU 941 where it was ruled that because the Respondent did not file a Payment Response to refer the issue of Counterclaim, the Adjudicator’s jurisdiction is limited to the dispute raised in section 27(1) of CIPAA, hence the Adjudicator did not have the jurisdiction to decide on the counter claim. [47] However the Adjudicator had exercised his discretion to allow the Defence of set-off to be raised even though there was no service of a Payment Response following an application by the Respondent made on 22.12.2016 pursuant to section 26(1) and (2)(b)/(c) of CIPAA to deal with matters not raised through a Payment Response. Specifically it was for the Respondent to raise the Cross/Counter Claim No.1 of RM1,937,000.00 and Cross/Counter Claim No.2 of RM469,296.96. [48] The Adjudicator took the cue from and found his courage in the dicta of the Court of Appeal in View Esteem Sdn Bhd v Bina Puri Holdings Sdn Bhd [2016] 6 MLJ 717 in the dicta of Justice Prasad 24 Abraham JCA (now FCJ) with respect to the approach to be taken under a section 26 CIPAA application as follows: “[45] In any application made to the adjudicator under section 26 of CIPA, the approach in my view to be taken would be akin with the methodology taken by the courts in its approach to Order 2 Rules of High Court 1980 the predecessor of Rule of Court 2012 ... ... [48] It is my view that Section 26(1) of CIPA is wide in terms and covers all aspects of the act including adjudication proceedings. Section 26(2) deals specifically with non-compliance in respect of adjudicator proceedings and the powers reserved to the adjudicator are wide as set out in 2(a)(b) or (c).” [49] The Adjudicator had set out the factors he took into consideration in allowing the set-off of the LAD and claim for late delivery damages by third parties Purchasers to be raised in the Adjudication Proceedings at para h) page 38 of his Decision. The Adjudicator derived his confidence in following this approach from the comments made by Justice Prasad Abraham JCA (now FCJ) in View Esteem (supra) at para 43 as follows: “The Appellant should have moved the adjudicator formally to allow matters not raised under the payment response pursuant to s 25 26(2)(b)/(c) of the said section. The adjudicator would have had to deal with that question and rule accordingly and such a ruling would not in my view be reviewable ...” [50] Such an exercise of an Adjudicator’s discretion, as observed above, is cushioned from any interference from the Court in a section 15 CIPAA application. Once that Defence of set-off is allowed to be raised, then it is well within the Adjudicator’s jurisdiction to decide on whether the whole of the LAD had been proved or that only so much of it should be allowed taking into consideration an EOT that should be allowed. [51] This is a case where to decide on one matter i.e. the LAD would inextricably relate to another matter, the EOT that ought to be given. Thus the LAD claimed by the Respondent may be appropriately reduced if the corresponding factor of an EOT ought to have been granted. [52] Once the issue of an LAD claim is raised as a Defence of set-off then the Adjudicator would have to consider the related issue of the application for EOT as that would invariably have an effect on the number of days of LAD that the Respondent could claim. It is like the flip side of the same coin with one impinging on and inextricably affecting the outcome of the other. 26 [53] It was held in Cantillon Ltd v Urvasco Ltd [2008] 117 ConLR 1 as follows: "[67] ... As the authorities established that the responding party can put forward any arguable defence in adjudication, ... it must follow that the adjudicator can rule not only on that defence but also upon the ramifications of the defence to the extent that it is successful in so far as it impacts upon the fundamental dispute." (emphasis added) [54] It would be grossly unfair if the Respondent be allowed to raise the Defence of a set-off for the first time in its Adjudication Response pursuant to an application under section 26 CIPAA but that the Claimant cannot raise in its Adjudication Reply to be considered the reasons why its second EOT application should be allowed. [55] The Adjudicator had gone through with a fine toothcomb on the causes and effects of delays as tabulated in events No.2.1 - 2.4 at pages 44-45 of his Decision. His conclusion is a finding of fact well within his jurisdiction and a matter that I should not disturb as this is not an appeal on merits. He only allowed an LAD at the rate of RM13,000.00 per day for late delivery by the Claimant of 42 days from 11.9.2015 until 23.10.2015 (date of CPC) amounting to RM546,000.00. The Respondent had claimed LAD from 1.6.2015 (Completion Date after the first EOT) until 27.10.2015 27 (date of Certificate or Completion and Compliance) of 149 days at the rate of RM13,000.00 per day amounting to RM1,937,000.00. [56] As stated, once a matter is within his jurisdiction, as this matter of an LAD Defence is, then he can exercise all or any of his powers under section 25 to arrive at a fair and reasonable decision of interim finality and in this case it was perfectly proper for him to exercise his powers under section 25(m) and (n) CIPAA for the legitimate purpose of deciding the dispute before him. [57] His Adjudication Decision is not cast in concrete as it is provisional in nature and having the element of temporary finality; regard being had to the overall justice of the case and perhaps even a rough justice at that. Whilst the refined justice may be pursued in arbitration, in the meanwhile the Adjudication Decision is to be respected. [58] The Plaintiff as Respondent in the Adjudication is obviously not happy with the Decision of the Adjudicator for they had claimed LAD for 149 days of days of delay from 1.6.2015 (Completion Date after the first EOT) to 27.10.2015 (Date of Certificate of Completion and Compliance) amounting to RM1,937,000.00. [59] The Adjudicator had asked himself the right question with respect to how much of the LAD claim raised as a set-off should be allowed. Even if 28 he has given the wrong answer where quantum is concerned, it is not for this Court to interfere and intervene on ground of excess of jurisdiction. That is to be taken up in arbitration and parties must attune themselves to live with the Adjudication Decision until it is fully and finally resolved in Arbitration or Litigation. [60] It would be opportune to recall the dicta of the English Court of Appeal in Bouygues UK Ltd v Dahl-Jensen UK Ltd [2000] EWCA Civ 507 where Lord Justice Chadwick observed as follows: “27. The first question raised by this appeal is whether the adjudicator's determination in the present case is binding on the parties - subject always to the limitation contained in section 108(3) and in paragraphs 4 and 31 of the Model Adjudication Procedure to which I have referred. The answer to that question turns on whether the adjudicator confined himself to a determination of the issues that were put before him by the parties. If he did so, then the parties are bound by his determination, notwithstanding that he may have fallen into error. As Knox J put it in Nikko Hotels (UK) Ltd v MEPC PLC [1991] 2 EGLR 103 at page 108, letter B, in the passage cited by Buxton LJ, if the adjudicator has answered the right question in the wrong way, 29 his decision will be binding. If he has answered the wrong question, his decision will be a nullity. 28. I am satisfied, for the reasons given by Buxton LJ, that in the present case the adjudicator did confine himself to the determination of the issues put to him. This is not a case in which he can be said to have answered the wrong question. He answered the right question. But, as is accepted by both parties, he answered that question in the wrong way. That being so, notwithstanding that he appears to have made an error that is manifest on the face of his calculations, it is accepted that, subject to the limitation to which I have already referred, his determination is binding upon the parties.” (emphasis added) [61] In Macob Civil Engineering Ltd v Morrison Construction Ltd [1999] BLR 93 at page 97 the provisional nature of an Adjudication Decision was explained as follows: "It is clear that Parliament intended that the adjudication should be conducted in a manner which those familiar with the grinding detail of the traditional approach to the resolution of construction disputes apparently find difficult to accept. But Parliament has not abolished arbitration and litigation construction disputes. It has merely introduced an intervening provisional stage in the dispute resolution 30 process. Crucially, it has made it clear that decisions of adjudicators are binding and are to be complied with until the dispute is finally resolved." [62] That was precisely why there is specifically provided for in section 13 CIPAA as follows: “Effect of Adjudication Decision The adjudication decision is binding unless— (a) It is set aside by the High Court on any of the grounds referred to in section 15; (b) The subject matter of the decision is settled by a written agreement between the parties; or (c) The dispute is finally decided by arbitration or the court.”(emphasis added) [63] Parliament is well conscious of the fact that an Adjudication Decision might not be on all fours with an Arbitral Award or a judgment of a Court after a full trial. It would be expecting too much for a decision that is to be made within a tight time frame in Adjudication to have all the elements of a masterpiece that might be expected of an Arbitral Award or a full Judgment of a Court, with every point of law raised being considered from different perspectives and evidence being weighed and accorded 31 due weight; often after days and weeks and even months of hearing witnesses and a further adjournment for Decision after clarification of written submissions. Depending on the quality of the Adjudication, it may well approximate towards what is to be had in arbitration or litigation. [64] Parliament in its wisdom has set out section 37 CIPAA, setting out the relationship between Adjudication on the one hand and Arbitration and Litigation on the other so that there would be less misapprehension and more ready acceptance of a process that is not perfect but serves a designed purpose of easing cashflow for the unpaid party that has done the work and bore the brunt of the burden and toil under the sun. Section 37 CIPAA reads: “37. Relationship Between Adjudication and Other Dispute Resolution Process (1) A dispute in respect of payment under a construction contract may be referred concurrently to adjudication, arbitration or the court. (2) Subject to subsection (3), a reference to arbitration or the court in respect of a dispute which is being adjudicated shall not bring the adjudication proceedings to an end nor affect the adjudication proceedings. 32 (3) An adjudication proceeding is terminated if the dispute being adjudicated is settled by agreement in writing between the parties or decided by arbitration or the court.” (emphasis added) [65] The advice of Lord Justice Chadwick in the English Court of Appeal case of Carillion Construction Ltd v Devonport Royal Dockyard Ltd [2005] EWCA Civ 1358 in the context of their compulsory Adjudication under The Housing Grants, Construction and Regeneration Act 1996, which came into force on 1st May 1998, should resonate well even under our scheme of statutory Adjudication under CIPAA: “80 The objective which underlies the Act and the statutory scheme requires the courts to respect and enforce the adjudicator’s decision unless it is plain that the question which he has decided was not the question referred to him or the manner in which he has gone about his task is obviously unfair. It should be only in rare circumstances that the courts will interfere with the decision of an adjudicator. The courts should give no encouragement to the approach adopted by DML in the present case; which (contrary to DML’s outline submissions, to which we have referred in paragraph 66 of this judgment) may, indeed, aptly 33 be described as “simply scrabbling around to find some argument, however tenuous, to resist payment”. 81 It is only too easy in a complex case for a party who is dissatisfied with the decision of an adjudicator to comb through the adjudicator’s reasons and identify points upon which to present a challenge under the labels “excess of jurisdiction” or “breach of natural justice”. It must be kept in mind that the majority of adjudicators are not chosen for their expertise as lawyers. Their skills are as likely (if not more likely) to lie in other disciplines. The task of the adjudicator is not to act as arbitrator or judge. The time constraints within which he is expected to operate are proof of that. The task of the adjudicator is to find an interim solution which meets the needs of the case. Parliament may be taken to have recognised that, in the absence of an interim solution, the contractor (or sub- contractor) or his sub-contractors will be driven into insolvency through a wrongful withholding of payments properly due. The statutory scheme provides a means of meeting the legitimate cash-flow requirements of contractors and their subcontractors. The need to have the “right” answer has been subordinated to the need to have an answer quickly. The scheme was not enacted in order to provide definitive answers to 34 complex questions. Indeed, it may be open to doubt whether Parliament contemplated that disputes involving difficult questions of law would be referred to adjudication under the statutory scheme; or whether such disputes are suitable for adjudication under the scheme. We have every sympathy for an adjudicator faced with the need to reach a decision in a case like the present. 82 In short, in the overwhelming majority of cases, the proper course for the party who is unsuccessful in an adjudication under the scheme must be to pay the amount that he has been ordered to pay by the adjudicator. If he does not accept the adjudicator’s decision as correct (whether on the facts or in law), he can take legal or arbitration proceedings in order to establish the true position. To seek to challenge the adjudicator’s decision on the ground that he has exceeded his jurisdiction or breached the rules of natural justice (save in the plainest cases) is likely to lead to a substantial waste of time and expense – as, we suspect, the costs incurred in the present case will demonstrate only too clearly.” (emphasis added) 35 Pronouncement [66] For all the reasons given above, the Adjudication Decisions remains intact and unassailable. The Adjudicator had acted well within his jurisdiction. [67] This application to set aside the Adjudication Decision stands dismissed with costs of RM5,000.00 to be paid by the Plaintiff to the Defendant. Dated: 13 October 2017. - signed - Y.A. LEE SWEE SENG Judge Construction Court Kuala Lumpur For the Plaintiff : S. Ashok (Messrs Leela A. Sanghrajka & Associates) For the Defendant : J S Lim (Messrs T G Lee & Associates) Date of Decision: 29 May 2017.	44,111	Tika 2.6.0
S-05-245-08/2014	PENDAKWARAYAPendakwa Raya PERAYU MURUGAN A/L MANOHARAN … APPELLANT	Criminal Procedure — Appeal — Appeal against conviction and sentence — Appellant convicted and sentenced to death for offence of trafficking in dangerous drugs — Whether trial judge was right in making the affirmative finding of possession with knowledge of the impugned drugs — Dangerous Drugs Act 1952 s 39B(1)(a) & (2)	12/10/2017	YA DATUK ABDUL KARIM BIN ABDUL JALILKorumYA DATUK WIRA MOHTARUDIN BIN BAKIYA DATO' AHMADI BIN HAJI ASNAWIYA DATUK ABDUL KARIM BIN ABDUL JALIL	https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=0c9eec1a-adb0-4162-bf0c-affe12e826dc&Inline=true	1 IN THE COURT OF APPEAL, MALAYSIA, AT PUTRAJAYA (APPELLATE JURISDICTION) CRIMINAL APPEAL NO: S-05-245-08/2014 BETWEEN MURUGAN A/L MANOHARAN … APPELLANT AND PUBLIC PROSECUTOR … RESPONDENT (In the Matter of High Court of Tawau, Sabah Criminal Trial No: TWU-45A-13/11-2013 Between Public Prosecutor And Murugan a/l Manoharan) CORAM: MOHTARUDIN BAKI, JCA AHMADI ASNAWI, JCA ABDUL KARIM ABDUL JALIL, JCA 2 JUDGMENT Introduction Murugan a/l Manoharan, the appellant before us, was placed on trial before the High Court at Tawau, Sabah to answer the following two amended charges: First Amended Charge “Bahawa kamu pada 25 Mac 2013 jam lebih kurang 2.35 petang di Pejabat Bahagian Perkastaman, Cawangan Pemeriksaan Penumpang (CPP) Jabatan Kastam Diraja Malaysia, Balai Ketibaan Lapangan Terbang Tawau, dalam Negeri Sabah telah didapati mengedar dadah berbahaya iaitu Ketamin seberat 8,137.5 gram, dan dengan itu kamu telah melakukan suatu kesalahan di bawah seksyen 39B (1)(a) ADB 1952 yang boleh dihukum di bawah seksyen 39B(2) Akta yang sama.” Second Amended Charge “Bahawa kamu pada 25 Mac 2013 jam lebih kurang 2.35 petang di Pejabat Bahagian Perkastaman, Cawangan Pemeriksaan Penumpang (CPP) Jabatan Kastam Diraja Malaysia, Balai Ketibaan Lapangan Terbang Tawau, dalam Negeri Sabah telah didapati memiliki Pseudoephedrine seberat 2,962.3 gram yang disenaraikan dalam jadual pertama Akta Racun 1952 dan dengan itu kamu telah melakukan suatu kesalahan di bawah Seksyen 9(1) Akta Racun 1952 yang boleh dihukum di bawah seksyen 32(2) Akta yang sama”. [2] The trial ended in his conviction for both charges. He was sentenced to death on the charge of trafficking of ketamine under the first amended charge, and was sentenced to twelve months 3 imprisonment on the charge of being in possession of Pseudoephedrine under the second amended charge. [3] Aggrieved by the conviction and sentence on the trafficking charge under s 39B, DDA 1952, the appellant preferred an appeal to this Court. We dismissed the appeal after due consideration of the facts and issues raised. We now give our grounds for deciding as we did. The Prosecution’s Case [4] The case of the prosecution was well laid out by the learned trial judge in his grounds of judgment which we reproduce below: “On 25th day of March 2013 PW6, a Custom Officer was on duty at the arrival hall Tawau Airport, Tawau Sabah. At about 2.30 p.m. there was flight arriving from Kuala Lumpur. After the Immigration clearance PW1 saw an Indian man carrying a sling bag and a teddy bear took a trolley and proceeded to the conveyor belt. The Indian man was later identified as the Accused. From the conveyor belt the accused collected two bags, one blue in colour and the other one black wrapped with plastic wrapper and put them on the trolley. The Accused then pushed the trolley and before he went out PW6 directed him to place the bags into the scanning machine for inspection. PW10, another Custom Officer, scanned the two bags and noticed an unusual images therein. The Accused told PW10 that the contents of the bag is meant for sale in Tawau. PW10 then alerted PW7 who directed the Accused to open the bags. The Accused then cut the plastic wrapper on one of the bags. Upon realizing the bag was locked, PW7 asked the Accused about the key to which the Accused replied that he did not have them and said that the bag belong to his uncle and was sent through him. The Accused was then directed to open the bag using a scissors and he managed to do so. He took out one package containing women accessories. PW7 then referred the Accused to PW12 for the assessment of tax. PW 12 conducted a check on the bag at the Cawangan Pemeriksaan Kastam (the said room), Accused was directed to open the bag. 4 After the contents of the said bag were taken out PW12 checked the empty small blue bag and sensed that something are hidden in the bag. He then took the bag for another scanning process leaving the accused together with PW7 in the said room. When the bag was scanned PW12 saw an image of something hidden inside the bag. He returned to the said room together with the said bag and call PW 9 to assist. PW9 checked the bag and observed that something was hidden in the inner layer of the said bag and found white substance in it. At this stage PW9 was asked by PW12 to cease checking until the arrival of Custom Officer from the Enforcement Unit. At about 4.15 p.m. PW14 arrived at the said room and checked the said bag (P24) and conducted initial test on its content using a test kit. The initial test revealed that the white substance was Ketamine. PW14 conducted further check on another bag- one big blue bag (P25) and from the inner front part of the bag and found to be Ketamine. At this stage PW14 received a call from PW8 directing him not to continue with the checking until the arrival of the Custom officer from the Narcotic Section Kota Kinabalu, Sabah. The team arrived at about 8.15 p.m and further similar check was conducted on one big blue bag (P25) and one big black bag (P26). From the checking the custom officer seized 24 packet of drugs weighing 14,106 gram. The Accused was then put under arrest and brought to the Custom’s Enforcement Unit’s office in Tawau together with the drugs. The drugs were sent to Jabatan Kimia Kota Kinabalu for analysis and it was confirmed by PW2 (the chemist) that the contents of the 24 packages were Ketamine and Pseudoephedrine the subject matter of the charge.” Findings at The Close of the Prosecution’s Case [5] At the close of the prosecution’s case, the learned trial judge found that the prosecution had successfully proved a prima facie case against the accused. The learned trial judge accepted the evidence of PW2, Biling Ak Peter Raig, the chemist, as to the nature and weight of the drugs. The learned trial judge further found that the appellant had actual possession (having custody and control of the said bags) and knowledge of the impugned drugs. Such affirmative finding of mens rea possession was based, among others, on the following facts: 5 (a) The accused was seen taking and carrying the said bags from the conveyor belt to the trolley; (b) He was also seen placing the said bags on the trolley before pushing it and walked towards the exit door; (c) The impugned drugs were found hidden in the secret compartment in the said bags; (d) The drugs were carefully packed in the packages which were sewn together before it was placed in the secret compartment. These drugs were not visible to the naked eyes and it was only after custom officer, Ombra @ Omrah bin Sailillah, PW12, had carefully checked one of the bags (P24) that the drugs were discovered. (e) The accused was from India and entered Sabah through Immigration check point at the airport via Kuala Lumpur. [6] As to trafficking, since it involves Ketamine, the learned trial Judge had, by relying on section 2 of the DDA, 1952, further found that the very act of carrying the bags containing the large amount of drugs i.e Ketamine weighing 8,137.5 gram, in which the amount are too large for personal consumption, and the manner it was hidden show that the Accused was trafficking in the said drugs. The accused was thus called to enter upon his defence on both the charges. 6 The Defence [7] The appellant gave evidence on oath. The learned trial judge had aptly summarized it as follows: “He testified that he came to know one Pretam Singh in August 2012. He first met Pretam Singh in Butterworth. He then bought some furniture on credit from Pretam Singh. He claim that both his mother and wife had seen Pretam Singh delivering the furniture to his house. After paying two installment the accused could not afford to pay Pretam Singh and he ended obtaining a loan of RM1,500.00 (sic) Pretam Singh payable on monthly basis with an interest of 20% per month. He then worked with Pretam Singh. One day, Pretam Singh told the accused that he wanted to send the accused to India to collect some jewellary and ladies accessories and to bring them to Tawau. The accused further testified that a person by the name of Nathan gave him the flight ticket to India and 10,000 India rupee. He left for India sometimes in March 2013 and was met by Pretam Singh at the airport. He spent one week in India and during that time he stayed in a hotel. Pretam Singh then gave him two bags which were locked and wrapped in a plastic wrapper. The keys were kept by Pretam Singh. He was given a receipt (P34) by Pretam Singh and was informed that the contents of the two keys are as per the receipt. He was instructed to call someone upon his arrival in Tawau. The accused claimed that he did not know that there were drugs in the bag”. Finding at the end of the defence case [8] The learned trial judge found that the appellant’s defence was a mere denial and, as a whole, had also failed to raise a reasonable doubt on the prosecution’s case. The prosecution thus had successfully proven its case against the accused beyond reasonable doubt. In the result the Appellant was found guilty and sentenced to death by hanging. 7 The Instant Appeal [9] At the hearing of the appeal, learned counsel for the appellant addressed the court on four main issues namely: (a) The learned trial judge had erred in law and facts when he failed to realize that the appellant’s evidence did cast reasonable doubts; (b) The learned trial judge had failed to consider at all the relevancy of the report from Cyber Security Malaysia which can confirm the details of telephone numbers of the third parties; (c) The trial judge had erred when he found that the character of one Pretam Singh was fictitious, or a creation of the appellant, and commented adversely about the failure to call Pretam Singh and/or mother or wife of the appellant being fatal to defence case; and (d) There are unexplained great discrepancies between the drug exhibits, the total drugs recovered and tendered in court. [10] On issue (a), learned counsel argued that the appellant had already raised his defence at the first available opportunity during the prosecution’s case when the Investigating Officer, Fardly Harris Salleh (PW15) was giving his evidence. In addition, the evidence given by the appellant was consistent with the questions posed by defence counsel during the cross examination of the PW15. The appellant in his evidence stated that he had been deceived by Pretam Singh from the beginning (offered and bought electrical items and furniture) to the end (he was stuck in the situation that he had to pay back installment with 8 interest of 20% per month). At the end, he agreed to repay the money he borrowed by working with Pretam Singh. He denied that he had any knowledge about the drugs which had been sealed in the secret compartment of the bags as he did not have the key, the bags were locked, and the bags were already wrapped when it was given by Pretam to him to carry it from India to Tawau. It was stressed upon us that the learned trial judge had misdirected himself when he had failed to compare or give weight to the evidence of the Appellant and totally rejecting the version as being an afterthought and not casting any doubt. [11] The prosecution on the other hand argued that the appellant had possession and knowledge of the drugs. Mohd Khairy bin Amat (PW6), testified that the appellant was only carrying a sling bag (P27) and a teddy bear (P28). The appellant went to Conveyor A and took 2 baggage (P25 and P26) from the conveyor belt and placed the two baggage on a trolley and proceeded to carry them to the exit door before he was stopped by PW6.The appellant’s baggage were scanned by Suhaina binti Hussin (PW10), and upon scanning, PW10 found incriminating image. PW10 informed Norasmah binti Gani (PW7), and later on she asked the appellant to open the P25. After the wrapping on P25 was cut open, and upon seeing that P25 was locked by a padlock, PW7 had asked the accused to open the padlock. When asked about the key, the accused said that P25 along with P26 were his uncle’s and his uncle had asked him to deliver the baggage on his behalf. In addition, the baggage tags (P25A) and (P26A) clearly show that the baggage were registered under the appellant’s name. Therefore, there 9 was no issue of false identity of P25 and P26 belonging to the appellant. Thus, learned DPP submitted that the appellant had custody and control over the said drugs and that the learned trial judge was right in making the affirmative finding of possession with knowledge of the impugned drugs. [12] In our opinion learned counsel’s argument on this issue has no merit. The learned judge had rightly made a clear affirmative finding of possession and knowledge of the impugned drugs based on the evidence by the prosecution witnesses that he had accepted. We have gone through the entire evidence on record and we are in complete agreement with the learned trial judge on the above affirmative finding of possession. It was not disputed that the Appellant was carrying the said bags all the way from India to Tawau Sabah via Kuala Lumpur. It was not disputed and if disputed, not successfully challenged, that the bags contained a substantial amount of the impugned drugs. As to knowledge of the drugs, we find that it is impossible that the appellant did not know about the drugs. It must be noted that P25 and P26 were wrapped in plastics and both were locked by padlock, and, in addition, were placed in secret compartments in each bag. The appellant also gave different answers about the content of the bags when asked by two different officers. When he was asked by PW7 he said that he was delivering the bags on behalf of his uncle, while before PW10 he said that the goods inside were meant to be sold in Tawau. From the different versions given, the most reasonable inference is that the appellant had knowledge of the drugs in the said bags. In the 10 circumstances, we find that the learned trial judge had rightly arrived at the following ultimate facts (at pages 14, 15, 16 and 17, AR): “At this juncture it must be stressed that the said drugs were found in the two big bags P25 and P26 and in another small blue bag P24 found in P25. Both P25 and P26 were locked with a padlock and wrapped with transparent plastic wrapper (P25A and P26A). The drugs were kept in 4 packets made of cloth and sewn together and then place/hid in a secret compartment located in the inner front and back portion of the bags (P24, P25 and P26). Besides that the net weight of Ketamine and Pseudoephedrine of 8,137.5 gram and 2,962.3 gram respectively which is two large of a quantity also fortify my view that he (sic) Accused do have knowledge of the drugs in the said bags. It is perhaps pertinent to note that all the bags were locked with small padlocks but the keys were not with the Accused. In other words the Accused was carrying the locked bags without keeping he keys with him and this could lead to an inference that the Accused do not know the content of the bags. However as can be seen from the evidence of PW7 and PW14 that said bags could still be opened even without the keys by poking the zipper with the scissors. Even though it was PW7 who instructed the Accused to open the bag using the scissors the fact remains that the bag could still be opened without using the keys. As such the non production of the keys is not fatal to the issue of knowledge. The second point to be noted is the purported owner of the said bags. The Accused initially told PW7 that he was carrying the said bags for his uncle whereas when questioned by PW14 the Accused admitted that the bags belong to him. In my opinion the issue of the owner of the said bags is not relevant because the prosecution is not required to prove ownership of the said bags. The primary concern of the court is on the issue of possession of the said drug and it is irrelevant for this court to determine the ownership of the said bags at this stage. The other point to be considered is the fact that the Accused had produced a receipt from Aman Traders (P34) as proof of purchase of the ladies accessories found in the bags. It is proven that among the items seized by the Custom Officers from the bags were ladies accessories. It is also proven that the Accused did produce the said receipt to the Custom Officers when they proceeded to access the tax payable by the 11 Accused on the imported goods. However it must also be noted that the said drugs were kept hidden in a secret compartment in the inner front and back portion of the bags. Also it was PW12’s evidence that when the contents of small blue bag (P24) was taken out, the bag (P24) was still heavy which led to his suspicion that there are something hidden in it. As it turn out to be further checks done by PW14 shows that there were a total of 16 packets made of cloth sewn together, each packet contained drug. Hence, it is my considered opinion that the mere fact that the Accused could adduced the receipt of the purchase of the ladies accessories it not a ground to negate the element of knowledge on the part of the Accused of the presence of the drugs in the bags. To the contrary, the fact that the said drugs were hidden in the secret compartment of the said bag and securely stuffed inside the packets shows that the Accused know that he was also carrying drugs with him. I must also not loose sight of the fact that the 2 bags (P25 and P26) were securely wrapped with plastic wrapper. Again it must be noted here that the drugs were also found hidden in the inner front and back portion of the two bags (P25 and P26). The very act of wrapping the said bags could be inferred as the Accused’s intention of ensuring that the said drugs would not easily be detected during his journey.” [13] Flowing from the above, we also find that the learned trial judge had considered the defence in the light of the prosecution evidence and had rightly made the following finding (pg 35-37, AR): “Hence it is my considered opinion that so called Pretam Singh is merely the creation of the accused in his attempt to cast doubt on the prosecution case. This so called creation is even more obvious when the accused gave different answers as to the owner of the bags when question by the custom officer. He told PW7 that the bags when question by the Custom Officer. He told PW7 that the bags belong to his uncle but when asked by PW14 he admitted that the bags were his. This inconsistencies only shows that the accused was trying to find ways to distance himself from the offence but this does not cast any doubt in the prosecution’s case. 12 The defense put forward by the Accused is one of the Denial. He denied having knowledge of the presence of the drugs in the said bags. In my opinion, his denial has not cast any doubt in the prosecution’s case.” [14] Issues (b) and (c) are inter-related. We will elaborate it together. Learned counsel argued that the prosecution team did seize (3) three telephones (exhibits P52, A-C), and that the appellant did mention to the prosecution witnesses that the phone numbers of the appellant’s boss was recorded in one of the telephones. It was pointed out that this fact was agreed by PW15 in his cross examination. Learned counsel referred us to the case of Emeka Promise v PP [2015] 3 CLJ 916 where the Court of Appeal held that the version given under oath by the appellant was consistent with his evidence and the events that happened during the time the appellant was arrested, and learned counsel contended that the defence had raised reasonable doubts on the prosecution’s case and it was the duty of the prosecution to investigate the defence version when the cyber security report stated “analisa tidak menunjukkan input terguna”. The appellant argued that he had already complied with the “Alcontara Notice”. [15] Besides, learned counsel also argued that the trial judge erred when he said the character of one Pretam Singh was fictitious or a creation of the appellant and commented adversely about the failure to call Pretam Singh and/or mother or wife of the appellant was fatal to the defence case. 13 [16] On behalf of prosecution, learned DPP in her submission argued that PW15 had done all that was required to investigate on the existence of one Pretam Singh based on the report from the cyber security, P 357 (in the CD report). PW15 had also explained it in his evidence that he had taken steps in his investigation to search for the appellant’s boss. Thus, it was submitted that this issue had no merit at all and should be rejected. [17] We agree with the learned DPP submission and in considering these issues, it is germane to refer to pages 250 and 251, AR, where PW15, upon cross examination, says as follows: “Q14: I put it to you that ig (sic) the hard copy of the CD record was tendered, it would not be favourable to the prosecution? A; Saya tidak bersetuju sama sekali kerana kandungan hard copy dan juga cakera padat tersebut adalah sama. ……………. “Q: I put it to you that you did not personally investigate to see whether the accused’s boss Pretam Singh was in existence or not, but you only rely on the CD report? A: Saya tidak setuju kerana petunjuk yang ada pada minggu kritikal pertama di mana tertuduh ditahan, pihak kami Cuma mempunyai nombor telefon sahaja yang didakwa oleh tertuduh sebagai bos beliau tetapi seperti apa yang saya nyatakan tadi maklumkan lanjut menegenai (sic) individu terbabit untuk rujukan kepada pihak JPN ataupun pihak Imigresen dan kedutaan negara India tidak ada sama sekali. Nombor telefon “bos” yang didakwa oleh OKT hanya bertahan dan boleh dihubungi dalam masa beberapa hari sahaja.” 14 We do not find any flaw in PW15’s investigation on these issues. He has done what is reasonable in the circumstances and there is clearly no issue of suppression by the prosecution. Even if there is such a short fall in PW15’s investigation as alleged by learned counsel, we are of the opinion that it is not fatal so as to create a reasonable doubt to the prosecution case. On the case of Emeka Promise v PP, supra, relied by learned counsel to back his above proposition, this Court had held that it was important for the prosecution to lead evidence on the hand phones as they could confirm or negate the appellant's version on the existence of one Oba and Moruko and on the defence that the appellant therein had no knowledge of the dangerous drugs as he was merely to deliver the same to Moruko. Upon such failure, this Court had acquitted and discharged the appellant in Emeka Promise (supra). On appeal by the prosecution, the Federal Court vide Rayuan Jenayah 05-63- 03/2015(B), reversed the judgment of this Court. Although we did not have the benefit of a written judgment of the Federal Court, we were of the view that Emeka Promise (supra) could no longer be relied upon. So too in the case of Rahmani Ali Mohamaad v PP (MPRJ-05-195/13) where the Federal Court held that such a failure was not fatal to the prosecution case. A fortiori, the Appellant was charged for trafficking and it is not an issue that whether he was not the owner of the bags or the impugned drugs in it. Hence, whether the alleged Pretam Singh existed and that he was the owner of the bags, or the true trafficker is not relevant. What had to be proved and had been conclusively found by the trial judge was that the Appellant was found in mens rea possession of the impugned drugs. In this regard, the learned counsel’s argument has no merit. 15 [18] On issue (d), learned counsel argued that the prosecution had failed to provide any explanation as to the doubt pertaining to the discrepancies in the weight of the drugs exhibits. According to the first charge the drugs exhibit was 14,106 grams of ketamine, while in the first amended charge the drugs exhibit was 8137.5 grams of ketamine, and the second amended charge the drug exhibit contained 2962.3 grams of Pseudophedrine. There were serious discrepancies between the first charge (D1) and first amended charge i.e a difference of 315 grams, and no explanation was proffered by the prosecution on such difference. Learned counsel suggested that there was actually an earlier chemist report issued before the chemist report dated 16.8.2013 (P8). To add further, the prosecution also did not adduce any evidence to show who was carrying the drug exhibit during the journey from Tawau Airport to the Customs office at Tawau. This break in the chain of evidence was relevant when there were differences in the weight of the drugs exhibit viz: between the one given by the customs officer and that of the chemist as per his report (P8). [19] On the other hand, the learned DPP submitted that there was no issue pertaining to the chemist report as the evidence by PW2 had explained that he did not produce any chemist report other than exhibit P8. Apart from the explanation proffered by PW2, PW15 also had explained about D1 where he stated in his testimony that whenever there was such a case like the present case, he will refer any matter for further instruction or action from the Office of Customs Legal Department in Putrajaya and the Office of the State Legal Advisor of Sabah. Therefore the decision to charge was done by either one of 16 these offices in the present case, and D1 was filed against the accused before the issuing of Chemist report P8. PW14 in his testimony further said that the gross weight of the drug exhibits seized was 14,106 grams. Referring to pages 241-243, AR, PW14, on this issue, said as follows: “Q: I put it to you that there was also at first chemist report that dated before 4.4.2013 which was not served on the accused A: Tidak setuju sama sekali. Q: I put it to you that in the first chemist report the result of the analysis was 14.106kg of ketamine. A: Tidak setuju sama sekali. Q: I put it to you that the weight of the Ketamine mentioned in your first charge (D1) was in accordance with the first chemist report. A: Tidak setuju sama sekali. Q: Could you charge without chemist report? A: Apabila berlaku sesuatu kes, kami sebagai Pegawai Penyiasat akan sentiasa rujuk sesuatu perkara untuk mendapatkan sebarang arahan ataupun tindakan lanjut daripada pihak pejabat pengarah perundangan Jabatan Kastam Diraja Malaysia, Putrajaya dan juga pejabat peguam Kanan Persekutuan Negeri Sabah. Ole (sic) yang demikian, keputusan sama ada sesuatu kes itu dipertuduhkan ataupun tidak adalah keputusan yang dibuat daripada kedua-dua pejabat ini. Dan dalam kes ini, pertuduhan tanpa adanya laporan analisa kimia telah dipersetujui oleh kedua-dua pejabat ini.” 17 [20] We had duly considered both parties’ submissions and we found that the issue raised by learned counsel as to the identity of the drugs is devoid of any merit. We noted that learned counsel primary basis in raising this issue revolves entirely on the alleged differences in the weight of the impugned drugs in the first charge and in the first and second amended charges. First and foremost it startled us when learned counsel argued that there was such a possibility of there being an earlier chemist report before the chemist report P8 was issued. Learned counsel vehemently stressed that there were great differences as to the weight of the impugned drugs stated in the first charge with the weight stated in the first and second amended charges. To us, no further elaboration needed on this issue except to say that the first charge was preferred against the accused when he was first (initially) charged in court (in the magistrate court) and the charges were later amended after the chemist report (P8) had been issued by PW2. This is the common practice in cases involving section 39B of the DDA 1952. I t startled us even more when learned counsel suggested to PW15 that there was no direction from any higher authorities to prefer such initial charge against the appellant without there being a chemist report. PW15, the investigation officer, explained in such clarity that the charging of the appellant before the issuance of the chemist report was a common procedure, and furthermore, the Appellant was charged upon the direction of the Public Prosecutor. We believe that learned counsel is very much confused here because that first charge (D1) was signed by a Deputy Public Prosecutor, the concerned authority. In addition, PW2 categorically said that he had never issued any earlier report, other than P8, on the impugned drugs. The weight stated in the 18 first charge was, as found and accepted by the trial judge which we undoubtedly agree, weighed by PW14 as being the gross weight of the impugned drugs. In this regard, we do not see any reason to disbelieve PW2. In the above scenario, we fail to see any merit in the proposition raised on the above issue and we agree with the finding of the learned trial judge that such proposition was merely a speculation. To us, this finding is enough to reject this issue in limine. [21] In any event, as to the difference in weight and the handling of the impugned drugs, we see no merit in learned counsel’s argument as well because there is no doubt as to the identity of the drugs recovered from the appellant’s possession with the drugs that were finally tendered in court. They were the same. Upon perusing the records, we find that the discrepancy is indeed minor in nature and easily explainable. It is to be noted that the impugned drugs were initially weighed by PW14 in the office using the office uncalibrated weighing machine. The gross weight was 14,106 grams including the packages, all in. Again, this is a common practice pending the accurate weighing by the chemist. The chemist, PW2, however, has his own procedure in weighing the drugs. In his evidence he had explained and differentiated the three terms used viz: gross weight (berat kasar), net weight (berat bersih) and pure weight of the drugs (berat tulen). PW2 in his evidence, among others, explained the terms as follows: “Q: Boleh kamu terankan (sic) bagaimana kamu mendapat jumlah berat bersih bungkusan-bungkusan yang telah kamu timbang? 19 A: Untuk mendapatkan berat bersih, terlebih dahulu saya mendapatkan berat kasar kandungan bahan bersama-sama dengan bungkusan-bungkusan kain dan daripada perbezaan berat kasar dan berat bungkusan kain kosong yang telah dikeluarkan isi kandungannya maka saya mendapatkan berat bersih, Kaedah ini adalah diguna pakai untuk kesemua barang kes di dalam kotak bertanda L, M dan N.” (page 53, Appeal Record) On net weight of the drugs (berat tulen) and upon being asked by the trial judge during his re-examination (page 73, AR), PW2 further explained as follows: “Court: Tadi kamu kata berat tulen. Apa perbezaan di antara berat tulen, berat kasar dan berat bersih? A: Berat bersih adalah perbezaan berat, berat kasar dan berat bungkusan kain kosong. Berat kasar adalah jumlah bungkusan kain termasuk kandungannya. Berat tulen diperolehi dnegna (sic) menjalankan ujian kuantitatif menggunakan GCFID. Dalam Laporan Kimia merujuk kepada L(a) berat bersih ialah 2509.6 gram dan berat tulen Ketamin adalah 1952.7 gram.” [22] The above evidence debunks learned counsel’s argument that there could be a break in the chain with regard to the identity of the drugs when there is a great difference of 315 grams (it should be 312.4 grams) not accounted for viz: the difference between 14,106 grams (first charge) and gross weight of 13,791 grams. We find that it should be a net weight of 13,793.6 grams as found by PW2 (not gross weight) as per page 25, AR. These differences can be further tabulated as follows: 20 Drugs marked as Net Weight Pure Weight P9 2,509.6 gms 1952.7 gms Ketamine (A2(i)-A2(iv)) P10 2,464.0 gms 1856.6 gms Ketamine (A3(i) – A3(iv)) P13 2,962.3 gms 2962.3 gms Pseudoepherine (C2(i)-C2(iv)) P14 3,022.5 gms 2098.8 gms Ketamine (C3 (i)-C3(iv)) P17 1330.3.gms 1043.1 gms Ketamine (E2(i)-E2(iv)) P18 1,504.9 gms 1186.3 gms Ketamine (E3(i)-E3(iv)) ----------------- ---------------------------- 13,793.6 gms 11,099.8 gms ----------------- ---------------------------- As we see it, learned counsel fails to address himself correctly on the three terms alluded above. What had been weighed by PW 14 is the gross weight of the impugned drugs with its packages, whereas the net weight (berat bersih) as found by PW2 had excluded the packages, which formed part of the gross weight (berat kasar). It should be noted that nowhere in his evidence had PW 2 provided the details of the gross weight (berat kasar) of the exhibits P9, P10, P13, P14, P17 and P18 albeit done by PW2. Neither was this aspect of the issue cross examined by learned counsel. In the circumstances, the only reasonable inference that can be drawn is that the unaccounted 312.4 grams as alleged must refer to the weight of the packages which PW2 21 had clearly excluded in finding the net weight (berat bersih) of the impugned drugs. We therefore find that the alleged difference is minor in nature, explainable and does not in any way effect the integrity and identity of the impugned drugs. [23] In addition, we also find that there is no merit on the issue of mishandling of the impugned drugs. Despite the alleged unaccounted for amount, which we had found to be slight and explainable, we find that the impugned drugs were one and the same drugs that were seized from the possession of the Appellant. We do not see any reason to disturb the factual finding on the integrity and identity of the impugned drugs of the learned judge. The learned trial judge had rightly considered these issues in his judgment at page 21-22, AR, as follows: “PW 14 then weigh the drug using the weighing scale brought by the officers from Kota Kinabalu and total weight was 14.106 gram. The Accused and the drugs were taken to the Enforcement Unit office Tawau where a complete marking process on the exhibits was done. Subsequently the Accused was put in the lock-up until 26th day of March 2013 when the PW15, the Investigation Officer took over the case from PW14. Between 25th day of March 2013 and 26th day of March 2013, the exhibits were under the custody of PW14. On 26th day of March 2013, PW15 took over the case from PW14 where pursuant to a handing over note (P38) the drugs were handed over to him. The drugs were then place in 3 boxes (P4, P5, and P6). On 27 th day of March 2013 the boxes were taken to Kota Kinabalu. Each boxes were under the custody of PW8, PW13, and another Custom Officer Richard Martin throughout the journey. They took a flight to Kota Kinabalu and upon arrival at the Narcotic Section of the Custom Department Kota Kinabalu the 3 boxes were kept in a locked steel cabinet in PW15’s office. 22 The said drugs were then taken out for a press conference on 28th day of March 2013. The drugs were under the close supervision of PW8, PW13, PW15 and Richard Martin. After the press conference the drugs were put/placed into the 3 boxes and sealed with the Customs Department’s seal before being sent to PW1 the Scientific Officer at Jabatan Kimia Malaysia, Kota Kinabalu. PW1 then issued an acknowledgement receipt of the said drugs (P3) and kept them in a locked steel cabinet in the strong room. On 1st day of April 2013 PW1 took out the boxes and handed them over to PW2 for analysis. PW2 then kept the boxes in a locked steel cabinet in the strong room after affixing the Chemistry Department’s laboratory number onto the boxes. I pause here to observed the evidence of PW7, PW9, PW12 regarding the examination of one of the bags (P24) and the event that took place thereafter while inside the CPP’s office. PW12 inspected P24 after its content have been taken out. Upon sensing that something was hidden in the inner front portion of the bag, PW12 took the bag out of the CPP’s office, went to the scanning machine and carried out the second scanning on P24. Upon realizing that there was an image of hidden object, PW12 brought P24 back to the CPP’s office accompanied by PW9. Back in the CPP’s Office PW9 then conducted another inspection by making a cut on the inner front portion of P24 and found a white substance inside it. It must be noted that PW12 took P24 out of the room leaving the Accused and PW7 in the CP’s office. P24 was at that particular point of time was in the custody of PW12. One question that came to my mind was whether there was any opportunity on the part of PW12 or PW9 to plant the said drug in P24? This was not challenged by the defense. However taking into consideration that PW12 came back to the CPP’s office immediately after the second scanning process, it is not possible for him to plant the drug inside P24. Looking at the condition of the drugs hidden in P24 it is not unreasonable to infer that it would require some time for anyone to keep the drug and reseal the inner layer of P24 into its previous condition. It is common knowledge that the scanning machine was located in the arrival hall which can be seen by people making it is quite impossible for PW12 or PW9 to have planted the said drug into 23 P24. Hence, I am of the opinion that the integrity of the said drug were intact.” [24] In further addition, we also find that the learned trial judge has appreciated correct law in applying the decision in the Federal Court case of Hasbala Mohd Sarong v PP (2013) 6 CLJ 945 to the present case. We find no flaw in his following findings (page 29, AR): “In the instant case notwithstanding the said discrepancy there are couple evidence on the proper handling of the drug from the time it was seized to the time it was handed over to PW2 for analysis. The identity of the drugs has been verified by PW9, PW12 and PW14 as well as PW2 resulting in his chemist report. Further the labeling of the said exhibits were sufficiently explained by PW8. PW15 had also testified on the movement of the exhibit from Tawau to Kota Kinabalu. On top of that proper handing over of the drug to PW15 was shown in the handing over note (P38). All these evidence taken in its totality have dismissed any doubt of the possible break in the chain of evidence. In my opinion there is no possibility of any mix up in the handling of the said drug especially when PW2 had assigned a specific reference number to the boxes containing drug (P4, P5 and P6) after receiving them from PW15.” Conclusion [25] On a consideration of all the materials on record we have no hesitation to affirm the decision of the trial judge and dismiss this appeal. signed ABDUL KARIM BIN ABDUL JALIL Judge Court of Appeal Malaysia Dated: 12th October 2017 24 For the Appellant: S.Sundarajan Messrs Sundarajan & Associate For the Respondent: Jasmee Hameeza binti Jaafar Deputy Public Prosecutor Attorney General’s Chambers Putrajaya	40,619	Tika 2.6.0
83 - 2565 - 10/2017	PENDAKWARAYAPejabat Timbalan Pendakwaraya Negeri Selangor TERTUDUH Tan Woei Hang	CRIMINAL LAW – Section 424 of the Penal Code – Dishonestly concealing RM3,800 in the accused’s CIMB Bank Account – Money deposited by the complainant for the purchased of a secondhand Perodua Kancil advertised in Mudah.my - Car does not exist – Accused pleaded guilty after the charge was read – Accused aggrieved by the sentences passed and filed an appeal – Whether the Magistrate had erred in passing sentence – Whether sentences passed was within the four corners of the punishable section – Whether sentences was assessed according to the established Judicial Principles on sentencing – Whether on appeal the Appellate Court should disturb the sentence.	12/10/2017	PN ROSLIZI BIN SULAIMAN	https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=d546c9a5-6603-4c69-bc22-2b98ea266e3d&Inline=true	1 IN THE MAGISTRATE COURT AT KLANG IN THE STATE OF SELANGOR CRIMINAL TRIAL NO. MM2 – 83 – 2565 – 10/2017 PP V TAN WOEI HANG JUDGEMENT [1] The accused was charged on 06/10/17 under s. 424 of the Penal Code for dishonestly concealing RM 3,800.00 in his CIMB bank account which was deposited by the complainant, Mr. Shazwan Aziz Bin Masuaud. The offence was said to have been committed on 11/09/17 at about 951 AM at CIMB Bank, Port Klang branch. The charge has been read and explained to, and understood by the accused. He pleaded guilty to the charge. After taking into consideration both mitigating and aggravating factors, the accused was convicted and duly sentenced as follows: 2 i) 2 months imprisonment from the date of arrest; ii) Fine RM1500 in default 1 month imprisonment. [2] The accused, being aggrieved by the sentences passed, has filed an appeal. [3] The complainant became interested to purchase a secondhand Perodua Kancil advertised in Mudah.my. He then contacted the number provided in the website and spoke to a Chinese guy. After having negotiated thoroughly with the Chinese guy via phone call, the complainant finally agreed to pay RM 3,788.00 being the purchase price of the car. He then deposited a sum of RM3,800.00 into the accused’s CIMB bank account on 11/09/17. On 12/09/17, the complainant went to Kajang 707 Auto City 11 SL 4/3 Bandar Sungai Long 43000 Batu 9 Cheras to collect the car. However, he was informed that no such car exists and the owner of the auto shop did not know the Chinese guy the complainant had spoken on 10/09/17. 3 [4] Section 173(b) of the Criminal Procedure Code provides that the court shall pass the sentence according to law. In Jafa Bin Daud [1981] 1 MLJ 315, passing sentence according to law means the sentence must be meted out within the ambit of the punishable section and it must also be in line with the established judicial principles on sentencing. Therefore, the appellant, in his appeal, must be able to show that the magistrate had erred by passing sentence not within the four corner of the punishable section or the sentence was not assessed according to the established judicial principles on sentencing. If the sentence was passed according to the law and the magistrate had considered all factors before passing out sentence on the accused, the high court should be slow to interfere with the sentence passed by the magistrate. In Mohamed Nor [1985] 2 MLJ 200b, Abdul Hamid CJ decided as follows: 4 The question now remains whether we should disturb the sentence in the instant case. In this regard we would observe that it is the established principle that an appellate court should be slow to interfere or disturb with a sentence passed by the court below unless it is manifestly wrong in the sense of being illegal or of being unsuitable to the proved facts and circumstances. And the mere fact that another court might pass a different sentence provides no reason for the appellate court to interfere if the court below applies the correct principles in the assessment of the sentence. Therefore, the sentence passed by the lower court can’t be dislocated just because the appellate court is of the opinion that other sentence might be suitable in that case. 5 [5] In Zaidon Bin Shariff [1996] MLJU 159, Augustine Paul JC (as he then was) put succinctly that the sentencing court has the discretion to determine the appropriate sentence to be passed on the accused. He was reported to say: The right to determine the quantum of punishment on a guilty party is absolutely in the discretion of the trial Court. It will exercise that power judicially and will not tolerate any encroachment or even semblance of encroachment by either the prosecution or the defence in respect of that right (see New Tuck Shen v. P.P. (1982) 1 MLJ 27). [6] Similarly in Norshahrizan Bin Junaidi [2016] MLJU 465, it was held by the Court of Appeal in the following fashion: In any event, sentencing is an exercise of discretion by the trial Judge. The law simply provides, as in most cases, a spectrum of sentences – from the minimum to the maximum. The trial 6 Court has to choose the appropriate sentence in each case within that spectrum by giving consideration to the peculiar circumstances of each case and all the relevant factors. The only constraint face by the trial Court in exercising its discretion is when the law imposes the only sentence such in the case of murder under section 302 or when the law provides for a minimum sentence in which case the trial Court cannot impose anything less than the minimum. For illustration reference may be made to the following cases: PP v Leonard Glenn Francis [1989] 2 MLJ 158; Leong Kok Huat v PP [1998] 6 MLJ 406 and Philip Lau Chee Heng v PP [1988] 3 MLJ 107. [7] Another case that is worth-mentioning here regarding the discretion of the sentencing court is Omar Bin Rudding [2017] 3 MLJ 524. In this case, the Court of Appeal had this to say: We recognised that sentencing is a matter of judicial discretion of the trial court. We were of the view that the sentence of 12 7 years imprisonment in the circumstances of this was adequate. It was not manifestly or grossly inadequate. We were guided by the observation of Raja Azlan Shah, AG LP (as His Royal Highness then was) in Bhandulananda Jayatilake v Public Prosecutor [1982] 1 MLJ 83 as follows: Is the sentence harsh and manifestly excessive? We would paraphrase it in this way. As this is an appeal against the exercise by the learned judge of a discretion vested in him, is the sentence so far out-side the normal discretionary limits as to enable this court to say that its imposition must have involved an error of law of some description? I have had occasion to say elsewhere, that the very concept of judicial discretion involves a right to choose between more than one possible course of action upon which there is room for reasonable people to hold differing opinions as to which is to be preferred. That is quite inevitable. Human nature being what it is, different judges applying the same principles at the same time in 8 the same country to similar facts may sometimes reach different conclusions (see Jamieson v Jamieson [1952] AC 525). It is for that reason that some very conscientious judges have thought it their duty to visit particulars crimes with exemplary sentences; whilst others equally conscientious have thought it their duty to a view the same crimes with leniency. Therefore sentences do vary in apparently similar circumstances with the habit of mind of the particular judge. It is for that reason also that this court has said it again and again that it will not normally interfere with sentences, and the possibility or even the probability, that another court would have imposed a different sentence is not sufficient, per se, to warrant this court’s interference. [8] The court retains the discretion to choose the appropriate recourse for each offender after taking into account the particular circumstances of the case. The first and foremost consideration is the 9 public interest. The famous case of R v Ball 35 Cr App R 164 is often cited in this regard. Hilbery J stated: "In deciding the appropriate sentence a court should always be guided by certain considerations. The first and foremost is the public interest. The criminal law is publicly enforced, not only with the object of punishing crime, but also in the hope of preventing it. A proper sentence, passed in public, serves the public interest in two ways. It may deter others who might be tempted to try crime as seeming to offer easy money on the supposition, that if the offender is caught and brought to justice, the punishment mil be negligible. Such a sentence may also deter the particular criminal from committing a crime again, or induce him to turn from a criminal to an honest life. The public interest is indeed served, and best served, if the offender is induced to turn from criminal ways to honest living. Our law does not, therefore, fix the sentence for a particular crime, but fixes a maximum sentence and leaves it to the court to decide what is, within that maximum, the appropriate sentence for 10 each criminal in the particular circumstances of each case. Not only in regard to each crime, but in regard to each criminal, the court has the right and the duty to decide whether to be lenient or severe." [9] I am of the opinion that the public interest, in this case, is best served by sentencing the accused to two months imprisonment and fine RM1500.00. The offence committed by the accused cannot be tolerated. It involves the notion of “dishonesty”. Dishonesty makes the society to collapse. The offender must be punished sufficiently. The court must show its abhorrence and disapproval by passing out severe sentence. The offence committed by the accused, in my judicially considered opinion, is too serious. Fine alone is not sufficient. I think it would not be too much for me to say that fine alone is detrimental to the interest of the society in this kind of offences. 11 [10] It must be admitted that cases of cheating and fraudulently concealing money committed through cyber space are rampant nowadays. The offenders advertise their “products” in the internet to entrap the unwary victims. The money has been deposited but the victim got nothing. Then they move to look for new victims. This must be put to a stop. I take judicial notice that cyber crimes are rampant nowadays. Therefore, by this judgment, I will take the opportunity to tell the public that the court views such offences with much detestation and therefore, deterrent kind of sentence is needed. There is an abundance of authorities to show that the court must not neglect the element of rampancy. Mokhtar Sidin JCA in Tia Ah Leng [2004] 4 MLJ 249 had made “rampancy” as an exception to the practice of giving discount in sentencing when the offender had pleaded guilty. Therefore, in this case, 2 months imprisonment and RM1500 fine are surely sufficient to serve the purpose. [11] The court, in this case, must pass a deterrent sentence in the hope that the accused will enter into honest and sincere repentance and he will not repeat the same offence or any other criminal acts in future. 12 Two months imprisonment and RM1500 fine are reflective of the court attitude and seriousness in dealing with cyber related crimes. It is also hoped that the sentence will serve as a useful reminder to others not to commit cyber related crimes. (Refer Tan Bok Yeng [1972] 1 LNS 145) [12] An accused person who pleads guilty should generally be given leniency/discount. The rationale behind this practice is that the great expense of a lengthy trial is avoided. If the court does not give discount, the offender will not be induced to enter into plea of guilty. They would rather try their luck in full trials (Refer Sau Soon Kim [1975] 2 MLJ 134). However, leniency based on guilty plea is not the automatic right of the accused. There will be exceptions to this rule. The court may refuse to give a discount and may choose to pass a severe sentence where a serious offence is committed (Leo Say [1985] 2 CLJ 155). In Teh Ah Cheng [1976] 2 MLJ 186, the accused pleaded guilty and lower court released the accused on good behavior bond for an offence of having in his possession unlawful firearms. Eusoffe Abdoolcader J (as he then was) set aside the bond 13 and replaced it with three years imprisonment. He had this to say in his judgment: “In sentencing generally the public interest must necessarily be one of the prime considerations…..Of the several concepts relevant to sentencing, it is my considered view that deterrence and prevention assume positions in the forefront in relation to the offences of this nature”. I consider this is a serious case even though the accused had pleaded guilty at the earliest possible moment. By virtue of the above-quoted case, it is my judicially considered opinion that the guilty plea of the accused is of little value compared to that of the seriousness of the offence he had committed. [13] For the above stated reasons I sentenced the accused to two months imprisonment from the date of arrest and RM1500 fine in default one month imprisonment. 14 ROSLIZI BIN SULAIMAN Magistrate Klang 12/10/2017 Deputy Public Prosecutor : Puan Amira Binti Abd Aziz Jabatan Peguam Negara Counsel for the Accused : Encik Chua Hong Hui Messrs Dexter Chua, Wun & Partners Notice of Appeal filed on 09/10/17	13,208	Tika 2.6.0
83 - 2565 - 10/2017	PENDAKWARAYAPejabat Timbalan Pendakwaraya Negeri Selangor TERTUDUH Tan Woei Hang	CRIMINAL LAW – Section 424 of the Penal Code – Dishonestly concealing RM3,800 in the accused’s CIMB Bank Account – Money deposited by the complainant for the purchased of a secondhand Perodua Kancil advertised in Mudah.my - Car does not exist – Accused pleaded guilty after the charge was read – Accused aggrieved by the sentences passed and filed an appeal – Whether the Magistrate had erred in passing sentence – Whether sentences passed was within the four corners of the punishable section – Whether sentences was assessed according to the established Judicial Principles on sentencing – Whether on appeal the Appellate Court should disturb the sentence.	12/10/2017	PN ROSLIZI BIN SULAIMAN	https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=d546c9a5-6603-4c69-bc22-2b98ea266e3d&Inline=true	1 IN THE MAGISTRATE COURT AT KLANG IN THE STATE OF SELANGOR CRIMINAL TRIAL NO. MM2 – 83 – 2565 – 10/2017 PP V TAN WOEI HANG JUDGEMENT [1] The accused was charged on 06/10/17 under s. 424 of the Penal Code for dishonestly concealing RM 3,800.00 in his CIMB bank account which was deposited by the complainant, Mr. Shazwan Aziz Bin Masuaud. The offence was said to have been committed on 11/09/17 at about 951 AM at CIMB Bank, Port Klang branch. The charge has been read and explained to, and understood by the accused. He pleaded guilty to the charge. After taking into consideration both mitigating and aggravating factors, the accused was convicted and duly sentenced as follows: 2 i) 2 months imprisonment from the date of arrest; ii) Fine RM1500 in default 1 month imprisonment. [2] The accused, being aggrieved by the sentences passed, has filed an appeal. [3] The complainant became interested to purchase a secondhand Perodua Kancil advertised in Mudah.my. He then contacted the number provided in the website and spoke to a Chinese guy. After having negotiated thoroughly with the Chinese guy via phone call, the complainant finally agreed to pay RM 3,788.00 being the purchase price of the car. He then deposited a sum of RM3,800.00 into the accused’s CIMB bank account on 11/09/17. On 12/09/17, the complainant went to Kajang 707 Auto City 11 SL 4/3 Bandar Sungai Long 43000 Batu 9 Cheras to collect the car. However, he was informed that no such car exists and the owner of the auto shop did not know the Chinese guy the complainant had spoken on 10/09/17. 3 [4] Section 173(b) of the Criminal Procedure Code provides that the court shall pass the sentence according to law. In Jafa Bin Daud [1981] 1 MLJ 315, passing sentence according to law means the sentence must be meted out within the ambit of the punishable section and it must also be in line with the established judicial principles on sentencing. Therefore, the appellant, in his appeal, must be able to show that the magistrate had erred by passing sentence not within the four corner of the punishable section or the sentence was not assessed according to the established judicial principles on sentencing. If the sentence was passed according to the law and the magistrate had considered all factors before passing out sentence on the accused, the high court should be slow to interfere with the sentence passed by the magistrate. In Mohamed Nor [1985] 2 MLJ 200b, Abdul Hamid CJ decided as follows: 4 The question now remains whether we should disturb the sentence in the instant case. In this regard we would observe that it is the established principle that an appellate court should be slow to interfere or disturb with a sentence passed by the court below unless it is manifestly wrong in the sense of being illegal or of being unsuitable to the proved facts and circumstances. And the mere fact that another court might pass a different sentence provides no reason for the appellate court to interfere if the court below applies the correct principles in the assessment of the sentence. Therefore, the sentence passed by the lower court can’t be dislocated just because the appellate court is of the opinion that other sentence might be suitable in that case. 5 [5] In Zaidon Bin Shariff [1996] MLJU 159, Augustine Paul JC (as he then was) put succinctly that the sentencing court has the discretion to determine the appropriate sentence to be passed on the accused. He was reported to say: The right to determine the quantum of punishment on a guilty party is absolutely in the discretion of the trial Court. It will exercise that power judicially and will not tolerate any encroachment or even semblance of encroachment by either the prosecution or the defence in respect of that right (see New Tuck Shen v. P.P. (1982) 1 MLJ 27). [6] Similarly in Norshahrizan Bin Junaidi [2016] MLJU 465, it was held by the Court of Appeal in the following fashion: In any event, sentencing is an exercise of discretion by the trial Judge. The law simply provides, as in most cases, a spectrum of sentences – from the minimum to the maximum. The trial 6 Court has to choose the appropriate sentence in each case within that spectrum by giving consideration to the peculiar circumstances of each case and all the relevant factors. The only constraint face by the trial Court in exercising its discretion is when the law imposes the only sentence such in the case of murder under section 302 or when the law provides for a minimum sentence in which case the trial Court cannot impose anything less than the minimum. For illustration reference may be made to the following cases: PP v Leonard Glenn Francis [1989] 2 MLJ 158; Leong Kok Huat v PP [1998] 6 MLJ 406 and Philip Lau Chee Heng v PP [1988] 3 MLJ 107. [7] Another case that is worth-mentioning here regarding the discretion of the sentencing court is Omar Bin Rudding [2017] 3 MLJ 524. In this case, the Court of Appeal had this to say: We recognised that sentencing is a matter of judicial discretion of the trial court. We were of the view that the sentence of 12 7 years imprisonment in the circumstances of this was adequate. It was not manifestly or grossly inadequate. We were guided by the observation of Raja Azlan Shah, AG LP (as His Royal Highness then was) in Bhandulananda Jayatilake v Public Prosecutor [1982] 1 MLJ 83 as follows: Is the sentence harsh and manifestly excessive? We would paraphrase it in this way. As this is an appeal against the exercise by the learned judge of a discretion vested in him, is the sentence so far out-side the normal discretionary limits as to enable this court to say that its imposition must have involved an error of law of some description? I have had occasion to say elsewhere, that the very concept of judicial discretion involves a right to choose between more than one possible course of action upon which there is room for reasonable people to hold differing opinions as to which is to be preferred. That is quite inevitable. Human nature being what it is, different judges applying the same principles at the same time in 8 the same country to similar facts may sometimes reach different conclusions (see Jamieson v Jamieson [1952] AC 525). It is for that reason that some very conscientious judges have thought it their duty to visit particulars crimes with exemplary sentences; whilst others equally conscientious have thought it their duty to a view the same crimes with leniency. Therefore sentences do vary in apparently similar circumstances with the habit of mind of the particular judge. It is for that reason also that this court has said it again and again that it will not normally interfere with sentences, and the possibility or even the probability, that another court would have imposed a different sentence is not sufficient, per se, to warrant this court’s interference. [8] The court retains the discretion to choose the appropriate recourse for each offender after taking into account the particular circumstances of the case. The first and foremost consideration is the 9 public interest. The famous case of R v Ball 35 Cr App R 164 is often cited in this regard. Hilbery J stated: "In deciding the appropriate sentence a court should always be guided by certain considerations. The first and foremost is the public interest. The criminal law is publicly enforced, not only with the object of punishing crime, but also in the hope of preventing it. A proper sentence, passed in public, serves the public interest in two ways. It may deter others who might be tempted to try crime as seeming to offer easy money on the supposition, that if the offender is caught and brought to justice, the punishment mil be negligible. Such a sentence may also deter the particular criminal from committing a crime again, or induce him to turn from a criminal to an honest life. The public interest is indeed served, and best served, if the offender is induced to turn from criminal ways to honest living. Our law does not, therefore, fix the sentence for a particular crime, but fixes a maximum sentence and leaves it to the court to decide what is, within that maximum, the appropriate sentence for 10 each criminal in the particular circumstances of each case. Not only in regard to each crime, but in regard to each criminal, the court has the right and the duty to decide whether to be lenient or severe." [9] I am of the opinion that the public interest, in this case, is best served by sentencing the accused to two months imprisonment and fine RM1500.00. The offence committed by the accused cannot be tolerated. It involves the notion of “dishonesty”. Dishonesty makes the society to collapse. The offender must be punished sufficiently. The court must show its abhorrence and disapproval by passing out severe sentence. The offence committed by the accused, in my judicially considered opinion, is too serious. Fine alone is not sufficient. I think it would not be too much for me to say that fine alone is detrimental to the interest of the society in this kind of offences. 11 [10] It must be admitted that cases of cheating and fraudulently concealing money committed through cyber space are rampant nowadays. The offenders advertise their “products” in the internet to entrap the unwary victims. The money has been deposited but the victim got nothing. Then they move to look for new victims. This must be put to a stop. I take judicial notice that cyber crimes are rampant nowadays. Therefore, by this judgment, I will take the opportunity to tell the public that the court views such offences with much detestation and therefore, deterrent kind of sentence is needed. There is an abundance of authorities to show that the court must not neglect the element of rampancy. Mokhtar Sidin JCA in Tia Ah Leng [2004] 4 MLJ 249 had made “rampancy” as an exception to the practice of giving discount in sentencing when the offender had pleaded guilty. Therefore, in this case, 2 months imprisonment and RM1500 fine are surely sufficient to serve the purpose. [11] The court, in this case, must pass a deterrent sentence in the hope that the accused will enter into honest and sincere repentance and he will not repeat the same offence or any other criminal acts in future. 12 Two months imprisonment and RM1500 fine are reflective of the court attitude and seriousness in dealing with cyber related crimes. It is also hoped that the sentence will serve as a useful reminder to others not to commit cyber related crimes. (Refer Tan Bok Yeng [1972] 1 LNS 145) [12] An accused person who pleads guilty should generally be given leniency/discount. The rationale behind this practice is that the great expense of a lengthy trial is avoided. If the court does not give discount, the offender will not be induced to enter into plea of guilty. They would rather try their luck in full trials (Refer Sau Soon Kim [1975] 2 MLJ 134). However, leniency based on guilty plea is not the automatic right of the accused. There will be exceptions to this rule. The court may refuse to give a discount and may choose to pass a severe sentence where a serious offence is committed (Leo Say [1985] 2 CLJ 155). In Teh Ah Cheng [1976] 2 MLJ 186, the accused pleaded guilty and lower court released the accused on good behavior bond for an offence of having in his possession unlawful firearms. Eusoffe Abdoolcader J (as he then was) set aside the bond 13 and replaced it with three years imprisonment. He had this to say in his judgment: “In sentencing generally the public interest must necessarily be one of the prime considerations…..Of the several concepts relevant to sentencing, it is my considered view that deterrence and prevention assume positions in the forefront in relation to the offences of this nature”. I consider this is a serious case even though the accused had pleaded guilty at the earliest possible moment. By virtue of the above-quoted case, it is my judicially considered opinion that the guilty plea of the accused is of little value compared to that of the seriousness of the offence he had committed. [13] For the above stated reasons I sentenced the accused to two months imprisonment from the date of arrest and RM1500 fine in default one month imprisonment. 14 ROSLIZI BIN SULAIMAN Magistrate Klang 12/10/2017 Deputy Public Prosecutor : Puan Amira Binti Abd Aziz Jabatan Peguam Negara Counsel for the Accused : Encik Chua Hong Hui Messrs Dexter Chua, Wun & Partners Notice of Appeal filed on 09/10/17	13,208	Tika 2.6.0
83 - 2392 - 09/2017	PENDAKWARAYAPejabat Timbalan Pendakwaraya Negeri Selangor TERTUDUH Wan Ruhanie Longnooh	Criminal Law – Accused pleaded guilty unconditionally after the charge was read and duly convicted – Aggrieved by the sentence passed – Appeal - Discretion of the sentencing Court – Whether sentenced passed had erred in law and not assessed according to the established judicial principle on sentencing – Whether the sentence passed is harsh and excessive – Whether imprisonment sentence is the appropriate form of punishment – Whether fine is an adequate punishment – When public interest is best served in sentencing – Criminal Procedure Code , section 173(b)	12/10/2017	PN ROSLIZI BIN SULAIMAN	https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=c7335179-8d4f-4ce4-8968-2de59debea10&Inline=true	IN THE MAGISTRATE COURT AT KLANG IN THE STATE OF SELANGOR CRIMINAL TRIAL NO. MM2 – 83 – 2392 – 09/2017 PP V WAN RUHANIE LONGNOOH JUDGEMENT [1] The charge proffered against the accused on 20/09/17 reads as follows: Bahawa kamu pada 06/09/17, jam lebih kurang 6 petang, di alamat No. 72, Jalan Jed, 41200, Bandar Parkland, Klang, Selangor di dalam daerah Klang di dalam negeri Selangor di dapati telah menjalankan perniagaan pusat siber dan kafe siber (10 set computer) tanpa lesen yang dikeluarkan oleh pihak Majlis, oleh yang demikian, kamu telah melakukan kesalahan di bawah Undang – Undang Kecil 3 Pusat Siber dan Kafe Siber (Majlis Perbandaran Klang) 2007 dan boleh dihukum di bawah Undang – Undang Kecil 3, Undang – Undang yang sama. [2] The charge has been read and explained to, and understood by the accused. She pleaded guilty unconditionally and was duly convicted to the charge. After taking into consideration both mitigating and aggravating factors, the accused was sentenced to three (3) weeks imprisonment taking effect from the date of her arrest i.e. 06/09/17. [3] The accused is a 24-year-old Thailand national. He is the sole bread winner in her family. The counsel for the accused, in his plea in mitigation, asked the court to opt for fine instead of sending his client into prison. He argued that, whenever the punishable section gives the court discretion to choose either to impose fine or imprisonment, the court should have first opted for fine instead of sending the offender straightaway into prison. The argument put forth by the counsel for the accused gives me an idea that the accused should have first been fined. If the accused commits the same offence in future, only then she can be sent into prison. Is this the current and correct preposition of the law? [4] Section 173(b) of the Criminal Procedure Code provides that the court shall pass the sentence according to law. In Jafa Bin Daud [1981] 1 MLJ 315, passing sentence according to law means the sentence must be meted out within the ambit of the punishable section and it must also be in line with the established judicial principles on sentencing. Therefore, the appellant, in his appeal, must be able to show that the sentencer of the first instance had erred by passing sentence not within the four corner of the punishable section or the sentence was not assessed according to the established judicial principles on sentencing. If the sentence was passed according to the law and the magistrate had considered all sentencing factors before passing out sentence on the accused, the appellate court should be slow to interfere with the sentence passed by the magistrate. In Mohamed Nor [1985] 2 MLJ 200b, Abdul Hamid CJ decided as follows: The question now remains whether we should disturb the sentence in the instant case. In this regard we would observe that it is the established principle that an appellate court should be slow to interfere or disturb with a sentence passed by the court below unless it is manifestly wrong in the sense of being illegal or of being unsuitable to the proved facts and circumstances. And the mere fact that another court might pass a different sentence provides no reason for the appellate court to interfere if the court below applies the correct principles in the assessment of the sentence. Therefore, the sentence passed by the lower court can’t be dislocated just because the appellate court is of the opinion that another sentence might be suitable in that case. [5] In Zaidon Bin Shariff [1996] MLJU 159, Augustine Paul JC (as he then was) put succinctly that the sentencing court has the discretion to determine the appropriate sentence to be passed on the accused. He was reported to say: The right to determine the quantum of punishment on a guilty party is absolutely in the discretion of the trial Court. It will exercise that power judicially and will not tolerate any encroachment or even semblance of encroachment by either the prosecution or the defence in respect of that right (see New Tuck Shen v. P.P. (1982) 1 MLJ 27). [6] Similarly in Norshahrizan Bin Junaidi [2016] MLJU 465, it was held by the Court of Appeal in the following fashion: In any event, sentencing is an exercise of discretion by the trial Judge. The law simply provides, as in most cases, a spectrum of sentences – from the minimum to the maximum. The trial Court has to choose the appropriate sentence in each case within that spectrum by giving consideration to the peculiar circumstances of each case and all the relevant factors. The only constraint face by the trial Court in exercising its discretion is when the law imposes the only sentence such in the case of murder under section 302 or when the law provides for a minimum sentence in which case the trial Court cannot impose anything less than the minimum. For illustration reference may be made to the following cases: PP v Leonard Glenn Francis [1989] 2 MLJ 158; Leong Kok Huat v PP [1998] 6 MLJ 406 and Philip Lau Chee Heng v PP [1988] 3 MLJ 107. [7] Another case that is worth-mentioning here regarding the discretion of the sentencing court is Omar Bin Rudding [2017] 3 MLJ 524. In this case, the Court of Appeal had this to say: We recognized that sentencing is a matter of judicial discretion of the trial court. We were of the view that the sentence of 12 years imprisonment in the circumstances of this was adequate. It was not manifestly or grossly inadequate. We were guided by the observation of Raja Azlan Shah, AG LP (as His Royal Highness then was) in Bhandulananda Jayatilake v Public Prosecutor [1982] 1 MLJ 83 as follows: Is the sentence harsh and manifestly excessive? We would paraphrase it in this way. As this is an appeal against the exercise by the learned judge of a discretion vested in him, is the sentence so far out-side the normal discretionary limits as to enable this court to say that its imposition must have involved an error of law of some description? I have had occasion to say elsewhere, that the very concept of judicial discretion involves a right to choose between more than one possible course of action upon which there is room for reasonable people to hold differing opinions as to which is to be preferred. That is quite inevitable. Human nature being what it is, different judges applying the same principles at the same time in the same country to similar facts may sometimes reach different conclusions (see Jamieson v Jamieson [1952] AC 525). It is for that reason that some very conscientious judges have thought it their duty to visit particulars crimes with exemplary sentences; whilst others equally conscientious have thought it their duty to a view the same crimes with leniency. Therefore sentences do vary in apparently similar circumstances with the habit of mind of the particular judge. It is for that reason also that this court has said it again and again that it will not normally interfere with sentences, and the possibility or even the probability, that another court would have imposed a different sentence is not sufficient, per se, to warrant this court’s interference. [8] I would like to reiterate the reasoning given by the late HRH Raja Azlan Shah, AG LP (as His Royal Highness then was) in Bhandulananda Jayatilake v Public Prosecutor [1982] 1 MLJ 83 (supra.) concerning the concept of “judicial discretion” in the sense that I have a right to choose between more than one possible course of action upon which there is room for reasonable people to hold differing opinions as to which is to be preferred. Therefore, I see nothing illegal in my sentence when I chose three weeks imprisonment to be imposed against the accused. [9] However, the discretion given to the court to choose the appropriate should not be practiced arbitrarily. There are, of course, guidelines for the sentencing court to follow. In Ahmad Bin Hop [1992] 3 CLJ 1408, Chong Siew Fai J had underlined several principles for the court to consider while choosing the appropriate sentence i.e.: Of late, there have been increasing cases where both custodial sentences and fines were imposed for one and the same offence. As a general guideline, I would venture to state as follows: 1. The sentencing Court should consider whether imprisonment sentence is the appropriate form of punishment, regard being had to all the circumstances of the case including the nature and the gravity of the offence, and public interest. 2. If fine is an adequate punishment, then the sentences should impose a fine. Consideration should be given to the ability of the offender to pay the fine. 3. Fine may be added to a prison sentence as a means of removing the profit of the offender's offence. Here again, regard should be had to the offender's ability to pay because failure to pay would involve a further period of imprisonment of default. But if, on the material available, the sentencer is as sure as he or she can be that the offender can afford to meet the fine, the possibility of default should not cause the sentencer to reduce the principal prison term. 4. In a case where custodial sentence is imposed and forfeiture order is also made resulting in the offender obtaining no financial benefit from the offence committed, fine should not normally be imposed. After looking at the circumstances of this case, I opine that imprisonment sentence is the only appropriate form of punishment, after giving regard to all the circumstances of the case including the nature and the gravity of the offence, and also the public interest. These aspects will be discussed further in the paragraphs below. Fine is certainly not an adequate punishment. The accused is more than able to pay fine as to make fine is not an effective measure to deter the accused from committing the offence again in future. [10] I retain the discretion to choose the appropriate recourse for each offender after taking into account the particular circumstances of the case. The first and foremost consideration is the public interest. The famous case of R v Ball 35 Cr App R 164 is often cited in this regard. Hilbery J stated: "In deciding the appropriate sentence a court should always be guided by certain considerations. The first and foremost is the public interest. The criminal law is publicly enforced, not only with the object of punishing crime, but also in the hope of preventing it. A proper sentence, passed in public, serves the public interest in two ways. It may deter others who might be tempted to try crime as seeming to offer easy money on the supposition, that if the offender is caught and brought to justice, the punishment mil be negligible. Such a sentence may also deter the particular criminal from committing a crime again, or induce him to turn from a criminal to an honest life. The public interest is indeed served, and best served, if the offender is induced to turn from criminal ways to honest living. Our law does not, therefore, fix the sentence for a particular crime, but fixes a maximum sentence and leaves it to the court to decide what is, within that maximum, the appropriate sentence for each criminal in the particular circumstances of each case. Not only in regard to each crime, but in regard to each criminal, the court has the right and the duty to decide whether to be lenient or severe." [11] I am of the opinion that the public interest, in this case, is best served by sentencing the accused to three weeks imprisonment taking effect from the date of her arrest. The offence committed by the accused cannot be tolerated. The accused, a Thailand national, came into Malaysia and committed an act against the law of this country. The accused must therefore be punished sufficiently. The court must show its abhorrence and disapproval by passing out severe sentence. The offence committed by the accused, in my judicially considered opinion, is serious. Fine alone is certainly insufficient. [12] It must be admitted that unlicensed cyber cafes are quite rampant nowadays. Cyber cafes business must be regulated since its customers normally involve unwary youths. In order to ensure that cyber cafes are not being misused to house for any other illegal activities such as illegal gambling, the local authorities require the operators of such cafes to obtain valid license. Clearly, this is to protect the interest of the public, especially the youths. Therefore, by this judgment, I will take the opportunity to tell the public that the court views this kind of offences with much detestation and therefore, deterrent kind of sentence is needed. There is an abundance of authorities to show that the court must not neglect the element of rampancy. Mokhtar Sidin JCA in Tia Ah Leng [2004] 4 MLJ 249 had made “rampancy” as an exception to the practice of giving discount in sentencing when the offender had pleaded guilty. Therefore, in this case, three weeks imprisonment is sufficient to serve the purpose. [13] The court, in this case, must pass a deterrent sentence in the hope that the accused will enter into honest and sincere repentance and she will not repeat the same offence or any other criminal acts in future. Three weeks imprisonment is reflective of the court attitude and seriousness in dealing with the offence. It is also hoped that the sentence will serve as a useful reminder to others not to commit the same offence. (Refer Tan Bok Yeng [1972] 1 LNS 145) [14] An accused person who pleads guilty should generally be given leniency/discount. The rationale behind this practice is that the great expense of a lengthy trial is avoided. If the court does not give discount, the offender will not be induced to enter into plea of guilty. They would rather try their luck in full trials (Refer Sau Soon Kim [1975] 2 MLJ 134). However, leniency based on guilty plea is not the automatic right of the accused. There will be exceptions to this rule. The court may refuse to give a discount and may choose to pass a severe sentence where a serious offence is committed (Leo Say [1985] 2 CLJ 155). In Teh Ah Cheng [1976] 2 MLJ 186, the accused pleaded guilty and lower court released the accused on good behavior bond for an offence of having in his possession unlawful firearms. Eusoffe Abdoolcader J (as he then was) set aside the bond and replaced it with three years imprisonment. He had this to say in his judgment: “In sentencing generally the public interest must necessarily be one of the prime considerations…..Of the several concepts relevant to sentencing, it is my considered view that deterrence and prevention assume positions in the forefront in relation to the offences of this nature”. I consider this is a serious case even though the accused had pleaded guilty at the earliest possible moment. Therefore, against the backdrop of her plea of guilty, I chose to sentence the accused to three weeks imprisonment. [15] Counsel for the accused also prayed that his client not to be referred to the Immigration Department for deportation. Even though his client possesses no valid pass and/or permit to stay in this country, since this fact has not been established in this case, then the court should not make an order to that effect. However, upon closer inspection, it is clear that the accused is a Thailand national as manifested in the police report dated 06/09/17. Therefore, the accused cannot be left to roam freely in this country without valid pass and/or permit. This is the reason I ordered the accused to be referred to the Immigration Department to be deported once she has completed her sentence. [16] For the above stated reasons I sentenced the accused to three weeks imprisonment from the date of arrest. ROSLIZI BIN SULAIMAN Magistrate Klang 12/10/2017 Deputy Public Prosecutor : Puan Amira Binti Abd Aziz Jabatan Peguam Negara Counsel for the Accused : Encik Ethan Messrs Gerard Lazarus 15	15,954	Tika 2.6.0
83 - 2392 - 09/2017	PENDAKWARAYAPejabat Timbalan Pendakwaraya Negeri Selangor TERTUDUH Wan Ruhanie Longnooh	Criminal Law – Accused pleaded guilty unconditionally after the charge was read and duly convicted – Aggrieved by the sentence passed – Appeal - Discretion of the sentencing Court – Whether sentenced passed had erred in law and not assessed according to the established judicial principle on sentencing – Whether the sentence passed is harsh and excessive – Whether imprisonment sentence is the appropriate form of punishment – Whether fine is an adequate punishment – When public interest is best served in sentencing – Criminal Procedure Code , section 173(b)	12/10/2017	PN ROSLIZI BIN SULAIMAN	https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=c7335179-8d4f-4ce4-8968-2de59debea10&Inline=true	IN THE MAGISTRATE COURT AT KLANG IN THE STATE OF SELANGOR CRIMINAL TRIAL NO. MM2 – 83 – 2392 – 09/2017 PP V WAN RUHANIE LONGNOOH JUDGEMENT [1] The charge proffered against the accused on 20/09/17 reads as follows: Bahawa kamu pada 06/09/17, jam lebih kurang 6 petang, di alamat No. 72, Jalan Jed, 41200, Bandar Parkland, Klang, Selangor di dalam daerah Klang di dalam negeri Selangor di dapati telah menjalankan perniagaan pusat siber dan kafe siber (10 set computer) tanpa lesen yang dikeluarkan oleh pihak Majlis, oleh yang demikian, kamu telah melakukan kesalahan di bawah Undang – Undang Kecil 3 Pusat Siber dan Kafe Siber (Majlis Perbandaran Klang) 2007 dan boleh dihukum di bawah Undang – Undang Kecil 3, Undang – Undang yang sama. [2] The charge has been read and explained to, and understood by the accused. She pleaded guilty unconditionally and was duly convicted to the charge. After taking into consideration both mitigating and aggravating factors, the accused was sentenced to three (3) weeks imprisonment taking effect from the date of her arrest i.e. 06/09/17. [3] The accused is a 24-year-old Thailand national. He is the sole bread winner in her family. The counsel for the accused, in his plea in mitigation, asked the court to opt for fine instead of sending his client into prison. He argued that, whenever the punishable section gives the court discretion to choose either to impose fine or imprisonment, the court should have first opted for fine instead of sending the offender straightaway into prison. The argument put forth by the counsel for the accused gives me an idea that the accused should have first been fined. If the accused commits the same offence in future, only then she can be sent into prison. Is this the current and correct preposition of the law? [4] Section 173(b) of the Criminal Procedure Code provides that the court shall pass the sentence according to law. In Jafa Bin Daud [1981] 1 MLJ 315, passing sentence according to law means the sentence must be meted out within the ambit of the punishable section and it must also be in line with the established judicial principles on sentencing. Therefore, the appellant, in his appeal, must be able to show that the sentencer of the first instance had erred by passing sentence not within the four corner of the punishable section or the sentence was not assessed according to the established judicial principles on sentencing. If the sentence was passed according to the law and the magistrate had considered all sentencing factors before passing out sentence on the accused, the appellate court should be slow to interfere with the sentence passed by the magistrate. In Mohamed Nor [1985] 2 MLJ 200b, Abdul Hamid CJ decided as follows: The question now remains whether we should disturb the sentence in the instant case. In this regard we would observe that it is the established principle that an appellate court should be slow to interfere or disturb with a sentence passed by the court below unless it is manifestly wrong in the sense of being illegal or of being unsuitable to the proved facts and circumstances. And the mere fact that another court might pass a different sentence provides no reason for the appellate court to interfere if the court below applies the correct principles in the assessment of the sentence. Therefore, the sentence passed by the lower court can’t be dislocated just because the appellate court is of the opinion that another sentence might be suitable in that case. [5] In Zaidon Bin Shariff [1996] MLJU 159, Augustine Paul JC (as he then was) put succinctly that the sentencing court has the discretion to determine the appropriate sentence to be passed on the accused. He was reported to say: The right to determine the quantum of punishment on a guilty party is absolutely in the discretion of the trial Court. It will exercise that power judicially and will not tolerate any encroachment or even semblance of encroachment by either the prosecution or the defence in respect of that right (see New Tuck Shen v. P.P. (1982) 1 MLJ 27). [6] Similarly in Norshahrizan Bin Junaidi [2016] MLJU 465, it was held by the Court of Appeal in the following fashion: In any event, sentencing is an exercise of discretion by the trial Judge. The law simply provides, as in most cases, a spectrum of sentences – from the minimum to the maximum. The trial Court has to choose the appropriate sentence in each case within that spectrum by giving consideration to the peculiar circumstances of each case and all the relevant factors. The only constraint face by the trial Court in exercising its discretion is when the law imposes the only sentence such in the case of murder under section 302 or when the law provides for a minimum sentence in which case the trial Court cannot impose anything less than the minimum. For illustration reference may be made to the following cases: PP v Leonard Glenn Francis [1989] 2 MLJ 158; Leong Kok Huat v PP [1998] 6 MLJ 406 and Philip Lau Chee Heng v PP [1988] 3 MLJ 107. [7] Another case that is worth-mentioning here regarding the discretion of the sentencing court is Omar Bin Rudding [2017] 3 MLJ 524. In this case, the Court of Appeal had this to say: We recognized that sentencing is a matter of judicial discretion of the trial court. We were of the view that the sentence of 12 years imprisonment in the circumstances of this was adequate. It was not manifestly or grossly inadequate. We were guided by the observation of Raja Azlan Shah, AG LP (as His Royal Highness then was) in Bhandulananda Jayatilake v Public Prosecutor [1982] 1 MLJ 83 as follows: Is the sentence harsh and manifestly excessive? We would paraphrase it in this way. As this is an appeal against the exercise by the learned judge of a discretion vested in him, is the sentence so far out-side the normal discretionary limits as to enable this court to say that its imposition must have involved an error of law of some description? I have had occasion to say elsewhere, that the very concept of judicial discretion involves a right to choose between more than one possible course of action upon which there is room for reasonable people to hold differing opinions as to which is to be preferred. That is quite inevitable. Human nature being what it is, different judges applying the same principles at the same time in the same country to similar facts may sometimes reach different conclusions (see Jamieson v Jamieson [1952] AC 525). It is for that reason that some very conscientious judges have thought it their duty to visit particulars crimes with exemplary sentences; whilst others equally conscientious have thought it their duty to a view the same crimes with leniency. Therefore sentences do vary in apparently similar circumstances with the habit of mind of the particular judge. It is for that reason also that this court has said it again and again that it will not normally interfere with sentences, and the possibility or even the probability, that another court would have imposed a different sentence is not sufficient, per se, to warrant this court’s interference. [8] I would like to reiterate the reasoning given by the late HRH Raja Azlan Shah, AG LP (as His Royal Highness then was) in Bhandulananda Jayatilake v Public Prosecutor [1982] 1 MLJ 83 (supra.) concerning the concept of “judicial discretion” in the sense that I have a right to choose between more than one possible course of action upon which there is room for reasonable people to hold differing opinions as to which is to be preferred. Therefore, I see nothing illegal in my sentence when I chose three weeks imprisonment to be imposed against the accused. [9] However, the discretion given to the court to choose the appropriate should not be practiced arbitrarily. There are, of course, guidelines for the sentencing court to follow. In Ahmad Bin Hop [1992] 3 CLJ 1408, Chong Siew Fai J had underlined several principles for the court to consider while choosing the appropriate sentence i.e.: Of late, there have been increasing cases where both custodial sentences and fines were imposed for one and the same offence. As a general guideline, I would venture to state as follows: 1. The sentencing Court should consider whether imprisonment sentence is the appropriate form of punishment, regard being had to all the circumstances of the case including the nature and the gravity of the offence, and public interest. 2. If fine is an adequate punishment, then the sentences should impose a fine. Consideration should be given to the ability of the offender to pay the fine. 3. Fine may be added to a prison sentence as a means of removing the profit of the offender's offence. Here again, regard should be had to the offender's ability to pay because failure to pay would involve a further period of imprisonment of default. But if, on the material available, the sentencer is as sure as he or she can be that the offender can afford to meet the fine, the possibility of default should not cause the sentencer to reduce the principal prison term. 4. In a case where custodial sentence is imposed and forfeiture order is also made resulting in the offender obtaining no financial benefit from the offence committed, fine should not normally be imposed. After looking at the circumstances of this case, I opine that imprisonment sentence is the only appropriate form of punishment, after giving regard to all the circumstances of the case including the nature and the gravity of the offence, and also the public interest. These aspects will be discussed further in the paragraphs below. Fine is certainly not an adequate punishment. The accused is more than able to pay fine as to make fine is not an effective measure to deter the accused from committing the offence again in future. [10] I retain the discretion to choose the appropriate recourse for each offender after taking into account the particular circumstances of the case. The first and foremost consideration is the public interest. The famous case of R v Ball 35 Cr App R 164 is often cited in this regard. Hilbery J stated: "In deciding the appropriate sentence a court should always be guided by certain considerations. The first and foremost is the public interest. The criminal law is publicly enforced, not only with the object of punishing crime, but also in the hope of preventing it. A proper sentence, passed in public, serves the public interest in two ways. It may deter others who might be tempted to try crime as seeming to offer easy money on the supposition, that if the offender is caught and brought to justice, the punishment mil be negligible. Such a sentence may also deter the particular criminal from committing a crime again, or induce him to turn from a criminal to an honest life. The public interest is indeed served, and best served, if the offender is induced to turn from criminal ways to honest living. Our law does not, therefore, fix the sentence for a particular crime, but fixes a maximum sentence and leaves it to the court to decide what is, within that maximum, the appropriate sentence for each criminal in the particular circumstances of each case. Not only in regard to each crime, but in regard to each criminal, the court has the right and the duty to decide whether to be lenient or severe." [11] I am of the opinion that the public interest, in this case, is best served by sentencing the accused to three weeks imprisonment taking effect from the date of her arrest. The offence committed by the accused cannot be tolerated. The accused, a Thailand national, came into Malaysia and committed an act against the law of this country. The accused must therefore be punished sufficiently. The court must show its abhorrence and disapproval by passing out severe sentence. The offence committed by the accused, in my judicially considered opinion, is serious. Fine alone is certainly insufficient. [12] It must be admitted that unlicensed cyber cafes are quite rampant nowadays. Cyber cafes business must be regulated since its customers normally involve unwary youths. In order to ensure that cyber cafes are not being misused to house for any other illegal activities such as illegal gambling, the local authorities require the operators of such cafes to obtain valid license. Clearly, this is to protect the interest of the public, especially the youths. Therefore, by this judgment, I will take the opportunity to tell the public that the court views this kind of offences with much detestation and therefore, deterrent kind of sentence is needed. There is an abundance of authorities to show that the court must not neglect the element of rampancy. Mokhtar Sidin JCA in Tia Ah Leng [2004] 4 MLJ 249 had made “rampancy” as an exception to the practice of giving discount in sentencing when the offender had pleaded guilty. Therefore, in this case, three weeks imprisonment is sufficient to serve the purpose. [13] The court, in this case, must pass a deterrent sentence in the hope that the accused will enter into honest and sincere repentance and she will not repeat the same offence or any other criminal acts in future. Three weeks imprisonment is reflective of the court attitude and seriousness in dealing with the offence. It is also hoped that the sentence will serve as a useful reminder to others not to commit the same offence. (Refer Tan Bok Yeng [1972] 1 LNS 145) [14] An accused person who pleads guilty should generally be given leniency/discount. The rationale behind this practice is that the great expense of a lengthy trial is avoided. If the court does not give discount, the offender will not be induced to enter into plea of guilty. They would rather try their luck in full trials (Refer Sau Soon Kim [1975] 2 MLJ 134). However, leniency based on guilty plea is not the automatic right of the accused. There will be exceptions to this rule. The court may refuse to give a discount and may choose to pass a severe sentence where a serious offence is committed (Leo Say [1985] 2 CLJ 155). In Teh Ah Cheng [1976] 2 MLJ 186, the accused pleaded guilty and lower court released the accused on good behavior bond for an offence of having in his possession unlawful firearms. Eusoffe Abdoolcader J (as he then was) set aside the bond and replaced it with three years imprisonment. He had this to say in his judgment: “In sentencing generally the public interest must necessarily be one of the prime considerations…..Of the several concepts relevant to sentencing, it is my considered view that deterrence and prevention assume positions in the forefront in relation to the offences of this nature”. I consider this is a serious case even though the accused had pleaded guilty at the earliest possible moment. Therefore, against the backdrop of her plea of guilty, I chose to sentence the accused to three weeks imprisonment. [15] Counsel for the accused also prayed that his client not to be referred to the Immigration Department for deportation. Even though his client possesses no valid pass and/or permit to stay in this country, since this fact has not been established in this case, then the court should not make an order to that effect. However, upon closer inspection, it is clear that the accused is a Thailand national as manifested in the police report dated 06/09/17. Therefore, the accused cannot be left to roam freely in this country without valid pass and/or permit. This is the reason I ordered the accused to be referred to the Immigration Department to be deported once she has completed her sentence. [16] For the above stated reasons I sentenced the accused to three weeks imprisonment from the date of arrest. ROSLIZI BIN SULAIMAN Magistrate Klang 12/10/2017 Deputy Public Prosecutor : Puan Amira Binti Abd Aziz Jabatan Peguam Negara Counsel for the Accused : Encik Ethan Messrs Gerard Lazarus 15	15,954	Tika 2.6.0
N-01-509-12 / 2014	PERAYU EMASIN RESOURCES SDN BHD …APPELLANT RESPONDEN PENTADBIR TANAH PORT DICKSON … RESPONDEN T	Land Law — Acquisition of land — Injurious affection — Whether the High Court shall have adequate and proper jurisdiction to determine adequate compensation for the Appellant — Whether judgment or order of the High Court is appealable — Whether provisions of the LAA had to be strictly followed — Courts of Judicature Act 1964, section 68(1) (d); Land Acquisition Act 1960 , section 40D	12/10/2017	YA DATO' UMI KALTHUM BINTI ABDUL MAJIDKorumYA DATO' UMI KALTHUM BINTI ABDUL MAJIDYA DATUK DR BADARIAH BINTI SAHAMIDYA DATUK KAMARDIN BIN HASHIM	https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=648bb826-ca84-4dc1-b6ae-695dc2d79691&Inline=true	null	null	Failed Extraction
N-01-509-12 / 2014	PERAYU EMASIN RESOURCES SDN BHD …APPELLANT RESPONDEN PENTADBIR TANAH PORT DICKSON … RESPONDEN T	Land Law — Acquisition of land — Injurious affection — Whether the High Court shall have adequate and proper jurisdiction to determine adequate compensation for the Appellant — Whether judgment or order of the High Court is appealable — Whether provisions of the LAA had to be strictly followed — Courts of Judicature Act 1964, section 68(1) (d); Land Acquisition Act 1960 , section 40D	12/10/2017	YA DATO' UMI KALTHUM BINTI ABDUL MAJIDKorumYA DATO' UMI KALTHUM BINTI ABDUL MAJIDYA DATUK DR BADARIAH BINTI SAHAMIDYA DATUK KAMARDIN BIN HASHIM	https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=648bb826-ca84-4dc1-b6ae-695dc2d79691&Inline=true	null	null	Failed Extraction
N-01-509-12 / 2014	PERAYU EMASIN RESOURCES SDN BHD …APPELLANT RESPONDEN PENTADBIR TANAH PORT DICKSON … RESPONDEN T	Land Law — Acquisition of land — Injurious affection — Whether the High Court shall have adequate and proper jurisdiction to determine adequate compensation for the Appellant — Whether judgment or order of the High Court is appealable — Whether provisions of the LAA had to be strictly followed — Courts of Judicature Act 1964, section 68(1) (d); Land Acquisition Act 1960 , section 40D	12/10/2017	YA DATO' UMI KALTHUM BINTI ABDUL MAJIDKorumYA DATO' UMI KALTHUM BINTI ABDUL MAJIDYA DATUK DR BADARIAH BINTI SAHAMIDYA DATUK KAMARDIN BIN HASHIM	https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=648bb826-ca84-4dc1-b6ae-695dc2d79691&Inline=true	null	null	Failed Extraction
P-02(A)-1784-10/2015	PERAYU MOHD SOBRI BIN CHE HASSAN … PERAYU RESPONDEN 1. PIHAK BERKUASA TATATERTIB MAJLIS PERBANDARAN SEBERANG PERAI 2. MAJLIS PERBANDARAN SEBERANG PERAI … RESPONDEN - RESPONDEN	Administrative Law — Judicial review — Appellant dismissed by employer — Appeal — Whether there was a requirement to appoint a Committee of Investigation — Whether the decision-making process was tainted with biasness — Whether High Court judge failed to properly and sufficiently evaluate evidence adduced —Whether the Court can order specific performance of a contract of service — Local Government Act 1976 [Act 171], s 16; Public Officers (Conduct and Discipline) Regulations 1993, r 26	12/10/2017	YA DATO' ASMABI BINTI MOHAMADKorumYA DATUK DR HAJI HAMID SULTAN BIN ABU BACKERYA DATUK DR. PRASAD SANDOSHAM ABRAHAMYA DATO' ASMABI BINTI MOHAMAD	https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=5cba0a89-ad4e-4adc-b639-1db8c904228e&Inline=true	1 DALAM MAHKAMAH RAYUAN DI MALAYSIA (BIDANG KUASA RAYUAN) RAYUAN SIVIL NO. P-02(A)-1784-10/2015 ANTARA MOHD SOBRI BIN CHE HASSAN …PERAYU DAN 1. PIHAK BERKUASA TATATERTIB MAJLIS PERBANDARAN SEBERANG PERAI 2. MAJLIS PERBANDARAN SEBERANG PERAI …RESPONDEN- RESPONDEN [Dalam perkara mengenai Mahkamah Tinggi Malaya Di Pulau Pinang Permohonan untuk Semakan Kehakiman No.25-21-02/2014 Dalam Perkara Mengenai Keputusan Pihak Berkuasa Tatatertib Majlis Perbandaran Seberang Perai yang disampaikan melalui surat bertarikh 02.12.2013 Dan Dalam Perkara Peraturan-Peraturan Pegawai Awam Majlis Perbandaran Seberang Perai (Kelakuan dan Tatatertib) ANTARA MOHD SOBRI BIN CHE HASSAN …PERAYU 2 DAN 1. PIHAK BERKUASA TATATERTIB MAJLIS PERBANDARAN SEBERANG PERAI 2. MAJLIS PERBANDARAN SEBERANG PERAI …RESPONDEN- RESPONDEN] CORAM: HAMID SULTAN ABU BACKER, JCA PRASAD SANDOSHAM ABRAHAM, JCA ASMABI BINTI MOHAMAD, JCA (Asmabi Binti Mohamad JCA, delivering Judgment of the Court) JUDGMENT OF THE COURT INTRODUCTION [1] This is an appeal by the Appellant (the Applicant in the High Court) against of the decision of the High Court dated 30th September 2015 that dismissed the Appellant’s Judicial Review Application (JR Application) with costs of RM4,000.00 to be paid to the Respondents. [2] We heard this appeal on 8th September 2016. After perusing the Records of Appeal, the written submissions filed by the respective learned Counsels and upon hearing learned Counsels, we adjourned the matter for our consideration and decision. Before we adjourned the 3 same, we ordered both learned Counsels to further submit to us on three main issues: (a) Whether there was a requirement to appoint a Committee of Investigation pursuant to Regulation 29 (4) of the MPSP Disciplinary Regulations to investigate the charge against the Applicant?; (b) Whether the decision-making process was tainted with biasness?; and (c) Whether the Court can order specific performance of a contract of service?. [3] We now give our decision and the reasons for the same. [4] We will refer to the parties as they were described in the High Court, the Applicant, the 1st Respondent and the 2nd Respondent respectively. BRIEF BACKGROUND FACTS [5] This was a substantive JR Application filed by the Applicant to challenge his dismissal from the services of the 2nd Respondent. [6] The facts were extracted from the various affidavits, the written submissions filed herein by the respective parties and the judgment of 4 the learned Judicial Commissioner (JC). In order to save judicial time, some of the facts as highlighted by the respective parties in the above- mentioned documents are adopted herein with and / or without modifications. [7] The Applicant was an Engineer (Grade 41) attached to the 2nd Respondent’s office in Bukit Mertajam, Penang. [8] The 1st Respondent is the Disciplinary Authority of the 2nd Respondent, appointed pursuant to Regulation 26 of the Public Officers (Conduct and Discipline) Municipal Council of the Province Wellesley Regulations 1995 (MPSP Disciplinary Regulations). [9] On 14th March 2012, the Applicant was transferred from the Engineering Department of the 2nd Respondent to its Health Services Department. Following from the transfer, the Applicant filed Civil Suit No. 21NCVC-14-04/2012 to challenge the transfer. However, the same was dismissed by the High Court on procedural grounds. Aggrieved by the said decision, the Applicant appealed to the Court of Appeal (CoA) and the appeal too was dismissed by the CoA. The Applicant then filed a judicial review application to challenge his transfer and the said case is still pending before the High Court. [10] By its letter dated 4th October 2013, the Chairman of the 1st Respondent informed the Applicant of the 1st Respondent’s intention to take disciplinary action against the Applicant with a view to dismissal or reduction in rank. The Applicant was given 21 days from the date of the 5 receipt of the letter to make a written representation to the 1st Respondent. [11] The charge against the Applicant was as follows: “Bahawa tuan, Encik Mohd Sobri Bin Che Hassan (12245) Jurutera Gred J41 (N0. K.P. : 751215-02-5465), Jurutera Gred 41 semasa bertugas di Jabatan Perkhidmatan Kesihatan, Majlis Perbandaran Seberang Perai telah membawa isu pertukaran tuan dari Jabatan Kejuruteraan ke Jabatan Perkhidmatan Kesihatan kepada Ahli Dewan Undangan Negeri Penaga ketika itu, Y.B. Azhar Bin Ibrahim yang seterusnya telah membangkitkan perkara tersebut dalam Mesyuarat Pertama Penggal Kelima Dewan Undangan Negeri Pulau Pinang yang Kedua Belas yang telah berlangsung pada 30 April hingga 8 Mei 2012 jelas bercanggah dengan tatakelakuan Pegawai Awam dan boleh dikenakan tindakan tatatertib selaras dengan Peraturan-Peraturan Pegawai Awam Majlis Seberang Perai (Kelakuan dan Tatatertib) 1995. Perbuatan tersebut boleh ditafsirkan sebagai cubaan membawa pengaruh luar iaitu melanggar peraturan 4 (2) (h) seperti berikut: “4 (2) (h) Seseorang pegawai tidak boleh- (h) Membawa atau cuba membawa apa-apa bentuk pengaruh atau tekanan luar untuk menyokong atau memajukan tuntutan berhubungan dengan perkhidmatan awam, sama ada tuntutan itu adalah tuntutannya sendiri atau tuntutan anggota-anggota perkhidmatan awam yang lain.” Jika tuan didapati bersalah, tuan boleh dihukum mengikut Peraturan 39, Peraturan-Peraturan Pegawai Awam Majlis Seberang Perai (Kelakuan dan Tatatertib) 1995.” 6 [12] The Applicant responded to the said letter vide a written representation dated 11th October 2013, denying the charge against him. In the same letter, the Applicant had requested for a Committee of Investigation to be appointed by the 1st Respondent to investigate the charge against him (see pages 378-381 of Appeal Record J2/(2)). In he said written representations, amongst others, the Applicant stated the following: (a) He denied the charge against him; (b) He denied having met Y.B. Dato’ Azhar Bin Ibrahim, the Penaga State Assemblyman at the material time; (c) By a letter dated 13th August 2013, the Applicant had in fact given his full explanation to the Director of the Health Services Department, his Head of Department (HOD) at the material time (page 383 AP J2/2); (d) In the same letter, he had also requested for a Committee of Investigation to be appointed to investigate the charge against him, if the 1st Respondent found his explanation insufficient or unsatisfactory; (e) He also stated that he fully understood the specific Regulation of the MBSP Disciplinary Regulations, under which he was charged with. He clarified that he had no intention to get the support of the said Assemblyman, as at that material time he 7 had already commenced an action against the 2nd Respondent in the High Court to challenge his transfer from the Engineering Department of the 2nd Respondent to the Health Services Department and the case was pending in court; (f) In the relevant Hansard which documented the Penang State Assembly’s proceedings where the matter concerning him was purportedly highlighted (at page 555 of Appeal Record J2/(3)), his name had been wrongly stated as Muhammad Subri Haji Hassan. His job description too had been wrongly stated as Assistant Director of Building, instead of Assistant Director of Engineering; and (g) He had lodged a police report pertaining to the misquoting of his meeting with the said Assemblyman of Penaga. [13] After the Appellant sent his written representations to the 1st Respondent, the Appellant’s HOD had also written to the Chairman of the 1st Respondent dated 18th October 2013, to state that the Applicant’s denial was valid, his written representations against the charge were reasonable and the decision of the 1st Respondent to take disciplinary action with a view of dismissal or reduction in rank was not appropriate in the circumstances of the case. [14] On 2nd December 2013, the 1st Respondent informed the Applicant that pursuant to a meeting held on 28 th November 2013, the Applicant 8 was found guilty and punished with dismissal (see page 392 of Appeal record J2/(2)). [15] Despite having requested for the notes of proceedings and all the relevant documents from the 1st Respondent vide a letter dated 2nd December 2013, the same was also denied by the 1st Respondent. [16] Aggrieved by the 1st Respondent’s decision, the Applicant filed this JR Application to challenge his dismissal from the 2nd Respondent. This JR Application is related to a disciplinary action initiated by the 1 st Respondent against the Applicant under Regulations 27 to 29 of the MPSP Disciplinary Regulations. IN THE HIGH COURT The Applicants’ Case [17] Before the High Court, learned Counsel for the Applicant submitted the following arguments: (a) There were flaws in the manner the disciplinary proceedings were commenced against the Applicant. The Applicant’s HOD was asked to look into the matter concerning the Applicant vide a letter dated 15th May 2012. The Applicant’s HOD having received an explanation from the Applicant then wrote to the 1st Respondent stating that the Applicant’s 9 explanation was valid. At the same time he had also attached the Applicant’s explanation to his letter and requested the 1st Respondent to appoint a Committee of Investigation to investigate the matter in a rational manner. However, the 1st Respondent had instead relied on the HOD’s letter to initiate the disciplinary proceedings against the Applicant; (b) The commencement of the disciplinary proceedings against the Applicant was not based on the report from the HOD of the Applicant as claimed by the 1st Respondent. Instead, the 1st Respondent had acted on a frolic of its own without complying with the procedure as set out in the MBSP Disciplinary Regulations; (c) There was failure on the part of the 1st Respondent to appoint a Committee of Investigation to investigate into the alleged matter. Hence the Applicant was denied the right of an oral hearing. As there was a letter issued by the Applicant’s HOD dated 18th October 2013 expressing his views that the Applicant’s explanation and / or reasons in his written representations were valid and that the decision to initiate the disciplinary proceedings with a view to reduction in rank and dismissal was unwarranted; (d) The 1st Respondent had breached section 16 (4) of the Local Government Act 1976 (LGA) as it has denied the Applicant 10 the right to an oral hearing guaranteed under Article 135 (2) of the Federal Constitution (FC); (e) The 1st Respondent had acted in unholy haste in placing the blame on the Applicant and finding the Applicant guilty under Regulation 4 (2) of the MPSP Disciplinary Regulations; (f) There was delay in initiating the disciplinary proceedings against the Applicant. The alleged offence had taken place prior to 30th April 2012 and disciplinary action was commenced only on 4th October 2013. The action had been taken after the Applicant had commenced an action in the High Court challenging his transfer which was dismissed by the COA on preliminary points and thereafter the Applicant had commenced a judicial review application against the Respondents challenging his transfer from the Engineering Department to the Health Services Department; and (g) As the decision to transfer the Applicant from the Engineering Department to the Health Services Department was made by the President and the Secretary of the 2nd Respondent, and that the Applicant had filed a case against the Respondent, the Panel comprising of the President and the Secretary of the 2nd Respondent, could not have conducted the disciplinary proceedings in a fair manner. Hence, the decision to dismiss the Applicant could be tainted with biasness. 11 The Respondent’s Case [18] The Respondent, on the other hand, submitted as follows: (a) The LGA did not make provision for the 1st Respondent which is a Statutory Committee established under section 16 (4) of the LGA to sue and be sued. Therefore, the 1st Respondent could not be named as a party to the JR Application; (b) The 2nd Respondent is a local authority established under the LGA, is a body corporate and may sue and be sued; (c) The Applicant is not a holder of public office. Therefore, the Applicant is not entitled to the protection under Article 135 (2) of the FC. Just because MPSP Disciplinary Regulations are applicable to the Applicant that alone will not have the effect that the Applicant is a public officer who is entitled to the protection under Article 135 (2) of the FC; (d) The Applicant cannot make an issue over the decision of the 2nd Respondent to transfer him from one department to another department as that is the prerogative of the 2nd Respondent. The Applicant was transferred within the 2nd Respondent’s organization to carry out specific duties within his expertise. The Applicant’s transfer did not involve any changes or demotion in grade, position, status and reduction in salary. Instead, the Applicant remained in the Engineering 12 Services classification and he held the post of an Engineer Grade 41 in the Health Services Department without losing any benefits. His acting position as a Grade 44 Engineer in the new department was not affected. The transfer of the Applicant was in accordance with the Applicant’s contract of service and did not breach any of the terms and conditions of his service. The Applicant was still paid his remunerations; (e) The issue raised by the YB Dato’ Azhar concerning the transfer of the Applicant at the meeting of the State Assembly was directly related to the Applicant. The Hansard 2HB Report had clearly stated that the said State Assemblyman had met with the Applicant and discussed the issue pertaining to his transfer. As the Hansard is a public document, the 1st Respondent could rely on that report to institute disciplinary proceedings against the Applicant. The attempt to bring any form of influence or external pressure to support or pursue the Applicant’s claim against the 2nd Respondent’s decision to transfer the Applicant from the Engineering Department to the Health Services Department at the meeting of the Penang State Assembly was a serious breach of the MPSP Disciplinary Regulations; (f) With respect to the appointment of the Committee of Investigation to inquire or investigate the Applicant’s case as requested by the Applicant, the 1st Respondent argued that the 1st Respondent is vested with the discretion under 13 Regulation 29 (4) of the MBSP Disciplinary Regulations to appoint the said Committee of Investigation if it requires clarification pertaining to the charge. The decision whether to appoint the Committee of Investigation lies with the 1st Respondent. The Court should not usurp the discretion given by the law on the 1st Respondent. In the case of the Applicant, the 1st Respondent did not require further clarification. The Applicant could not insist or demand that a Committee of Investigation to be appointed. Failure to do so did not amount to breach of natural justice; (g) The Applicant had failed to exculpate himself from the charge proffered against him; (h) The Applicant had been accorded every opportunity to defend himself from the charge proffered against him. The procedure under MPSP Disciplinary Regulations had been assiduously followed by the 1st Respondent. A fair hearing does not mean that the Applicant must be given the right to an oral hearing. In this case the Applicant was given the right to make written representations as envisaged by the MPSP Disciplinary Regulations and that sufficed; (i) With respect of the Applicant’s claim that the decision-making process which resulted in the Applicant’s dismissal was tainted with biasness, the 1st Respondent argued that the President, Secretary and the members of the 2nd Respondent 14 were appointed pursuant to the LGA and this had been determined by the law. Therefore, the issue of biasness did not arise at all. These people were performing their statutory functions as stipulated by the law; (j) On the issue of delay in instituting the disciplinary proceedings, the Respondent argued that in this case the action was instituted within reasonable time and the Applicant was not prejudiced at all; (k) On the issue that the Applicant was not supplied with the documents he required to defend himself from the charge proffered against him, the Respondent submitted that, the Applicant had failed to request for the documents at the earliest possible opportunity. Further the 1st Respondent argued that the MPSP Disciplinary Regulations did not provide for documents to be supplied to the Applicant; and (l) Pertaining to the issue whether the Court can order a relief in the form of a specific performance, the Respondents submitted the case of Mohd Ahmad v Yang Di Pertua Majlis Daerah Jempol, Negeri Sembilan [1997] 3 CLJ 135, is applicable where it was held that the Court would not order a relief in the form of specific performance of contract of service. 15 DECISION OF THE HIGH COURT [19] At the conclusion of the trial, the learned JC dismissed the Applicant’s JR Application with costs. Having perused the cause papers, written submissions file by both parties and heard the respective learned Counsels, the learned JC identified three (3) main or material issues to be determined by the Court as follows: (a) Whether the failure to hold a hearing or inquiry and investigation has resulted in a breach of natural justice and / or procedural fairness?; (b) Whether the Respondent have been guilty of bias against the Applicant?; and (c) Whether the Court can order specific performance of a contract of service? [20] Briefly the decision of the learned JC was premised on the following findings of fact and law: (a) The Applicant did not fall within the category of officers defined under Article 132 of the FC. This was supported by the Federal Court case of Mohd Ahmad v Yang di Pertua Majlis Daerah Jempol, Negeri Sembilan & Anor [supra] which ruled that employees of the local council are not holders 16 of public office. Hence they are not entitled to the protection under Article 135 (2) of the FC; (b) The Applicant was employed based on a contract of service. In terms of discipline he was subject to the terms and condition of his employment and the MPSP Disciplinary Regulations. Whatever rights that had been accorded to the Applicant must be examined within the context of the contract of service, the MPSP Disciplinary Regulations and any other Circulars, Guidelines or Orders expressly incorporated in the Applicant’s contract of service. (c) The issue pertaining the Applicant’s transfer from one department to the other department of the 2nd Respondent, the JC ruled that this was the management’s prerogative. The Court will normally not interfere with such prerogative. The transfer did not involve any change in status, grade, position and salary of the Applicant. On the issue of transfer of public officers, the Court had always been consistent in holding that unless provided otherwise, a public officer may be transferred from his station to any other location within the employer’s organization. The learned JC was guided by these cases; Pengarah Pelajaran, Wilayah Persekutuan & Ors v Loot Ting Yee [1982] 1 MLJ 68 ; Aria Kumar v Ketua Pengarah Jabatan Hasil Dalam Negeri, Malaysia [1994] 4 CLJ 515 ; Dr. Ganeshwaran a/l K T Balakrishnan v Pengarah 17 Kesihatan Negeri Perak Darul Ridzuan & Ors [2010] MLJU 1072; (d) The right to be heard does not necessarily mean a right to an oral hearing (see Ghazi Mohd Sawi v Mohd Hanif Bin Omar, Ketua Polis Negara Malaysia [1994] 2 MLJ 114 ; Lembaga Tatatertib Perkhidmatan Awam Hospital Besar Pulau Pinang & Anor v Utra Badi a/l K Perumal [2001] MLJ 417 ; Public Services Commission Malaysia & Anor v Vickneswary a/p RM Santhivelu (Substituting M Sentivelu a/l R Marimuthu, deceased) [2008] 6 MLJ 1 ; Kerajaan Malaysia & Ors v Tay Chai Huat [2012] 3 MLJ 149 ). All this cases seem to suggest that in cases of this genre, the right to be heard as envisaged in Article 135 (2) of the FC did not require a public officer to be to be given an oral hearing. The procedure in the Public Officers (Conduct and Discipline) Regulations 1993 applicable to the public officers, from which the MPSP Disciplinary Regulations had been adopted had made provision for a written representation to be made. This in itself is sufficient to satisfy the test that the right to be heard had been accorded to the person facing disciplinary action with a view to reduction in rank or dismissal; (e) Pertaining to the request by the Applicant for a Committee of Investigation to be appointed to investigate the charge against him, the learned JC ruled that it is for the 1st Respondent to decide if the Applicant’s case required further 18 clarification. As such the Court could not interfere with the decision of the 1st Respondent not to appoint a Committee of Investigation; (f) The case of Yusuf Bin Sudin v Suruhanjaya Perkhidmatan Polis & Anor [2012] 1 CLJ 448 does not strictly apply to the Applicant as the Applicant is not a public officer, hence the provision of Article 135 (2) of the FC is not applicable to him. Further in Yusuf Sudin the charges proffered against Yusuf Sudin appeared to be general in nature and lacking in particulars. Unlike the charge against the Applicant which is so clear; (g) The Respondent’s reliance on the Hansard was justified as the Hansard is a public document within the meaning of section 74 of the Evidence Act 1950; (h) On the issue that there was failure on the part of the 1st Respondent to furnish the documents requested by the Applicant, the learned JC stated that the MPSP Disciplinary Regulations do not provide for documents to be furnished to the person facing disciplinary action. Further, the documents requested for were not relevant to the charge proffered against the Respondent; (i) The claim of the Applicant that there was delay in the institution of the disciplinary proceedings against the Applicant, the learned JC found that the proceedings were 19 conducted within reasonable time. The Applicant was never prejudiced. The learned JC was guided by the case of Harbhajan Singh v Suruhanjaya Pasukan Polis, Malaysia & Anor [1999] 5 MLJ 222; (j) There was no reason for the Applicant to claim that the 1st Respondent was bias towards him and ought to be disqualified from deciding the case against the Applicant. In any event, there was no application filed and / or request made for the President and Secretary of the 2nd Respondent to be recused from hearing the case. The LGA and the MPSP Disciplinary Regulations had conferred the power to the Committee to adjudicate the matter, otherwise there would be no one else who may be in a position and / or competent to decide the matter; (k) With respect to the relief in the form of specific performance, the learned JC, was being guided by the case of Mohd Ahmad v Yang Di Pertua Majlis Daerah Jempol, Negeri Sembilan (Supra) where the Federal Court had ruled that as a matter of principle the Court will not order specific performance of a contract of service between master and servant except in cases involving industrial relations where an employee was claiming for reinstatement on ground of dismissal without just cause or excuse or under section 20 of the Industrial Relation Act 1967 or in cases involving a public officer as set out under Article 132 of the FC. As the 20 employees of the 2nd Respondent, being an employee of a local authority he is employed purely on a contractual basis and he is not a public officer envisaged by Article 132 of the FC, he could only claim damages if he could establish that his dismissal was in breach of the contract of service; and (l) Pursuant to Section 20 (1) (b) of the Specific Relief Act 1950, an employee who has been wrongfully dismissed cannot seek specific performance of his contract of employment. This is consistent with the common law position that a contract of employment is a contract dependent on the volition of the parties. As such, it cannot, in absence of special circumstances be specifically enforced either by a declaration that the contract still subsists or that the dismissal is invalid or void. THE APPEAL [21] Before us, whilst adopting the written submissions filed in court, the learned Counsel for the Applicant focused on the three main issues resolved by the learned JC for our determination. OUR DECISION The law [22] We were mindful of the limited role of the appellate court in relation to findings of facts made by the court of first instance. 21 [23] In the course of that, we had sought guidance from the very often- quoted case of Lee Ing Chin @ Lee Teck Seng v Gan Yook Chin [2003] 2 MLJ 97 where the Court of Appeal held as follows: “an appellate court will not, generally speaking, intervene unless the trial court is shown to be plainly wrong in arriving at its decision. But appellate interference will take place in cases where there has been no or insufficient judicial appreciation of the evidence.” [24] Reference was also made to the decision of the Federal Court in Gan Yook Chin v Lee Ing Chin @ Lee Teck Seng [2004] 4 CLJ 309 where the Federal Court held that the test of “insufficient judicial appreciation of evidence” adopted by the Court of Appeal was in relation to the process of determining whether or not the trial court had arrived at its decision or findings correctly on the basis of the relevant law and the established evidence. [25] We were also mindful of our role in dealing with the appeal at hand which originated by way of a judicial review application. On the proper approach the Court should adopt in dealing with the appeal, both learned Counsels for the Appellant and the Respondents had addressed this issue extensively in the learned Counsels’ written as well as oral submissions. We do not propose to deal with the law pertaining to the scope of judicial review at great length as the law is trite. We were guided by a plethora of cases which ruled that judicial review is not an appeal from the decision but a review of the manner in which the decision was made and that the High Court in hearing the judicial review is not entitled 22 to consider whether the decision itself, on the merits of the facts, was reasonable and fair. Suffice for the court to refer to the recent Federal Court case of Ketua Pengarah Hasil Dalam Negeri v Alcatel-Lucent Malaysia Sdn Bhd & Anor [2017] 2 CLJ 1, where his Lordship Suriyadi Halim Omar FCJ had stated as follows: “[69] A judicial review is a court proceeding where a challenge is made on the decision of the relevant authority or entity (in this case the appellant) ie, by challenging the lawfulness of the decision- making process. This is trite law. Generally, the court dealing with the judicial review application in a supervisory capacity is not to delve into the merits of the case. In other words, the evidence is not reassessed. The court is merely to quash the decision of the relevant authority, if need be, and not to substitute with what it thinks is the correct decision. We are not here to usurp the powers of the designated authority.” [26] Notwithstanding the above, we were also aware that the law on judicial review had developed so as to give the power to the court hearing a judicial review matter to scrutinize such decision not only for process, but also for substance to determine the reasonableness of the decision. Therefore, the conventional concept that judicial review is concerned only with the review in the manner a decision is made is no longer the correct approach to be adopted by the Court in dealing with judicial review cases. (see R.Ramachandran v The Industrial Court of M alaysia & Anor [1997] 1 MLJ 145 ; Titular Roman Catholic Archbishop of Kuala Lumpur v Menteri Dalam Negeri & Ors [2014] 8 CLJ 629; Datuk Justine Jinggut v Pendaftar Pertubuhan [2012] 3 MLJ 212 ; Ranjit 23 Kaur S. Gopal Singh v Hotel Excelsior (M) Sdn Bhd [2010] 8 CLJ 629). [27] These principles were reiterated in the recent Federal Court case of Ketua Pengarah Hasil Dalam Negeri v Alcatel-Lucent (supra) above in the following terms: [71] However, the Federal Court in the landmark decision of R Rama Chandran v. Industrial Court of Malaysia & Anor [1997] 1 CLJ 147; [1997] 1 MLJ 145 held that the decision of an inferior tribunal may be reviewed on the grounds of "illegality", "irrationality" and possibly "proportionality", which not only permits the courts to scrutinise the decision-making process but also the decision itself. In short, it allows the courts to delve into the merits of the matter. [72] The approach of illegality and irrationality was recognised and applied by Malaysian Trade Union Congress & Ors v. Menteri Tenaga, Air dan Komunikasi & Anor [2014] 2 CLJ 525; [2014] 3 MLJ 145. This court in succinct terms said: On the facts of this case, we find MTUC had failed to show that the Minister's decision was illegal, irrational and flawed on the grounds of procedural impropriety. [73] It is now clear, and here to stay, that the decision of an inferior tribunal may also be reviewed on the grounds of illegality and irrationality. The distinction between a review application and an appeal thus appears to no longer exist (see also Ranjit Kaur S Gopal Singh v. Hotel Excelsior (M) Sdn Bhd [2010] 8 CLJ 629). javascript:DispCase=window.open('/Members/DisplayCase.aspx?CaseId=2550399489&SearchId=7mkl','_DisplayCase','');DispCase.focus() javascript:DispCase=window.open('/Members/DisplayCase.aspx?CaseId=2550399489&SearchId=7mkl','_DisplayCase','');DispCase.focus() javascript:DispCase=window.open('/Members/DisplayCase.aspx?CaseId=2550399489&SearchId=7mkl','_DisplayCase','');DispCase.focus() javascript:DispCase=window.open('/Members/DisplayCase.aspx?CaseId=2970878081&SearchId=7mkl','_DisplayCase','');DispCase.focus() javascript:DispCase=window.open('/Members/DisplayCase.aspx?CaseId=2970878081&SearchId=7mkl','_DisplayCase','');DispCase.focus() javascript:DispCase=window.open('/Members/DisplayCase.aspx?CaseId=2880963074&SearchId=7mkl','_DisplayCase','');DispCase.focus() javascript:DispCase=window.open('/Members/DisplayCase.aspx?CaseId=2880963074&SearchId=7mkl','_DisplayCase','');DispCase.focus() 24 [28] Guided by the above established principles, we had therefore carefully examined the documents that were placed before us in the form of the Records of Appeal to ascertain if the learned JC had arrived at his decision correctly on the basis of the relevant law and evidence before him. [29] We observed that the learned JC had dealt with the facts and the law very extensively, contrary to what was stated by learned Counsel for the Applicant that the learned Judge had merely focused on three (3) main issues. This is reflected in the learned Judge’s Grounds of Judgment, the gist of which had been set out in paragraphs 19 to 20 above. [30] Before us, learned Counsel for the Applicant had informed us that she would be focusing on the three (3) major issues as stated above for our consideration. Issue 1 : Whether the failure on the part of the 1st Respondent to appoint a Committee of Investigation to investigate the charge had resulted in the decision making process to be tainted with procedural impropriety? [31] The Applicant contended that despite requests having been made by him as well as his HOD for a Committee of Investigation to be appointed to investigate the charge against him, the 1st Respondent had failed and / or refused to adhere to the said requests. Due to the failure on the part of the 1st Respondent to accede to these requests, the process 25 leading to his dismissal was tainted with procedural impropriety and / or there was breach of natural justice. [32] We noted that the MPSP Disciplinary Regulations were adopted from the Public Service (Discipline and Conduct) Regulations 1993 with modifications to suit the requirements of the 2nd Respondent. We have perused Part IV of the MPSP Disciplinary Regulations and found that in terms of substance and procedures, the provisions are pari materia to the 1993 Regulations. Hence we are of the view that decided cases touching the provisions of 1993 Regulations are equally applicable and / or are relevant in interpreting the MPSP Disciplinary Regulations. We are not short of authorities on the topic of “the right to be heard” and / or “a reasonable opportunity of being heard” as envisaged by the FC. We noted that the language of Article 132 (5) of the FC had been adopted in the proviso to section 16 (4) of the LGA which states as follows: “The Commissioner of the City of Kuala Lumpur in the case of the Federal Territory, or the Mayor or President or his representative who shall be the Councillor, the Secretary and one other Councillor in the case of local authorities may appoint such persons to the offices shown on the list so approved and may reduce in rank or dismiss such persons from office and may appoint others in their stead: Provided that the reduction in rank or dismissal from office of any Head of Department or his Deputy shall not take effect until such reduction in rank or dismissal has been confirmed by the State Authority: 26 Provided further that no officer or employee shall be reduced in rank or dismissed without being given a reasonable opportunity of being heard.” [33] In gist the right to a fair hearing and / or a reasonable opportunity of being heard that is guaranteed to the public servant is also accorded to the officers and employees of the 2nd Respondent. There is a statutory recognition given to the officers and / employees of the local authority (Majlis Perbandaran Seberang Perai (MPSP) or the 2nd Respondent) that no officers of the 2nd Respondent shall be reduced in rank or dismissed without being given a reasonable opportunity of being heard. As the provisions of the relevant law under discussion are similar we are of the view that cases which interpreted the provisions touching the public officer will also be useful to guide us in resolving the issues before us. [34] As we have highlighted in the preceding paragraphs, the procedures involving disciplinary proceedings with a view to dismissal and reduction in rank in the case of officers and employees of the 2 nd Respondent are somewhat similar to that of the 1993 Regulations as the 1993 Regulations were adopted by the 2nd Respondent with modifications to suit its requirements. Hence, the cases which dealt with the 1993 Regulations are relevant for purposes of interpreting the MPSP Disciplinary Regulations. In the case of the 1993 Regulations our courts have consistently held that so long as the Disciplinary Authority has assiduously followed the procedures prescribed in the 1993 Regulations, the requirements of a reasonable opportunity of being heard and or procedural fairness have been satisfied. The courts have also held that 27 it is sufficient for the officer facing disciplinary proceeding to be given the opportunity to make written representations to the disciplinary authority to answer to the charge proffered against him. Fair hearing does not mean the officer facing disciplinary proceedings must be heard orally either in person or by his advocate. The oral hearing is only relevant if the disciplinary committee is of the opinion the case involving the officer facing disciplinary proceedings requires clarification. This principle had been stated in the case of Najar Singh v. Government of Malaysia [1976] 1 LNS 81 (Najar Singh) where the Court held that so long as the public officer had been given the opportunity to make a written representation in answer to the charge against him, that would suffice to satisfy the test that he had been accorded a reasonable opportunity of being heard envisaged by Article 135 (2) of the FC. We are of the view that we can be guided by these cases as similar provisions of the MPSP Disciplinary Regulations were being discussed (see Najar Singh v. Government of Malaysia & Anor [1976] 1 LNS 81) ; Ghazi Mohd Sawi v Mohd Hanif Bin Omar, Ketua Polis Negara Malaysia [1994] 2 MLJ 114 ; Lembaga Tatatertib Perkhidmatan Awam Hospital Besar Pulau Pinang & Anor v Utra Badi a/l K Perumal [2001] MLJ 417 ; Public Services Commission Malaysia & Anor v Vickneswary a/p RM Santhivelu (Substituting M Sentivelu a/l R Marimuthu, deceased) [2008] 6 MLJ 1 ; Kerajaan Malaysia & Ors v Tay Chai Huat [2012] 3 MLJ 149 ). [35] We found that except for the matter we propose to discuss under Issue 2, the 1st Respondent had assiduously complied with the procedures outlined under Part IV of the MPSP Disciplinary Regulations. 28 We were of the view that the 1st Respondent had given the Applicant a reasonable opportunity of being heard by according the Applicant the right to make a written representation. Drawing the analogy from the cases applicable to the public officers, we were of the view that the Applicant had been accorded a reasonable opportunity of being heard. As such the Applicant could not complain that he had been denied the right to be heard as entrenched under Section 16 (4) of the LGA. [36] Turning now to the allegation of the Applicant that the disciplinary proceedings were tainted with procedural impropriety as the 1st Respondent had failed to appoint the Committee of Investigation to investigate the charge against him. We noted that the contents of Regulation 29 (4) is word for word similar to Regulation 37 (5) of 1993 Regulations. The old provision in General Order 25 (6) of the General Order that was applicable to public officer had similar provisions. There are ample authorities on point which had delved with the said specific provisions and we are guided by these authorities. [37] It is trite that the appointment of the Committee of Investigation is at the discretion of the Disciplinary Authority and the officer could not demand for the same to be appointed and the Court ought not to interfere with the discretion of the Disciplinary Authority. [38] Reference is made to the majority decision of the Federal Court in Kerajaan Malaysia & Ors v Tay Chai Huat [supra] where it was decided as follows: 29 “[27] I dare say that the law is settled in cases of this genre. This can be gleaned from several decisions which were decided prior to Utra Badi and Vickneswary; see Hajjah Halimatussaadiah binti Haji Kamaruddin v. Public Services Commission, Malaysia & Anor [1994] 3 CLJ 532, Ghazi bin Mohd Sawi v. Mohd Haniff bin Omar, Ketua Polis Negara, Malaysia & Anor [1994] 2 CLJ 333, Zainal Hashim v. Government of Malaysia [1979] 1 LNS 132 and Najar Singh v. Government of Malaysia & Anor [1974] 1 LNS 101. [28] From the authorities referred to above, I am of the view that the law is settled. Thus, an oral hearing may be given in instances where the disciplinary authority considers that the case against the officer requires further clarification and consequently appoint a Committee of Inquiry pursuant to GO 26(5) of the GO (Chapter D). If the disciplinary authority considers that no further clarification is required, I do not think that the officer concerned can insist or demand that a Committee of Inquiry be appointed.” [39] The Court also rejected the earlier decision of the Federal Court in the case of Yusof Sudin v Suruhanjaya Perkhidmatan Polis & Anor [2012] 1 CLJ 448, where it was decided as follows: “[54] This court create precedents. The use of precedent is an indispensable foundation on which to decide what is the law and how it should be applied in individual cases. Utra Badi and Vickeswary are decisions that settled the law in cases of this genre with finality. I would think that this court would have need to hesitate long before distinguishing Utra Badi and Vickneswary on inadequate grounds or on a hypothetical issue raised by the appellants in appeals before this court such as whether there are exceptions to the ratio decidendi javascript:DispCase=window.open('/Members/DisplayCase.aspx?CaseId=2503541249&SearchId=mkl-98','_DisplayCase','');DispCase.focus() javascript:DispCase=window.open('/Members/DisplayCase.aspx?CaseId=2503541249&SearchId=mkl-98','_DisplayCase','');DispCase.focus() javascript:DispCase=window.open('/Members/DisplayCase.aspx?CaseId=2503541249&SearchId=mkl-98','_DisplayCase','');DispCase.focus() javascript:DispCase=window.open('/Members/DisplayCase.aspx?CaseId=2495349249&SearchId=mkl-98','_DisplayCase','');DispCase.focus() javascript:DispCase=window.open('/Members/DisplayCase.aspx?CaseId=2495349249&SearchId=mkl-98','_DisplayCase','');DispCase.focus() javascript:DispCase=window.open('/Members/DisplayCase.aspx?CaseId=2138345473&SearchId=mkl-98','_DisplayCase','');DispCase.focus() javascript:DispCase=window.open('/Members/DisplayCase.aspx?CaseId=2138345473&SearchId=mkl-98','_DisplayCase','');DispCase.focus() javascript:DispCase=window.open('/Members/DisplayCase.aspx?CaseId=2013594114&SearchId=mkl-98','_DisplayCase','');DispCase.focus() javascript:DispCase=window.open('/Members/DisplayCase.aspx?CaseId=2013594114&SearchId=mkl-98','_DisplayCase','');DispCase.focus() 30 formulated in both authorities. Such hypothetical issues raised in cases of this genre can have disruptive and seemingly unfair consequences and extremely capricious results. It creates uncertainty in the law and would seriously hinder administration of the General Orders by the government departments resulting in administrative confusion. For the aforesaid reasons adumbrated, I am unable to follow the majority decision in Yusof Sudin.” [40] Hence, guided by the above authorities, we agree with the learned JC, it is for the 1st Respondent to decide whether a Committee of Investigation ought to be appointed to investigate the charge and the Applicant could not demand for the same. This approach is also in tandem with Regulation 37 (5) of 1993 Regulations which provides as follows: “(5) If the appropriate Disciplinary Authority is of the opinion that the case against the officer requires further clarification, the Disciplinary Authority may establish an Investigation Committee for the purpose of obtaining such further clarification.” [41] The words “if the Disciplinary Authority is of the opinion” in the above-mentioned Regulation showed that the discretion is upon the Disciplinary Authority to decide whether a Committee of Investigation ought to be appointed or otherwise and the Court ought not to interfere with that discretion. Regulations 29 (4) of the MPSP Disciplinary Regulations were couched in similar language. We were of the view, cases applicable to Regulation 37 (5) of the 1993 Regulations would likewise be applicable to the case at hand. In view of the above, we were 31 constrained to hold that the point taken up by the Applicant that he was denied the right to be heard as the 1st Respondent had failed to constitute a Committee of Investigation to inquire into the charge against him has no merits and ought to be rejected by this Court. Issue 2 : Whether the decision-making process was tainted with biasness as the Respondents had highlighted the Applicant’s previous conviction in the Working Paper that was submitted to the Disciplinary Secretariat one day before the deliberation of the Disciplinary Committee, without giving the Applicant the opportunity to rebut the same? [42] The Applicant contended the proceedings that led to his dismissal was tainted with procedural impropriety as the 1st Respondent had considered a report it received from the Disciplinary Secretariat which was detrimental to the Applicant, without giving the Applicant the opportunity to explain or controvert the same (see page 449 to 552 of Appeal Records Jilid 2/(3)). The crucial portion of the detrimental report was the information pertaining to his previous misconduct where he was given a caution / warning with annual increment being deferred to twelve months for an offence for being late to work without any valid explanation. (see paragraph 6.9 at page 551 of the Appeal Record Jilid 2/(3)). [43] We have examined the process undertaken by the 1st Respondent which resulted in the dismissal of the Applicant and found that there is merit in the Applicant’s argument. The 1st Respondent had proceeded to impose the punishment of dismissal on the Applicant without giving the 32 Applicant the opportunity to explain and / or contradict the detrimental portion of the Report. We are of the view that this in itself constituted a breach of the rule of natural justice and or procedural unfairness/ impropriety. [44] We were guided by the principles enunciated in the in often-quoted cases of Surinder Singh Kanda v The Government of the Federation of Malaya [1962] 1 MLJ page 169 and Shamsiah bte Ahmad Sham v Public Services Commissions, Malaysia & Anor [1990] 3 MLJ 364. It is not disputed that the Working Paper which contained the material which was detrimental to the Applicant was given to the 1st Respondent one day before the decision to dismiss the Applicant was deliberated on, without giving the opportunity to the Applicant to explain or controvert the same. It is also not disputed that this information would be prejudicial to the Applicant. [45] In Surinder Singh Kanda v The Government of the Federation of Malaya [supra] (Surender Singh Kanda), a disciplinary proceeding was commenced against the Appellant, an Inspector of Police in the Royal Federation of Malaya Police leading to his dismissal from the said Service. In the course of the proceedings, a Report of the Board of Inquiry which contained severe condemnation of the Appellant was sent to the adjudicating officer before he sat to inquire into the charge. The adjudicating officer read the contents and had full knowledge of the contents of the Report. However, the Appellant never had it until the fourth day of the hearing. The Report contained detailed evidence of the witnesses as well as the inquiries made by the Board which were 33 detrimental to the Appellant. The Appellant raised the issue that he was dismissed without being given a reasonable opportunity of being heard by the Board, in that, he was not asked to correct or contradict the detrimental information contained in the Report. The Privy Council had the opportunity to elaborate on the clause, “a reasonable opportunity of being heard” contained in Article 135 (2) of the FC as follows: “If the right to be heard is to be a real right which is worth anything, it must carry with it a right in the accused man to know the case which is made against him. He must know what evidence and what statements have been made affecting him : and then he must be given a fair opportunity to correct or contradict them. This appears in all cases from the celebrated judgment of Lord Loreburn, L.C in Board of Education v. Rice (³) down to the decisions of their Lordships’ Board in Ceylon University v. Fernando (4). It follows, of course, that the judge or whoever has to adjudicate must not hear evidence or receive representations from one side behind the back or the other. The Court will not enquire whether the evidence or information did work to his prejudice. Sufficient that they might do so. The Court will not go into the likelihood of prejudice. The risk of it is enough. No one who has lost a case will believe that he has been fairly treated if the other side has had access to the judge without his knowing. Instances which are cited to their Lordships were Re Gregson (5), Rex v. Bodmin Justices (6) and Goold v. Evans (7), to which might be added Rex v. Architect’s Registration Tribunal (8) and many others.” [46] The facts in the case of Shamsiah bte Ahmad Sham v Public Services Commissions, Malaysia & Anor [supra] (Shamsiah) were 34 quite close to the case at hand. In Shamsiah, a book-binder in the Government Printing Department was dismissed by the Public Service Commission (PSC) after she was found guilty of negligence and dereliction of duty. She had challenged her dismissal by the PSC on the ground that the PSC had taken into consideration extraneous matters, namely, the Appellant’s record of past conducts which were entered in her record of service and produced by the Director General of the Government Printer’s Department to the PSC, without giving her the opportunity to explain, contradict or rebut the same. The Court was of the view that there was implicit acknowledgement on the part of the PSC that it had the information of the Appellant’s several misconducts as well as the punishments imposed on her. The Record of Service which was submitted to the Public Service Commission contained the information pertaining to the misconducts and the punishment which had been imposed on her comprising of 4 times being late to report for duty and 3 times for taking longer time to complete the tasks allocated to her for which she was punished with a warning, a fine and a withholding of salary respectively. The Court noted that in the show cause letter issued to her at paragraph 2, contained the following detrimental words: “ 2. Apart from that, it has been observed that several disciplinary actions have been taken against you by the Board of Discipline of your department on account of similar defaults as well as other defaults. However, they had no effect on you” (see page 366 E left column). 35 [47] The Court in Shamsiah relied on the Supreme Court case of S. Nanjundeswar v State of Mysore AIR 1960 SC 159 which referred to the Supreme Court case of (S) AIR 1957 SC 882 which ruled that: “the principle of natural justice require that no materials should be relied upon against the person charged without his being given an opportunity of explaining them.” [48] Apart from the above case, the Court had also referred to the case of Ramachandra Gopalrao v. Deputy Inspector of Police AIR 1957 Madh where the officer concerned was never informed of the fact that his record of past service and complaints would be considered in deciding the appropriate punishment to be imposed on him, in the event, he was unable to exculpate himself from the charge proffered against him. The Court agreed that the competent authorities were entitled to refer to previous conducts or complaint before deciding on the fate of the officer, but not until the officer was given the opportunity to take a proper defence to the proposed action to be taken against him. [49] In Gopalrao v. State Government Madhya Pradesh AIR 1954 Nag 90 (L), The Court went on to say: “If the civil servant is not apprised of the record of service, nor is he informed that it will be taken into account in order to decide the question of punishment, he cannot be deemed to have been given a reasonable opportunity to show cause against the proposed action. Normally, the question of punishment is linked up with the gravity of 36 the charge, and the penalty that is inflicted is proportionate to the guilt.” [50] Having considered the above quoted cases, the Supreme Court was of the view before any decision affecting the right of the appellant is made, the PSC must ensure that the appellant is apprised of the record of her past service and also the fact that it would be taken into consideration in imposing punishment. Failing which she cannot be deemed to have been given a reasonable opportunity to show cause against the proposed action. The Supreme Court was of the view that there was implicit acknowledgement on the part of the PSC that it had the information of the appellant’s several misconducts as well as the punishments imposed on her. The Court noted that in the show cause letter issued to her contained the following words which were prejudicial to the appellant: “ 2. Apart from that, it has been observed that several disciplinary actions have been taken against you by the Board of Discipline of your department on account of similar defaults as well as other defaults. However, they had no effect on you” (see page 366 E left column). [51] The Supreme Court was of the view that the above-quoted paragraph reflected the state of mind of the PSC and according to the Court this in itself constituted an intrinsic evidence, that the PSC had taken into account to dismiss the Appellant from the service of the Government, albeit, in good faith. 37 [52] Turning now to the case at hand, it is not disputed that the Applicant’s previous misconduct was within the knowledge of the 1 st Respondent and from the record before us, the 1st Respondent did not provide such information to the Applicant. Neither was the Applicant informed that such information may be used against him in meting out the punishment. [53] Based on the above we were of the view that the process undertaken by the 1st Respondent had infringed the rule of natural justice and / or was tainted with procedural impropriety. Hence, it is our finding that the learned JC had failed to properly evaluate the evidence before him and / or appreciate the relevant laws applicable to the factual matrix of this case in making his ruling against the Applicant on this point. Issue 3: Whether a relief in the form of Specific Performance is available to the Applicant [54] The learned JC ruled that, the Applicant did not fall within the category of officers defined under Article 132 of the FC and this was supported by the Federal Court case of Mohd Ahmad v Yang di Pertua Majlis Daerah Jempol, Negeri Sembilan & Anor [supra] which ruled that employees of the local council are not holders of public office. Hence, they are not entitled to the protection under Article 135 (2) of the FC. [55] The learned JC further held that, the Applicant was employed based on a contract of service. In terms of discipline he was subject to the terms and condition of his employment and the MPSP Disciplinary 38 Regulations. Whatever rights that had been accorded to the Applicant must be examined within the context of the contract of service, the MPSP Disciplinary Regulations and any other Circulars, Guidelines or Orders expressly incorporated in the Applicant’s contract of service. [56] The Applicant in this case did not pray for a relief in the form of specific performance. What was sought amongst others, was an order to quash the decision of the 1st Respondent to dismiss him from the employment of the 2nd Respondent. The Respondents argued that the relief sought by the Applicant was in the form of a specific performance as the Applicant had sought for the decision to be quashed and for him to be reinstated to the post he held prior to his dismissal. [57] We have carefully considered the arguments of the respective learned Counsels under this issue. Guided by the cases cited such as Mohd Ahmad v Yang Di Pertua Majlis Daerah Jempol, Negeri Sembilan [1997] 3 CLJ 135, Perbadanan Perwira Harta Malaysia & Anor v Mohd Baharin Hj Abu [2010] 6 CLJ 1, the Respondents argued that the Court will not order the specific performance of a contract of service entered into between a master and servant or grant declaratory relief which has the effect of granting specific performance on a claim of wrongful dismissal. Employees of local authorities, like in the case of the Applicant, who was employed purely on contractual basis are not holders of public offices as they are not classified under any of the categories stipulated under Article 132 of the FC. The claim for reinstatement under section 20 of the Industrial Relations Act 1967 and claim by public officers under Article 132 of the FC Order are not available to the officers of the 39 2nd Respondent. At most the officer of the local authorities, like the Applicant, is only entitled to damages provided if he can prove that he was wrongfully dismissed due to breach of the terms and conditions of his contract of service. [58] The principle illustrated in Mohd Ahmad v Yang Di Pertua Majlis Daerah Jempol, Negeri Sembilan [supra], was reiterated in the case of Perbadanan Perwira Harta Malaysia & Anor v Mohd Baharin Hj Abu [2010] 6 CLJ 1 where the CoA held that to suggest that such a relief is applicable to the officer of the local authority, there must be some form of statute of similar effect to support the claim. Otherwise a relief in the form of a specific performance or a declaration that the dismissal and / or termination is null and void and that he be reinstated could not be ordered by the court. This principle is further supported by section 20 of the Specific Relief Act 1950. The learned JC had stated that section 20 of the Specific Relief Act 1950 is consistent with the common law position that a contract of employment is a contract dependent on the volition of the parties, it cannot, in the absence of special circumstances, be specifically enforced either by declaration that the contract still subsists or that the dismissal is invalid or void. [59] The Applicant, on the other hand argued that the learned JC had ignored the fact that the case before His Lordship was a judicial review application, and the prayers sought amongst others was to quash the decision of the 1st Respondent in dismissing the Applicant from the services of the 2nd Respondent for procedural impropriety and not a case where specific performance was sought. It was further argued that the 40 reliance on the two cases, Mohd Ahmad v Yang Di Pertua Majlis Daerah Jempol, Negeri Sembilan [supra] and Perbadanan Perwira Harta Malaysia & Anor v Mohd Baharin Hj Abu [2010] 6 CLJ 1 was misplaced. In Mohd Ahmad v Yang Di Pertua Majlis Daerah Jempol, Negeri Sembilan [supra], the Applicant was seeking for a declaration that he was still a market supervisor, and entitled to all salary and benefits and other relief such as an enquiry to be conducted to determine the amount of salary, damages and cost. In the case at hand, the Applicant was merely seeking for an order of Certiorari to quash the decision of the 1st Respondent. As such the learned JC had gone on a frolic of his own by adopting the two cases cited above blindly without examining the facts and the law involved. [60] From the Judgment of the learned JC, we found that the learned JC was more persuaded by the argument of the Respondents that the relief in the form of specific performance and / or the like effect could not be ordered. The learned JC relied on the two exceptions enunciated in the case of Mohd Ahmad v Yang Di Pertua Majlis Daerah Jempol, Negeri Sembilan (Supra), in that, firstly, cases involving industrial relations where an employee was claiming for reinstatement on ground of dismissal without just cause or excuse or under section 20 of the Industrial Relation Act 1967 or secondly in cases involving a public officer as set out under Article 135 (2) of the FC. The learned JC, was being guided by the above two cases where the Federal Court and the Court of Appeal respectively had ruled that as a matter of principle the Court will not order specific performance unless the case falls under the two exceptions stated above. The learned JC further ruled that as the 41 employees of the 2nd Respondent, being an employee of a local authority he is employed purely on a contractual basis and he is not a public officer envisaged by Article 132 of the FC. At most he could only claim damages if he could establish that his dismissal was in breach of the contract of service. [61] We are of the view that the learned JC has erred in adopting the above-mentioned cases without fully appreciating the law and the procedures involved in these cases. The learned JC had failed to consider, in the case at hand there is a specific provision in the LGA which provides the guarantee of a reasonable opportunity of being heard to be accorded to the Applicant facing disciplinary proceedings with a view to reduction in rank and / or dismissal. The guarantee is further entrenched by way of a legislation in the form of MPSP Disciplinary Regulations which provide the procedures to be complied with in the event the 1st Respondent proposes to take disciplinary action against the Applicant with a view to dismissal or reduction in rank. The statutory requirements stipulated in the LGA and the procedures outlined in the MPSP Disciplinary Regulations were not available to the officers and / or employees in the two cases relied by the Respondent and further endorsed by the learned JC. Hence these cases ought to be distinguished. [62] By codifying the provision for a reasonable opportunity to be given to the Applicant for cases involving reduction in rank and / or dismissal, something equivalent to Article 135 (2) of the FC and legislating of the MPSP Disciplinary Regulations, the Respondent had brought themselves 42 into the realm of public law domain. Hence, there is a special guarantee given to the officers and / or employees of the 2nd Respondent. The relationship is no longer a plain master and servant relationship as envisaged in the two cases cited by the Respondents and relied by the learned JC. [63] The 1st Respondent is not entitled to rely only on the terms and conditions of contract of service, ignoring the clear statutory requirements and protection entrenched in the LGA and the MPSP Disciplinary Regulations. In this case, the Applicant’s employment was supported by statute thereby making it subject to the requirement of natural justice, the non-observance of which will allow the court to scrutinise the decision not only for process but also for substance. We refer to the case of Malloch v. Aberdeen Corporation [1971] referred to in Fadzil b. Mohammad Noor v. Universiti Teknologi Malaysia [1981] CLJ 85; [1981] CLJ (Rep) 53. The relevant passage in Malloch v. Aberdeen Corporation [supra] Lord Wilberforce said: “One may accept that if there are relationships in which all requirements of the observance of rules of natural justice are excluded (and I do not wish to assume that this is inevitably so), this must be confined to what have been called “pure master and servant cases”, which I take to mean cases in which there is no element of public employment or service, no support by statute, nothing in the nature of an office or status which is capable of protection. If any of these elements exist, then in my opinion, whatever the terminology used, and even though in some inter parte aspects the relationship may be called that of master and servant, there may be essential 43 procedural requirements to be observed, the failure to observe them may result in a dismissal being declared void.” [64] In the case involving the Applicant, the relationship is not merely a master servant relationship but the employment was supported by the LGA and the MPSP Disciplinary Regulations. Hence, the protection accorded to the officer of a local authority is special, because in an ordinary contract of employment or personal service, the employee need not necessarily be given the opportunity of being heard before a decision is made to reduce him in rank or to dismiss him from the employment. This relationship has changed from a pure master and servant relationship to a relationship which attract public law remedy. Like the public officers, the Applicant herein enjoys certain protection by the law through section 16 (4) of the LGA and the MPSP Disciplinary Regulations. The protection given to the Applicant is special as in the normal contract of service and / or employment or personal service, the employee need not be given a reasonable opportunity of being heard in cases of reduction in rank or dismissal. [65] We were of the view that the case at hand raised public law issues as it is a decision and action taken by the 1st Respondent in pursuance of the provision of an act of Parliament, the LGA that is being impugned. As such a decision taken by the 1st Respondent with regard to the Applicant as an officer of the 2nd Respondent in his duties is one which has implications for the public as a whole and in consequence of this that the public law is concerned with the decision-making process. The legal sources of the powers that are being impugned are in the public domain. 44 As such to institute the proceedings by ordinary summons, though seemingly appearing to be simple in procedure, will deprive the public authority in this case, the 2nd Respondent and in the circumstances of the case at hand, the protection of the law that it is entitled to by the process available under Order 53. [66] We would like to refer to the judgment of Lord Woolf LJ in the case of Mclaren v the Home Office [1990] 1 ICR 824 where the cause of action raised issues of private law and not public law. The private law issues were pertaining to the breach of the “Collective Agreements” entered into between parties. However, the Law Lord made a distinction between contractual rights and disciplinary matters, which are matters of public law to be decided by an application for judicial review. At page 16 of the judgment Woolf LJ states the law: “(2) there can however be situations where an employee of a public body can seek judicial review and obtain a remedy which would be available to an employee in the private sector. This will arise where there exists some disciplinary or other body established under the prerogative or by statute to which the employer or employee is entitled or required to refer disputes affecting their relationship. The procedure of judicial review can then be appropriate because it has always been part of the role of the court in public law proceedings to supervise inferior tribunals and the court in reviewing disciplinary proceedings is performing a similar role. As long as the ‘tribunal’ or other body has a sufficient public law element, which it almost invariably will have if the employer is the crown, and it is not domestic or wholly informal, its proceedings and determinations can be appropriate subject for judicial review.” 45 [67] In this appeal, the issues raised in the pleadings are substantively public law issues. The Applicant were seeking to nullify his dismissal by the 1st Respondent. In dismissing the Applicant, the 1st Respondent had acted under the MPSP Disciplinary Regulations, a federal law. The grounds raised by the Applicant are public law issues, namely a breach of natural justice, failure to comply with section 16 (4) of the LGA and failure to comply with the requirements of the MPSP Disciplinary Regulations. Further, in England itself, the House of Lords in Maclaren v Home Office [supra] held that issues pertaining to disciplinary matters must be determined by judicial review, as “it has always been part of the role of the court in public law proceedings to supervise inferior tribunals and the court in reviewing disciplinary proceedings is performing a similar role.” [68] In R v Berkshire Health Authority ex parte Walsh [1985] 1 QB 152 Sir John Donalson MR, delivering one of the three judgments of the court declared: “[25] But if there is a special statutory provision bearing directly upon the right of a public authority to dismiss the plaintiff then this injects the element of public law to attract remedies under administrative law. This is elaborated by Sir John Donaldson MR in the case of (R v Berks Authority, ex parte Walsh) where he said: “In all three case there was a special statutory provision bearing directly upon the right of a public authority to dismiss the plaintiff. In Vine v National Dock Labour Board [1957] AC 488 the employment was under the statutory dock labour scheme and the 46 issue concerned the statutory power to dismiss given by that scheme. In Ridge v Baldwin [1964] AC 40 the power to dismissal was conferred by statute: s 191 of the Municipal Corporations Act 1882 (45 & 46 Vict c50). In Malloch v Aberdeen Corporation [1971] 1 WLR 1578 again it was statutory : s 3 of the Public Schools (Scotland) Teachers Act 1882 (45 & 46 Vict c18) Lord Wilberforce said, at page 1595-1596, it is the existence of these statutory provisions which injects the element of public law necessary in this context to attract remedies of administrative law…. ………………………………………………………………………… [28] And this is what the High Court found: In this case, however, it is my opinion that in making a disciplinary award of dismissal, the Home Office (to use the comprehensive term to include the department and the Secretary of State so distinguished by the respondent itself in this case) was performing the duties imposed upon it as part of the statutory terms under which it exercises its power, I conclude therefore that this Court in the exercise of its supervisory jurisdiction can come to the aid of the applicant in this case and I am glad that it can. [29] The principle was subsequently reiterated by Lord Woolf in Mclaren v The Home Office [1990] ITLR 338 where he declared: There can however be situations where an employee of a public body can seek judicial review and obtain a remedy which would not be available to an employee in the private sector. This will arise where there exists some disciplinary or other body established under the 47 prerogative or by statute to which the employer or thew employee is entitled or required to refer dispute affecting their relationship.” [69] The Federal Court in Ahmad Jefri bin Mohd Johari @ Md Johari v Pengarah Kebudayaan & Kesenian Johor & Others [2010] 3 MLJ 145 at page 161 held: “Thus, the decision to dismiss the appellant was made under a statutory law by a body who acted within the scope of such statutory power. Though the dismissal involves the dismissal of an employee by an employer, much like a master dismissing his servant, which is private law matter, the fact that there are statutory conditions and restrictions imposed by the Regulations on the conduct and dismissal of the appellant underpins the public law element in this case. This is not a case of a public authority being delegated with authority to hire and fire much like what has occurred in R n East Berkshire Health Authority, ex parte Walsh and Wendal Swann v Attorney General of the Turks and Caicos Islands. Here, a special statutory provision bearing directly upon the right of a public authority to dismiss the appellant. This injects the element of public law necessary in this context to attract the remedies of administrative law making this case amenable to judicial review.” [70] Based on the above authorities, it is our humble view that the learned JC was plainly wrong when he decided that His Lordship was bound by the principles enunciated in Mohd Ahmad v Yang Di Pertua Majlis Daerah Jempol, Negeri Sembilan [supra] & Perbadanan Perwira Harta Malaysia & Anor v Mohd Baharin Hj Abu [supra]. As 48 such we were of the view that there was lack of judicial appreciation of the facts and the law apparent in the case before His Lordship. [71] We have perused the appeal record and the written submissions of the respective parties, we agree with the learned JC on all the issues decided by the learned JC but for Issue 2 and Issue 3 discussed herein. Under Issue 2 and Issue 3, we found that the decision of the 1st Respondent was predicated on unsupported evidence and / or law. As illustrated above, from the outset the decision-making process was tainted with the elements stated by the Applicant in his Order 53 (3) Statement, namely, illegality, irrationality and procedural impropriety. [72] We found that the learned Judge had relied on grounds proffered by the Respondents in arriving at his decision to affirm the 1st Respondent’s decision without making his own analysis and evaluation of the facts surrounding the appeal and / or without appreciating the relevant law applicable to the factual matrix of this case. [73] Having examined the appeal record and perused the written submissions and heard the oral arguments, we were constrained to hold that the learned Judge failed to judicially appreciate the evidence and / or the law presented before him so as to render his decision plainly wrong on Issue 2 and Issue 3, and upon curial scrutiny merit our appellate intervention. [74] Based on the facts that we had alluded herein, we were constrained to rule that Issue 2 and Issue 3 must be answered in favour of the 49 Applicant. We unanimously allow this appeal with costs. The decision of the High Court is hereby set aside. We grant the application for judicial review in terms of prayers (1), (4) and (5) as prayed for by the Applicant with costs of RM20,000.00 subject to payment of Allocateur. Deposit is refunded. [75] We therefore order accordingly. Dated: 12th October 2017. sgd (ASMABI BINTI MOHAMAD) Judge Court of Appeal, Malaysia 50 Parties: 1. Messrs Vijaya Navaratnam Advocate & Solicitor For and on Behalf of the Appellant Suite 3.03 Sri Weld 3A Weld Quay 10300 Penang [Ref: S1/15/L/VN] …Mr. Vijaya Navaratnam 2. Messrs Presgrave & Matthews Advocate & Solicitors For and on Behalf of the Respondents Standard Chartered Bank Chambers No. 2 Lebuh Pantai 10300 Penang [Ref: KLAC/MM/MSS/20150967] …Ms. Karin Lim Mr. Murgan Maniam	76,950	Tika 2.6.0
P-02(A)-1784-10/2015	PERAYU MOHD SOBRI BIN CHE HASSAN … PERAYU RESPONDEN 1. PIHAK BERKUASA TATATERTIB MAJLIS PERBANDARAN SEBERANG PERAI 2. MAJLIS PERBANDARAN SEBERANG PERAI … RESPONDEN - RESPONDEN	Administrative Law — Judicial review — Appellant dismissed by employer — Appeal — Whether there was a requirement to appoint a Committee of Investigation — Whether the decision-making process was tainted with biasness — Whether High Court judge failed to properly and sufficiently evaluate evidence adduced —Whether the Court can order specific performance of a contract of service — Local Government Act 1976 [Act 171], s 16; Public Officers (Conduct and Discipline) Regulations 1993, r 26	12/10/2017	YA DATO' ASMABI BINTI MOHAMADKorumYA DATUK DR HAJI HAMID SULTAN BIN ABU BACKERYA DATUK DR. PRASAD SANDOSHAM ABRAHAMYA DATO' ASMABI BINTI MOHAMAD	https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=5cba0a89-ad4e-4adc-b639-1db8c904228e&Inline=true	1 DALAM MAHKAMAH RAYUAN DI MALAYSIA (BIDANG KUASA RAYUAN) RAYUAN SIVIL NO. P-02(A)-1784-10/2015 ANTARA MOHD SOBRI BIN CHE HASSAN …PERAYU DAN 1. PIHAK BERKUASA TATATERTIB MAJLIS PERBANDARAN SEBERANG PERAI 2. MAJLIS PERBANDARAN SEBERANG PERAI …RESPONDEN- RESPONDEN [Dalam perkara mengenai Mahkamah Tinggi Malaya Di Pulau Pinang Permohonan untuk Semakan Kehakiman No.25-21-02/2014 Dalam Perkara Mengenai Keputusan Pihak Berkuasa Tatatertib Majlis Perbandaran Seberang Perai yang disampaikan melalui surat bertarikh 02.12.2013 Dan Dalam Perkara Peraturan-Peraturan Pegawai Awam Majlis Perbandaran Seberang Perai (Kelakuan dan Tatatertib) ANTARA MOHD SOBRI BIN CHE HASSAN …PERAYU 2 DAN 1. PIHAK BERKUASA TATATERTIB MAJLIS PERBANDARAN SEBERANG PERAI 2. MAJLIS PERBANDARAN SEBERANG PERAI …RESPONDEN- RESPONDEN] CORAM: HAMID SULTAN ABU BACKER, JCA PRASAD SANDOSHAM ABRAHAM, JCA ASMABI BINTI MOHAMAD, JCA (Asmabi Binti Mohamad JCA, delivering Judgment of the Court) JUDGMENT OF THE COURT INTRODUCTION [1] This is an appeal by the Appellant (the Applicant in the High Court) against of the decision of the High Court dated 30th September 2015 that dismissed the Appellant’s Judicial Review Application (JR Application) with costs of RM4,000.00 to be paid to the Respondents. [2] We heard this appeal on 8th September 2016. After perusing the Records of Appeal, the written submissions filed by the respective learned Counsels and upon hearing learned Counsels, we adjourned the matter for our consideration and decision. Before we adjourned the 3 same, we ordered both learned Counsels to further submit to us on three main issues: (a) Whether there was a requirement to appoint a Committee of Investigation pursuant to Regulation 29 (4) of the MPSP Disciplinary Regulations to investigate the charge against the Applicant?; (b) Whether the decision-making process was tainted with biasness?; and (c) Whether the Court can order specific performance of a contract of service?. [3] We now give our decision and the reasons for the same. [4] We will refer to the parties as they were described in the High Court, the Applicant, the 1st Respondent and the 2nd Respondent respectively. BRIEF BACKGROUND FACTS [5] This was a substantive JR Application filed by the Applicant to challenge his dismissal from the services of the 2nd Respondent. [6] The facts were extracted from the various affidavits, the written submissions filed herein by the respective parties and the judgment of 4 the learned Judicial Commissioner (JC). In order to save judicial time, some of the facts as highlighted by the respective parties in the above- mentioned documents are adopted herein with and / or without modifications. [7] The Applicant was an Engineer (Grade 41) attached to the 2nd Respondent’s office in Bukit Mertajam, Penang. [8] The 1st Respondent is the Disciplinary Authority of the 2nd Respondent, appointed pursuant to Regulation 26 of the Public Officers (Conduct and Discipline) Municipal Council of the Province Wellesley Regulations 1995 (MPSP Disciplinary Regulations). [9] On 14th March 2012, the Applicant was transferred from the Engineering Department of the 2nd Respondent to its Health Services Department. Following from the transfer, the Applicant filed Civil Suit No. 21NCVC-14-04/2012 to challenge the transfer. However, the same was dismissed by the High Court on procedural grounds. Aggrieved by the said decision, the Applicant appealed to the Court of Appeal (CoA) and the appeal too was dismissed by the CoA. The Applicant then filed a judicial review application to challenge his transfer and the said case is still pending before the High Court. [10] By its letter dated 4th October 2013, the Chairman of the 1st Respondent informed the Applicant of the 1st Respondent’s intention to take disciplinary action against the Applicant with a view to dismissal or reduction in rank. The Applicant was given 21 days from the date of the 5 receipt of the letter to make a written representation to the 1st Respondent. [11] The charge against the Applicant was as follows: “Bahawa tuan, Encik Mohd Sobri Bin Che Hassan (12245) Jurutera Gred J41 (N0. K.P. : 751215-02-5465), Jurutera Gred 41 semasa bertugas di Jabatan Perkhidmatan Kesihatan, Majlis Perbandaran Seberang Perai telah membawa isu pertukaran tuan dari Jabatan Kejuruteraan ke Jabatan Perkhidmatan Kesihatan kepada Ahli Dewan Undangan Negeri Penaga ketika itu, Y.B. Azhar Bin Ibrahim yang seterusnya telah membangkitkan perkara tersebut dalam Mesyuarat Pertama Penggal Kelima Dewan Undangan Negeri Pulau Pinang yang Kedua Belas yang telah berlangsung pada 30 April hingga 8 Mei 2012 jelas bercanggah dengan tatakelakuan Pegawai Awam dan boleh dikenakan tindakan tatatertib selaras dengan Peraturan-Peraturan Pegawai Awam Majlis Seberang Perai (Kelakuan dan Tatatertib) 1995. Perbuatan tersebut boleh ditafsirkan sebagai cubaan membawa pengaruh luar iaitu melanggar peraturan 4 (2) (h) seperti berikut: “4 (2) (h) Seseorang pegawai tidak boleh- (h) Membawa atau cuba membawa apa-apa bentuk pengaruh atau tekanan luar untuk menyokong atau memajukan tuntutan berhubungan dengan perkhidmatan awam, sama ada tuntutan itu adalah tuntutannya sendiri atau tuntutan anggota-anggota perkhidmatan awam yang lain.” Jika tuan didapati bersalah, tuan boleh dihukum mengikut Peraturan 39, Peraturan-Peraturan Pegawai Awam Majlis Seberang Perai (Kelakuan dan Tatatertib) 1995.” 6 [12] The Applicant responded to the said letter vide a written representation dated 11th October 2013, denying the charge against him. In the same letter, the Applicant had requested for a Committee of Investigation to be appointed by the 1st Respondent to investigate the charge against him (see pages 378-381 of Appeal Record J2/(2)). In he said written representations, amongst others, the Applicant stated the following: (a) He denied the charge against him; (b) He denied having met Y.B. Dato’ Azhar Bin Ibrahim, the Penaga State Assemblyman at the material time; (c) By a letter dated 13th August 2013, the Applicant had in fact given his full explanation to the Director of the Health Services Department, his Head of Department (HOD) at the material time (page 383 AP J2/2); (d) In the same letter, he had also requested for a Committee of Investigation to be appointed to investigate the charge against him, if the 1st Respondent found his explanation insufficient or unsatisfactory; (e) He also stated that he fully understood the specific Regulation of the MBSP Disciplinary Regulations, under which he was charged with. He clarified that he had no intention to get the support of the said Assemblyman, as at that material time he 7 had already commenced an action against the 2nd Respondent in the High Court to challenge his transfer from the Engineering Department of the 2nd Respondent to the Health Services Department and the case was pending in court; (f) In the relevant Hansard which documented the Penang State Assembly’s proceedings where the matter concerning him was purportedly highlighted (at page 555 of Appeal Record J2/(3)), his name had been wrongly stated as Muhammad Subri Haji Hassan. His job description too had been wrongly stated as Assistant Director of Building, instead of Assistant Director of Engineering; and (g) He had lodged a police report pertaining to the misquoting of his meeting with the said Assemblyman of Penaga. [13] After the Appellant sent his written representations to the 1st Respondent, the Appellant’s HOD had also written to the Chairman of the 1st Respondent dated 18th October 2013, to state that the Applicant’s denial was valid, his written representations against the charge were reasonable and the decision of the 1st Respondent to take disciplinary action with a view of dismissal or reduction in rank was not appropriate in the circumstances of the case. [14] On 2nd December 2013, the 1st Respondent informed the Applicant that pursuant to a meeting held on 28 th November 2013, the Applicant 8 was found guilty and punished with dismissal (see page 392 of Appeal record J2/(2)). [15] Despite having requested for the notes of proceedings and all the relevant documents from the 1st Respondent vide a letter dated 2nd December 2013, the same was also denied by the 1st Respondent. [16] Aggrieved by the 1st Respondent’s decision, the Applicant filed this JR Application to challenge his dismissal from the 2nd Respondent. This JR Application is related to a disciplinary action initiated by the 1 st Respondent against the Applicant under Regulations 27 to 29 of the MPSP Disciplinary Regulations. IN THE HIGH COURT The Applicants’ Case [17] Before the High Court, learned Counsel for the Applicant submitted the following arguments: (a) There were flaws in the manner the disciplinary proceedings were commenced against the Applicant. The Applicant’s HOD was asked to look into the matter concerning the Applicant vide a letter dated 15th May 2012. The Applicant’s HOD having received an explanation from the Applicant then wrote to the 1st Respondent stating that the Applicant’s 9 explanation was valid. At the same time he had also attached the Applicant’s explanation to his letter and requested the 1st Respondent to appoint a Committee of Investigation to investigate the matter in a rational manner. However, the 1st Respondent had instead relied on the HOD’s letter to initiate the disciplinary proceedings against the Applicant; (b) The commencement of the disciplinary proceedings against the Applicant was not based on the report from the HOD of the Applicant as claimed by the 1st Respondent. Instead, the 1st Respondent had acted on a frolic of its own without complying with the procedure as set out in the MBSP Disciplinary Regulations; (c) There was failure on the part of the 1st Respondent to appoint a Committee of Investigation to investigate into the alleged matter. Hence the Applicant was denied the right of an oral hearing. As there was a letter issued by the Applicant’s HOD dated 18th October 2013 expressing his views that the Applicant’s explanation and / or reasons in his written representations were valid and that the decision to initiate the disciplinary proceedings with a view to reduction in rank and dismissal was unwarranted; (d) The 1st Respondent had breached section 16 (4) of the Local Government Act 1976 (LGA) as it has denied the Applicant 10 the right to an oral hearing guaranteed under Article 135 (2) of the Federal Constitution (FC); (e) The 1st Respondent had acted in unholy haste in placing the blame on the Applicant and finding the Applicant guilty under Regulation 4 (2) of the MPSP Disciplinary Regulations; (f) There was delay in initiating the disciplinary proceedings against the Applicant. The alleged offence had taken place prior to 30th April 2012 and disciplinary action was commenced only on 4th October 2013. The action had been taken after the Applicant had commenced an action in the High Court challenging his transfer which was dismissed by the COA on preliminary points and thereafter the Applicant had commenced a judicial review application against the Respondents challenging his transfer from the Engineering Department to the Health Services Department; and (g) As the decision to transfer the Applicant from the Engineering Department to the Health Services Department was made by the President and the Secretary of the 2nd Respondent, and that the Applicant had filed a case against the Respondent, the Panel comprising of the President and the Secretary of the 2nd Respondent, could not have conducted the disciplinary proceedings in a fair manner. Hence, the decision to dismiss the Applicant could be tainted with biasness. 11 The Respondent’s Case [18] The Respondent, on the other hand, submitted as follows: (a) The LGA did not make provision for the 1st Respondent which is a Statutory Committee established under section 16 (4) of the LGA to sue and be sued. Therefore, the 1st Respondent could not be named as a party to the JR Application; (b) The 2nd Respondent is a local authority established under the LGA, is a body corporate and may sue and be sued; (c) The Applicant is not a holder of public office. Therefore, the Applicant is not entitled to the protection under Article 135 (2) of the FC. Just because MPSP Disciplinary Regulations are applicable to the Applicant that alone will not have the effect that the Applicant is a public officer who is entitled to the protection under Article 135 (2) of the FC; (d) The Applicant cannot make an issue over the decision of the 2nd Respondent to transfer him from one department to another department as that is the prerogative of the 2nd Respondent. The Applicant was transferred within the 2nd Respondent’s organization to carry out specific duties within his expertise. The Applicant’s transfer did not involve any changes or demotion in grade, position, status and reduction in salary. Instead, the Applicant remained in the Engineering 12 Services classification and he held the post of an Engineer Grade 41 in the Health Services Department without losing any benefits. His acting position as a Grade 44 Engineer in the new department was not affected. The transfer of the Applicant was in accordance with the Applicant’s contract of service and did not breach any of the terms and conditions of his service. The Applicant was still paid his remunerations; (e) The issue raised by the YB Dato’ Azhar concerning the transfer of the Applicant at the meeting of the State Assembly was directly related to the Applicant. The Hansard 2HB Report had clearly stated that the said State Assemblyman had met with the Applicant and discussed the issue pertaining to his transfer. As the Hansard is a public document, the 1st Respondent could rely on that report to institute disciplinary proceedings against the Applicant. The attempt to bring any form of influence or external pressure to support or pursue the Applicant’s claim against the 2nd Respondent’s decision to transfer the Applicant from the Engineering Department to the Health Services Department at the meeting of the Penang State Assembly was a serious breach of the MPSP Disciplinary Regulations; (f) With respect to the appointment of the Committee of Investigation to inquire or investigate the Applicant’s case as requested by the Applicant, the 1st Respondent argued that the 1st Respondent is vested with the discretion under 13 Regulation 29 (4) of the MBSP Disciplinary Regulations to appoint the said Committee of Investigation if it requires clarification pertaining to the charge. The decision whether to appoint the Committee of Investigation lies with the 1st Respondent. The Court should not usurp the discretion given by the law on the 1st Respondent. In the case of the Applicant, the 1st Respondent did not require further clarification. The Applicant could not insist or demand that a Committee of Investigation to be appointed. Failure to do so did not amount to breach of natural justice; (g) The Applicant had failed to exculpate himself from the charge proffered against him; (h) The Applicant had been accorded every opportunity to defend himself from the charge proffered against him. The procedure under MPSP Disciplinary Regulations had been assiduously followed by the 1st Respondent. A fair hearing does not mean that the Applicant must be given the right to an oral hearing. In this case the Applicant was given the right to make written representations as envisaged by the MPSP Disciplinary Regulations and that sufficed; (i) With respect of the Applicant’s claim that the decision-making process which resulted in the Applicant’s dismissal was tainted with biasness, the 1st Respondent argued that the President, Secretary and the members of the 2nd Respondent 14 were appointed pursuant to the LGA and this had been determined by the law. Therefore, the issue of biasness did not arise at all. These people were performing their statutory functions as stipulated by the law; (j) On the issue of delay in instituting the disciplinary proceedings, the Respondent argued that in this case the action was instituted within reasonable time and the Applicant was not prejudiced at all; (k) On the issue that the Applicant was not supplied with the documents he required to defend himself from the charge proffered against him, the Respondent submitted that, the Applicant had failed to request for the documents at the earliest possible opportunity. Further the 1st Respondent argued that the MPSP Disciplinary Regulations did not provide for documents to be supplied to the Applicant; and (l) Pertaining to the issue whether the Court can order a relief in the form of a specific performance, the Respondents submitted the case of Mohd Ahmad v Yang Di Pertua Majlis Daerah Jempol, Negeri Sembilan [1997] 3 CLJ 135, is applicable where it was held that the Court would not order a relief in the form of specific performance of contract of service. 15 DECISION OF THE HIGH COURT [19] At the conclusion of the trial, the learned JC dismissed the Applicant’s JR Application with costs. Having perused the cause papers, written submissions file by both parties and heard the respective learned Counsels, the learned JC identified three (3) main or material issues to be determined by the Court as follows: (a) Whether the failure to hold a hearing or inquiry and investigation has resulted in a breach of natural justice and / or procedural fairness?; (b) Whether the Respondent have been guilty of bias against the Applicant?; and (c) Whether the Court can order specific performance of a contract of service? [20] Briefly the decision of the learned JC was premised on the following findings of fact and law: (a) The Applicant did not fall within the category of officers defined under Article 132 of the FC. This was supported by the Federal Court case of Mohd Ahmad v Yang di Pertua Majlis Daerah Jempol, Negeri Sembilan & Anor [supra] which ruled that employees of the local council are not holders 16 of public office. Hence they are not entitled to the protection under Article 135 (2) of the FC; (b) The Applicant was employed based on a contract of service. In terms of discipline he was subject to the terms and condition of his employment and the MPSP Disciplinary Regulations. Whatever rights that had been accorded to the Applicant must be examined within the context of the contract of service, the MPSP Disciplinary Regulations and any other Circulars, Guidelines or Orders expressly incorporated in the Applicant’s contract of service. (c) The issue pertaining the Applicant’s transfer from one department to the other department of the 2nd Respondent, the JC ruled that this was the management’s prerogative. The Court will normally not interfere with such prerogative. The transfer did not involve any change in status, grade, position and salary of the Applicant. On the issue of transfer of public officers, the Court had always been consistent in holding that unless provided otherwise, a public officer may be transferred from his station to any other location within the employer’s organization. The learned JC was guided by these cases; Pengarah Pelajaran, Wilayah Persekutuan & Ors v Loot Ting Yee [1982] 1 MLJ 68 ; Aria Kumar v Ketua Pengarah Jabatan Hasil Dalam Negeri, Malaysia [1994] 4 CLJ 515 ; Dr. Ganeshwaran a/l K T Balakrishnan v Pengarah 17 Kesihatan Negeri Perak Darul Ridzuan & Ors [2010] MLJU 1072; (d) The right to be heard does not necessarily mean a right to an oral hearing (see Ghazi Mohd Sawi v Mohd Hanif Bin Omar, Ketua Polis Negara Malaysia [1994] 2 MLJ 114 ; Lembaga Tatatertib Perkhidmatan Awam Hospital Besar Pulau Pinang & Anor v Utra Badi a/l K Perumal [2001] MLJ 417 ; Public Services Commission Malaysia & Anor v Vickneswary a/p RM Santhivelu (Substituting M Sentivelu a/l R Marimuthu, deceased) [2008] 6 MLJ 1 ; Kerajaan Malaysia & Ors v Tay Chai Huat [2012] 3 MLJ 149 ). All this cases seem to suggest that in cases of this genre, the right to be heard as envisaged in Article 135 (2) of the FC did not require a public officer to be to be given an oral hearing. The procedure in the Public Officers (Conduct and Discipline) Regulations 1993 applicable to the public officers, from which the MPSP Disciplinary Regulations had been adopted had made provision for a written representation to be made. This in itself is sufficient to satisfy the test that the right to be heard had been accorded to the person facing disciplinary action with a view to reduction in rank or dismissal; (e) Pertaining to the request by the Applicant for a Committee of Investigation to be appointed to investigate the charge against him, the learned JC ruled that it is for the 1st Respondent to decide if the Applicant’s case required further 18 clarification. As such the Court could not interfere with the decision of the 1st Respondent not to appoint a Committee of Investigation; (f) The case of Yusuf Bin Sudin v Suruhanjaya Perkhidmatan Polis & Anor [2012] 1 CLJ 448 does not strictly apply to the Applicant as the Applicant is not a public officer, hence the provision of Article 135 (2) of the FC is not applicable to him. Further in Yusuf Sudin the charges proffered against Yusuf Sudin appeared to be general in nature and lacking in particulars. Unlike the charge against the Applicant which is so clear; (g) The Respondent’s reliance on the Hansard was justified as the Hansard is a public document within the meaning of section 74 of the Evidence Act 1950; (h) On the issue that there was failure on the part of the 1st Respondent to furnish the documents requested by the Applicant, the learned JC stated that the MPSP Disciplinary Regulations do not provide for documents to be furnished to the person facing disciplinary action. Further, the documents requested for were not relevant to the charge proffered against the Respondent; (i) The claim of the Applicant that there was delay in the institution of the disciplinary proceedings against the Applicant, the learned JC found that the proceedings were 19 conducted within reasonable time. The Applicant was never prejudiced. The learned JC was guided by the case of Harbhajan Singh v Suruhanjaya Pasukan Polis, Malaysia & Anor [1999] 5 MLJ 222; (j) There was no reason for the Applicant to claim that the 1st Respondent was bias towards him and ought to be disqualified from deciding the case against the Applicant. In any event, there was no application filed and / or request made for the President and Secretary of the 2nd Respondent to be recused from hearing the case. The LGA and the MPSP Disciplinary Regulations had conferred the power to the Committee to adjudicate the matter, otherwise there would be no one else who may be in a position and / or competent to decide the matter; (k) With respect to the relief in the form of specific performance, the learned JC, was being guided by the case of Mohd Ahmad v Yang Di Pertua Majlis Daerah Jempol, Negeri Sembilan (Supra) where the Federal Court had ruled that as a matter of principle the Court will not order specific performance of a contract of service between master and servant except in cases involving industrial relations where an employee was claiming for reinstatement on ground of dismissal without just cause or excuse or under section 20 of the Industrial Relation Act 1967 or in cases involving a public officer as set out under Article 132 of the FC. As the 20 employees of the 2nd Respondent, being an employee of a local authority he is employed purely on a contractual basis and he is not a public officer envisaged by Article 132 of the FC, he could only claim damages if he could establish that his dismissal was in breach of the contract of service; and (l) Pursuant to Section 20 (1) (b) of the Specific Relief Act 1950, an employee who has been wrongfully dismissed cannot seek specific performance of his contract of employment. This is consistent with the common law position that a contract of employment is a contract dependent on the volition of the parties. As such, it cannot, in absence of special circumstances be specifically enforced either by a declaration that the contract still subsists or that the dismissal is invalid or void. THE APPEAL [21] Before us, whilst adopting the written submissions filed in court, the learned Counsel for the Applicant focused on the three main issues resolved by the learned JC for our determination. OUR DECISION The law [22] We were mindful of the limited role of the appellate court in relation to findings of facts made by the court of first instance. 21 [23] In the course of that, we had sought guidance from the very often- quoted case of Lee Ing Chin @ Lee Teck Seng v Gan Yook Chin [2003] 2 MLJ 97 where the Court of Appeal held as follows: “an appellate court will not, generally speaking, intervene unless the trial court is shown to be plainly wrong in arriving at its decision. But appellate interference will take place in cases where there has been no or insufficient judicial appreciation of the evidence.” [24] Reference was also made to the decision of the Federal Court in Gan Yook Chin v Lee Ing Chin @ Lee Teck Seng [2004] 4 CLJ 309 where the Federal Court held that the test of “insufficient judicial appreciation of evidence” adopted by the Court of Appeal was in relation to the process of determining whether or not the trial court had arrived at its decision or findings correctly on the basis of the relevant law and the established evidence. [25] We were also mindful of our role in dealing with the appeal at hand which originated by way of a judicial review application. On the proper approach the Court should adopt in dealing with the appeal, both learned Counsels for the Appellant and the Respondents had addressed this issue extensively in the learned Counsels’ written as well as oral submissions. We do not propose to deal with the law pertaining to the scope of judicial review at great length as the law is trite. We were guided by a plethora of cases which ruled that judicial review is not an appeal from the decision but a review of the manner in which the decision was made and that the High Court in hearing the judicial review is not entitled 22 to consider whether the decision itself, on the merits of the facts, was reasonable and fair. Suffice for the court to refer to the recent Federal Court case of Ketua Pengarah Hasil Dalam Negeri v Alcatel-Lucent Malaysia Sdn Bhd & Anor [2017] 2 CLJ 1, where his Lordship Suriyadi Halim Omar FCJ had stated as follows: “[69] A judicial review is a court proceeding where a challenge is made on the decision of the relevant authority or entity (in this case the appellant) ie, by challenging the lawfulness of the decision- making process. This is trite law. Generally, the court dealing with the judicial review application in a supervisory capacity is not to delve into the merits of the case. In other words, the evidence is not reassessed. The court is merely to quash the decision of the relevant authority, if need be, and not to substitute with what it thinks is the correct decision. We are not here to usurp the powers of the designated authority.” [26] Notwithstanding the above, we were also aware that the law on judicial review had developed so as to give the power to the court hearing a judicial review matter to scrutinize such decision not only for process, but also for substance to determine the reasonableness of the decision. Therefore, the conventional concept that judicial review is concerned only with the review in the manner a decision is made is no longer the correct approach to be adopted by the Court in dealing with judicial review cases. (see R.Ramachandran v The Industrial Court of M alaysia & Anor [1997] 1 MLJ 145 ; Titular Roman Catholic Archbishop of Kuala Lumpur v Menteri Dalam Negeri & Ors [2014] 8 CLJ 629; Datuk Justine Jinggut v Pendaftar Pertubuhan [2012] 3 MLJ 212 ; Ranjit 23 Kaur S. Gopal Singh v Hotel Excelsior (M) Sdn Bhd [2010] 8 CLJ 629). [27] These principles were reiterated in the recent Federal Court case of Ketua Pengarah Hasil Dalam Negeri v Alcatel-Lucent (supra) above in the following terms: [71] However, the Federal Court in the landmark decision of R Rama Chandran v. Industrial Court of Malaysia & Anor [1997] 1 CLJ 147; [1997] 1 MLJ 145 held that the decision of an inferior tribunal may be reviewed on the grounds of "illegality", "irrationality" and possibly "proportionality", which not only permits the courts to scrutinise the decision-making process but also the decision itself. In short, it allows the courts to delve into the merits of the matter. [72] The approach of illegality and irrationality was recognised and applied by Malaysian Trade Union Congress & Ors v. Menteri Tenaga, Air dan Komunikasi & Anor [2014] 2 CLJ 525; [2014] 3 MLJ 145. This court in succinct terms said: On the facts of this case, we find MTUC had failed to show that the Minister's decision was illegal, irrational and flawed on the grounds of procedural impropriety. [73] It is now clear, and here to stay, that the decision of an inferior tribunal may also be reviewed on the grounds of illegality and irrationality. The distinction between a review application and an appeal thus appears to no longer exist (see also Ranjit Kaur S Gopal Singh v. Hotel Excelsior (M) Sdn Bhd [2010] 8 CLJ 629). javascript:DispCase=window.open('/Members/DisplayCase.aspx?CaseId=2550399489&SearchId=7mkl','_DisplayCase','');DispCase.focus() javascript:DispCase=window.open('/Members/DisplayCase.aspx?CaseId=2550399489&SearchId=7mkl','_DisplayCase','');DispCase.focus() javascript:DispCase=window.open('/Members/DisplayCase.aspx?CaseId=2550399489&SearchId=7mkl','_DisplayCase','');DispCase.focus() javascript:DispCase=window.open('/Members/DisplayCase.aspx?CaseId=2970878081&SearchId=7mkl','_DisplayCase','');DispCase.focus() javascript:DispCase=window.open('/Members/DisplayCase.aspx?CaseId=2970878081&SearchId=7mkl','_DisplayCase','');DispCase.focus() javascript:DispCase=window.open('/Members/DisplayCase.aspx?CaseId=2880963074&SearchId=7mkl','_DisplayCase','');DispCase.focus() javascript:DispCase=window.open('/Members/DisplayCase.aspx?CaseId=2880963074&SearchId=7mkl','_DisplayCase','');DispCase.focus() 24 [28] Guided by the above established principles, we had therefore carefully examined the documents that were placed before us in the form of the Records of Appeal to ascertain if the learned JC had arrived at his decision correctly on the basis of the relevant law and evidence before him. [29] We observed that the learned JC had dealt with the facts and the law very extensively, contrary to what was stated by learned Counsel for the Applicant that the learned Judge had merely focused on three (3) main issues. This is reflected in the learned Judge’s Grounds of Judgment, the gist of which had been set out in paragraphs 19 to 20 above. [30] Before us, learned Counsel for the Applicant had informed us that she would be focusing on the three (3) major issues as stated above for our consideration. Issue 1 : Whether the failure on the part of the 1st Respondent to appoint a Committee of Investigation to investigate the charge had resulted in the decision making process to be tainted with procedural impropriety? [31] The Applicant contended that despite requests having been made by him as well as his HOD for a Committee of Investigation to be appointed to investigate the charge against him, the 1st Respondent had failed and / or refused to adhere to the said requests. Due to the failure on the part of the 1st Respondent to accede to these requests, the process 25 leading to his dismissal was tainted with procedural impropriety and / or there was breach of natural justice. [32] We noted that the MPSP Disciplinary Regulations were adopted from the Public Service (Discipline and Conduct) Regulations 1993 with modifications to suit the requirements of the 2nd Respondent. We have perused Part IV of the MPSP Disciplinary Regulations and found that in terms of substance and procedures, the provisions are pari materia to the 1993 Regulations. Hence we are of the view that decided cases touching the provisions of 1993 Regulations are equally applicable and / or are relevant in interpreting the MPSP Disciplinary Regulations. We are not short of authorities on the topic of “the right to be heard” and / or “a reasonable opportunity of being heard” as envisaged by the FC. We noted that the language of Article 132 (5) of the FC had been adopted in the proviso to section 16 (4) of the LGA which states as follows: “The Commissioner of the City of Kuala Lumpur in the case of the Federal Territory, or the Mayor or President or his representative who shall be the Councillor, the Secretary and one other Councillor in the case of local authorities may appoint such persons to the offices shown on the list so approved and may reduce in rank or dismiss such persons from office and may appoint others in their stead: Provided that the reduction in rank or dismissal from office of any Head of Department or his Deputy shall not take effect until such reduction in rank or dismissal has been confirmed by the State Authority: 26 Provided further that no officer or employee shall be reduced in rank or dismissed without being given a reasonable opportunity of being heard.” [33] In gist the right to a fair hearing and / or a reasonable opportunity of being heard that is guaranteed to the public servant is also accorded to the officers and employees of the 2nd Respondent. There is a statutory recognition given to the officers and / employees of the local authority (Majlis Perbandaran Seberang Perai (MPSP) or the 2nd Respondent) that no officers of the 2nd Respondent shall be reduced in rank or dismissed without being given a reasonable opportunity of being heard. As the provisions of the relevant law under discussion are similar we are of the view that cases which interpreted the provisions touching the public officer will also be useful to guide us in resolving the issues before us. [34] As we have highlighted in the preceding paragraphs, the procedures involving disciplinary proceedings with a view to dismissal and reduction in rank in the case of officers and employees of the 2 nd Respondent are somewhat similar to that of the 1993 Regulations as the 1993 Regulations were adopted by the 2nd Respondent with modifications to suit its requirements. Hence, the cases which dealt with the 1993 Regulations are relevant for purposes of interpreting the MPSP Disciplinary Regulations. In the case of the 1993 Regulations our courts have consistently held that so long as the Disciplinary Authority has assiduously followed the procedures prescribed in the 1993 Regulations, the requirements of a reasonable opportunity of being heard and or procedural fairness have been satisfied. The courts have also held that 27 it is sufficient for the officer facing disciplinary proceeding to be given the opportunity to make written representations to the disciplinary authority to answer to the charge proffered against him. Fair hearing does not mean the officer facing disciplinary proceedings must be heard orally either in person or by his advocate. The oral hearing is only relevant if the disciplinary committee is of the opinion the case involving the officer facing disciplinary proceedings requires clarification. This principle had been stated in the case of Najar Singh v. Government of Malaysia [1976] 1 LNS 81 (Najar Singh) where the Court held that so long as the public officer had been given the opportunity to make a written representation in answer to the charge against him, that would suffice to satisfy the test that he had been accorded a reasonable opportunity of being heard envisaged by Article 135 (2) of the FC. We are of the view that we can be guided by these cases as similar provisions of the MPSP Disciplinary Regulations were being discussed (see Najar Singh v. Government of Malaysia & Anor [1976] 1 LNS 81) ; Ghazi Mohd Sawi v Mohd Hanif Bin Omar, Ketua Polis Negara Malaysia [1994] 2 MLJ 114 ; Lembaga Tatatertib Perkhidmatan Awam Hospital Besar Pulau Pinang & Anor v Utra Badi a/l K Perumal [2001] MLJ 417 ; Public Services Commission Malaysia & Anor v Vickneswary a/p RM Santhivelu (Substituting M Sentivelu a/l R Marimuthu, deceased) [2008] 6 MLJ 1 ; Kerajaan Malaysia & Ors v Tay Chai Huat [2012] 3 MLJ 149 ). [35] We found that except for the matter we propose to discuss under Issue 2, the 1st Respondent had assiduously complied with the procedures outlined under Part IV of the MPSP Disciplinary Regulations. 28 We were of the view that the 1st Respondent had given the Applicant a reasonable opportunity of being heard by according the Applicant the right to make a written representation. Drawing the analogy from the cases applicable to the public officers, we were of the view that the Applicant had been accorded a reasonable opportunity of being heard. As such the Applicant could not complain that he had been denied the right to be heard as entrenched under Section 16 (4) of the LGA. [36] Turning now to the allegation of the Applicant that the disciplinary proceedings were tainted with procedural impropriety as the 1st Respondent had failed to appoint the Committee of Investigation to investigate the charge against him. We noted that the contents of Regulation 29 (4) is word for word similar to Regulation 37 (5) of 1993 Regulations. The old provision in General Order 25 (6) of the General Order that was applicable to public officer had similar provisions. There are ample authorities on point which had delved with the said specific provisions and we are guided by these authorities. [37] It is trite that the appointment of the Committee of Investigation is at the discretion of the Disciplinary Authority and the officer could not demand for the same to be appointed and the Court ought not to interfere with the discretion of the Disciplinary Authority. [38] Reference is made to the majority decision of the Federal Court in Kerajaan Malaysia & Ors v Tay Chai Huat [supra] where it was decided as follows: 29 “[27] I dare say that the law is settled in cases of this genre. This can be gleaned from several decisions which were decided prior to Utra Badi and Vickneswary; see Hajjah Halimatussaadiah binti Haji Kamaruddin v. Public Services Commission, Malaysia & Anor [1994] 3 CLJ 532, Ghazi bin Mohd Sawi v. Mohd Haniff bin Omar, Ketua Polis Negara, Malaysia & Anor [1994] 2 CLJ 333, Zainal Hashim v. Government of Malaysia [1979] 1 LNS 132 and Najar Singh v. Government of Malaysia & Anor [1974] 1 LNS 101. [28] From the authorities referred to above, I am of the view that the law is settled. Thus, an oral hearing may be given in instances where the disciplinary authority considers that the case against the officer requires further clarification and consequently appoint a Committee of Inquiry pursuant to GO 26(5) of the GO (Chapter D). If the disciplinary authority considers that no further clarification is required, I do not think that the officer concerned can insist or demand that a Committee of Inquiry be appointed.” [39] The Court also rejected the earlier decision of the Federal Court in the case of Yusof Sudin v Suruhanjaya Perkhidmatan Polis & Anor [2012] 1 CLJ 448, where it was decided as follows: “[54] This court create precedents. The use of precedent is an indispensable foundation on which to decide what is the law and how it should be applied in individual cases. Utra Badi and Vickeswary are decisions that settled the law in cases of this genre with finality. I would think that this court would have need to hesitate long before distinguishing Utra Badi and Vickneswary on inadequate grounds or on a hypothetical issue raised by the appellants in appeals before this court such as whether there are exceptions to the ratio decidendi javascript:DispCase=window.open('/Members/DisplayCase.aspx?CaseId=2503541249&SearchId=mkl-98','_DisplayCase','');DispCase.focus() javascript:DispCase=window.open('/Members/DisplayCase.aspx?CaseId=2503541249&SearchId=mkl-98','_DisplayCase','');DispCase.focus() javascript:DispCase=window.open('/Members/DisplayCase.aspx?CaseId=2503541249&SearchId=mkl-98','_DisplayCase','');DispCase.focus() javascript:DispCase=window.open('/Members/DisplayCase.aspx?CaseId=2495349249&SearchId=mkl-98','_DisplayCase','');DispCase.focus() javascript:DispCase=window.open('/Members/DisplayCase.aspx?CaseId=2495349249&SearchId=mkl-98','_DisplayCase','');DispCase.focus() javascript:DispCase=window.open('/Members/DisplayCase.aspx?CaseId=2138345473&SearchId=mkl-98','_DisplayCase','');DispCase.focus() javascript:DispCase=window.open('/Members/DisplayCase.aspx?CaseId=2138345473&SearchId=mkl-98','_DisplayCase','');DispCase.focus() javascript:DispCase=window.open('/Members/DisplayCase.aspx?CaseId=2013594114&SearchId=mkl-98','_DisplayCase','');DispCase.focus() javascript:DispCase=window.open('/Members/DisplayCase.aspx?CaseId=2013594114&SearchId=mkl-98','_DisplayCase','');DispCase.focus() 30 formulated in both authorities. Such hypothetical issues raised in cases of this genre can have disruptive and seemingly unfair consequences and extremely capricious results. It creates uncertainty in the law and would seriously hinder administration of the General Orders by the government departments resulting in administrative confusion. For the aforesaid reasons adumbrated, I am unable to follow the majority decision in Yusof Sudin.” [40] Hence, guided by the above authorities, we agree with the learned JC, it is for the 1st Respondent to decide whether a Committee of Investigation ought to be appointed to investigate the charge and the Applicant could not demand for the same. This approach is also in tandem with Regulation 37 (5) of 1993 Regulations which provides as follows: “(5) If the appropriate Disciplinary Authority is of the opinion that the case against the officer requires further clarification, the Disciplinary Authority may establish an Investigation Committee for the purpose of obtaining such further clarification.” [41] The words “if the Disciplinary Authority is of the opinion” in the above-mentioned Regulation showed that the discretion is upon the Disciplinary Authority to decide whether a Committee of Investigation ought to be appointed or otherwise and the Court ought not to interfere with that discretion. Regulations 29 (4) of the MPSP Disciplinary Regulations were couched in similar language. We were of the view, cases applicable to Regulation 37 (5) of the 1993 Regulations would likewise be applicable to the case at hand. In view of the above, we were 31 constrained to hold that the point taken up by the Applicant that he was denied the right to be heard as the 1st Respondent had failed to constitute a Committee of Investigation to inquire into the charge against him has no merits and ought to be rejected by this Court. Issue 2 : Whether the decision-making process was tainted with biasness as the Respondents had highlighted the Applicant’s previous conviction in the Working Paper that was submitted to the Disciplinary Secretariat one day before the deliberation of the Disciplinary Committee, without giving the Applicant the opportunity to rebut the same? [42] The Applicant contended the proceedings that led to his dismissal was tainted with procedural impropriety as the 1st Respondent had considered a report it received from the Disciplinary Secretariat which was detrimental to the Applicant, without giving the Applicant the opportunity to explain or controvert the same (see page 449 to 552 of Appeal Records Jilid 2/(3)). The crucial portion of the detrimental report was the information pertaining to his previous misconduct where he was given a caution / warning with annual increment being deferred to twelve months for an offence for being late to work without any valid explanation. (see paragraph 6.9 at page 551 of the Appeal Record Jilid 2/(3)). [43] We have examined the process undertaken by the 1st Respondent which resulted in the dismissal of the Applicant and found that there is merit in the Applicant’s argument. The 1st Respondent had proceeded to impose the punishment of dismissal on the Applicant without giving the 32 Applicant the opportunity to explain and / or contradict the detrimental portion of the Report. We are of the view that this in itself constituted a breach of the rule of natural justice and or procedural unfairness/ impropriety. [44] We were guided by the principles enunciated in the in often-quoted cases of Surinder Singh Kanda v The Government of the Federation of Malaya [1962] 1 MLJ page 169 and Shamsiah bte Ahmad Sham v Public Services Commissions, Malaysia & Anor [1990] 3 MLJ 364. It is not disputed that the Working Paper which contained the material which was detrimental to the Applicant was given to the 1st Respondent one day before the decision to dismiss the Applicant was deliberated on, without giving the opportunity to the Applicant to explain or controvert the same. It is also not disputed that this information would be prejudicial to the Applicant. [45] In Surinder Singh Kanda v The Government of the Federation of Malaya [supra] (Surender Singh Kanda), a disciplinary proceeding was commenced against the Appellant, an Inspector of Police in the Royal Federation of Malaya Police leading to his dismissal from the said Service. In the course of the proceedings, a Report of the Board of Inquiry which contained severe condemnation of the Appellant was sent to the adjudicating officer before he sat to inquire into the charge. The adjudicating officer read the contents and had full knowledge of the contents of the Report. However, the Appellant never had it until the fourth day of the hearing. The Report contained detailed evidence of the witnesses as well as the inquiries made by the Board which were 33 detrimental to the Appellant. The Appellant raised the issue that he was dismissed without being given a reasonable opportunity of being heard by the Board, in that, he was not asked to correct or contradict the detrimental information contained in the Report. The Privy Council had the opportunity to elaborate on the clause, “a reasonable opportunity of being heard” contained in Article 135 (2) of the FC as follows: “If the right to be heard is to be a real right which is worth anything, it must carry with it a right in the accused man to know the case which is made against him. He must know what evidence and what statements have been made affecting him : and then he must be given a fair opportunity to correct or contradict them. This appears in all cases from the celebrated judgment of Lord Loreburn, L.C in Board of Education v. Rice (³) down to the decisions of their Lordships’ Board in Ceylon University v. Fernando (4). It follows, of course, that the judge or whoever has to adjudicate must not hear evidence or receive representations from one side behind the back or the other. The Court will not enquire whether the evidence or information did work to his prejudice. Sufficient that they might do so. The Court will not go into the likelihood of prejudice. The risk of it is enough. No one who has lost a case will believe that he has been fairly treated if the other side has had access to the judge without his knowing. Instances which are cited to their Lordships were Re Gregson (5), Rex v. Bodmin Justices (6) and Goold v. Evans (7), to which might be added Rex v. Architect’s Registration Tribunal (8) and many others.” [46] The facts in the case of Shamsiah bte Ahmad Sham v Public Services Commissions, Malaysia & Anor [supra] (Shamsiah) were 34 quite close to the case at hand. In Shamsiah, a book-binder in the Government Printing Department was dismissed by the Public Service Commission (PSC) after she was found guilty of negligence and dereliction of duty. She had challenged her dismissal by the PSC on the ground that the PSC had taken into consideration extraneous matters, namely, the Appellant’s record of past conducts which were entered in her record of service and produced by the Director General of the Government Printer’s Department to the PSC, without giving her the opportunity to explain, contradict or rebut the same. The Court was of the view that there was implicit acknowledgement on the part of the PSC that it had the information of the Appellant’s several misconducts as well as the punishments imposed on her. The Record of Service which was submitted to the Public Service Commission contained the information pertaining to the misconducts and the punishment which had been imposed on her comprising of 4 times being late to report for duty and 3 times for taking longer time to complete the tasks allocated to her for which she was punished with a warning, a fine and a withholding of salary respectively. The Court noted that in the show cause letter issued to her at paragraph 2, contained the following detrimental words: “ 2. Apart from that, it has been observed that several disciplinary actions have been taken against you by the Board of Discipline of your department on account of similar defaults as well as other defaults. However, they had no effect on you” (see page 366 E left column). 35 [47] The Court in Shamsiah relied on the Supreme Court case of S. Nanjundeswar v State of Mysore AIR 1960 SC 159 which referred to the Supreme Court case of (S) AIR 1957 SC 882 which ruled that: “the principle of natural justice require that no materials should be relied upon against the person charged without his being given an opportunity of explaining them.” [48] Apart from the above case, the Court had also referred to the case of Ramachandra Gopalrao v. Deputy Inspector of Police AIR 1957 Madh where the officer concerned was never informed of the fact that his record of past service and complaints would be considered in deciding the appropriate punishment to be imposed on him, in the event, he was unable to exculpate himself from the charge proffered against him. The Court agreed that the competent authorities were entitled to refer to previous conducts or complaint before deciding on the fate of the officer, but not until the officer was given the opportunity to take a proper defence to the proposed action to be taken against him. [49] In Gopalrao v. State Government Madhya Pradesh AIR 1954 Nag 90 (L), The Court went on to say: “If the civil servant is not apprised of the record of service, nor is he informed that it will be taken into account in order to decide the question of punishment, he cannot be deemed to have been given a reasonable opportunity to show cause against the proposed action. Normally, the question of punishment is linked up with the gravity of 36 the charge, and the penalty that is inflicted is proportionate to the guilt.” [50] Having considered the above quoted cases, the Supreme Court was of the view before any decision affecting the right of the appellant is made, the PSC must ensure that the appellant is apprised of the record of her past service and also the fact that it would be taken into consideration in imposing punishment. Failing which she cannot be deemed to have been given a reasonable opportunity to show cause against the proposed action. The Supreme Court was of the view that there was implicit acknowledgement on the part of the PSC that it had the information of the appellant’s several misconducts as well as the punishments imposed on her. The Court noted that in the show cause letter issued to her contained the following words which were prejudicial to the appellant: “ 2. Apart from that, it has been observed that several disciplinary actions have been taken against you by the Board of Discipline of your department on account of similar defaults as well as other defaults. However, they had no effect on you” (see page 366 E left column). [51] The Supreme Court was of the view that the above-quoted paragraph reflected the state of mind of the PSC and according to the Court this in itself constituted an intrinsic evidence, that the PSC had taken into account to dismiss the Appellant from the service of the Government, albeit, in good faith. 37 [52] Turning now to the case at hand, it is not disputed that the Applicant’s previous misconduct was within the knowledge of the 1 st Respondent and from the record before us, the 1st Respondent did not provide such information to the Applicant. Neither was the Applicant informed that such information may be used against him in meting out the punishment. [53] Based on the above we were of the view that the process undertaken by the 1st Respondent had infringed the rule of natural justice and / or was tainted with procedural impropriety. Hence, it is our finding that the learned JC had failed to properly evaluate the evidence before him and / or appreciate the relevant laws applicable to the factual matrix of this case in making his ruling against the Applicant on this point. Issue 3: Whether a relief in the form of Specific Performance is available to the Applicant [54] The learned JC ruled that, the Applicant did not fall within the category of officers defined under Article 132 of the FC and this was supported by the Federal Court case of Mohd Ahmad v Yang di Pertua Majlis Daerah Jempol, Negeri Sembilan & Anor [supra] which ruled that employees of the local council are not holders of public office. Hence, they are not entitled to the protection under Article 135 (2) of the FC. [55] The learned JC further held that, the Applicant was employed based on a contract of service. In terms of discipline he was subject to the terms and condition of his employment and the MPSP Disciplinary 38 Regulations. Whatever rights that had been accorded to the Applicant must be examined within the context of the contract of service, the MPSP Disciplinary Regulations and any other Circulars, Guidelines or Orders expressly incorporated in the Applicant’s contract of service. [56] The Applicant in this case did not pray for a relief in the form of specific performance. What was sought amongst others, was an order to quash the decision of the 1st Respondent to dismiss him from the employment of the 2nd Respondent. The Respondents argued that the relief sought by the Applicant was in the form of a specific performance as the Applicant had sought for the decision to be quashed and for him to be reinstated to the post he held prior to his dismissal. [57] We have carefully considered the arguments of the respective learned Counsels under this issue. Guided by the cases cited such as Mohd Ahmad v Yang Di Pertua Majlis Daerah Jempol, Negeri Sembilan [1997] 3 CLJ 135, Perbadanan Perwira Harta Malaysia & Anor v Mohd Baharin Hj Abu [2010] 6 CLJ 1, the Respondents argued that the Court will not order the specific performance of a contract of service entered into between a master and servant or grant declaratory relief which has the effect of granting specific performance on a claim of wrongful dismissal. Employees of local authorities, like in the case of the Applicant, who was employed purely on contractual basis are not holders of public offices as they are not classified under any of the categories stipulated under Article 132 of the FC. The claim for reinstatement under section 20 of the Industrial Relations Act 1967 and claim by public officers under Article 132 of the FC Order are not available to the officers of the 39 2nd Respondent. At most the officer of the local authorities, like the Applicant, is only entitled to damages provided if he can prove that he was wrongfully dismissed due to breach of the terms and conditions of his contract of service. [58] The principle illustrated in Mohd Ahmad v Yang Di Pertua Majlis Daerah Jempol, Negeri Sembilan [supra], was reiterated in the case of Perbadanan Perwira Harta Malaysia & Anor v Mohd Baharin Hj Abu [2010] 6 CLJ 1 where the CoA held that to suggest that such a relief is applicable to the officer of the local authority, there must be some form of statute of similar effect to support the claim. Otherwise a relief in the form of a specific performance or a declaration that the dismissal and / or termination is null and void and that he be reinstated could not be ordered by the court. This principle is further supported by section 20 of the Specific Relief Act 1950. The learned JC had stated that section 20 of the Specific Relief Act 1950 is consistent with the common law position that a contract of employment is a contract dependent on the volition of the parties, it cannot, in the absence of special circumstances, be specifically enforced either by declaration that the contract still subsists or that the dismissal is invalid or void. [59] The Applicant, on the other hand argued that the learned JC had ignored the fact that the case before His Lordship was a judicial review application, and the prayers sought amongst others was to quash the decision of the 1st Respondent in dismissing the Applicant from the services of the 2nd Respondent for procedural impropriety and not a case where specific performance was sought. It was further argued that the 40 reliance on the two cases, Mohd Ahmad v Yang Di Pertua Majlis Daerah Jempol, Negeri Sembilan [supra] and Perbadanan Perwira Harta Malaysia & Anor v Mohd Baharin Hj Abu [2010] 6 CLJ 1 was misplaced. In Mohd Ahmad v Yang Di Pertua Majlis Daerah Jempol, Negeri Sembilan [supra], the Applicant was seeking for a declaration that he was still a market supervisor, and entitled to all salary and benefits and other relief such as an enquiry to be conducted to determine the amount of salary, damages and cost. In the case at hand, the Applicant was merely seeking for an order of Certiorari to quash the decision of the 1st Respondent. As such the learned JC had gone on a frolic of his own by adopting the two cases cited above blindly without examining the facts and the law involved. [60] From the Judgment of the learned JC, we found that the learned JC was more persuaded by the argument of the Respondents that the relief in the form of specific performance and / or the like effect could not be ordered. The learned JC relied on the two exceptions enunciated in the case of Mohd Ahmad v Yang Di Pertua Majlis Daerah Jempol, Negeri Sembilan (Supra), in that, firstly, cases involving industrial relations where an employee was claiming for reinstatement on ground of dismissal without just cause or excuse or under section 20 of the Industrial Relation Act 1967 or secondly in cases involving a public officer as set out under Article 135 (2) of the FC. The learned JC, was being guided by the above two cases where the Federal Court and the Court of Appeal respectively had ruled that as a matter of principle the Court will not order specific performance unless the case falls under the two exceptions stated above. The learned JC further ruled that as the 41 employees of the 2nd Respondent, being an employee of a local authority he is employed purely on a contractual basis and he is not a public officer envisaged by Article 132 of the FC. At most he could only claim damages if he could establish that his dismissal was in breach of the contract of service. [61] We are of the view that the learned JC has erred in adopting the above-mentioned cases without fully appreciating the law and the procedures involved in these cases. The learned JC had failed to consider, in the case at hand there is a specific provision in the LGA which provides the guarantee of a reasonable opportunity of being heard to be accorded to the Applicant facing disciplinary proceedings with a view to reduction in rank and / or dismissal. The guarantee is further entrenched by way of a legislation in the form of MPSP Disciplinary Regulations which provide the procedures to be complied with in the event the 1st Respondent proposes to take disciplinary action against the Applicant with a view to dismissal or reduction in rank. The statutory requirements stipulated in the LGA and the procedures outlined in the MPSP Disciplinary Regulations were not available to the officers and / or employees in the two cases relied by the Respondent and further endorsed by the learned JC. Hence these cases ought to be distinguished. [62] By codifying the provision for a reasonable opportunity to be given to the Applicant for cases involving reduction in rank and / or dismissal, something equivalent to Article 135 (2) of the FC and legislating of the MPSP Disciplinary Regulations, the Respondent had brought themselves 42 into the realm of public law domain. Hence, there is a special guarantee given to the officers and / or employees of the 2nd Respondent. The relationship is no longer a plain master and servant relationship as envisaged in the two cases cited by the Respondents and relied by the learned JC. [63] The 1st Respondent is not entitled to rely only on the terms and conditions of contract of service, ignoring the clear statutory requirements and protection entrenched in the LGA and the MPSP Disciplinary Regulations. In this case, the Applicant’s employment was supported by statute thereby making it subject to the requirement of natural justice, the non-observance of which will allow the court to scrutinise the decision not only for process but also for substance. We refer to the case of Malloch v. Aberdeen Corporation [1971] referred to in Fadzil b. Mohammad Noor v. Universiti Teknologi Malaysia [1981] CLJ 85; [1981] CLJ (Rep) 53. The relevant passage in Malloch v. Aberdeen Corporation [supra] Lord Wilberforce said: “One may accept that if there are relationships in which all requirements of the observance of rules of natural justice are excluded (and I do not wish to assume that this is inevitably so), this must be confined to what have been called “pure master and servant cases”, which I take to mean cases in which there is no element of public employment or service, no support by statute, nothing in the nature of an office or status which is capable of protection. If any of these elements exist, then in my opinion, whatever the terminology used, and even though in some inter parte aspects the relationship may be called that of master and servant, there may be essential 43 procedural requirements to be observed, the failure to observe them may result in a dismissal being declared void.” [64] In the case involving the Applicant, the relationship is not merely a master servant relationship but the employment was supported by the LGA and the MPSP Disciplinary Regulations. Hence, the protection accorded to the officer of a local authority is special, because in an ordinary contract of employment or personal service, the employee need not necessarily be given the opportunity of being heard before a decision is made to reduce him in rank or to dismiss him from the employment. This relationship has changed from a pure master and servant relationship to a relationship which attract public law remedy. Like the public officers, the Applicant herein enjoys certain protection by the law through section 16 (4) of the LGA and the MPSP Disciplinary Regulations. The protection given to the Applicant is special as in the normal contract of service and / or employment or personal service, the employee need not be given a reasonable opportunity of being heard in cases of reduction in rank or dismissal. [65] We were of the view that the case at hand raised public law issues as it is a decision and action taken by the 1st Respondent in pursuance of the provision of an act of Parliament, the LGA that is being impugned. As such a decision taken by the 1st Respondent with regard to the Applicant as an officer of the 2nd Respondent in his duties is one which has implications for the public as a whole and in consequence of this that the public law is concerned with the decision-making process. The legal sources of the powers that are being impugned are in the public domain. 44 As such to institute the proceedings by ordinary summons, though seemingly appearing to be simple in procedure, will deprive the public authority in this case, the 2nd Respondent and in the circumstances of the case at hand, the protection of the law that it is entitled to by the process available under Order 53. [66] We would like to refer to the judgment of Lord Woolf LJ in the case of Mclaren v the Home Office [1990] 1 ICR 824 where the cause of action raised issues of private law and not public law. The private law issues were pertaining to the breach of the “Collective Agreements” entered into between parties. However, the Law Lord made a distinction between contractual rights and disciplinary matters, which are matters of public law to be decided by an application for judicial review. At page 16 of the judgment Woolf LJ states the law: “(2) there can however be situations where an employee of a public body can seek judicial review and obtain a remedy which would be available to an employee in the private sector. This will arise where there exists some disciplinary or other body established under the prerogative or by statute to which the employer or employee is entitled or required to refer disputes affecting their relationship. The procedure of judicial review can then be appropriate because it has always been part of the role of the court in public law proceedings to supervise inferior tribunals and the court in reviewing disciplinary proceedings is performing a similar role. As long as the ‘tribunal’ or other body has a sufficient public law element, which it almost invariably will have if the employer is the crown, and it is not domestic or wholly informal, its proceedings and determinations can be appropriate subject for judicial review.” 45 [67] In this appeal, the issues raised in the pleadings are substantively public law issues. The Applicant were seeking to nullify his dismissal by the 1st Respondent. In dismissing the Applicant, the 1st Respondent had acted under the MPSP Disciplinary Regulations, a federal law. The grounds raised by the Applicant are public law issues, namely a breach of natural justice, failure to comply with section 16 (4) of the LGA and failure to comply with the requirements of the MPSP Disciplinary Regulations. Further, in England itself, the House of Lords in Maclaren v Home Office [supra] held that issues pertaining to disciplinary matters must be determined by judicial review, as “it has always been part of the role of the court in public law proceedings to supervise inferior tribunals and the court in reviewing disciplinary proceedings is performing a similar role.” [68] In R v Berkshire Health Authority ex parte Walsh [1985] 1 QB 152 Sir John Donalson MR, delivering one of the three judgments of the court declared: “[25] But if there is a special statutory provision bearing directly upon the right of a public authority to dismiss the plaintiff then this injects the element of public law to attract remedies under administrative law. This is elaborated by Sir John Donaldson MR in the case of (R v Berks Authority, ex parte Walsh) where he said: “In all three case there was a special statutory provision bearing directly upon the right of a public authority to dismiss the plaintiff. In Vine v National Dock Labour Board [1957] AC 488 the employment was under the statutory dock labour scheme and the 46 issue concerned the statutory power to dismiss given by that scheme. In Ridge v Baldwin [1964] AC 40 the power to dismissal was conferred by statute: s 191 of the Municipal Corporations Act 1882 (45 & 46 Vict c50). In Malloch v Aberdeen Corporation [1971] 1 WLR 1578 again it was statutory : s 3 of the Public Schools (Scotland) Teachers Act 1882 (45 & 46 Vict c18) Lord Wilberforce said, at page 1595-1596, it is the existence of these statutory provisions which injects the element of public law necessary in this context to attract remedies of administrative law…. ………………………………………………………………………… [28] And this is what the High Court found: In this case, however, it is my opinion that in making a disciplinary award of dismissal, the Home Office (to use the comprehensive term to include the department and the Secretary of State so distinguished by the respondent itself in this case) was performing the duties imposed upon it as part of the statutory terms under which it exercises its power, I conclude therefore that this Court in the exercise of its supervisory jurisdiction can come to the aid of the applicant in this case and I am glad that it can. [29] The principle was subsequently reiterated by Lord Woolf in Mclaren v The Home Office [1990] ITLR 338 where he declared: There can however be situations where an employee of a public body can seek judicial review and obtain a remedy which would not be available to an employee in the private sector. This will arise where there exists some disciplinary or other body established under the 47 prerogative or by statute to which the employer or thew employee is entitled or required to refer dispute affecting their relationship.” [69] The Federal Court in Ahmad Jefri bin Mohd Johari @ Md Johari v Pengarah Kebudayaan & Kesenian Johor & Others [2010] 3 MLJ 145 at page 161 held: “Thus, the decision to dismiss the appellant was made under a statutory law by a body who acted within the scope of such statutory power. Though the dismissal involves the dismissal of an employee by an employer, much like a master dismissing his servant, which is private law matter, the fact that there are statutory conditions and restrictions imposed by the Regulations on the conduct and dismissal of the appellant underpins the public law element in this case. This is not a case of a public authority being delegated with authority to hire and fire much like what has occurred in R n East Berkshire Health Authority, ex parte Walsh and Wendal Swann v Attorney General of the Turks and Caicos Islands. Here, a special statutory provision bearing directly upon the right of a public authority to dismiss the appellant. This injects the element of public law necessary in this context to attract the remedies of administrative law making this case amenable to judicial review.” [70] Based on the above authorities, it is our humble view that the learned JC was plainly wrong when he decided that His Lordship was bound by the principles enunciated in Mohd Ahmad v Yang Di Pertua Majlis Daerah Jempol, Negeri Sembilan [supra] & Perbadanan Perwira Harta Malaysia & Anor v Mohd Baharin Hj Abu [supra]. As 48 such we were of the view that there was lack of judicial appreciation of the facts and the law apparent in the case before His Lordship. [71] We have perused the appeal record and the written submissions of the respective parties, we agree with the learned JC on all the issues decided by the learned JC but for Issue 2 and Issue 3 discussed herein. Under Issue 2 and Issue 3, we found that the decision of the 1st Respondent was predicated on unsupported evidence and / or law. As illustrated above, from the outset the decision-making process was tainted with the elements stated by the Applicant in his Order 53 (3) Statement, namely, illegality, irrationality and procedural impropriety. [72] We found that the learned Judge had relied on grounds proffered by the Respondents in arriving at his decision to affirm the 1st Respondent’s decision without making his own analysis and evaluation of the facts surrounding the appeal and / or without appreciating the relevant law applicable to the factual matrix of this case. [73] Having examined the appeal record and perused the written submissions and heard the oral arguments, we were constrained to hold that the learned Judge failed to judicially appreciate the evidence and / or the law presented before him so as to render his decision plainly wrong on Issue 2 and Issue 3, and upon curial scrutiny merit our appellate intervention. [74] Based on the facts that we had alluded herein, we were constrained to rule that Issue 2 and Issue 3 must be answered in favour of the 49 Applicant. We unanimously allow this appeal with costs. The decision of the High Court is hereby set aside. We grant the application for judicial review in terms of prayers (1), (4) and (5) as prayed for by the Applicant with costs of RM20,000.00 subject to payment of Allocateur. Deposit is refunded. [75] We therefore order accordingly. Dated: 12th October 2017. sgd (ASMABI BINTI MOHAMAD) Judge Court of Appeal, Malaysia 50 Parties: 1. Messrs Vijaya Navaratnam Advocate & Solicitor For and on Behalf of the Appellant Suite 3.03 Sri Weld 3A Weld Quay 10300 Penang [Ref: S1/15/L/VN] …Mr. Vijaya Navaratnam 2. Messrs Presgrave & Matthews Advocate & Solicitors For and on Behalf of the Respondents Standard Chartered Bank Chambers No. 2 Lebuh Pantai 10300 Penang [Ref: KLAC/MM/MSS/20150967] …Ms. Karin Lim Mr. Murgan Maniam	76,950	Tika 2.6.0
S-02(W)-12-01/2016	PERAYU PENGARAH PEJABAT PERDAGANGAN DALAM NEGERI, KOPERASI DAN KEPENGGUNAAN NEGERI SABAH & 3 OTHERS RESPONDEN MULTI INRICH SDN BHD	Damages — Appeal — Exercise of administrative powers — Seizure and retention of goods, machines and equipments by enforcement officers— Whether seizure done in exercise of investigative functions — Whether such seizure was made without reasonable or probable cause — Whether seizure and forfeiture of goods validly done — Whether claims barred by limitation — Trade Description Act 1972 [Act 87], s3,s28, s32,s34	12/10/2017	YA DATO' ABDUL RAHMAN BIN SEBLIKorumYAA TUN TENGKU MAIMUN BINTI TUAN MATYA DATUK VERNON ONG LAM KIATYA DATO' ABDUL RAHMAN BIN SEBLI	https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=37fa4bb9-26c9-4cab-9ccb-4e35f5c555dc&Inline=true	1 IN THE COURT OF APPEAL OF MALAYSIA (APPELLATE CIVIL JURISDICTION) CIVIL APPEAL NO: S-02(W)-12-01/2016 BETWEEN PENGARAH PEJABAT PERDAGANGAN DALAM NEGERI, KOPERASI DAN KEPENGGUNAAN NEGERI SABAH & 3 OTHERS … APPELLANTS AND MULTI INRICH SDN BHD … RESPONDENT [In the matter of Kota Kinabalu High Court Suit No. BKI-21-6/1-2013 Between Multi Inrich Sdn Bhd … Plaintiff And Pengarah Pejabat Pedagangan Dalam Negeri, Koperasi dan Kepenggunaan Negeri Sabah & 3 Others … Defendants] CORAM TENGKU MAIMUN TUAN MAT, JCA VERNON ONG LAM KIAT, JCA ABDUL RAHMAN SEBLI, JCA JUDGMENT OF THE COURT [1] The respondent, Multi Inrich Sdn Bhd, sued the appellants, inter alia, for a declaration that it had been maliciously prosecuted for an offence under the Trade Description Act 1972 (“the TDA”) and for a declaration that the appellants had acted in breach of duty and/or 2 committed negligence in confiscating, seizing, detaining or otherwise unlawfully disposing of its goods and business equipment which were later not used in the criminal trial of the respondent. [2] The respondent’s case was that on 10.7.2009, the 2nd and 3rd appellants without showing any court order or warrant entered its premises at Wawasan Plaza and Kompleks Kilang SME and confiscated all its goods and business equipment. The goods and equipment seized were the following: (i) 4016 bottles of Lactovida Premium 1000ml (with Moringa extract); (ii) 12 bottles of Lactovida Classic 1000ml; (iii) 35 gallons of Liquid Gallons; (iv) 2360 empty plastic bottles; (v) 23 bundles of Bottle Stickers; (vi) 1 unit of Laminator Machine Model C-2301-P; (vii) 1 unit Blower W Bule-Decker Model BHP 1500-2; and (viii) 1 unit of Tape Printer Model Kunba Motor Model YY70-15. [3] The respondent was later charged in the Sessions Court at Kota Kinabalu with the offence of offering for sale 881 bottles of Lactovida drink with false trade description under section 3(1)(b) of the TDA. However, the respondent was acquitted and discharged without its defence being called on 29.4.2011, meaning to say the prosecution could not even establish a prima facie case against the respondent. There was no appeal against the decision. 3 [4] On 12.1.2012, the respondent claimed back all the goods seized but was told by the 1st appellant that the goods had been disposed of in accordance with the court’s direction. The respondent’s grievance was that as a result of the raid and seizure, its business ceased to operate and it was subsequently sued by its creditors to recover the loans that they had given to it. The respondent then filed the present suit against the appellants to claim for damages for the seizure and retention of goods that the prosecution did not use at the criminal trial. [5] After a full trial in the High Court, the respondent succeeded in its action for negligence but failed in its action for malicious prosecution. Both sides appealed to this court against the decisions, the appellants appealing against the decision finding them liable in negligence and the respondent appealing against the decision dismissing its claim for malicious prosecution. [6] Having heard arguments by both sides, both oral and written, we unanimously allowed the appellants’ appeal and dismissed the respondent’s appeal. These are the grounds of our decision. [7] We shall first deal with the appeal by the appellants against the decision finding them liable for negligence. 14 grounds of appeal were proffered by the appellants but in our view the appeal turns on section 34 of the TDA, which provides as follows: “No person shall in any proceedings before any court in respect of the seizure of any goods seized in exercise or the purported exercise of any power conferred under this Act be entitled to the costs of such proceedings or subject to section 32 to any damages or other relief unless such seizure was made without reasonable or probable cause.” (emphasis added) 4 [8] Section 32 referred to in the above section 34 relates to the forfeiture of goods seized under the TDA, which is not relevant for purposes of this appeal as none of the goods were forfeited pursuant to that provision. The issue for the High Court’s determination in relation to the question of negligence was the following: “Whether the Defendants had acted in breach of duty and/or committed negligence by confiscating, seizing, detaining or otherwise unlawfully disposing off the Plaintiff’s goods and business equipment which were not used for the trial of the charge against the Plaintiff?” (emphasis added) [9] In finding the appellants to be negligent in seizing the goods that were not used by the prosecution at the criminal trial of the respondent, the learned judge gave the following reasons: (a) There was no evidence that the unlabeled bottles contained any false description related to the complaints received from the public; (b) The seizure of the unlabeled bottles and ingredients were not in purported exercise of the power conferred by the TDA. [10] In the penultimate paragraph of his judgment, the learned trial judge concluded: “It is simply a case of negligence and gross incompetence on the part of the second and third defendants or their superior officers to seize a large amount of exhibits that are not relevant for the purpose of investigation or prosecution.” 5 [11] So the reason why the learned judge found the appellants to be liable in negligence was due to the fact that they had seized goods that were not relevant for purposes of the investigation or prosecution. In so finding, it is clear that the learned judge focused his mind on section 22 of the TDA. [12] It was the learned judge’s view that by reason of this provision, there was no necessity for the enforcement officers of the 1st appellant to seize all the respondent’s goods. Seizing samples would have been sufficient. It was thus wrong for them to have seized the entire stock in trade of the respondent merely to prove a false trade description offence. Section 22 of the TDA reads: “Taking of samples (1) Subject to any order under subsection (2), where any goods which are the subject matter of an offence under this Act are found in two or more packages or receptacles of the same description, it shall be presumed until the contrary is proved that all the packages or receptacles contain goods of the same nature, quantity and quality. (2) The Minister may by order provide that in proceedings for an offence under this Act in relation to such goods as may be specified in the order evidence on behalf of the prosecution concerning any sample procured for analysis shall not be admissible unless the sample has been dealt with in such manner as may be specified in the order.” [13] With due respect to the learned judge, section 22 is wholly irrelevant to the issue. The provision deals with a presumption of law and admissibility of evidence and has nothing to do with the question whether the appellants were liable in damages for the seizure of the respondent’s goods. The provision that the learned judge should have directed his mind 6 to was section 34 of the TDA. The operative words in this section are “unless such seizure was made without reasonable or probable cause”. [14] Clearly therefore, the question that called for the learned judge’s determination was whether the seizure of the goods was with reasonable or probable cause. If it was, then section 34 would apply and the appellants would be immune from liability for costs and damages arising from the seizure. It would be otherwise if the seizure was made without reasonable or probable cause. In the first situation, it is irrelevant that the goods were or were not used at the criminal trial of the respondent. [15] As for the meaning of the phrase “reasonable or probable cause”, the following dictum by Hawkins J in Hicks v Faulkner (1878) 8 QBD 167, which the House of Lords in Herniman v Smith [1938] A.C. 305, 316 approved is relevant: “I should define reasonable and probable cause to be, an honest belief in the guilt of the accused upon a full conviction, founded upon reasonable grounds, of the existence of a state of circumstances, which, assuming them to be true, would reasonably lead any ordinarily prudent and cautious man, placed in the position of the accuser, to the conclusion that the person charged was probably guilty of the crime imputed.” [16] The definition was adopted by Thompson LP in Rawther v Abdul Kareem [1966] 2 MLJ 201, a Federal Court decision. Whether or not there was reasonable or probable cause is essentially a question of fact. This must not, however, be confused with the question whether, at the time the goods were seized, an offence under the TDA had in fact been committed by the respondent. That was a matter for the court to determine at the appropriate stage of the criminal trial and not for the appellants to determine at the point of investigation. 7 [17] In Ramly & Ors v Jaffar [1968] 1 MLJ 209 the Federal Court held that the question whether there was reasonable and probable cause must be determined objectively on the evidence before the court. The same approach was adopted by this court in Government of the State of Sabah v Syarikat Raspand (suing as a firm) [2010] 5 MLJ 717. [18] To establish reasonable or probable cause, the law does not require that an offence under the TDA must have been committed before the enforcement officers could proceed to seize the goods. It was sufficient for that purpose if they had an honest belief that an offence under the TDA had probably been committed. This of course entails good faith on their part, for bad faith negates reasonable or probable cause. They must, in order to legitimize the seizure, have a reasonable suspicion that an offence under the TDA had been committed. [19] What is meant by “reasonable suspicion” has been explained by Lord Devlin delivering the judgment of the Judicial Committee of the Privy Council in Shaaban & Ors v Chong Fook Kam & Anor [1969] 2 MLJ 219 in the following terms at page 221: “There is another distinction between reasonable suspicion and prima facie proof. Prima facie proof consists of admissible evidence. Suspicion can take into account matters that could not be put in evidence at all. There is a discussion about the relevance of previous convictions in the judgment of Lord Wright in McArdle v Egan. Suspicion can take into account also matters which, though admissible, could not form part of a prima facie case.” [20] There is no dispute that the seizure of the respondent’s goods was made pursuant to section 28(1) of the TDA, which reads: 8 “28. (1) Any Assistant Controller may, at all reasonable hours exercise the following powers, that is to say – (a) he may, for the purpose of ascertaining whether any offence under this Act has been committed, inspect any goods and enter any premises other than premises used only as a dwelling; (b) if he has reasonable cause to suspect that an offence under this Act has been committed, he may for the purpose of ascertaining whether it has been committed, require any person carrying on a trade or business or employed in connection with a trade or business to produce any books or documents relating to the trade or business and may take copies of, or of any entry in, any such book or document; (c) if he has reasonable cause to believe that an offence under this Act has been committed, he may seize and detain any goods for the purpose of ascertaining, by testing or otherwise, whether the offence has been committed; (d) he may seize and detain any goods or documents which he has reason to believe may be required as evidence in proceedings for an offence under this Act; (e) he may, for the purpose of exercising his powers under this subsection to seize goods, but only if and to the extent that it is reasonably necessary in order to secure that the provisions of this Act and of any order made thereunder are duly observed, require any person having authority to do so to break open any container or open any vending machine and, if that person does not comply with the requirement, he may do so himself.” (emphasis added) [21] Paragraphs (c) and (d) above gave full powers to officers of the 1st appellant to seize the respondent’s goods for the purpose of ascertaining whether an offence under the TDA had been committed or which they had reason to believe might be required as evidence at the trial. There is no evidence that the seizure of the goods was made other than for those purposes. [22] It was pointed out by learned counsel for the respondent that the search warrants were issued in the name of Lactovida (M) Sdn Bhd and not in the name of the respondent, implying of course that the seizure of 9 the goods and equipment was done without reasonable or probable cause. With due respect to learned counsel, the suggestion is misconceived. The mere fact that the search warrant was not issued in the name of the respondent does not make the seizure of the goods illegal, for the following reasons: (i) it is not a strict legal requirement under section 28(3) of the TDA that the search warrants must be issued in the name of the owner or occupier of the premises. The words used in the section are “any premises”; (ii) based on the Company search of Lactovida (M) Sdn Bhd dated 2.3.2010, the registered address of the respondent was Lot S24 and S25, Tingkat 2 Wisma SEDCO Plaza Wawasan, which was also the registered address of Lactovida (M) Sdn Bhd; (iii) in its letter dated 12.1.2012 to the appellants, the respondent’s letterhead used the address belonging to Lactovida (M) Sdn Bhd; (iv) apart from the lactovida products, there was no other product under the respondent’s own brand that was found and kept at Wawasan Plaza and Kompleks Kilang SME premises. (v) although the respondent was subsequently charged with an offence under section 3(1)(b) and not under section 3(1)(a) of the TDA as stated in the search warrant, this does not mean that the respondent could only be charged under section 3(1)(a); (vi) the offences under subsections 3(1)(a) and (b) are related offences as both relate to false trade description; and (vii) the respondent and Lactovida (M) Sdn Bhd had been jointly involved in the production and distribution of Lactovida drink and both companies never ceased operation even after the raid on 10.7.2009. 10 [23] In any event, even without a search warrant, the enforcement officers of the 1st appellant in circumstances falling under section 28(3A) of the TDA were empowered to enter and inspect any premises and seize any goods for the purpose of an investigation. It is therefore not the law that in every case, a search warrant must first be obtained from a Magistrate before the enforcement officers could exercise their powers of search and seizure under the TDA. [24] On the facts of the present case, we do not think it can be argued that the appellants had no reason to suspect that an offence under the TDA had probably been committed in relation to the goods seized, including those that were not used during the criminal trial of the respondent, based on the following facts: (1) the seized goods had labelling and affixed statements which indicated false trade descriptions; (2) no approval and/or certification was obtained from the relevant authorities with regard to such labelling and statements and the respondent did not exhibit any written approval from the relevant authorities; (3) the reference number of the letter dated 12.8.2008 from the Ministry of Health was reproduced and affixed on the labels of the bottles of the goods as well as in the pamphlet/brochure of the respondent; (4) no written approval was ever obtained from the Ministry of Health before the reference number was affixed on the labels of the bottles of the goods as well as the pamphlet/brochure; 11 (5) a statement “Tested by SIRIM QAS” was on the labels of the bottles of the products as well as in the pamphlet/brochure of the respondent; (6) no written approval was ever obtained from SIRIM QAS International Sdn Bhd before such statement was affixed on the labels of the bottles of the products in the pamphlet/brochure; (7) as shown in the pamphlet, the lactovida products were manufactured by Lactovida (M) Sdn Bhd at Lok Kawi Estate, Kota Kinabalu; (8) the tenancy agreement between the respondent and SME Bank clearly stated that “Ruangan Kilang Digunakan HANYA untuk pembungkusan dan pengedaran minuman kesihatan ‘Lactovida’. The premises was never meant to be used as a factory for manufacturing purposes; [25] It is true that some of the bottles had no labelling that indicated false trade description, but that is not a bar for the enforcement officers of the 1st appellant to seize them for the purpose of investigation. At the trial, it was put to the appellants’ witness (DW2) that he had no reasonable cause to believe that the goods and equipment seized would or could be used as evidence at the trial. DW2 emphatically denied the suggestion. [26] In our view, it would be premature at that stage of the investigation for the seizing officers to determine which goods were in breach of the TDA and which were not and which items would be used at the trial and which would not be used. The fact that the respondent was eventually acquitted of the offence charged does not render the seizure illegal if otherwise it was made in accordance with section 28(1) (c) and (d) of the TDA. 12 [27] Section 34 of the TDA is similar though not identical with section 48 of the Optical Discs Act 2000, which provides as follows: “48. No person shall, in any proceedings before any court in respect of any article, optical disc, thing, book or document seized in the exercise or the purported exercise of any power conferred under this Act, be entitled to the costs of such proceedings or to any damages or other relief unless such seizure was made without reasonable cause.” [28] This court had occasion to deal with this provision in Empayar Canggih Sdn Bhd v Ketua Pengarah Bahagian Penguatkuasa Kementerian Perdagangan Dalam Negeri dan Hal Ehwal Pengguna Malaysia & Anor [2013] 7 CLJ 681. In affirming the decision of the High Court that the seizure of the goods was made with reasonable cause in the exercise of an investigative function, Zaharah Ibrahim JCA (now FCJ) delivering the judgment of the court, inter alia, said: “(5) The appellant’s claim for the declaration and damages could only succeed if the seizure was made without reasonable cause. On the facts, the said seizure was done with the reasonable belief that they contained information as to the commission of some offence, for which the search at the new premises was conducted. Further, the fact that, inter alia, the manufacturer’s codes were issued for machines under a different licence for the old premises and used for machines installed in the new premises were sufficient to constitute reasonable cause so as to deny the appellant the relief sought under s. 48 of the Act.” [29] For all the reasons aforesaid, we must say, with due respect to the learned judge, that he was wrong in finding the appellants liable in damages for negligence for the seizure of the goods that the prosecution did not use at the trial of the respondent. 13 [30] We shall now deal with the respondent’s appeal against the learned judge’s decision to dismiss its claim for malicious prosecution. It was submitted that on the evidence before the court, the learned trial judge ought to have found that the claim for malicious prosecution had been proved against the appellants on the balance of probabilities. It was argued that the appellants had no reasonable or probable cause to set the criminal law in motion against the respondent. [31] It was further argued that the appellants were actuated by malice, citing this court’s decision in Anne Lim Keng See v The New Straits Times Press (M) Bhd & Anor [2008] 3 MLJ 492 (a defamation case) where, in dealing with the issue of malice, Mohd Ghazali JCA (as he then was) delivering the judgment of the court made the following observations at page 517: “What is malice? According to Osborn’s Concise Law Dictionary (7th Ed) the word ‘malice’ means: ill-will or evil motive: personal spite or ill-will is sometimes called actual malice, express malice, or malice in fact. In law an act is malicious if done intentionally without just cause or excuse. So long as a person believes in the truth of what he says and is not reckless, malice cannot be inferred from the fact that his belief is unreasonable, prejudiced or unfair (Horrocks v Lowe [1972] 1 WLR 1625). Malice in the law of tort is a constituent of malicious prosecution, defamation, malicious falsehood, and conspiracy. But an act otherwise legal is not made wrongful by an improper motive (Mayor of Bradford v Pickles [1895] AC 587).” (emphasis added) [32] In Rawther (supra), the Federal Court laid down at least 5 elements for the successful prosecution of the tort of malicious prosecution. We reproduce below what the court said at page 203: 14 “In any such action the plaintiff must prove at least five things and unless he does so he cannot succeed. He must prove that the defendant set the criminal law in motion against him. He must prove the criminal proceedings against him terminated in his favour, that the defendant had no “reasonable and probable cause” for setting the law in motion against him and that the plaintiff was actuated by malice in the sense that he had a motive other than only to carry the law into effect.” [33] The appellants’ answer to the respondent’s claim for malicious prosecution was that the claim was time barred by virtue of section 3 item 10 of the Schedule to the Sabah Limitation Ordinance (“the Limitation Ordinance”), which stipulates that a claim for compensation for a malicious prosecution instituted after 1 year from the date of acquittal or the termination of the prosecution must be dismissed. In the present case, the respondent was acquitted on 29.4.2011 but the suit was only filed on 25.1.2013. There was therefore a delay of almost 2 years. [34] Setting the criminal law in motion in the context of the tort of malicious prosecution means in our view the institution of a criminal prosecution by the Public Prosecutor and not the commencement of a criminal investigation by an enforcement agency. Item 10 of the Schedule to the Limitation Ordinance speaks of the acquittal or termination of a “prosecution”. It does not speak of the termination of an “investigation” by an enforcement agency. [35] It is settled law that the power to institute criminal prosecution and the general control of criminal proceedings are vested in the Public Prosecutor, who is the ultimate and sole authority to decide whether or not any person is to be prosecuted for any offence known to law: Long bin Samat & Ors v Public Prosecutor [1974] 1 LNS 80; [1974] 2 MLJ 152 and Johnson Tan Han Seng v Public Prosecutor [1977] 1 LNS 38; [1977] 2 15 MLJ 66. The 1st appellant’s power on the other hand is purely investigative. He has no prosecutorial power. [36] In the present case, it is obvious that the respondent’s claim for malicious prosecution was predicated on the assumption that it was the 1st appellant who made the decision to institute criminal prosecution against the respondent. For the reason that we have mentioned in the preceding paragraph, nothing can be farther from the truth. [37] The appellants’ liability, if at all, is confined to the legality or otherwise of their act of seizing the goods, which as we said is an investigative function and not an exercise of prosecutorial power. It is therefore misconceived and futile for the respondent to argue that it was the 1st appellant who set the criminal law in motion by instituting the criminal prosecution against it for an offence under section 3(1)(b) of the TDA. This ground alone would have been sufficient for the learned judge to dismiss the respondent’s claim for malicious prosecution. [38] Even if the 1st appellant had such power of prosecution, or that it was the 1st appellant who set the criminal law in motion by commencing the criminal investigation against the respondent which led to its prosecution under the TDA, the respondent’s claim for malicious prosecution was in any event barred by limitation as it was filed outside the limitation period prescribed by section 3 of the Limitation Ordinance. [39] The learned judge however rejected the defence of limitation raised by the appellants on the ground that it was not included in the list of agreed issues. He was of the view that by not including the defence in the agreed issues, the appellants were deemed to have abandoned the defence. 16 [40] With due respect to the learned judge, this is erroneous. Pleadings operate to define and delimit with clarity and precision, the real matters in controversy between the parties upon which they can present their respective cases, and upon which the court will be called upon to adjudicate between them: see Asia Hotels Sdn Bhd v Malayan Insurance (M) Sdn Bhd [1992] 2 MLJ 615. There is nothing on record to show that the appellants had abandoned their pleaded defence of limitation. [41] Since the defence of limitation was pleaded, evidence was adduced in proof thereof and, more importantly, there was no question that the claim was filed out of time, the learned judge was right in the end in dismissing the respondent’s claim for malicious prosecution. The law on limitation is strict. In the words of section 3 read with item 10 of the Schedule to the Limitation Ordinance, the claim “shall be dismissed” if it was filed after 1 year from the date of acquittal or the termination of the prosecution. ABDUL RAHMAN SEBLI Judge Court of Appeal Malaysia Dated: 12th October 2017 For the Appellants: Rahazlan Affandi Bin Abdul Rahim, Senior Federal Counsel, of the Attorney General’s Chambers. 17 For the Respondent: Trevor Kenneth Maringking of Messrs Maringking & Co.	27,254	Tika 2.6.0
W-05(SH)-241-09/2015	PERAYU CHONG TAT SIONG 2. FOONG KHAR FAI 3. LEE PHAK SENG RESPONDEN Pendakwaraya	Undang-Undang Jenayah — Penculikan — Kebolehpercayaan (credibility) keterangan saksi kanak-kanak — Pertuduhan penculikan dengan meneruskan niat bersama untuk menculik mangsa dengan tujuan menuntut wang tebusan — Sama ada keterangan mangsa mencukupi untuk mencapai tahap maksimum membuktikan suatu kes prima facie — Sama ada niat bersama antara perayu OKT telah dibuktikan — Sama ada keterangan saksi kanak-kanak boleh dipercayai — Akta Penculikan, 1961[Akta 365], seksyen 3; Akta Keterangan 1950[Akta 56], seksyen 133A; Kanun Keseksaan [Akta 574], seksyen 34	11/10/2017	YA DATUK DR BADARIAH BINTI SAHAMIDKorumYA DATO' SERI ZAKARIA BIN SAMYA DATUK DR BADARIAH BINTI SAHAMIDYA DATUK ABDUL KARIM BIN ABDUL JALIL	https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=4b5f0285-8dbd-4a1e-887c-82d88931b3f2&Inline=true	1 DALAM MAHKAMAH RAYUAN MALAYSIA (BIDANG KUASA RAYUAN) MAHKAMAH RAYUAN (BIDANGKUASA JENAYAH) BIL: W-05(SH)-241-09/2015 CHONG TAT SIONG …. PERAYU LAWAN PENDAKWA RAYA …. RESPONDEN DIDENGAR BERSAMA RAYUAN-RAYUAN BERIKUT MAHKAMAH RAYUAN (BIDANGKUASA JENAYAH) BIL: W-05(SH)-243-09/2015 FOONG KHAR FAI …. PERAYU LAWAN PENDAKWA RAYA …. RESPONDEN MAHKAMAH RAYUAN (BIDANGKUASA JENAYAH) BIL: W-05(SH)-244-09/2015 LEE PHAK SENG …. PERAYU LAWAN PENDAKWA RAYA …. RESPONDEN MAHKAMAH RAYUAN (BIDANGKUASA JENAYAH) BIL: W-05(H)-247-09/2015 PENDAKWA RAYA …. PERAYU LAWAN 1. CHONG TAT SIONG 2. FOONG KHAR FAI 3. LEE PHAK SENG … RESPONDEN-RESPONDEN DALAM MAHKAMAH TINGGI DI KUALA LUMPUR Perbicaraan Jenayah BIL: 45C-43-10/2012 Antara PENDAKWA RAYA LAWAN 1. CHONG TAT SIONG 2. FOONG KHAR FAI 3. LEE PHAK SENG 2 CORAM ZAKARIA BIN SAM, HMR BADARIAH BINTI SAHAMID, HMR ABDUL KARIM BIN ABDUL JALIL, HMR ALASAN PENGHAKIMAN Pengenalan Untuk kemudahan rujukan dalam rayuan ini, perayu-perayu Chong Tat Siong, Foong Khar Fai dan Lee Phak Seng akan dirujuk sebagai OKT 1, OKT 2 dan OKT 3 sepertimana rujukan di Mahkamah Tinggi. Pertuduhan [1] Ketiga-tiga perayu OKT telah dihadapkan dengan satu pertuduhan bersama di bawah seksyen 3 Akta Penculikan, 1961. Pertuduhan dibaca seperti berikut: “Bahawa kamu bersama- sama seorang lagi yang masih bebas pada 27 April 2012 jam lebih kurang 7.30 pagi bertempat di Jalan Kiara 1, Mont Kiara, di dalam Daerah Brickfields, didalam Wilayah Persekutuan Kuala Lumpur, didalam meneruskan niat bersama kamu, telah menculik NAYATI MOODLAR (PP NO NRH 411607) dengan tujuan menuntut wang tebusan sebanyak RM300,000 dan dengan itu kamu telah melakukan suatu kesalahan yang boleh 3 dihukum dibawah seksyen 3 Akta Penculikan 1961 (Semakan 1989) (Akta 365) di baca bersama dengan seksyen 34 Kanun Keseksaan”. Kes Pendakwaan [2] Ringkasan kes pendakwaan yang berikut dipetik daripada alasan penghakiman Hakim Mahkamah Tinggi (HMT), Kuala Lumpur. [3] Mangsa, Nayati Shamelin Moodilar (SP16) mengikut keluarganya menetap di Malaysia oleh sebab bapanya, Shamelin Krubagaran Moodliar (SP17), seorang warganegara Belanda bekerja dengan sebuah syarikat di Malaysia.Pada jam lebih kurang 7.25 pagi 27.04.2012, mangsa telah diculik oleh dua orang lelaki dan dilarikan ke Chemor,Perak. Mangsa telah dikurung disebuah rumah di Tanah Hitam, Chemor sehingga 3.05.2012.Pada 3.05.2012 mangsa telah dibebaskan dengan selamat di R & R Rawang setelah SP17 membayar wang tebusan berjumlah RM300,000 yang dipersetujui oleh para penculik. Pada masa kejadian, mangsa baru berusia 12 tahun. Semasa memberi keterangan di Mahkamah, mangsa berusia 14 tahun. Mangsa memberi keterangan secara bersumpah selepas Mahkamah berpuas hati pra-syarat di bawah seksyen 133A Akta Keterangan 1950 dipenuhi. 4 [4] Menurut mangsa, pada pagi hari kejadian sekitar jam 7.25 dia sedang berjalan kaki untuk ke sekolah apabila beliau telah ditarik masuk ke dalam sebuah kereta oleh dua orang lelaki dan dibawa ke suatu tempat dan telah dikurung di dalam sebuah rumah. Tidak dipertikaikan bahawa selepas dilarikan, mangsa telah dikurung dalam sebuah rumah di No. 2, Jalan Seri Desa 2, Taman Seri Desa, Chemor, Perak. Mangsa telah mengecamkan OKT1 sebagai salah seorang yang telah menarik beliau dan melarikan beliau dalam sebuah kereta berwarna hitam. OKT1 telah duduk bersama beliau di kerusi penumpang bahagian belakang kereta. [5] Menurut mangsa, semasa di dalam kereta hitam dan pada awal perjalanan, beliau telah dipaksa oleh OKT1 untuk menelan sejenis cecair dari dalam satu tin sehingga membuatkan beliau rasa mengantuk. OKT1 kemudiannya telah menutup kedua-dua mata mangsa dengan kain hitam. Sepanjang perjalanan mangsa telah diarahkan oleh OKT1 untuk berbaring atas tempat pemijak kaki di bahagian belakang kereta tersebut. Setelah sampai di tempat yang dituju, mangsa telah dibawa keluar dan ditempatkan dalam satu bilek kecil dalam sebuah rumah. Tiba di bilik tersebut, OKT1 telah membuka penutup mata mangsa. Mangsa mengecamkan bilik itu seperti dalam gambar P19 (gambar 28-32). 5 [6] Sepanjang masa berada di dalam bilik tersebut, mangsa dapat melihat dan mengecamkan muka pemandu kereta hitam tersebut. Pemandu kereta itu telah mendapatkan daripada mangsa beberapa maklumat terutama cara untuk berhubung dengan bapa mangsa. Pemandu kereta turut meminta nombor akaun Facebook milik mangsa. Mangsa telah memberikannya kepada pemandu itu bersama kata laluan “soccer!” Selain daripada OKT1 dan pemandu kereta hitam itu, mangsa turut mengecamkan OKT2 dan juga OKT3 yang turut masuk ke dalam bilik di mana mangsa telah dikurung. Mangsa menyatakan kaki beliau telah diikat dengan tali dan mulut beliau ditutup dengan pita pelekat semasa berada di dalam bilik itu. Setiap kali OKT-OKT keluar dari bilik itu, pintu bilik itu akan ditutup rapat. Sepanjang masa dikurung, mangsa menyatakan ketiga-tiga OKT telah melayan beliau dengan baik dan beliau telah diberikan tilam untuk tidur, pakaian baru, makanan, minuman, termasuk diberikan laptop untuk bermain game. Sepanjang ditahan di rumah itu, mangsa hanya nampak ketiga-tiga OKT dan pemandu kereta (yang masih bebas) tersebut sahaja dan tidak ada orang yang lain. [7] Mangsa telah dibebaskan pada awal pagi hari yang ketujuh (3.05.2012) di R&R Rawang. Sepanjang perjalanan, mata mangsa telah 6 ditutup dan beliau berbaring di kerusi belakang kereta. Setelah sampai, mangsa telah diberikan satu telefon bimbit berwarna hitam jenama Nokia model 1280 (P160 A) dan diminta untuk menghubungi bapa beliau. Mangsa turut diberikan sekeping wang nota RM50 oleh OKT2 sebelum OKT 2 dan OKT3 (yang memandu kereta Honda WPX 996 berwarna coklat (P132) beredar dari tempat tersebut. Mangsa telah berjaya mengecamkan ketiga-tiga OKT dalam kawad cam yang telah diadakan oleh pihak polis. Mangsa turut memberikan peranan setiap OKT dalam kes penculikan beliau. Kawad cam tersebut telah dijalankan oleh ASP Arikrishnan A/L Apparau (SP28) pada 15.5.2012 di Balai Polis Jinjang. [8] Saksi SP17 menyatakan bahawa pada 27.04.2012 seperti biasa anaknya, mangsa berjalan kaki pergi ke sekolah pada awal pagi. Sekolah anaknya hanya jarak 300 meter dari rumah beliau. Sekitar jam 7.30 pagi beliau terima panggilan telefon daripada sekolah menyatakan anaknya tidak sampai di sekolah. Beliau telah dibawa melihat rakaman CCTV yang berada di sekitar tempat kejadian termasuk dari Amaspuri Kondominium yang dibekalkan oleh saksi Lee Chin Hong (SP22) dan juga oleh KPL Yusram bin Danis (SP23), Polis Bantuan Sunrise. SP17 mengesahkan setelah melihat rakaman CCTV tersebut bahawa anaknya telah diculik dan dilarikan oleh dua orang lelaki yang memandu sebuah 7 kereta berwarna hitam. SP17 kemudian terus membuat laporan polis (P139) tentang kejadian. [9] SP17 telah memberikan keterangan beliau menerima mesej melalui laman Facebook atas akaun anaknya. Penculik telah memarahi beliau kerana telah membuat laporan polis. Para penculik turut meminta wang tebusan sebanyak RM1 juta untuk membebaskan anaknya. Selepas beberapa perundingan, para penculik bersetuju untuk menerima wang tebusan sebanyak RM300, 000 untuk membebaskan anak nya. SP17 berjaya mendapatkan wang tunai RM300, 000 yang diminta dan atas arahan para penculik, wang tersebut yang diisikan dalam sebuah beg hitam telah diletakkan oleh SP17 di tepi tangga di Tingkat 8, Sri Chendikia Kondo, di Cheras. Pada keesokan paginya, SP17 telah menerima panggilan daripada anaknya yang menyatakan bahawa dia telah pun dibebaskan di R & R Rawang arah selatan. SP17 telah bergegas ke sana dan telah bertemu dengan anaknya. Saksi Insp. Mohd Aizam bin Mohammad (SP14) dan satu pasukan polis telah memeriksa tempat di mana beg hitam berisi wang RM300, 000 telah diletakkan oleh SP17. Tiba di sana, di satu kawasan tangga ke tingkat 9, Kondo Seri Chendika, Taman Connaught, Cheras, SP14 dan pasukan telah menjumpai semula 8 beg hitam tersebut di tepi tangga. Beg hitam itu telah kosong, tanpa wang. SP14 turut merampas satu puntung rokok di tempat yang sama. [10] Beberapa orang saksi awam turut dipanggil untuk memberi keterangan bagi pihak pendakwaan. Saksi Jonathan Robert Daley (SP1) ialah seorang guru yang mengajar di Sekolah Mont Kiara International School, di mana mangsa sedang menuntut dan tinggal di Kondo Johan Kiara, lebih kurang 200 meter dari sekolah tersebut. Pada hari kejadian beliau sedang berjalan kaki bersama anak perempuan beliau di hadapan kondo tersebut apabila beliau mendengar seorang kanak-kanak menjerit meminta tolong. SP1 terus berkejar ke tempat kejadian dan beliau telah melihat seorang budak sekolah telah dipaksa masuk ke dalam sebuah kereta jenis Proton Gen 2 berwarna hitam dan terus dilarikan. [11] Saksi Puan Mok Yek Yong (SP10) memberitahu Mahkamah bahawa beliau ialah tuan punya berdaftar rumah satu tingkat berkembar di alamat No. 2, Jalan Seri Desa 2, Taman Seri Desa, Tanah Hitam, Chemor, Perak. Beliau telah menyewakan rumah itu kepada Chong Tat Siong (OKT 1) mulai 16.4.2012. SP10 mengesahkan bahawa OKT1 mulai tinggal di rumah itu pada 18 atau 19 April 2012. Rumah itu disahkan berdasarkan siasatan pihak polis sebagai tempat dimana mangsa telah 9 dikurung mulai 27.4.2012 sehingga awal pagi 3.5.2014. SP10 menyatakan kawan beliau, Moo Tai Wai (SD4) telah menyaksikan OKT1 menandatangani perjanjian sewaan (P96) yang dimasuki antara beliau dengan OKT1. [12] Puan Ho Mun Chee (SP20) menyatakan bahawa beliau ialah isteri kepada OKT1. Saksi mengesahkan bahawa kereta Proton Gen 2 dengan nombor pendaftaran WPV 3132 adalah milik beliau. SP20 sahkan kereta itu berwarna hitam. SP20 menyatakan dalam tahun 2011 beliau dan OKT1 tinggal bersama ibu OKT1 di Taman Kelebang Jaya, Chemor, Perak dan pada sepanjang masa tersebut sehingga OKT1 ditangkap, mereka tinggal di rumah yang sama. SP20 memberitahu pada masa itu OKT1 yang menggunakan kereta Proton Gen 2 milik beliau. Saksi mengesahkan pada sepanjang masa itu OKT1 bekerja sebagai penjual telefon bimbit dan saksi sendiri tidak berkerja. [13] Liew Teck Foo (SP11) menyatakan beliau berniaga membuka bengkel mengetuk dan mengecat kenderaan. Bengkel beliau berada di alamat Lot 12591, Jalan Jelapang off Jalan Kuala Kuang, Chemor. Saksi mengesahkan pada hujung bulan April 2012, OKT1 telah menghantar ke bengkel beliau sebuah kereta Gen 2 berwarna hitam No. WPV 3132 untuk 10 diketuk dan dicatkan semula. SP11 menyatakan pada 8.5.2012, pihak polis telah datang ke bengkel beliau dan telah merampas kereta Proton Gen 2 tersebut. Pada waktu itu kereta tersebut dalam keadaan sebahagian telah diplaster dengan simen dan kerja-kerja mengetuk dan mengecat semula kereta itu masih belum selesai. Insp. Zaffrul Asraff bin Mohd Puzi (SP19) mengesahkan beliau telah mengetuai sepasukan polis pergi ke bengkel milik SP11 di Chemor pada 8.5.2012 dan telah merampas kereta Proton Gen 2 tersebut. Selain merampas kereta tersebut, SP19 turut merampas beberapa barang kes lain yang ditemui di beberapa bahagian di dalam kereta tersebut. Barang-barang kes tersebut termasuklah: (i) Satu botol minuman plastik jenama ‘100 Plus 500 ml’; (ii) Satu botol minuman plastik jenama ‘Sea Master Drinking Water’ 1500 ml; (iii) Satu stoking warna kelabu jenama ‘Puma’; (iv) Satu botol minuman plastik jenama ‘Spritzer’; (v) Satu resit tol ‘PLUS ’bertarikh 27.4.2012 jam 9.07 pagi berjumlah RM24.80; (vi) Satu buku berwarna merah bertulisan ‘Mont Kiara International School’ atas nama Nayati Moodilar Field Journal 11 Grade 7 (P 78A) dan terselit satu helai kertas bertulisan “The Electromagnectic Spectrum’ atas nama Nayati Moodilar. Barang kes telah dicamkan oleh mangsa; (vii) Tiga helai rambut (ditanda 8); (viii) Satu helai seluar jeans warna hitam jenama ‘RIDERS’saiz 34; (ix) Tiga helai rambut (ditanda 10) (x) Satu gumpal tisu warna putih yang telah digunakan; (xi) Satu bilah pisau warna merah/hitam jenama ‘Rigans RG222 Cutter Knife’; (xii) Sampel cat kereta warna hitam (P93A) (xiii) Enam (6) kesan cap jari pada kereta; (xiv) Tiga (3) kesan swabbing air liur pada kereta; dan (xv) Satu helai rambut pada pisau [ditanda 12(1)]. [14] Kesemua barang kes tersebut termasuk kereta telah dihantar untuk pemeriksaan dan analisis forensik dan kimia. Nor Ummiza binti Kamaruzaman (SP 9) , seorang Pegawai Sains Forensik yang bertugas di Jabatan Kimia Malaysia di Petaling Jaya mengesahkan telah menerima sebuah kereta Proton Gen 2 bernombor pendaftaran WPV 3132 ( P131), dan sampel cat berwarna hitam ( P 93A) yang dikutip oleh SP19 daripada 12 kereta P131. Lain-lain barang kes telah diserahkan kepada Ahli Kimia, Erizasyira binti Basri (SP8) yang kemudiannya telah menyerahkan kepada Ahli Kimia yang lain bernama Nur Haliza binti Hassan untuk dianalisis. [15] ASP Zuraimi bin Zam Zam ( SP15) telah diarahkan untuk membuat pemeriksaan di rumah No, 2, Jalan Seri Desa 2, Taman Seri Desa, Tanah Hitam, Chemor, iaitu rumah di mana mangsa telah dikurung. SP15 bersama pasukan serbuan beliau telah sampai di rumah tersebut pada jam 11.25 pagi 8.5.2012. SP15 menyatakan rumah itu mempunyai 4 bilik tidur dan 2 bilik air. Pasukan yang diketuai oleh SP15 telah melakukan ujian penimbulan cap jari, melukis rajah kasar serta mengumpulkan dan merampas barang-barang kes yang mempunyai kaitan dengan kes penculikan mangsa. Gambar-gambar tempat kejadian tersebut turut dirakamkan oleh D/KPL Che Azmi bin Anan (SP7) sejumlah 146 keping gambar [P 19 (1-146)]. Terdapat sejumlah 29 kesan cap jari telah berjaya ditimbulkan dalam rumah tersebut dan sejumlah 64 barang kes turut dirampas dari rumah tersebut. [16] D/Sjn. Mohammed bin Dahlan Rose (SP18) telah diarahkan untuk ke tempat kejadian di mana mangsa telah dilarikan. Saksi dan pasukan beliau telah sampai di tempat kejadian pada jam 11.15 pagi pada hari 13 kejadian penculikan itu. Di tempat kejadian, SP18 telah menjumpai dan merampas barang-barang kes berikut: (i) Satu kasut selipar sebelah kiri berwarna hitam jenama ‘Hush Puppies’ (P98A); (ii) Satu helai kain berbentuk baju singlet berwarna putih (P99A) (iii) Empat helai kertas putih bertulisan Bahasa Inggeris (P 100A- D) yang dicamkan oleh mangsa sebagai milik beliau yang jatuh ditempat kejadian sewaktu beliau dipaksa masuk ke dalam kereta; (iv) Satu puntung rokok tanpa jenama (P 101 A); dan (v) Dua puntung rokok jenama ‘Malboro’ (P 102 A dan P103A). [17] Ketiga-tiga OKT telah ditangkap oleh pihak polis dalam tempoh satu minggu sahaja selepas mangsa SP16 dibebaskan selepas wang tebusan dibayar. OKT1 telah ditangkap pada 7.5.2012, OKT2 pada 7.5.2012 dan OKT3 pada 10.5.2015.Sementara seorang lagi suspek yang memandu kereta Proton Gen 2 semasa mangsa dilarikan telah gagal ditangkap. Suspek ini telah melarikan diri keluar negara dan masih bebas sehingga perbicaraan kes ini diselesaikan. Walau bagaimanapun serbuan dilakukan oleh pihak polis diketuai oleh SP21 ke rumah kediaman suspek 14 tersebut pada 14.5.2012, dan pihak polis telah menemui dan merampas satu beg plastik warna hitam bertulisan ‘Padini Concept Store’(P196) yang mengandungi wang tunai note RM100 sebanyak 300 keping berjumlah RM30,000(P197). Sepasang suami isteri turut ditahan dipremis tersebut untuk tujuan siasatan. [18] Insp. Hare Krishnan A/L K.Subramaniam ( SP21) dari Bahagian Siasatan Khas D9 IPK Kuala Lumpur bersama beberapa anggota serbuan beliau telah berjaya menangkap OKT2 di Jalan Cheras Hartamas 1, Taman Cheras Hartamas, Cheras Selangor pada waktu tengah malam 7/5/2012. Daripada OKT2, SP21 telah merampas beberapa barang kes termasuk sebuah telefon bimbit ( P174) berserta kad SIM ( P 174 A), satu beg silang jenama ‘Seed’ (P175), satu dompet duit jenama ‘Renoma’ (P176) , satu beg kertas (P177) mengandungi wang note RM50 sebanyak 900 helai berjumlah RM45,000(P178), satu beg laptop jenama ‘Acer’ (P179) serta satu laptop jenama ‘Apple Mac Book’ (P 182) [19] Pada 10.5.2012 jam 1.00 tengah hari, SP21 bersama pasukan yang sama telah menyerbu rumah No. 20. Lorong Jentayu 2, Taman Morib, Banting, Selangor dan telah berjaya menangkap OKT3. Daripada OKT3, SP21 telah merampas satu telefon bimbit Nokia (P189) serta satu 15 SIM kad Digi (P190 A) dan satu dompet duit (P186) mengandungi My Kad dan wang note RM50 sebanyak 8 keping berjumlah RM400 (P187). [20] Menurut keterangan Pegawai Penyiasat , ASP Erwansyah bin Abdul Basir (SP29), OKT2 telah ditangkap oleh DSP Shazeli bin Kahar di rumah No.21, Laluan Klebang Jaya 2,Taman Klebang Jaya,Chemor, Perak. Semasa tangkapan, barang-barang kes berikut turut dirampas daripada OKT2: (i) Satu telefon bimbit jenama Nokia 100 RH-130 serta satu SIM kad Hotlink No. 014-2828287; (ii) Satu dompet duit warna hitam jenama ‘Bally’; (iii) Wang tunai RM1000 (note RM 100 satu keping dan note RM50 sebanyak 18 keping); (iv) Sebuah jam tangan jenama ‘Patek Phillipe Geneve’; dan (v) Sebuah kereta Perodua Alza No. AHS 8981 berserta anak kunci. [21] SP29 turut mengesahkan wang tunai sejumlah RM45, 000 yang dirampas daripada OKT2 disahkan sebahagian daripada wang tebusan RM300, 000 yang dibayar oleh bapa mangsa (SP17). SP 29 juga mengesahkan wang tunai sejumlah RM 30,000 yang dirampas dari bawah 16 katil dalam bilik tidur suspek yang masih bebas bernama Lee Chung Kee (KPT No.840830-14-5631) adalah juga sebahagian daripada wang tebusan yang diserahkan oleh SP17, berdasarkan perbandingan nombor siri kesemua wang kertas yang dirampas dengan nombor siri wang yang terdapat dalam salinan fotostat [P 173(1-9] keseluruhan wang tebusan berjumlah RM300, 000 tersebut. Dapatan dan Keputusan Hakim Mahkamah Tinggi (HMT) [22] Pertuduhan terhadap ketiga-tiga OKT adalah satu kesalahan di bawah seksyen 3 Akta Penculikan 1961 dibaca bersama dengan seksyen 34 Kanun Keseksaan. Seksyen 3 memperuntukkan seperti berikut: “Whoever with intent to hold any person for ransom, abducts or wrongfully confines or wrongfully restrains such person shall be guilty of an offence and shall be punished on conviction with death or imprisonment for life and shall, if he is not sentenced to death, also be liable to whipping”. [23] Menurut HMT, pihak pendakwaan dikehendakki membuktikan intipati-intipati pertuduhan terhadap ketiga-tiga OKT, seperti berikut: (i) Bahawa seseorang mangsa telah diculik; 17 (ii) Bahawa mangsa telah dihalang secara salah dengan niat bagi maksud untuk mendapatkan wang tebusan; (iii) Bahawa terdapat permintaan untuk wang tebusan; (iv) Bahawa OKT-OKT ialah orang yang telah melakukan perbuatan-perbuatan tersebut di atas; dan (v) Bahawa OKT-OKT telah melakukan perbuatan-perbuatan tersebut diatas; dan (vi) Bahawa OKT-OKT telah melakukan perbuatan-perbuatan tersebut bersama-sama dengan seorang lagi yang masih bebas dalam melaksanakan niat bersama mereka di bawah seksyen 34 Kanun Keseksaan. [24] Di akhir kes pendakwaan, HMT telah memutuskan bahawa pihak pendakwaan telah membuktikan satu kes prima facie terhadap ketiga- tiga OKT atas pertuduhan yang dihadapkan kepada mereka. Setelah membuat pertimbangan maksima semua keterangan saksi-saksi pihak pendakwaan, HMT mendapati bahawa satu kes prima facie telah berjaya diwujudkan terhadap ketiga-tiga OKT atas pertuduhan yang dihadapkan. HMT juga berpuas hati bahawa keterangan saksi utama SP16, seorang kanak-kanak, telah disokong (corroborated) oleh keterangan daripada 18 punca-punca dan saksi-saksi yang bebas.Seterusnya, ketiga-tiga OKT dipanggil untuk membela diri atas pertuduhan tersebut. Kes Pembelaan [25] Ketiga-tiga OKT telah memilih untuk memberikan keterangan secara bersumpah. Ringkasan pembelaan ketiga-tiga OKT adalah seperti berikut: OKT1 [26] OKT 1 ialah rakan sekerja OKT2 dan OKT 3. Majikan OKT 1 ialah seorang yang bernama Thomas. Pada sebelah pagi 27.04.2012 OKT 1 telah bersarapan pagi dan membeli peralatan sembahyang bersama seorang kawan di Bercham .OKT1 telah terima panggilan daripada Thomas yang akan sampai dari Kuala Lumpur untuk berjumpa dengan OKT1 di kedai menjual peralatan sembahyang di Bercham. Tidak lama kemudian OKT1 telah berjumpa dengan Thomas di kedai tersebut. [27] Thomas telah meminjam kereta Proton Gen 2 milik isteri OKT1.OKT1 telah melihat seorang kanak-kanak India di dalam kereta tersebut.OKT1 telah bertanya kepada Thomas tentang budak itu dan Thomas menjawab bahawa budak itu ditahan kerana bapa budak itu berhutang sejumlah wang daripada Thomas. Selepas itu OKT 1 dan 19 Thomas serta budak India itu balik ke rumah yang OKT1 sewa di Tanah Hitam. Setiba di rumah itu, budak India itu dibawa masuk ke dalam satu bilik di dalam rumah itu. Thomas telah meminta OKT1 dan dua rakannya supaya menjaga budak India itu tanpa banyak soal. [28] Setelah beredar dari rumah itu, Thomas telah menalipon OKT1 dan memberitahu nya bahawa kereta OKT1 mempunyai calar dan telah dihantar kesebuah bengkel untuk dicat semula. Thomas memberitahu OKT 1 alamat bengkel tersebut. [29] Pada satu pagi apabila bangun daripada tidur OKT1 menyedari budak India itu tiada lagi di rumah sewa tersebut. OKT 1 diberitahu oleh dua rakannya melalui telefon bahawa budak India itu telah di bawa ke Kuala Lumpur. [30] OKT1 menafikan dia berada di tempat budak India itu diculik pada pagi kejadian. OKT1 juga menafikan dia ialah salah seorang yang kelihatan dalam rakaman CCTV yang ditayangkan di mahkamah.OKT1 juga menafikan ada menggunakan akaun Facebook budak India itu untuk meminta wang tebusan daripada bapa budak India tersebut. 20 [31] OKT1 telah memanggil seorang saksi, Liew Thim Looi (SD5). SD5 telah memberikan keterangan bersumpah dan menyatakan seperti berikut. SD5 mengenali ketiga-tiga OKT kerana tinggal di kawasan yang sama di Tanah Hitam, Chemor, Perak. Pada pagi 27.04.2012 SD5 telah bersarapan pagi dengan OKT1 di kedai kopi SD4. Selepas sarapan OKT1 dan SD5 telah pergi ke Bercham untuk membeli peralatan sembahyang. Selepas itu SD5 terus pergi kerja. SD5 tidak tahu apa berlaku seterusnya ke atas OKT1. SD5 juga mengesahkan antara jam 7 pagi hingga 9 pagi pada 27.4.2012 OKT1 berada bersama-samanya. OKT2 [32] OKT2 bekerja sebagai bookie bola dan nombor ekor selama 2-3 bulan sebelum kejadian 27.4.2012 dan tinggal bersama OKT1 dan OKT3 disebuah rumah di Tanah Hitam yang disewa oleh OKT1. OKT2 bekerja di bawah OKT1 dan majikan ialah seorang bernama Thomas yang tinggal di Kuala Lumpur. [33] Pada pagi 27.4.2012 OKT2 pergi makan sarapan di kedai SD4. OKT 3 turut bersarapan di kedai yang sama. Lepas sarapan OKT 2 dan 21 OKT3 pulang ke rumah sewa, disertai SD4. Tidak lama kemudian OKT1 datang menaiki kereta bersama Thomas dan seorang budak lelaki India. Budak itu dibawa masuk ke dalam sebuah bilik dalam rumah mereka. Thomas telah meminta mereka menjaga budak itu.Selama satu minggu budak itu berada dalam rumah itu, OKT2 hanya memberikan makanan sahaja kepada budak itu. [34] Pada satu pagi OKT2 menerima panggilan telefon daripada Thomas meminta OKT3 menghantar budak itu ke R & R Rawang. Thomas meminta OKT2 memberikan satu telefon bimbit dan wang RM50 kepada budak itu setelah sampai di sana. OKT2 dan OKT3 telah pergi menghantar budak itu ke Rawang pada pagi itu juga.Setelah menghantar budak itu, OKT2 balik ke rumah di Cheras. Thomas telah memberi OKT2 sejumlah wang dalam sebuah beg melalui OKT3. [35] OKT2 telah ditangkap semasa dalam perjalanan untuk balik ke rumahnya di Cheras untuk mengambil kereta Honda City milik OKT1 yang disimpan di rumah OKT2.Pihak polis telah merampas wang yang diberikan oleh Thomas dan dua buah komputer riba milik OKT2 selain beberapa barang peribadi OKT2. 22 [36] OKT2 telah memanggil seorang saksi, Moo Tai Wai (SD4). Dalam keterangan bersumpah, SD4 telah menyatakan beliau tinggal di Kampung Baru Tanah Hitam dan menjalankan perniagaan sebuah kedai kopi yang hanya dibuka pada sebelah pagi. SD4 mengenali OKT1 sebagai kawan sekampung sejak daripada kecil. SD4 mengenali OKT2 dan OKT3 selama lebih kurang 3 tahun dan ketiga tiga mereka tinggal dalam sebuah rumah sewa dan bekerja sebagai bookie bola dengan seorang majikan bernama Thomas. SD4 pernah pergi ke rumah sewa ketiga-tiga OKT untuk menonton perlawanan bola dan urusan perjudian bola sepak. [37] Pada pagi 27.4.2012 OKT1, OKT 2 dan OKT3 telah datang ke kedai kopi SD4 dan antara jam 10 hinnga 11 pagi SD4 telah pergi ke rumah sewa ketiga-tiga OKT tersebut. SD4 ada melihat Thomas dan OKT1 datang kerumah sewa itu dengan membawa seorang budak lelaki India dan dibawa masuk tinggal dalam rumah itu. Thomas memberitahu SD4 bahawa bapa budak itu ada berhutang dengannya. SD4 turut ditangkap polis bersabit dengan budak lelaki itu tetapi telah dibebaskan kemudian. 23 OKT3 [38] Sejak bulan April 2012, OKT3 tinggal bersama sama dengan OKT1 dan OKT 2 di sebuah rumah sewa di Tanah Hitam, Chemor. OKT3 diambil bekerja oleh OKT1 sebagai bookie bola dan judi ekor. Majikan ialah seorang bernama Thomas. [39] Pada pagi 27.4.2012, OKT3 melihat OKT1 keluar mengikut seorang kawan pergi membeli peralatan sembahyang. OKT3 dan OKT2 kemudian turut keluar pergi bersarapan pagi di kedai SD4. Selepas sarapan OKT3 dan OKT2 balik ke rumah sewa, diikuti oleh SD4. Tidak berapa lama kemudian OKT1 balik menaiki kereta yang dipandu oleh Thomas. Seorang budak India turut berada bersama Thomas dan OKT1. [40] Menurut OKT3, budak India itu masuk ke dalam rumah sewa dengan sendiri; mata nya tidak ditutup dan tangannya tidak diikat. Tidak ada sesiapa memegang budak itu masuk ke dalam rumah. Thomas membawa budak itu masuk ke dalam sebuah bilik dan memberitahu OKT3 bahawa bapa budak itu ada berhutang dengannya dan meminta OKT-OKT menjaga budak India itu. Lepas Thomas pergi, bilik budak itu tidak dikunci. 24 [41] Selama budak India itu berada di rumah sewa mereka, OKT3 hanya memberikan makanan kepada budak India itu. Budak itu bebas di dalam rumah itu. Apabila OKT3 keluar bekerja, OKT3 tidak tahu apa berlaku kepada budak itu. [42] Pada 2.5.2012 waktu tengah malam Thomas ada menalipon OKT3 minta hantar budak India itu ke R&R Rawang bersama dengan OKT2 dan minta beri telefon bimbit dan wang RM50 kepada budak India itu. OKT3 telah memandu kereta dengan membawa OKT2 dan budak India itu ke R& R Rawang. Selepas meninggalkan budak India itu di situ, OKT3 dan OKT2 telah pergi ke rumah OKT2 di Cheras. OKT3 tinggal di rumah sewa OKT2 selama 4 hari. [43] Pada 6.5.2012 OKT3 menerima panggilan dari Thomas yang meminta untuk berjumpa OKT3 di Taman Segar, Cheras. Thomas beritahu dia akan keluar negara dan memberi OKT3 satu beg berisi sejumlah wang untuk diberikan kepada OKT1. Thomas mengatakan bahawa wang itu adalah wang perjudian untuk dibayar kepada pemenang judi. Pada 7.5.2012 OKT3 telah menyerahkan wang itu kepada OKT2. 25 [44] Pada 10.5.2012 waktu pagi, OKT3 telah ditangkap oleh pihak polis ketika OKT3 berada di rumah teman wanitanya di Banting. Polis ada merampas sedikit wang daripada OKT3 namun wang itu bukan wang tebusan tetapi milik teman wanita OKT3. [45] OKT3 tidak memanggil sebarang saksi untuk menyokong keterangan nya. Dapatan dan Keputusan Di akhir Kes Pembelaan [46] Di akhir kes pembelaan, HMT, mendapati pembelaan OKT-OKT gagal menimbulkan sebarang keraguan yang munasabah terhadap kes pihak pendakwaan. Ringkasan alasan penghakiman HMT di perenggan 83 Rekod Rayuan Jilid 2 adalah seperti berikut: “Saya telah menimbangkan keterangan membela diri kesemua OKT dalam kes ini dan mendapati bahawa pembelaan mereka berbentuk penafian semata-mata. Semua OKT telah meletakkan segala-galanya atas seorang yang mereka kenali sebagai Thomas, yang masih bebas dalam kes ini. Menurut OKT 3, Thomas telah pergi keluar Negara setelah menyerahkan wang RM45, 000 kepadanya untuk diserahkan kepada OKT1. Sedangkan ketiga-tiga OKT telah dicamkan oleh mangsa dalam 26 kawad cam yang telah diadakan dan turut dicamkan dalam kandang tertuduh. Semua OKT telah dituduhkan bersama atas niat bersama dengan suspek yang masih bebas tersebut. Mangsa turut memberitahu peranan setiap OKT dalam kes ini.” [47] Atas alasan-alasan tersebut, HMT telah mendapati ketiga-tiga OKT bersalah dan disabitkan atas pertuduhan yang dihadapkan kepada mereka. Selepas menimbangkan faktor-faktor kes, HMT telah menggunakan budi bicaranya menurut Seksyen 3 Akta Culik 1961 dibaca bersama Seksyen 34 Kanun Keseksaan untuk menjatuhkan hukuman penjara seumur hidup berkuatkuasa dari tarikh tangkap OKT-OKT dan 6 sebatan rotan ke atas setiap OKT. Rayuan OKT-OKT [48] Rayuan ketiga-ketiga OKT adalah terhadap sabitan dan hukuman yang dijatuhkan oleh HMT. [49] Meskipun petisyen rayuan mengandungi beberapa alasan rayuan, semasa bicara di hadapan mahkamah ini, peguam perayu telah berhujah di atas hanya dua isu sahaja iaitu:- (i) Kebolehpercayaan (credibility) keterangan mangsa; 27 (ii) Niat bersama. Isu Pertama: Credibility mangsa [50] Mangsa hanya berumur 12 tahun pada tarikh kejadian. Sebagai seorang kanak-kanak keterangan mangsa hendaklah disokong (corroborated) oleh keterangan bebas yang lain untuk menerima kesahihannya. Dalam kes ini, tiada keterangan sokongan untuk menyokong keterangan mangsa. Isu Kedua: Niat Bersama [51] HMT telah terkhilaf dari segi fakta dan undang-undang apabila memutuskan bahawa pihak pendakwaan telah berjaya membuktikan elemen niat bersama di bawah Seksyen 34 Kanun Keseksaan. [52] HMT telah membuat beberapa inferens mengenai isu niat bersama, yang diringkaskan seperti berikut: (i) Bahawa terdapat satu perancangan awal atau satu pemuafakatan fikiran di kalangan semua perlaku jenayah (termasuk OKT-OKT) untuk menculik mangsa. 28 (ii) OKT1 telah membenarkan kereta Proton Gen 2 berwarna hitam milik isterinya untuk digunakan bagi mencapai niat bersama mereka untuk menculik mangsa. (iii) Mangsa telah disimpan di sebuah rumah yang telah disewa khas atas nama OKT1. (iv) Perayu-perayu telah merancang tempat di mana wang tebusan akan diserahkan. (v) Mangsa menyatakan sepanjang masa apabila dibawa keluar dari bilik di mana mangsa dikurung terutama ke tandas, mangsa akan dikawal oleh salah seorang OKT. Ini menunjukkan kesepakatan niat bersama semua OKT (termasuk yang masih bebas) untuk mengurung dan menahan mangsa untuk mendapatkan wang tebusan. Dapatan Mahkamah [53] Berkenaan isu keterangan sokongan (corroboration) untuk menyokong keterangan mangsa yang masih kanak-kanak semasa kejadian, kami berpuas hati bahawa HMT telah mengambil semua langkah yang perlu berkenaan dengan keterangan mangsa. 29 [54] Sebagai langkah permulaan, HMT telah melakukan proses inkuiri terhadap tahap kepandaian SP16 dan mendapati SP16 mempunyai tahap kepandaian dan kecerdikan yang tinggi, dan dapat membezakan antara fantasi dan realiti. HMT juga mendapati bahawa SP16 faham akan maksud sumpah dan HMT telah membenarkan SP16 memberikan keterangan secara bersumpah dengan mematuhi seksyen 133A Akta Keterangan 1950 dan berpandukan prinsip-prinsip dalam kes Loo Chuan Huat v PP [1971] 2 MLJ 167 dan Chao Chong & Ors v PP [1960] 26 MLJ 23. [55] Seterusnya, HMT telah mendapati ada keterangan sokongan yang mencukupi untuk menyokong keterangan SP16 (perenggan 66-70 Alasan Penghakiman) seperti berikut: “Selain keterangan lisan SP1 yang melihat SP16 telah dilarikan oleh dua orang menggunakan kereta Proton Gen 2 berwarna hitam No. WPV 3132, juga terdapat keterangan saintifik yang mengaitkan semua OKT dengan jenayah yang dipertuduhkan. Terdapat bukti DNA dari rambut dan segumpal kertas tisu yang dijumpai dalam kereta yang telah digunakan oleh OKT1 dan seorang lagi yang masih bebas untuk melarikan SP16. Barangan milik pribadi SP16 berupa Gel Rambut (P 161 A) dan Hair Spray (P161B) turut dijumpai 30 dalam kereta yang sama. Kereta WPV 3132 didaftarkan atas nama saksi SP20, adalah isteri kepada OKT1. Keterangan SP20 menyatakan OKT1 sering menggunakan kereta tersebut termasuklah pada hari kejadian dimana SP16 mengesahkan OKT1 berada bersama seorang lagi semasa melarikan SP16 ke Chemor, Perak menggunakan kereta itu. Keterangan SP16 bahawa OKT2 dan OKT3 selain dari OKT1 dan seorang lagi berperanan mengurung beliau dirumah di Chemor disokong dengan bukti forensic. Terdapat DNA dan kesan cap jari semua OKT dan seorang lagi yang masih bebas berada dibeberapa tempat dalam rumah tersebut. Saksi SP19 mengesahkan telah mengutip kesan cap jari setiap OKT yang terdapat dalam rumah tersebut.Saksi SP10, tuanpunya rumah mengesahkan telah menyewakan rumah tersebut kepada OKT1 sejak pertengahan bulan April 2012. Mengenai permintaan wang tebusan bagi membebaskan SP16, terdapat keterangan kukuh dan mencukupi diberikan oleh SP17, bapa mangsa dalam kes ini. SP16 menyatakan bahawa suspek yang masih bebas telah meminta maklumat peribadi dan kata laluan akaun Facebook milikbeliau. Maklumat penting tersebut telah diberikan oleh SP16. SP17 pula mengesahkan beliau telah 31 menerima permintaan untuk wang tebusan dan telah berhubungan dengan para penculik melalui akaun Facebook anaknya. Setelah wang tebusan dibayar, mangsa telah dibebaskan. OKT2 dan OKT3 telah membawa SP16 ke R & R Rawang untuk dibebaskan setelah wang tebusan dibayar. Sebelum membebaskan SP16, OKT2 telah memberikan satu telefon Nokia dan wang RM50 kepada SP16. Barang-barang kes tersebut telah kemudiannya ditemui semula daripada SP16. Selain itu terdapat saksi bisu yang menyokong keterangan SP16 terhadap fakta SP16 diculik dan dilarikan. Keterangan bisu itu adalah berbentuk rakaman CCTV yang telah diterima oleh Mahkamah ini dan telah ditayangkan semasa perbicaraan.SP16 dapat mengecamkan OKT1 dan pemandu kereta hitam yang masih bebas semasa SP16 ditolak masuk dan dilarikan menggunakan kereta WPV 3132 tersebut. Melalui keterangan ASP Zuraini (SP15), beberapa barangan peribadi SP16 telah ditemui dari dalam rumah tempat SP16 dikurung. Barangan tersebut termasuklah sepasang pakaian sekolah yang berwarna oren (P42A dan P43A) milik SP16. Ini konsisten dengan keterangan SP16 bahawa OKT telah menukar pakaian SP16 setelah sampai dirumah tersebut.” 32 [56] Setelah menilai dapatan HMT, kami berpuas hati bahawa adanya keterangan bebas yang menyokong keterangan SP16. [57] Mengenai isu niat bersama tersebut, kami berpuas hati bahawa adanya keterangan yang kukuh untuk HMT membuat dapatan niat bersama ketiga-tiga OKT berhubung dengan pertuduhan terhadap mereka. HMT telah membuat inferens yang munasabah daripada fakta dan keadaan kes bahawa terdapat satu perancangan awal atau satu pemuafakatan fikiran di kalangan ketiga-tiga OKT. HMT dalam alasan penghakimanya menyatakan: (di perenggan 44-46). “Fakta bahawa semua perlaku kesalahan tinggal di Chemor, Perak sedangkan mangsa tinggal di sebuah kediaman mewah di Mont Kiara, Kuala Lumpur. Tentu satu perancangan awal dan teliti telah diatur sejak membuat pemilihan target atau mangsa yang akan diculik. Termasuklah cara mana dan dari mana mangsa akan dilarikan dan dikurung sehingga wang tebusan dibayar kepada mereka sebelum mangsa dibebaskan. OKT1 telah membenarkan kereta Proton Gen 2 berwarna hitam milik isteri beliau untuk digunakan bagi mencapai niat bersama mereka untuk menculik mangsa. 33 Kereta itu telah dipandu oleh Lee Chung Kee (Thomas) yang masih bebas. Setelah dilarikan, mangsa telah disimpan disebuah rumah yang telah disewa khas atas nama OKT1. Rumah itu baru disewakan daripada saksi SP10 pada pertengahan bulan April 2012 dan mula diduduki oleh OKT1, OKT2 dan OKT3 pada penghujung bulan tersebut. Malahan Lee Chung Kee turut disyaki tinggal dirumah yang sama memandangkan keterangan SP29 yang menyatakan terdapat kesan cap jari beliau dirumah itu. Cap jari ketiga-tiga OKT turut ditemui dibeberapa tempat dalam rumah sewa tersebut.” [58] Daripada keterangan, HMT juga telah mendapati kewujudan pemuafakatan di antara ketiga-tiga OKT. Antaranya, menyembunyikan kereta yang digunakan untuk menculik mangsa dengan menghantar kereta itu untuk dicat semula; menggunakan sebuah kereta Honda berwarna coklat untuk menghantar mangsa ke R & R Rawang, merancang tempat wang tebusan akan diserahkan oleh bapa mangsa. [59] Satu pemuafakatan untuk mencapai niat bersama antara ketiga- tiga OKT boleh didapati daripada peranan yang dimainkan oleh setiap OKT, termasuk Thomas. Menurut HMT: 34 “…Ini termasuklah tugas OKT1, OKT2 dan OKT 3 untuk menjaga dan melayan dengan baik mangsa sepanjang dikurung dirumah itu. Apa yang lebih penting peranan mereka untuk memastikan mangsa tidak akan dibiarkan lari dari rumah itu. Mereka telah didengar oleh mangsa bercakap-cakap sesama sendiri dalam Bahasa atau loghat Cina yang langsung tidak difahami oleh mangsa. Mangsa juga menyatakan sepanjang masa apabila dibawa keluar dari bilik kecil dimana mangsa dikurung terutama ketandas akan dikawal atau diescort oleh salah satu OKT. Ini menunjukkan kesepakatan dan niat bersama semua OKT termasuk yang masih bebas untuk mengurung dan menahan mangsa untuk mendapatkan wang tebusan. Sebaik wang tebusan diperolehi, mangsa terus sahaja dibebaskan di R & R Rawang”. [60] HMT juga tidak membuat kesilapan dalam mengambil pendirian bahawa kehadiran setiap OKT dalam mana-mana bahagian menculik, melarikan, mengurung dan meminta wang tebusan adalah tidak diperlukan untuk mencapai niat bersama menurut seksyen 34 Kanun Keseksaan. Rujukan dibuat pada kes Sabarudin bin Non & 3 Ors v PP (No. 1) [ 2005]1 AMR 4 dan Krishna Rao a/l Guru murthi v PP [2009] 2 CLJ 603 35 [61] Setelah menilai keterangan serta alasan penghakiman HMT, kami sebulat suara berpendapat bahawa sabitan ketiga-tiga OKT terhadap pertuduhan adalah selamat. Oleh itu, kami kekalkan sabitan yang dijatuhkan oleh HMT dan menolak rayuan ketiga-tiga OKT. Rayuan Pendakwa Raya terhadap Hukuman [62] Pendakwa Raya telah merayu terhadap hukuman penjara seumur hidup terhadap OKT 2 dan OKT3 yang dijatuhkan oleh HMT. Menurut Pendakwa Raya, hukuman yang lebih berat ia itu, hukuman gantung adalah lebih bersesuaian memandangkan mangsa hanya kanak-kanak yang berumur 12 tahun dan telah dikurung selama 7 hari sebelum dibebaskan.HMT telah mengambil kira bahawa mangsa telah dilayan dengan baik dan ketiga–tiga OKT tiada sabitan lampau dan akan berada di dalam penjara sekurang-kurangnya 20 tahun. Berdasarkan faktor- faktor yang relevan [perenggan 89- 91 alasan penghakiman] HMT telah menggunakan budibicaranya untuk menjatuhi hukuman penjara seumur hidup dan 6 sebatan rotan ke atas setiap OKT. Kami berpendapat tiada sebab untuk mengusik keputusan HMT berkenaan hukuman. Dengan itu, rayuan Pendakwa Raya terhadap hukuman juga ditolak. 36 [63] Akhir kata, kami kekalkan sabitan dan hukuman terhadap ketiga- tiga OKT. Sabitan di bawah seksyen 3 Akta Penculikan 1961 dibaca bersama seksyen 34 Kanun Keseksaan dan hukuman penjara seumur hidup bermula dari tarikh tangkap dan 6 kali sebatan rotan oleh HMT terhadap Perayu-Perayu disahkan dan dikekalkan. 11 OKTOBER 2017 TT DR. BADARIAH BINTI SAHAMID HAKIM MAHKAMAH RAYUAN MALAYSIA 37 COUNSEL: W-05(SH)-241-09/2015 ON BEHALF OF APPELLANT: En Rejinder Singh Rejinder Singh & Associates ON BEHALF OF RESPONDENT: Puan Nurshafini binti Mustafha Timbalan Pendakwa Raya Jabatan Peguam Negara PUTRAJAYA W-05(SH)-243-09/2015 ON BEHALF OF APPELLANT: En Amirul Ridzuan bin Hanif [Dato’ Hanif bin Hashim En Safuan Haslan bersama] Hanif & Co ON BEHALF OF RESPONDENT: Puan Nurshafini binti Mustafha Timbalan Pendakwa Raya Jabatan Peguam Negara PUTRAJAYA 38 W-05(SH)-244-09/2015 ON BEHALF OF APPELLANT: En Amirul Ridzuan bin Hanif [Dato’ Hanif bin Hashim En Safuan Haslan bersama] Hanif & Co ON BEHALF OF RESPONDENT: Puan Nurshafini binti Mustafha Timbalan Pendakwa Raya Jabatan Peguam Negara PUTRAJAYA W-05(H)-247-09/2015 ON BEHALF OF APPELLANT: Puan Nurshafini binti Mustafha Timbalan Pendakwa Raya Jabatan Peguam Negara PUTRAJAYA ON BEHALF OF RESPONDENT: En Rejinder Singh Rejinder Singh & Associates	41,975	Tika 2.6.0
BA-28NCC-33-01/2017	PEMOHON ARCHER DANIELS MIDLAND CO. … PEMPETISYEN RESPONDEN TTH GLOBAL (M) SDN BHD (No Syarikat: 761606-V) … RESPONDEN	null	11/10/2017	YA DATO' HAJI MOHD YAZID BIN HAJI MUSTAFA	https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=81e86839-f701-4a78-925e-929cd21c29da&Inline=true	1 DALAM MAHKAMAH TINGGI MALAYA DI SHAH ALAM DI NEGERI SELANGOR DARUL EHSAN SEMAKAN KEHAKIMAN SYARIKAT: BA-28NCC-33-01/2017 Dalam perkara Seksyen 218(1)(e) dan (i) Akta Syarikat 1965; Dan Dalam perkara TTH Global (M) Sdn Bhd ANTARA ARCHER DANIELS MIDLAND CO. … PEMPETISYEN DAN TTH GLOBAL (M) SDN BHD (No Syarikat: 761606-V) … RESPONDEN ALASAN PENGHAKIMAN 1. On 31.5.2017, the court dismissed the Respondent’s application for striking out (Enclosure 14) of the Winding-Up Petition and allowed the Petitioner’s application to wind up the company. 2. The reasons for the dismissing the Respondent’s application are as follows : i. The Respondent submitted that the notice was not valid as the heading of the notice pursuant to Section 218(2) (a) of 2 the Companies Act 1965. The counsel submitted that there is no such section 218(2) (a) of the Companies Act 1965. This is a fundamental error and it goes to the root of the Petition, irregular and defective. This fundamental error cannot be cured under Rule 194 of the Winding-Up Rules because it is not a formal defect or irregular. ii. Secondly, the Petition was not properly served. The service of the Petition on the Chinese lady who is not the director, nor a company secretary or an officer of the Respondent is irregular. iii. Thirdly, there are various denomination of currencies stated in the 218 notice i.e. US dollar, British pound and RM. It was submitted that the British and US dollar is fluctuating nearly every week, therefore it is very confusing. 3. In reply to the first issue, counsel for the Petitioner submitted that the subject title of the 218 notice was all set out in capital letters. The full subject title referred to 218(2) (A) in the actual body of the 218 notice, it refers to Section 218(1)(e) read together with Section 218(2) (a) of the Companies Act, therefore the notice is clearly a valid 218 notice. 4. On the second issue, it was submitted that the service was proper, as it was served on the registered address of the Respondent. Once the Petition has been left at the registered office, this is already in compliance with Rules 25 of the Winding-Up Rules as the Petition can be left with any member, officer, member, servant of the company, or even there is no member, officer or servant, then by leaving a copy at the registered office. It was further 3 submitted that the requirement of Rule 33 of the Winding -Up Rule was complied with. 5. On the third issue, the different currencies were in order to show the exact currencies and amount as set out in the court judgment. COURT FINDING 6. I agree with the petitioner counsel submission that the Respondent’s Striking-Out Application ought to have been made by way of summons. [Refer to Rule 7 of the Companies Winding- Up] 7. The Rule of Court, 2012 generally provides for applications to be made by way to Notice of Application, however the Rules specifically states the application relating to winding-up ought to be made either by notice of motion or summons. It is a well-known rule of construction that specific provision overrides general provisions Majlis Peguam & Anor v Tan Sri Dato’ Mohamed Yusoff bin Mohamed [1997] 2 MLJ 271 8. As such, I find that the Respondent’s Notice of Application to strike out the Winding-Up Petition is irregular. First Issue 9. I find the 218 Notice clearly state that is a “NOTICE PURSUANT TO SECTION 218 (2) (A) OF THE COMPANIES ACT 1965”. The entire heading of the 218 Notice was typed in capital letters and the relevant provision was also in capital letter. The last paragraph 4 of 218 Notice was referred clearly to in Section 218 (1) (e) read with Section 218 (2)(a) of the Companies Act 1965. 10. As such, I find the case of Ho Siew Choong & Ors v Everworth Sdn Bhd [Civil Appeal No. 28-3-2003] is distinguishable as in Hoo Siew Choong, the notice of demand was headed section 218 (e) and (i) of the Companies Act which are clearly non-existent. Further, the body of the notice of demand only referred to Section 218 of the Companies Act and failed to specifically state the correct sub-section. 11. In the circumstances, I find there is no defect to in the 218 Notice and thus, the 218 Notice is valid. Second Issue 12. Pursuant to Section 218 (2)(a) of the Companies Act, the petitioner only have to serve on the company by leaving the petition at the registered address which was done in this case. 13. It is not disputed that the Respondent’s registered address at the time of service of the 218 Notice was at No.49-2, The Highway Centre Jalan 51/205 Petaling Jaya, Selangor. It is also not disputed that the 218 Notice was served on the Respondent at its registered office. Indeed, the Respondent acknowledge receipt of the 218 Notice. Therefore, I find that there can be no dispute that the 218 Notice was properly served on the Respondent in accordance with Section 218 (2) (a) of the Companies Act. 14. Based on the above reasons, I agreed with the Petitioner Counsel Submission that the 218 Notice was properly served on the 5 Respondent in accordance in Section 218 (2)(a) of the Companies Act. Third Issue 15. In the case of PT Anekapangan Dwitama v Far East Food Industries Sdn Bhd [1998] 7 MLJ 270, Justice Arifin Jaka (as His Lordship then was) held that the notice of demand was valid even though the amount demanded was in US Dollars. His Lordship opined that the company was not prejudiced or misled in any way as the company knew what was the amount due from and payable by him to the petition, and more so when the amount was for a liquidated sum though it is in US Dollars. 16. Similarly, the sums demanded by the Petitioner in the 218 Notice are based on the award as enforced by the Enforcement Order, as well as the March Orders, which the Respondent had knowledge of. In fact, the Petitioner had listed out clearly in the 218 Notice the amount due and owing and the basis for the amount. 17. I am of the view that the 218 Notice is not a confusing on the mere fact that the sums stated are in foreign currencies. 18. Therefore, the Respondent striking out application has no merits. Enclosure 1 19. The Respondent has failed to show any bona fide dispute of the debt. The Respondent has received the Notice and there was no respond to the demand notice from the Petitioner. The statutory demand demanded that the Respondent pay to the Petitioner the judgment sum within 21 days of the receipt of the statutory 6 demand. Thus, the Respondent is presumed to be unable to pay its debt. 20. As there is no affidavit of opposition filed by the Respondent, therefore there is no bona fide dispute of the debt due and owing by the Respondent to the Petitioner and that the Respondent is unable to pay its debt. I therefore allowed the Petitioner’s application that the Respondent be wound out. YA DATO’ HAJI MOHD YAZID BIN HAJI MUSTAFA JUDGE (LJC) SHAH ALAM HIGH COURT 11 OKTOBER 2017 Parties Applicant’s Counsel: Mr Lee Shih from Messrs Skrine Respondent’s Counsel: Mr Saran Singh from Messrs Saran Singh & Co	7,429	Tika 2.6.0
WA-24NCC-17-01/2017	PLAINTIF TRADELIFT INDOPALM INDUSTRIES SDN BHD (No. Syarikat: 691362-U) DEFENDAN WARIS SELESA SDN BHD (No. Syarikat: 405758-M)	null	10/10/2017	YA TUAN MOHD NAZLAN BIN MOHD GHAZALI	https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=ce43cf9c-66e1-47e0-9c82-388183803402&Inline=true	null	null	Failed Extraction
WA-24NCC-17-01/2017	PLAINTIF TRADELIFT INDOPALM INDUSTRIES SDN BHD (No. Syarikat: 691362-U) DEFENDAN WARIS SELESA SDN BHD (No. Syarikat: 405758-M)	null	10/10/2017	YA TUAN MOHD NAZLAN BIN MOHD GHAZALI	https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=ce43cf9c-66e1-47e0-9c82-388183803402&Inline=true	null	null	Failed Extraction
12B-150-07/2015	PERAYU 1. WAHIDUZZAM BIN WAAIDI 2. MUHAMMAT FANSIL BIN SUEP RESPONDEN MUHAMMAD FARIZ HARRAZ BIN HASHIM	null	10/10/2017	YA DATIN ZALITA BINTI DATO' HJ. ZAIDAN (PK)	https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=1cf64806-b956-43a9-aab5-aeed3567ff21&Inline=true	DALAM MAHKAMAH TINGGI DI SHAH ALAM DALAM NEGERI SELANGOR DARUL EHSAN RAYUAN SIVIL NO.: 12B-150-07/2015 ANTARA 1. WAHIDUZZAM BIN WAAIDI 2. MUHAMMAT FANSIL BIN SUEP …PERAYU-PERAYU DAN MUHAMMAD FARIZ HARRAZ BIN HASHIM …RESPONDEN DALAM MAHKAMAH MAJISTRET DI BANDAR BARU BANGI DALAM NEGERI SELANGOR DARUL EHSAN SAMAN NO.: A73KJ-318-6/2014 ANTARA MUHAMMAD FARIZ HARRAZ BIN HASHIM …PLAINTIF DAN 1. WAHIDUZZAM BIN WAAIDI 2. MUHAMMAT FANSIL BIN SUEP …DEFENDAN-DEFENDAN 3. GROUND OF JUDGMENT Introduction [1] This appeal by the Appellants on the Sessions Court’s decision, derived from a road accident matter. The Appellants who are the Defendants, are appealing only for the award of loss of earnings and loss of earning capacity where the Sessions Court had allowed for the Respondent, the Plaintiff. The Sessions Court decided that the liability is 90% on the Defendants and 10% on the Plaintiff. [2] The parties, in this judgment, will be known as they were in the Sessions Court. Facts [3] The Defendants’ grounds of appeal as in the Amended Memorandum of Appeal dated 26.11.2015 are as follows: “1. Hakim Mahkamah Sesyen telah terkhilaf apabila mengawadkan sejumlah RM9,600.00 bagi kehilangan pendapatan walaupun Plaintif gagal membuktikan pekerjaan sahihnya sebelum kemalangan dan jumlah pendapatannya adalah setinggi itu. 2. Hakim Mahkamah Sesyen telah terkhilaf apabila mengawadkan sejumlah RM80,000.00 bagi kehilangan keupayaan pendapatan masa hadapan walaupun tiada saksi yang sesuai dipanggil untuk memberikan keterangan mengenai pekerjaan ataupun pendapatan Plaintif sebelum kemalangan mahupun selepas kemalangan. 3. Hakim Mahkamah Sesyen telah terkhilaf apabila gagal memberi sebarang penjelasan untuk membenarkan awad bagi kehilangan keupayaan pendapatan yang tinggi iaitu RM80,000.00. 4. Hakim Mahkamah Sesyen telah terkhilaf apabila gagal mempertimbangkan hujahan Defendan untuk menolak keterangan saksi SP-1 dan SP-2 keseluruhan atas isu dokumen berkaitan tuntutan bagi kehilangan pendapatan dan kehilangan keupayaan pendapatan masa hadapan yang difailkan oleh Plaintif adalah diragui serta dipertikaikan ketika pemeriksaan balas SP-1 dan SP-2.” [4] The Plaintiff claimed that he suffered a very serious injury to his leg and knee where he had to be on medical leave for two years after the accident and for 22 months he was unable to walk. [5] The Plaintiff stated that he works for Meor Bakery as a driver and was working at the day of accident. As a driver, he is to deliver bread and cake baked by Meor Bakery to the shops at the higher institutions for instance UM and UKM. The Plaintiff claimed that his basic salary is RM800 and his attendance allowance is RM100 and is paid commission at RM0.01 cent per bread sold and his monthly commission would be RM 250.00. [6] The Plaintiff did not return to work after the accident and has not been receiving any salary. The Plaintiff’s employment, Meor Bakery had ceased operation in March 2014 due to financial woes and the Plaintiff claimed that all company records other than those submitted at Sessions Court were lost or misplaced. [7] The Sessions Court allowed for Loss of Earnings of RM9,600 for the 24 months Plaintiff was on medical leave and for Loss of Earning Capacity of lump sum RM80,000.00. Plaintiff’s case [8] Based on Plaintiff’s counsel’s written submission at pages 3-4, it was submitted that the Plaintiff’s oral evidence at the Sessions Court were supported by the original documents as exhibits, among others: “(i) Sijil Cuti Sakit Hospital Ampang dari tarikh kemalangan 11/7/2013 sehingga tarikh bicara 11/5/2015;(kesemuanya dipersetujui) M/S 60-82, 156-157, 160-161 Rekod Rayuan) (ii) Surat Tawaran Perlantikan Kerja (Eksibit P-1 M/S 84-88 Rekod Rayuan) (iii) Sijil Pendaftaran Peniagaan Meor Bakery (Ekshibit P-2 M/S 83 Rekod Rayuan) (iv) Sijil Pendaftaran Perniagaan Meor Bakery 2013 sehingga 2017 (Ekshibit P-3 M/S 102 Rekod Rayuan) ….. (vii) Surat pengesahan Pekerjaan (Ekshibit P-6 M/s 89 Rekod Rayuan) (Majikan telah mengesahkan terdapat kesilapan menaip di mana tarikh akhir pekerjaan Plaintif adalah pada 31 Mac 2014 bukan 31 Mac 2013…..” [9] It was submitted in reference to the specialist report of the Plaintiff at page 56 of Appeal Record, and the Defendant’s, where the specialist for the Plaintiff stated, “He is unable to go back to pre-injury occupation due to stiffness at the ankle. There is surgical site dan possible deep tissue infection that will recover long term antibiotic with possible additional surgery for eradication. This necessitates long follow up with inability to return work for the foreseeable medium time frame” (emphasised by Plaintiff’s counsel) Whereas the Defendant’s specialist (page 99 of Appeal Record) stated, “At this point I believe that he is still on medical leave from his attending doctor but there is no reason why he should not be able to go back to his previous occupation and all other physical activities in the next 3-4 months” (emphasised by Plaintiff’s counsel) [10] The Plaintiff’s counsel in his written submission submitted that the Defendant’s specialist’s report was in January 2015 and the Plaintiff who came to Sessions Court on 11.5.2015 to testify was unable to walk and was on medical leave and had been classified as a disabled person, a ‘OKU’. The counsel submitted that the Plaintiff is unable to work and would not be able to work in the near future and relied on a number of authorities, to name a few, the case of Sumarni v Yow Bing Kwong & Anor [2008] 3 CLJ 489; Tan Swee Tiong v Khor Chin Hau [2002] 1 CLJ 486; Fadzly Nor Rahim & Anor v Chang Foh Chin [2007] 10 CLJ 233; Lee Chong Keong v Cheong Kok Weng [1995] 1 LNS 107. [11] The Plaintiff’s counsel at paragraph 2.17 of his written submission relied on the High Court case of Abdul Aziz Ahmad & Anor v Sharifah Nor Hafizah Syed Abd Rahman [2009] 1 LNS 1615 where the Plaintiff returned to his work after 2 years after the accident and was awarded RM40,000 for loss of earning capacity based on the medical report although the said medical report does not support the conclusion that plaintiff is incapable of earning a living. It was submitted that the Plaintiff’s disability as evidenced in the medical report, shows that the Plaintiff will face a substantial risk of either losing her job or getting a less paid employment in future and relied on Yang Yap Fong & Anor v Leong Pek Hoon & Anor [1987] CLJ 419. [12] In relation to loss of earnings, Plaintiff’s counsel submitted in its written submission that the Plaintiff is of 21 years of age and the lump sum of RM80,000.00 be retained, relying on the authority Abdul Aziz Ahmad (supra) case, “Plaintif berumur 21 tahun pada waktu kemalangan Multiplier untuk kehilangan Pendapatan Masa Depan adalah 16 tahun (Akta Sivil 1956) Pendapatan Sebelum Perbicaraan Awad RM9,600.00 yang dibenarkan wajar dikekalkan Pendapatan Selepas Perbicaraan Adalah menjadi hujahan pihak Plaintif abahwa untuk awad ini, awad loss of earning capacity harus dikekalkan kepara Plaintif sememangnya tidak boleh bekerja untuk masa terdekat dan terdapat bahawa beliau tidak boleh mendapat pekerjaan yang sama dan telah diklasifikasikan sebagai OKU (“Orang Kurang Upaya”)(Ruk: Ekshibit P-8 M/S 59 Rekod Rayuan) …..” Defendant’s case [13] The learned counsel for the Defendant advanced several grounds for this appeal and averred that for the award of RM9,600 for loss of earnings, it should not be allowed based on the discrepancy of facts and evidence of the Plaintiff. The main arguments meted out are, briefly, as follows: (a) The Plaintiff had stopped working at Meor Bakery in March 2013, 4 months before the accident (see page 4 of Defendant’s counsel’s written submission). It was submitted that any oral evidence of SP2 and SP1 on the salary which was given without the support of documentation must not be considered as it would be a hearsay. (b) The Plaintiff’s witness, Encik Meor Ammar, SP1 whom testified in Court was not the Director in charge of salary and welfare of workers of Meor Bakery but was only ‘Pengarah Operasi’. The Director in charge of salary is one Nurulhuda whom the Plaintiff did not call as witness and SP1 admitted that he need not prepare the contract of employment as it will be prepared by Nurulhuda. (c) The company Meor Bakery had ceased operation on 31.3.2014. The Defendant’s counsel brought to this Court’s attention that the Plaintiff’s witness, SP1, wanted to amend his letter of 23.11.2014 (page 89 of Appeal Record) that was issued on Plaintiff’s employment upon Plaintiff’s request, after the company Meor Bakery had ceased operation and without any supporting documents. (d) The contract of employment of 8.10.2012 (pages 84-88 of Appeal Record) did not show the signature of the Plaintiff to proof that Plaintiff is employed by Meor Bakery. The Bill Book (exhibit P7) shown by SP1 did not reflect Plaintiff’s attendance nor Plaintiff’s signature of the deliveries made. (e) The contract of employment’s terms do not show the working hours of the Plaintiff. The salary scale provided only mentioned RM800.00 as basic salary with RM100.00 as attendance allowance if Plaintiff is a permanent driver. [14] The counsel for the Defendant averred that SP2’s and SP1’s evidence, in totality, is doubtful and raises the question as to whether SP1 testified in court as Plaintiff’s employer or Plaintiff’s friend. It was also submitted in writing that the Plaintiff testified that upon receiving his salary, he will sign a salary voucher but none of the salary vouchers were produced in court nor was there any document from Meor Bakery on Plaintiff’s salary. [15] In relation to the submission that Plaintiff failed to call a witness in charge of his salary to testify, the Defendant’s counsel asserted that section 114(g) of Evidence Act 1950 on the principle of adverse inference be invoked against the Plaintiff and that both witnesses were worried that the truth will be revealed that at the time of the accident, the Plaintiff no longer works for Meor Bakery as Meor Bakery had ceased operation. [16] It was contended by the Defendant’s counsel in his written submission (pages 6-10 of HUJAHAN BERTULIS PERAYU DEFENDAN) that the Plaintiff is not entitled to award for loss of earning capacity of RM80,000.00 as this would connote that his injury was very serious and the award was excessive. In addition, the counsel submitted that based on the specialist report which should be considered as evidence, in particular at page 99 of the Appeal Record, the Plaintiff failed to prove that he is entitled for loss of earning capacity. The Sessions Court’s Decision [17] Some of the Sessions Court’s decision is found in Supplementary Appeal Record and reproduced here in parts, for ease of reference: “…. Walaubagaimana pun Mahkamah membuat keputusan sedemikian setelah berpuas hati dan bersetuju dengan hujahan Plaintif bahawa Plaintif bekerja sebelum kemalangan berlaku. Ini berdasarkan keterangan yang diberikan oleh saksi-saksi Plaintif iaitu SP2 (Plaintif sendiri) dan SP1 (wakil Majikan) yang mengesahkan tentang isu tersebut. Mahkamah merujuk kepada kes yang sama dirujuk oleh peguamcara Plaintif iaitu Sumarni v Yow Being Kweng & Anor [2008] 1 MLJ 608. …… Oleh itu Mahkamah berpendapat Plaintif memang layak mendapat pampasan bagi tuntutan ini setelah merujuk kepada keterangan beliau di Mahkamah yang beliau bekerja sebagai pemandu van menghantar roti dan disokong pula dengan keterangan wakil majikan iaitu SP1 serta dokumen kontrak lantikan bekerja yang ditandakan sebagai ekhibit di Mahkamah. ….. Oleh yang demikian berdasarkan alasan di atas maka Mahkamah berpendapat bahawa tuntutan Plaintif bagi kehilangan keupayaan pendapatan masa hadapan patut dan munasabah serta setimpal dengan bukti serta keterangan yang dikemukakan di Mahkamah dan setelah mengambil kira faktor umur Plaintif yang masih muda iaitu hanya 21 tahun pada masa kejadian berlaku, serta setelah mengambil kira faktor ekonomi semasa, maka Mahkamah sekali lagi menegaskan bahawa awad yang dibenarkan adalah sama sekali tidak eksesif sebagaimana yang didakwa oleh peguamcara Defendan. Ini kerana ia dibuat setelah mengambil semua fakta kes sebagaimana keterangan lisan serta dokumen berkaitan yang dikemukakan oleh Plaintif di Mahkamah. [ii] Gantirugi Khas oleh Plaintif: (atas dasar 100%) a. Item (n) Kehilangan pendapatan sebenar -RM400.00 x 24 bulan = RM9,600.00 ….. Setelah menilai hujahan kedua-dua pihak Mahkamah berpendapat cadangan awad yang dicadangkan Plaintif adalah terlalu eksesif serta lumayan manakala cadangan Defendan pula difikirkan terlalu rendah dan tidak berpatutan. Maka Mahkamah telah mengambil pendekatan dengan membuat keputusan dengan membenarkan awad sebanyak RM9,600.00 berdasarkan kiraan seperti berikut; (RM400.00 x 24 = RM9,600.00) Mahkamah berpendapat bahawa jumlah RM400.00 sebulan bagi tempoh 24 bulan wajar diberikan bagi tuntutan ini. Jumlah RM400.00 sebulan dikira setelah mengambil kira gaji Plaintif sebanyak RM1,150.00 sebulan dan ditolak dengan perbelanjaan petrol dan makan minum Plaintif semasa bekerja. Berdasarkan perkiraan dan alasan tersebut Mahkamah berpendapat awad bagi tuntutan ini adalah suatu awad yang sesuia dan munsabah dan sama sekali tidak terlalu lumayan dan tinggi.” THE COURT’S FINDING [18] I will start of by saying that the Plaintiff’s counsel did not attend this hearing due to his mistaken belief on the date of hearing before this Court. Based on Order 55 rule 10 (2) of the Rules of Court 2012, where the appellant appears but the respondent fails to appear either in person or by a solicitor, the appeal shall proceed in the absence of such respondent. I do not see any reason to adjourn the hearing as both counsels had submitted their written submissions and I have read them prior to the hearing of this appeal. [19] Reverting to the facts and evidence of this case, it is the Plaintiff who brought this suit for a road accident case and the Defendant appealed on the award, only for loss of earnings and loss of future earnings. The burden of proof as well as the initial onus to prove the claim rest with the Plaintiff and the Plaintiff is to discharge its onus to prove its cause of action against the Defendant as decided by the Federal Court in the case of Letchumanan Chettiar Alagappan @ L. Allagapan, M. Venkatachalam S/O Venkatachalam Chettiar v Secure Plantation Sdn Bhd No. 02-78-10/2014. Based on Letchumanan Chettiar (supra) case, section 101 of the Evidence Act 1950 was referred holding that the burden to establish the case rests throughout on the party who asserts the affirmative of the issue. [20] The heart of the matter involves damages and before this Court can interfere with an award of damages, this Court must be satisfied, based on the principle in Davies v Powell Duffryn Associated Collieries Ltd [1942] AC 601 as referred by the Court of Appeal in Lay Hong Food Corporation Sdn Bhd v Tiong Nam Logistics Solutions Sdn Bhd [2017] 1 LNS 708, that the trial Judge had acted on the wrong principle of law or has misapprehended the facts or made wholly erroneous estimate of the damage suffered. [21] This is as decided by the Federal Court in the case of Inas Faiqah Mohd Helmi (a child suing through her father and next friend, Mohd Helmi Abdul Aziz) v Kerajaan Malaysia & 2 Ors [2016] 1 PIR [16]; [2016] 2 CLJ 885 where YA Abdull Hamid Embong FCJ (as he then was), had occasion to say, “It is trite that damages served as compensation, not a reward, less still a punishment. In assessing damages, the courts should not be motivated by sympathy and award fair compensation based on cogent evidence. The court could not descend into a domain of speculation. The evaluation of evidence which form the basis of any risk of future damage, must still be undertaken. The trial judge could only evaluate such evidence based on the recognized balance of probability standard, but with a lower degree of certainty as to the occurrence of such loss or damage in the future.” Loss of Earnings [22] Claims for loss of earnings had been extensively discussed in may great authorities and I rely on the case decided by the Federal Court in Ngooi Ku Siong & Anor v Aidi Abdullah [1984] 1 CLJ 294 which was referred by the Court of Appeal in the case of Sumarni v Yow Bing Kwong & Anor [2008] 3 CLJ 489 that, loss of earning is considered as a pre-trial loss, it is an actual amount of earnings lost by a plaintiff as a result of an accident caused by the defendant. [23] Based on the evidence of the medical certificates from Hospital Ampang where Plaintiff was hospitalized and was treated (pages 60-82 and pages 160-161 of Appeal Record) after the accident since 12.7.2013 until 11.5.2015, this Court finds that the medical certificates were never challenged by the Defendant’s counsel (pages 8 and 107 of Second Supplementary Appeal Record where the medical certificates by Government hospital were agreed). I viewed that the medical certificates were issued for the purpose of informing or stating that the Plaintiff is on medical leave, unfit to attend work due to the accident. [24] Upon careful perusal of the factual evidence, based on the notes of evidence of SP1 (Second Supplementary Appeal Record), whom testified as representative of Meor Bakery, is one of the shareholders of Meor Bakery (page 20 of the Second Supplementary Appeal Record), and as partners with his own sister and brother-in-law. It was testified that the company Meor Bakery was in operation since 2011 but the premise licensed exhibited due to moving premise was from 2012 until 2014 (page 19 of Second Supplementary Appeal Record). SP1 testified that the Plaintiff was employed since 2012 (page 16 of Second Supplementary Appeal Record). SP2 admitted the mistake on the date of employment which should have been 31 March 2014 as the date of ceased operation of Meor Bakery (pages 21-22 of Second Supplementary Appeal Record). [25] I viewed that it is the duty of the Court to evaluate the facts and the evidence before arriving at a decision whether to allow or dismiss a claim for damages for loss. I am also mindful that the trial judge had the opportunity to examine the demeanour of the witnesses in assessing the genuineness of their claims and testimony. Following the authority of Lee Ing Chin & Ors v Gan Yook Chin & Anor [2003] 2 CLJ 19, Justice Gopal Sri Ram (as he then was) at page 33 had remarked that the trial judge must test the oral evidence of the witness against the evidence placed before him: “A judge who is required to adjudicate upon a dispute must arrive at his decision on an issue of fact by assessing, weighing and, for good reasons, either accepting or rejecting the whole or any part of the evidence placed before him. …If there are contemporary documents, then he must test the oral evidence of a witness against these. …. A trier of fact who makes findings based purely upon the demeanour of a witness without undertaking a critical analysis of that witness’ evidence runs the risk of having his findings corrected on appeal. …” [26] Therefore, based on the medical certificates of the Plaintiff and the testimony of SP1 and the Plaintiff’s, where Plaintiff verified that he worked as a driver and has to deliver the bread as early as 6am (page 77 and page 105 of the Second Supplementary Appeal Record), admitting that he was on probation, this Court viewed that, on the balance of probability, the Plaintiff was in employment at the time of the accident. [27] At the Sessions Court, both counsels submitted the proposed award for loss of earnings. The Session Judge found that the proposed award by Plaintiff’s counsel was excessive, whereas the Defendant’s proposed award based on RM260 per month after deducting meals and transport petrol, is way too low. Considering the Session Judge’s decision based on the rate at RM400.00 per month, based on salary of RM1,150.00, multiplied with the 24 months period of medical leave, I viewed that the Session Judge’s award for loss of earnings at RM9,600.00 is reasonable. Loss of Earning Capacity [28] Having found the Plaintiff worked prior to the accident, based on the cases Ngooi Ku Siong (supra) and Sumarni (supra), there are elements to be proven if the claimant cannot go back to work completely. The Plaintiff is 21 years of age and I viewed that for him to decide that he will not work in the future is too early to be determined and thus would fall under the category of speculation. In order to determine that he will have a diminished earning capacity, it must be based on evidence. This Court holds the view that there is evidence that the Plaintiff will be able to work and should be able to find employment. This is corroborated by the latest specialist report which is by the Defendant’s specialist report of 20.1.2015 (page 92-96 of Appeal Record) and specialist letter of 4 February 2015 (page 99 of Appeal Record), which in the latter, stated, “….I have stated my opinion that the fractures have healed and he should be started on walking without crutches. At this point in time I believe he is still on medical leave from his attending doctor but there is no reason why he should not be able to go back to his previous occupation and all other physical activities in the next 3-4 months.” [29] Although the Plaintiff contended that he was still in pain and could not at the time of trial resume work, it does not give a blanket conclusion that he is unable to work completely. I hold the view that based on the latest specialist report of 20.1.2015 and 4.2.2015, to which the Session Judge may have inadvertently overlooked, I conclude that there is no real and substantial risk of diminished earning capacity in the Plaintiff’s future. [30] In relation to the case referred of Abdul Azizi Ahmad (supra), I find that, as correctly pointed out by the Defendant’s counsel, the High Court in that case allowed the appeal “only to the extent of substituting the award for loss of future earnings with an award of earning capacity in the sum of RM40,000.00.” and therefore I viewed that case should be distinguished from the current case. [31] In light of the above reasons, I partially allow the appeal, that is the award for loss of earnings of RM9,600.00 is retained and the award for loss of earning capacity is dismissed. The appeal deposit be refunded to the Defendant. Dated: 30 October 2017 (ZALITA BINTI DATO’ ZAIDAN) Judicial Commissioner Shah Alam High Court COUNSEL FOR THE APPELLANT/DEFENDANT T. ARCHANA DEVI Tetuan Viknes Ratna & Co Advocates and Solicitors 1-5-10, Tingkat 5, Blok C, Jalan 1/50, Diamond Square, Off Jalan Gombak, 53100 Kuala Lumpur. [Ref: SO/KL/L/P/2934/13] Tel: 03-4025 2461 Fax: 03-4025 4460 COUNSEL FOR THE RESPONDENT/PLAINTIFF PREMJIT SINGH Tetuan Sabarudin Othman & Ho Advocates & Solicitors No. 12 Jalan Yap Kwan Seng 50450 Kuala Lumpur [Ref: VRC/1335/3/041/ACC/14/a] Tel: 03-2162 1324 Fax: 03-2162 8923 19	23,221	Tika 2.6.0
12B-150-07/2015	PERAYU 1. WAHIDUZZAM BIN WAAIDI 2. MUHAMMAT FANSIL BIN SUEP RESPONDEN MUHAMMAD FARIZ HARRAZ BIN HASHIM	null	10/10/2017	YA DATIN ZALITA BINTI DATO' HJ. ZAIDAN (PK)	https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=1cf64806-b956-43a9-aab5-aeed3567ff21&Inline=true	DALAM MAHKAMAH TINGGI DI SHAH ALAM DALAM NEGERI SELANGOR DARUL EHSAN RAYUAN SIVIL NO.: 12B-150-07/2015 ANTARA 1. WAHIDUZZAM BIN WAAIDI 2. MUHAMMAT FANSIL BIN SUEP …PERAYU-PERAYU DAN MUHAMMAD FARIZ HARRAZ BIN HASHIM …RESPONDEN DALAM MAHKAMAH MAJISTRET DI BANDAR BARU BANGI DALAM NEGERI SELANGOR DARUL EHSAN SAMAN NO.: A73KJ-318-6/2014 ANTARA MUHAMMAD FARIZ HARRAZ BIN HASHIM …PLAINTIF DAN 1. WAHIDUZZAM BIN WAAIDI 2. MUHAMMAT FANSIL BIN SUEP …DEFENDAN-DEFENDAN 3. GROUND OF JUDGMENT Introduction [1] This appeal by the Appellants on the Sessions Court’s decision, derived from a road accident matter. The Appellants who are the Defendants, are appealing only for the award of loss of earnings and loss of earning capacity where the Sessions Court had allowed for the Respondent, the Plaintiff. The Sessions Court decided that the liability is 90% on the Defendants and 10% on the Plaintiff. [2] The parties, in this judgment, will be known as they were in the Sessions Court. Facts [3] The Defendants’ grounds of appeal as in the Amended Memorandum of Appeal dated 26.11.2015 are as follows: “1. Hakim Mahkamah Sesyen telah terkhilaf apabila mengawadkan sejumlah RM9,600.00 bagi kehilangan pendapatan walaupun Plaintif gagal membuktikan pekerjaan sahihnya sebelum kemalangan dan jumlah pendapatannya adalah setinggi itu. 2. Hakim Mahkamah Sesyen telah terkhilaf apabila mengawadkan sejumlah RM80,000.00 bagi kehilangan keupayaan pendapatan masa hadapan walaupun tiada saksi yang sesuai dipanggil untuk memberikan keterangan mengenai pekerjaan ataupun pendapatan Plaintif sebelum kemalangan mahupun selepas kemalangan. 3. Hakim Mahkamah Sesyen telah terkhilaf apabila gagal memberi sebarang penjelasan untuk membenarkan awad bagi kehilangan keupayaan pendapatan yang tinggi iaitu RM80,000.00. 4. Hakim Mahkamah Sesyen telah terkhilaf apabila gagal mempertimbangkan hujahan Defendan untuk menolak keterangan saksi SP-1 dan SP-2 keseluruhan atas isu dokumen berkaitan tuntutan bagi kehilangan pendapatan dan kehilangan keupayaan pendapatan masa hadapan yang difailkan oleh Plaintif adalah diragui serta dipertikaikan ketika pemeriksaan balas SP-1 dan SP-2.” [4] The Plaintiff claimed that he suffered a very serious injury to his leg and knee where he had to be on medical leave for two years after the accident and for 22 months he was unable to walk. [5] The Plaintiff stated that he works for Meor Bakery as a driver and was working at the day of accident. As a driver, he is to deliver bread and cake baked by Meor Bakery to the shops at the higher institutions for instance UM and UKM. The Plaintiff claimed that his basic salary is RM800 and his attendance allowance is RM100 and is paid commission at RM0.01 cent per bread sold and his monthly commission would be RM 250.00. [6] The Plaintiff did not return to work after the accident and has not been receiving any salary. The Plaintiff’s employment, Meor Bakery had ceased operation in March 2014 due to financial woes and the Plaintiff claimed that all company records other than those submitted at Sessions Court were lost or misplaced. [7] The Sessions Court allowed for Loss of Earnings of RM9,600 for the 24 months Plaintiff was on medical leave and for Loss of Earning Capacity of lump sum RM80,000.00. Plaintiff’s case [8] Based on Plaintiff’s counsel’s written submission at pages 3-4, it was submitted that the Plaintiff’s oral evidence at the Sessions Court were supported by the original documents as exhibits, among others: “(i) Sijil Cuti Sakit Hospital Ampang dari tarikh kemalangan 11/7/2013 sehingga tarikh bicara 11/5/2015;(kesemuanya dipersetujui) M/S 60-82, 156-157, 160-161 Rekod Rayuan) (ii) Surat Tawaran Perlantikan Kerja (Eksibit P-1 M/S 84-88 Rekod Rayuan) (iii) Sijil Pendaftaran Peniagaan Meor Bakery (Ekshibit P-2 M/S 83 Rekod Rayuan) (iv) Sijil Pendaftaran Perniagaan Meor Bakery 2013 sehingga 2017 (Ekshibit P-3 M/S 102 Rekod Rayuan) ….. (vii) Surat pengesahan Pekerjaan (Ekshibit P-6 M/s 89 Rekod Rayuan) (Majikan telah mengesahkan terdapat kesilapan menaip di mana tarikh akhir pekerjaan Plaintif adalah pada 31 Mac 2014 bukan 31 Mac 2013…..” [9] It was submitted in reference to the specialist report of the Plaintiff at page 56 of Appeal Record, and the Defendant’s, where the specialist for the Plaintiff stated, “He is unable to go back to pre-injury occupation due to stiffness at the ankle. There is surgical site dan possible deep tissue infection that will recover long term antibiotic with possible additional surgery for eradication. This necessitates long follow up with inability to return work for the foreseeable medium time frame” (emphasised by Plaintiff’s counsel) Whereas the Defendant’s specialist (page 99 of Appeal Record) stated, “At this point I believe that he is still on medical leave from his attending doctor but there is no reason why he should not be able to go back to his previous occupation and all other physical activities in the next 3-4 months” (emphasised by Plaintiff’s counsel) [10] The Plaintiff’s counsel in his written submission submitted that the Defendant’s specialist’s report was in January 2015 and the Plaintiff who came to Sessions Court on 11.5.2015 to testify was unable to walk and was on medical leave and had been classified as a disabled person, a ‘OKU’. The counsel submitted that the Plaintiff is unable to work and would not be able to work in the near future and relied on a number of authorities, to name a few, the case of Sumarni v Yow Bing Kwong & Anor [2008] 3 CLJ 489; Tan Swee Tiong v Khor Chin Hau [2002] 1 CLJ 486; Fadzly Nor Rahim & Anor v Chang Foh Chin [2007] 10 CLJ 233; Lee Chong Keong v Cheong Kok Weng [1995] 1 LNS 107. [11] The Plaintiff’s counsel at paragraph 2.17 of his written submission relied on the High Court case of Abdul Aziz Ahmad & Anor v Sharifah Nor Hafizah Syed Abd Rahman [2009] 1 LNS 1615 where the Plaintiff returned to his work after 2 years after the accident and was awarded RM40,000 for loss of earning capacity based on the medical report although the said medical report does not support the conclusion that plaintiff is incapable of earning a living. It was submitted that the Plaintiff’s disability as evidenced in the medical report, shows that the Plaintiff will face a substantial risk of either losing her job or getting a less paid employment in future and relied on Yang Yap Fong & Anor v Leong Pek Hoon & Anor [1987] CLJ 419. [12] In relation to loss of earnings, Plaintiff’s counsel submitted in its written submission that the Plaintiff is of 21 years of age and the lump sum of RM80,000.00 be retained, relying on the authority Abdul Aziz Ahmad (supra) case, “Plaintif berumur 21 tahun pada waktu kemalangan Multiplier untuk kehilangan Pendapatan Masa Depan adalah 16 tahun (Akta Sivil 1956) Pendapatan Sebelum Perbicaraan Awad RM9,600.00 yang dibenarkan wajar dikekalkan Pendapatan Selepas Perbicaraan Adalah menjadi hujahan pihak Plaintif abahwa untuk awad ini, awad loss of earning capacity harus dikekalkan kepara Plaintif sememangnya tidak boleh bekerja untuk masa terdekat dan terdapat bahawa beliau tidak boleh mendapat pekerjaan yang sama dan telah diklasifikasikan sebagai OKU (“Orang Kurang Upaya”)(Ruk: Ekshibit P-8 M/S 59 Rekod Rayuan) …..” Defendant’s case [13] The learned counsel for the Defendant advanced several grounds for this appeal and averred that for the award of RM9,600 for loss of earnings, it should not be allowed based on the discrepancy of facts and evidence of the Plaintiff. The main arguments meted out are, briefly, as follows: (a) The Plaintiff had stopped working at Meor Bakery in March 2013, 4 months before the accident (see page 4 of Defendant’s counsel’s written submission). It was submitted that any oral evidence of SP2 and SP1 on the salary which was given without the support of documentation must not be considered as it would be a hearsay. (b) The Plaintiff’s witness, Encik Meor Ammar, SP1 whom testified in Court was not the Director in charge of salary and welfare of workers of Meor Bakery but was only ‘Pengarah Operasi’. The Director in charge of salary is one Nurulhuda whom the Plaintiff did not call as witness and SP1 admitted that he need not prepare the contract of employment as it will be prepared by Nurulhuda. (c) The company Meor Bakery had ceased operation on 31.3.2014. The Defendant’s counsel brought to this Court’s attention that the Plaintiff’s witness, SP1, wanted to amend his letter of 23.11.2014 (page 89 of Appeal Record) that was issued on Plaintiff’s employment upon Plaintiff’s request, after the company Meor Bakery had ceased operation and without any supporting documents. (d) The contract of employment of 8.10.2012 (pages 84-88 of Appeal Record) did not show the signature of the Plaintiff to proof that Plaintiff is employed by Meor Bakery. The Bill Book (exhibit P7) shown by SP1 did not reflect Plaintiff’s attendance nor Plaintiff’s signature of the deliveries made. (e) The contract of employment’s terms do not show the working hours of the Plaintiff. The salary scale provided only mentioned RM800.00 as basic salary with RM100.00 as attendance allowance if Plaintiff is a permanent driver. [14] The counsel for the Defendant averred that SP2’s and SP1’s evidence, in totality, is doubtful and raises the question as to whether SP1 testified in court as Plaintiff’s employer or Plaintiff’s friend. It was also submitted in writing that the Plaintiff testified that upon receiving his salary, he will sign a salary voucher but none of the salary vouchers were produced in court nor was there any document from Meor Bakery on Plaintiff’s salary. [15] In relation to the submission that Plaintiff failed to call a witness in charge of his salary to testify, the Defendant’s counsel asserted that section 114(g) of Evidence Act 1950 on the principle of adverse inference be invoked against the Plaintiff and that both witnesses were worried that the truth will be revealed that at the time of the accident, the Plaintiff no longer works for Meor Bakery as Meor Bakery had ceased operation. [16] It was contended by the Defendant’s counsel in his written submission (pages 6-10 of HUJAHAN BERTULIS PERAYU DEFENDAN) that the Plaintiff is not entitled to award for loss of earning capacity of RM80,000.00 as this would connote that his injury was very serious and the award was excessive. In addition, the counsel submitted that based on the specialist report which should be considered as evidence, in particular at page 99 of the Appeal Record, the Plaintiff failed to prove that he is entitled for loss of earning capacity. The Sessions Court’s Decision [17] Some of the Sessions Court’s decision is found in Supplementary Appeal Record and reproduced here in parts, for ease of reference: “…. Walaubagaimana pun Mahkamah membuat keputusan sedemikian setelah berpuas hati dan bersetuju dengan hujahan Plaintif bahawa Plaintif bekerja sebelum kemalangan berlaku. Ini berdasarkan keterangan yang diberikan oleh saksi-saksi Plaintif iaitu SP2 (Plaintif sendiri) dan SP1 (wakil Majikan) yang mengesahkan tentang isu tersebut. Mahkamah merujuk kepada kes yang sama dirujuk oleh peguamcara Plaintif iaitu Sumarni v Yow Being Kweng & Anor [2008] 1 MLJ 608. …… Oleh itu Mahkamah berpendapat Plaintif memang layak mendapat pampasan bagi tuntutan ini setelah merujuk kepada keterangan beliau di Mahkamah yang beliau bekerja sebagai pemandu van menghantar roti dan disokong pula dengan keterangan wakil majikan iaitu SP1 serta dokumen kontrak lantikan bekerja yang ditandakan sebagai ekhibit di Mahkamah. ….. Oleh yang demikian berdasarkan alasan di atas maka Mahkamah berpendapat bahawa tuntutan Plaintif bagi kehilangan keupayaan pendapatan masa hadapan patut dan munasabah serta setimpal dengan bukti serta keterangan yang dikemukakan di Mahkamah dan setelah mengambil kira faktor umur Plaintif yang masih muda iaitu hanya 21 tahun pada masa kejadian berlaku, serta setelah mengambil kira faktor ekonomi semasa, maka Mahkamah sekali lagi menegaskan bahawa awad yang dibenarkan adalah sama sekali tidak eksesif sebagaimana yang didakwa oleh peguamcara Defendan. Ini kerana ia dibuat setelah mengambil semua fakta kes sebagaimana keterangan lisan serta dokumen berkaitan yang dikemukakan oleh Plaintif di Mahkamah. [ii] Gantirugi Khas oleh Plaintif: (atas dasar 100%) a. Item (n) Kehilangan pendapatan sebenar -RM400.00 x 24 bulan = RM9,600.00 ….. Setelah menilai hujahan kedua-dua pihak Mahkamah berpendapat cadangan awad yang dicadangkan Plaintif adalah terlalu eksesif serta lumayan manakala cadangan Defendan pula difikirkan terlalu rendah dan tidak berpatutan. Maka Mahkamah telah mengambil pendekatan dengan membuat keputusan dengan membenarkan awad sebanyak RM9,600.00 berdasarkan kiraan seperti berikut; (RM400.00 x 24 = RM9,600.00) Mahkamah berpendapat bahawa jumlah RM400.00 sebulan bagi tempoh 24 bulan wajar diberikan bagi tuntutan ini. Jumlah RM400.00 sebulan dikira setelah mengambil kira gaji Plaintif sebanyak RM1,150.00 sebulan dan ditolak dengan perbelanjaan petrol dan makan minum Plaintif semasa bekerja. Berdasarkan perkiraan dan alasan tersebut Mahkamah berpendapat awad bagi tuntutan ini adalah suatu awad yang sesuia dan munsabah dan sama sekali tidak terlalu lumayan dan tinggi.” THE COURT’S FINDING [18] I will start of by saying that the Plaintiff’s counsel did not attend this hearing due to his mistaken belief on the date of hearing before this Court. Based on Order 55 rule 10 (2) of the Rules of Court 2012, where the appellant appears but the respondent fails to appear either in person or by a solicitor, the appeal shall proceed in the absence of such respondent. I do not see any reason to adjourn the hearing as both counsels had submitted their written submissions and I have read them prior to the hearing of this appeal. [19] Reverting to the facts and evidence of this case, it is the Plaintiff who brought this suit for a road accident case and the Defendant appealed on the award, only for loss of earnings and loss of future earnings. The burden of proof as well as the initial onus to prove the claim rest with the Plaintiff and the Plaintiff is to discharge its onus to prove its cause of action against the Defendant as decided by the Federal Court in the case of Letchumanan Chettiar Alagappan @ L. Allagapan, M. Venkatachalam S/O Venkatachalam Chettiar v Secure Plantation Sdn Bhd No. 02-78-10/2014. Based on Letchumanan Chettiar (supra) case, section 101 of the Evidence Act 1950 was referred holding that the burden to establish the case rests throughout on the party who asserts the affirmative of the issue. [20] The heart of the matter involves damages and before this Court can interfere with an award of damages, this Court must be satisfied, based on the principle in Davies v Powell Duffryn Associated Collieries Ltd [1942] AC 601 as referred by the Court of Appeal in Lay Hong Food Corporation Sdn Bhd v Tiong Nam Logistics Solutions Sdn Bhd [2017] 1 LNS 708, that the trial Judge had acted on the wrong principle of law or has misapprehended the facts or made wholly erroneous estimate of the damage suffered. [21] This is as decided by the Federal Court in the case of Inas Faiqah Mohd Helmi (a child suing through her father and next friend, Mohd Helmi Abdul Aziz) v Kerajaan Malaysia & 2 Ors [2016] 1 PIR [16]; [2016] 2 CLJ 885 where YA Abdull Hamid Embong FCJ (as he then was), had occasion to say, “It is trite that damages served as compensation, not a reward, less still a punishment. In assessing damages, the courts should not be motivated by sympathy and award fair compensation based on cogent evidence. The court could not descend into a domain of speculation. The evaluation of evidence which form the basis of any risk of future damage, must still be undertaken. The trial judge could only evaluate such evidence based on the recognized balance of probability standard, but with a lower degree of certainty as to the occurrence of such loss or damage in the future.” Loss of Earnings [22] Claims for loss of earnings had been extensively discussed in may great authorities and I rely on the case decided by the Federal Court in Ngooi Ku Siong & Anor v Aidi Abdullah [1984] 1 CLJ 294 which was referred by the Court of Appeal in the case of Sumarni v Yow Bing Kwong & Anor [2008] 3 CLJ 489 that, loss of earning is considered as a pre-trial loss, it is an actual amount of earnings lost by a plaintiff as a result of an accident caused by the defendant. [23] Based on the evidence of the medical certificates from Hospital Ampang where Plaintiff was hospitalized and was treated (pages 60-82 and pages 160-161 of Appeal Record) after the accident since 12.7.2013 until 11.5.2015, this Court finds that the medical certificates were never challenged by the Defendant’s counsel (pages 8 and 107 of Second Supplementary Appeal Record where the medical certificates by Government hospital were agreed). I viewed that the medical certificates were issued for the purpose of informing or stating that the Plaintiff is on medical leave, unfit to attend work due to the accident. [24] Upon careful perusal of the factual evidence, based on the notes of evidence of SP1 (Second Supplementary Appeal Record), whom testified as representative of Meor Bakery, is one of the shareholders of Meor Bakery (page 20 of the Second Supplementary Appeal Record), and as partners with his own sister and brother-in-law. It was testified that the company Meor Bakery was in operation since 2011 but the premise licensed exhibited due to moving premise was from 2012 until 2014 (page 19 of Second Supplementary Appeal Record). SP1 testified that the Plaintiff was employed since 2012 (page 16 of Second Supplementary Appeal Record). SP2 admitted the mistake on the date of employment which should have been 31 March 2014 as the date of ceased operation of Meor Bakery (pages 21-22 of Second Supplementary Appeal Record). [25] I viewed that it is the duty of the Court to evaluate the facts and the evidence before arriving at a decision whether to allow or dismiss a claim for damages for loss. I am also mindful that the trial judge had the opportunity to examine the demeanour of the witnesses in assessing the genuineness of their claims and testimony. Following the authority of Lee Ing Chin & Ors v Gan Yook Chin & Anor [2003] 2 CLJ 19, Justice Gopal Sri Ram (as he then was) at page 33 had remarked that the trial judge must test the oral evidence of the witness against the evidence placed before him: “A judge who is required to adjudicate upon a dispute must arrive at his decision on an issue of fact by assessing, weighing and, for good reasons, either accepting or rejecting the whole or any part of the evidence placed before him. …If there are contemporary documents, then he must test the oral evidence of a witness against these. …. A trier of fact who makes findings based purely upon the demeanour of a witness without undertaking a critical analysis of that witness’ evidence runs the risk of having his findings corrected on appeal. …” [26] Therefore, based on the medical certificates of the Plaintiff and the testimony of SP1 and the Plaintiff’s, where Plaintiff verified that he worked as a driver and has to deliver the bread as early as 6am (page 77 and page 105 of the Second Supplementary Appeal Record), admitting that he was on probation, this Court viewed that, on the balance of probability, the Plaintiff was in employment at the time of the accident. [27] At the Sessions Court, both counsels submitted the proposed award for loss of earnings. The Session Judge found that the proposed award by Plaintiff’s counsel was excessive, whereas the Defendant’s proposed award based on RM260 per month after deducting meals and transport petrol, is way too low. Considering the Session Judge’s decision based on the rate at RM400.00 per month, based on salary of RM1,150.00, multiplied with the 24 months period of medical leave, I viewed that the Session Judge’s award for loss of earnings at RM9,600.00 is reasonable. Loss of Earning Capacity [28] Having found the Plaintiff worked prior to the accident, based on the cases Ngooi Ku Siong (supra) and Sumarni (supra), there are elements to be proven if the claimant cannot go back to work completely. The Plaintiff is 21 years of age and I viewed that for him to decide that he will not work in the future is too early to be determined and thus would fall under the category of speculation. In order to determine that he will have a diminished earning capacity, it must be based on evidence. This Court holds the view that there is evidence that the Plaintiff will be able to work and should be able to find employment. This is corroborated by the latest specialist report which is by the Defendant’s specialist report of 20.1.2015 (page 92-96 of Appeal Record) and specialist letter of 4 February 2015 (page 99 of Appeal Record), which in the latter, stated, “….I have stated my opinion that the fractures have healed and he should be started on walking without crutches. At this point in time I believe he is still on medical leave from his attending doctor but there is no reason why he should not be able to go back to his previous occupation and all other physical activities in the next 3-4 months.” [29] Although the Plaintiff contended that he was still in pain and could not at the time of trial resume work, it does not give a blanket conclusion that he is unable to work completely. I hold the view that based on the latest specialist report of 20.1.2015 and 4.2.2015, to which the Session Judge may have inadvertently overlooked, I conclude that there is no real and substantial risk of diminished earning capacity in the Plaintiff’s future. [30] In relation to the case referred of Abdul Azizi Ahmad (supra), I find that, as correctly pointed out by the Defendant’s counsel, the High Court in that case allowed the appeal “only to the extent of substituting the award for loss of future earnings with an award of earning capacity in the sum of RM40,000.00.” and therefore I viewed that case should be distinguished from the current case. [31] In light of the above reasons, I partially allow the appeal, that is the award for loss of earnings of RM9,600.00 is retained and the award for loss of earning capacity is dismissed. The appeal deposit be refunded to the Defendant. Dated: 30 October 2017 (ZALITA BINTI DATO’ ZAIDAN) Judicial Commissioner Shah Alam High Court COUNSEL FOR THE APPELLANT/DEFENDANT T. ARCHANA DEVI Tetuan Viknes Ratna & Co Advocates and Solicitors 1-5-10, Tingkat 5, Blok C, Jalan 1/50, Diamond Square, Off Jalan Gombak, 53100 Kuala Lumpur. [Ref: SO/KL/L/P/2934/13] Tel: 03-4025 2461 Fax: 03-4025 4460 COUNSEL FOR THE RESPONDENT/PLAINTIFF PREMJIT SINGH Tetuan Sabarudin Othman & Ho Advocates & Solicitors No. 12 Jalan Yap Kwan Seng 50450 Kuala Lumpur [Ref: VRC/1335/3/041/ACC/14/a] Tel: 03-2162 1324 Fax: 03-2162 8923 19	23,221	Tika 2.6.0
JA-62JSK-57-10/2017	PENDAKWARAYAPUAN SUHAILA BINTI SHAFIUDIN DEFENDAN ALIMAN BIN SARBINI	null	10/10/2017	TN KAMARUDIN BIN KAMSUN	https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=97fe0bd8-ff74-4a01-9f1b-8d118fe914dd&Inline=true	DALAM MAHKAMAH SESYEN DI JOHOR BAHRU DALAM NEGERI, JOHOR PERBICARAAN JENAYAH NO: JA – 62JSK – 57 – 10/2017 ANTARA PENDAKWA RAYA LAWAN ALIMAN BIN SARBINI ALASAN KEPUTUSAN A. PENGENALAN. 1. Di dalam kes ini, OKT telah dituduh dengan pertuduhan sebagai mana berikut:- Tuduhan Pindaan; “Bahawa kamu pada sekitar bulan Disember tahun 2014 sehingga bulan September 2017 di alamat No. 20, Parit Sulaiman, Kayu Ara Pasong, di dalam daerah Pontian, di dalam negeri Johor telah melakukan Amang seksual fizikal terhadap seorang kanak-kanak perempuan, XXX No KPT: YYY berumur 16 tahun dengan menyentuh dan melakukan perbuatan yang melibatkan kontak fizikal terhadap kanak-kanak tersebut. Oleh yang demikian kamu telah melakukan satu kesalahan di bawah seksyen 14 Akta kesalahan-kesalahan seksual terhadap kanak-kanak 2017 yang dibaca bersama seksyen 16 Akta yang sama.” 2. Terhadap pertuduhan tersebut, OKT telah mengaku bersalah dan telah didapati bersalah dan disabitkan dengan pertuduhan dan dijatuhi hukuman penjara 18 tahun dari tarikh tangkap. 3. Terhadap keputusan tersebut pihak OKT telah tidak berpuashati dan membuat rayuan terhadap Hukuman dan Sabitan. B. TERHADAP SABITAN DAN FAKTA KES PENDAKWAAN. 4. Pertuduhan pindaan dan Fakta kes telah pun dibacakan dan diterangkan kepada OKT sebelum OKT di dapati bersalah dan disabitkan dengan pertuduhan tersebut. 5. Mahkamah ini dengan itu merasakan bahawa sabitan yang dikenakan ke atas OKT adalah selamat dan tidak pernah memprejudiskan OKT dimana OKT faham segala apa yang berlaku di dalam mahkamah dan faham sifat dan akibat dari pengakuannya, yang mana beliau telah diterangkan segala sebab, sifat dan akibat dari pengakuannya, bentuk hukuman yang menunggunya dan apa yang boleh dikenakan terhadapnya kesemuanya dalam Bahasa Melayu yang mudah dan difahaminya dan beliau telah pun bersedia menghadapinya. Maka adalah tidak relevan untuk sekarang sekiranya beliau mempertikaikan sabitan yang telah dibuat keatasnya atas apa jua alasan lain melainkan bahawa beliau sendiri dengan rela hati telah membuat pengakuan bersalah terhadap kesalahan yang telah dipertuduhkan ke atasnya. 6. Selanjutnya, sebagaimana yang telah dikemukakan oleh pihak pendakwaan menerusi ekhibit P1, fakta kes ini adalah sebagaimana berikut. 7. Pada 26.9.2017 pada jam lebih kurang 1.40 petang, pengadu iaitu ibu kepada mangsa yang bernama XXX (berumur 16 tahun) mendapat panggilan telefon daripada pegawai Jabatan Kebajikan Masyrakat bernama Khairul yang berada di Hospital Pontian memaklumkan mangsa sedang di rawat di hospital Pontian. 8. Pengadu dimaklumkan mangsa telah dicabul oleh tertuduh iaitu suami kepada pengadu dan ayah kandung kepada mangsa. 9. Pada akhir bulan Disember 2014, semasa mangsa sedang tidur di ruang tamu, mangsa merasakan badannya diraba dari bahagian mata, muka bibir, lalu mangsa terjaga dan nampak tertuduh dalam keadaan meniarap di sebelah mangsa. Tertuduh telah meraba payu dara mangsa dan meraba kemaluan mangsa. Mangsa cuba menjerit tetapi tertuduh memberikan isyarat supaya mangsa diam kerana mangsa takut dengan tertuduh kerana tertuduh seorang yang garang. 10. Sejak dari tarikh tersebut, tertuduh kerap kali menyentuh bahagian badan mangsa terutamanya di bahagian payu dara mangsa. 11. Pada pertengahan bulan Mac 2015, jam lebih kurang 6.30 pagi semasa di bilik tidur mangsa ketika mangsa sedang bersiap hendak ke sekolah, tertuduh telah masuk ke dalam bilik mangsa dan mengarahkan mangsa duduk di atas katil dan kangkangkan kaki berjuntai. Mangsa ketika itu sedang memakai pakaian dalam dan tertuduh telah memasukkan lobak merah ke dalam kemaluan mangsa sehingga berdarah dan mangsa berasa sakit. Tertuduh telah memasukkan lobak tersebut lebih kurang 3 minit dan telah mengeluarkan lobak tersebut bila darah keluar dari kemaluan mangsa. 12. Mangsa telah masuk ke dalam bilik air untuk mencuci darah tersebut dan terdapat darah menitik di atas lantai dan mangsa telah mengambil mop di ruang dapur. Pengadu iaitu ibu mangsa mengesahkan nampak mangsa mengambil mop tersebut. 13. Pada bulan April 2016, selepas mangsa dijemput dari sekolah oleh tertuduh dan pulang ke rumah, tertuduh telah mengarahkan mangsa untuk berbogel dan tertuduh telah menyuruh mangsa memegang kemaluannya dan menyuruh mangsa memasukkan kemaluannya itu ke dalam kemaluan mangsa dan tertuduh telah meramas dan meraba payu dara mangsa. 14. Pada sekitar bulan Julai 2016, semasa mangsa sedang menonton televisyen, tertuduh telah mengajak mangsa ke depan pintu bilik air di bahagian dapur, tertuduh telah membuka seluar yang dipakai dan menyuruh mangsa melutut depan kemaluan tertuduh dan telah memasukkan kemaluannya ke dalam mulut mangsa. Mangsa nampak kemaluan tertuduh masuk ke dalam mulutnya. 15. Pada bulan Ogos 2016, jam lebih kurang 12.30 tengah malam, semasa mangsa sedang tidur di dalam bilik, tertuduh telah mengajak mangsa masuk ke dalam bilik tidurnya semasa ibu mangsa tiada bekerja dan telah menyuruh mangsa membuka pakaian dan telah meraba dan meramas payu dara dan dalam masa yang sama telah menggosok kemaluannya sehingga keluar air mani. 16. Pada pertengahan bulan September 2016, jam lebih kurang 5.00 pagi, semasa ibu mangsa tidak berada di rumah, tertuduh telah menyuruh mangsa ikut tertuduh ke dalam bilik tidurnya dan tertuduh telah menanggalkan pakaiannya dan tertuduh telah menindih badan mangsa dan mengesel-geselkan kemaluannya. 17. Pada 19 Julai tahun 2017, mangsa ada menceritakan kejadian tertuduh menyentuhnya kepada guru kaunseling bernama Sabariah dan semasa berjumpa dengan guru tersebut, mangsa kelihatan murung dan mangsa memberitahu dia takut dan trauma dan seperti ingin mencederakan diri kerana tertekan. Selepas daripada dimaklumkan, pengetua bersama-sama dengan pegawai kaunseling telah membawa mangsa ke hospital. 18. Pengadu dan adik-beradik mangsa pernah nampak tertuduh cuba menyentuh mangsa dan adik mangsa pernah dengar mangsa menjerit jangan dan mangsa hanya memberitahu mangsa tidur dalam keadaan ketakutan. Pengadu juga ada nampak tertuduh kerap menyentuh mangsa dan mangsa ada meluahkan rasa tidak suka. 19. Tertuduh telah dituduh di bawah seksyen 14 Akta kesalahan-kesalahan seksual terhadap kanak-kanak 2017 dan mengaku bersalah sepertimana yang dipertuduhkan. C. FAKTOR DAN PRINSIP PENGHUKUMAN. 20. Undang-undang tidak pernah membuat suatu penetapan hukuman ke atas suatu kes tertentu tetapi hanya meletakkan suatu hukuman maksima terhadapnya dan ini tidak bermakna bahawa suatu hukuman maksima hendaklah sentiasa dikenakan di dalam setiap kes mengenainya ( Mohd Jalani bin Saliman v PP [1997] 5 MLJ 551), maka terpulanglah kepada mahkamah tersebut mengenakan suatu hukuman yang dirasakan sesuai dalam lingkungan julat hukuman yang dibenarkan tertakluk kepada fakta dan keadaan kes masing-masing. Adalah menjadi tugas mahkamah untuk mengenakan suatu hukuman yang mana hukuman tersebut dapat mencerminkan keseriusan suatu kesalahan yang telah dilakukan (PP v Khairudin [1982] 1 MLJ 331). Tujuan meletakkan budibicara kepada Penghukum adalah bagi membenarkan Penghukum memberikan hukuman yang dirasakan paling sesuai di dalam setiap satu kes secara berasingan dan apa-apa kecenderungan untuk menyeragamkan hukuman bagi sesuatu kesalahan hendaklah dielakkan kerana itu bermakna pesalah tersebut dihukum bukan atas fakta kesnya tetapi disebabkan oleh jenis kesalahan yang telah dilakukannya ( Abdul Karim v R; Sundra Singh v R; Loh Kai Hoi v R [1954] MLJ 86). 21. Suatu pertimbangan yang adil perlu dilihat dan dibuat antara keperluan kepada suatu hukuman yang mencegah dan juga peluang kepada tertuduh untuk dipulihkan (Kesavan Senderan v PP [1999] 1 CLJ 343). Setiap penghukuman hendaklah bersifat ekslusif dan peribadi tergunapakai hanya kepada pesalah tersebut sahaja yang dilaras kepada keadaan moral dan kewangannya juga kepada sifat suatu kesalahan tersebut ( Low Oi Lin v R [1949] MLJ 210 ). 22. Di dalam menjatuhkan suatu hukuman, pertimbangan yang diambilkira sebelum hukuman dijatuhkan ialah kepentingan awam, keadaan suatu kesalahan tersebut dan juga latarbelakang pesalah berkenaan. Suka ditekankan bahawa menurut kes R v Sargeant (1974) 60 Cr App R 74, merumuskan bahawa “Society, through the courts, must show its abhorrence for the occurrence of particular types of crime and the only way which the courts can show this is by the sentences they pass. The courts act as a vehicle to show abhorrence for particular types of criminal conduct. However, the courts do not have to reflect public opinion. On the other hand, court could not disregard it. Perhaps the main duty of the court is to lead public opinion.”(ulasan oleh penulis buku “The process of criminal justice”). Oleh itu, mahkamahlah yang sepatutnya melaraskan dan melakarkan apa kehendak yang patut dibentuk oleh masyarakat menerusi hukuman yang dibuatnya. 23. Prinsip klasik di dalam menilai suatu hukuman yang bakal dikenakan terhadap pesalah ialah sebagaimana diputuskan dalam kes R v Sargeant, supra, iaitu: “retribution, deterrence, prevention and rehabilitation.” Kes R v Sargeant, supra, juga turut mengariskan apakah panduan di dalam menentukan suatu tempoh masa pemenjaraan yang sesuai yang patut dikenakan terhadap pesalah yang mana antara lainnya ialah; sifat dan keseriusan suatu kesalahan tersebut, keadaan dimana kesalahan tersebut dilakukan, diskaun kepada keinsafan dan akhirnya imbangan diantara kepentingan awam di dalam mencegah kesalahan tersebut dan peluang pesalah memulakan kehidupan yang baru. D. ANALISA DAN KEPUTUSAN MAHKAMAH. 24. Pada pendapat mahkamah, hukuman yang telah diberikan ke atas pertuduhan ini adalah setimpal dan wajar serta mengikut undang-undang. 25. Seksyen 14 Akta Kesalahan-kesalahan Seksual terhadap Kanak-kanak 2017 (Akta 792) memperuntukkan sebagaimana berikut; Section 14. Physical sexual assault on a child Any person who, for sexual purposes— (a) touches any part of the body of a child; (b) makes a child touch any part of the body of such person or of any other person; (c) makes a child touch any part of the child’s own body; or (d) does any other acts that involve physical contact with a child without sexual intercourse, commits an offence and shall, on conviction, be punished with imprisonment for a term not exceeding twenty years and shall also be liable to whipping. Explanation 1—The act of touching may involve the act of touching with any part of the body or with an object and may be done through anything including anything worn by the person touching or by the child touched. Explanation 2—In determining what constitutes sexual purposes, the court may take into consideration, among others, the part of the body that is touched, the nature and extent of the act of touching or the physical contact and all other circumstances surrounding the conduct. Manakala seksyen 16 Akta yang sama memperuntukkan; Section 16. Person in a relationship of trust (1) If a person who commits any offence under this Act or any offence specified in the Schedule against a child, is in a relationship of trust with the child, such person shall, in addition to the punishment to which he is liable for such offence, be punished with imprisonment for a term not exceeding five years and shall also be punished with whipping of not less than two strokes. (2) In this section, a person is said to be in a relationship of trust with a child if the child is under his care, supervision or authority, including but not limited to— (a) a parent, guardian or person who is related through full- blood or half-blood, or through marriage or adoption, including de facto adoption; (b) a person who looks after one or more children for valuable consideration for any period of time; (c) a teacher, lecturer or warden of a kindergarten, school, public institution of higher learning or private institution of higher learning; (d) any person providing healthcare services in a Government healthcare facility or private healthcare facility as defined in section 2 of the Private Healthcare Facilities and Services Act 1998 [Act 586]; (e) a coach; and (f) a public servant of whatever rank in the course of his duty under any written law in respect of the child. 26. Oleh itu jelas bahawa undang-undang telah menetapkan bahawa mana-mana orang yang telah disabitkan di bawah seksyen 14 Akta tersebut hendaklah dikenakan hukuman pemenjaraan selama tempoh tidak lebih 20 tahun dan juga hendaklah dikenakan hukuman sebatan. 27. Manakala seksyen 16 Akta yang sama memperuntukan sebagai tambahan bilamana terdapat Perhububungan Amanah (Relationship of Trust) di antara tertuduh dan mangsa maka suatu hukuman sebagai tambahan dari hukuman di dalam peruduhan kesalahan utama hendaklah dikenakan lagi ke atas pesalah iaitu tambahan hukuman penjara lagi 5 tahun dan sebatan tidak kurang dari 2 sebatan hendaklah dikenakan terhadap tertuduh. Maka untuk kes ini, mahkamah boleh mengenakan hukuman maksima penjara sehingga 25 tahun dan juga minima 2 sebatan dan maksima 24 kali sebatan. 28. Di dalam kes ini, kes ini telah diambilkira sebagai panduan; kes Mahkamah Agong ketika itu di dalam kes Mohd Abdullah Ang Swee Kang (1987) CLJ (rep) 209; yang mengatakan;- Held: [1] The Supreme Court agreed with the principle laid down in Reg.v. Barrick that in breach of trust cases in general a term of immediate imprisonment would be inevitable, save in very exceptional circumstances or where the amount of money involved was small. This must be the current sentencing policy even if the accused pleaded guilty. In the Supreme Court's view, the approach of assessing sentence adopted by the learned Judge supposedly based on English authorities by harmonising them with the maximum sentence of 20 years in s. 409 of the Penal Code,was not only misleading but was wrong in principle. When the legislature fixed a maximum penalty for an offence, the discretion of the Court in determining the extent to which in a particular case the punishment should be awarded must be exercised judicially. [2] In assessing the length of custodial sentence, the Court must look at the overall picture in perspective by considering firstly, the gravity of the type of offence committed; secondly, the facts in the commission of the offence; thirdly, the presence or absence of mitigating factors, and fourthly, the sentence that have been imposed in the past for similar offences to determine the trend of sentencing policy, if any. The fact that a sentence of imprisonment is imposed as a deterrence does not justify the sentencer in passing a sentence of greater length than the facts of the offence warrant. The gravity of the type of offence involved must be considered in the light of the particular facts of the offence. [3] A sentencer must give sufficient discount for all extenuating circumstances pertaining to the degree of culpability or criminality involved which must necessarily vary from case to case apart from other mitigating factors. Unless there is a proper reason for withholding such credits, failure to do so may result in the sentence not exercising his or her discretion judicially in assessing the level of custodial sentence. The sentence imposed on the appellant was manifestly excessive. It is generally accepted that the extent of reduction on account of a plea of guilty would be between ¼ and 1/3 of what otherwise would have been the sentence. In this particular case, apart from plea of guilty, the sentence must also be discounted to reflect the full restitution made and other mitigating factors. [4] Although the learned Judge indicated in his judgment that he had given the necessary discounts they were not reflected at all in the sentence imposed, as it was imposed without regard to the particular facts of this case and without giving the appellant any or sufficient credit for all the mitigating circumstances. The recommended prison terms in Barrick were not meant for pleading guilty cases. If the learned Judge had not fallen into error in misreading the facts and the law in Barrick and Davies he would probably have found that a 4 year sentence would adequately fit the crime which by any standard was severe enough to satisfy the justice of this case. [5] Since full restitution had been made and the appellant had not enriched himself personally by the crime, the Supreme Court found no purpose in imposing a fine in addition to custodial sentence. 29. Kesemua faktor yang dicadangkan di dalam kes tersebut telah mahkamah ini ambilkira dan diselaraskan dengan Fakta kes di hadapan kita ini sebelum mahkamah ini menjatuhkan hukuman. 30. OKT telah mengaku bersalah dan pengakuan bersalahnya ini perlu diambilkira sebagai satu faktor peringanan utama (Melvani v PP). Paling utama ialah suatu sabitan telah diperolehi tanpa kesemua pihak yang terlibat khasnya pihak pendakwaan perlu bersusah payah membuktikan kes melampaui keraguan yang munasabah mengambilkira fakta kes pada masa kejadian pelbagai kemungkinan boleh terjadi. Begitu juga banyak penjimatan masa dan kos semua pihak khasnya saksi-saksi termasuk pengelakkan faktor “humiliation” terhadap mangsa telah diperolehi dengan pengakuan salah OKT ini. OKT juga tidak mempunyai apa-apa rekod lampau. Di dalam rayuannya, OKT memohon maaf di atas kesalahannya. Beliau mengatakan telah amat menyesal dan insaf dan mohon dikenakan hukuman dari tarikh tangkap. Mempunyai 4 orang anak dan bertaubat dan berjanji tidak akan mengulangi lagi kesalahannya. 31. Hujahan pemberatan oleh pihak pendakwaan juga telah mahkamah ini ambilkira kesemuanya dimana faktor kepentingan awam adalah faktor utama di dalam pertimbangan untuk memberikan hukuman paling setimpal untuk OKT. Mahkamah juga diingatkan bahawa perbuatan OKT adalah sangat keji dan hina. OKT telah berusia 58 tahun dan perlakuan sebegini adalah tidak wajar dilakukan oleh seorang yang telah tua seperti OKT. OKT juga sebagai seorang bapa kandung dimana sebagai seorang ketua keluarga seharusnya OKT melindungi anak-anaknya dan bukannya melakukan perbuatan yang terkutuk ini ke atas anak kandung dari darah dagingnya sendiri umpama “ibarat haruan makan anaknya sendiri” dan kesalahan ini adalah merupakan satu bentuk kesalahan yang serius dan satu hukuman yang berbentuk pengajaran perlu diberikan kepada OKT agar ianya dapat menjadi hukuman dan pengajaran kepada OKT dan mana-mana bakal pesalah lain. 32. Kenyataan Impak mangsa (Victim Impact Statement) juga telah mahkamah ambilkira sebelum mengenakan hukuman yang telah dijatuhi terhadap OKT dimana mangsa mengatakan berasa stress dan trauma dan hilang keyakinan diri khasnya kepada lelaki. 33. Oleh yang demikian, tempoh pemenjaraan selama 18 tahun tersebut adalah dirasakan setimpal dengan jenayah hina dan kejam yang telah dilakukan oleh OKT terhadap anak kandungnya sendiri. Segala perlakuan berterusan OKT yang terakam di dalam ingatan mangsa selama tiga (3) tahun ini pasti tidak akan dapat dilupakan oleh mangsa selama hayatnya yang waras. 34. Dari fakta kes sendiri yang telah diakui oleh OKT menunjukkan tingkahlaku kejam dan keganasan yang telah dilakukan oleh seorang bapa ke atas anaknya. Selain dari mencabul, meraba, mengesel, menindih dan bermacam-macam lagi perlakuan arah seksual telah dikenakan ke atas mangsa secara berulangkali, OKT juga melakukan kekerasan dan kecederaan terhadap mangsa. 35. Dengan memasukkan Lobak Merah ke dalam kemaluan mangsa sehingga berlaku kecederaan dan pendarahan kepada kemaluan mangsa sehingga menitis-nitis darahnya adalah merupakan suatu perkara yang berada di luar batas kemanusiaan yang waras yang boleh dilakukan oleh seorang ayah kepada anaknya. Selain dari itu, aksi memasukkan kemaluan OKT ke dalam mulut mangsa begitu menjijikkan untuk diperlakukan oleh seorang yang telah tua seperti OKT terhadap mangsa. 36. Oleh itu, apakah bentuk hukuman yang paling layak untuk diterima oleh OKT akibat dari perbuatan jenayah yang dilakukannya itu?. Ada kalanya, pengakuan bersalah OKT tidak semestinya diambilkira secara total di dalam mempertimbangkan peringanan hukuman sebagaimana lazim sekiranya kesalahan jenayah yang dilakukan olehnya begitu mendesak untuk membuatkan faktor ini diketepikan. Keparahan kepada suatu bentuk kesalahan boleh menyebabkan OKT tidak layak kepada peringanan walaupun beliau telah mengaku bersalah sebagaimana diputuskan dalam kes-kes seperti Loh Hock Seng & Anor v PP (1980) 2 MLJ 13, FC, PP v Oo Leng Swee & Ors (1981) 1 MLJ 247, FC, Leo Say & Ors v PP (1985) 2 CLJ 155. Faktor kepentingan Awam khasnya di dalam kes jenayah seksual terhadap kanak-kanak ini adalah lebih utama dari kepentingan peribadi OKT apabila beliau mengaku bersalah untuk diambilkira – kes Sim Gek Yong v PP (1995) 1 SLR 537, Ismail Rashid v PP (1999) 4 CLJ 402 dan adalah juga diingatkan bahawa pengakuan bersalah OKT tidak lah mengambil budibicara mahkamah untuk mengenakan suatu hukuman yang maksima ke atas OKT sekiranya bentuk kesalahan tersebut mewajarkan – kes PP v Gunasekaran a/l Arjunan & Anor (2006) 5 MLJ 527, Joginder Singh v PP (1984) 2 MLJ 133, PP v Roslan Imun (1999) 3 CLJ 494, Re Hong Yong v PP (2009) 76 AMR 528. 37. Selain dari itu, di dalam mempertimbangkan hukuman sekurang-kurangnya dua (2) Sebatan yang sepatutnya di kenakan terhadap OKT sebagaimana kehendak seksyen 16 Akta tersebut, mahkamah ini merasakan bahawa melihat kepada usia dan keadaan fizikal OKT yang telah tua dan agak uzur, maka mahkamah ini menggunakan budibicaranya dengan tidak mengenakan hukuman tersebut, yang mana hukuman itu secara undang-undangnya hendaklah dikenakan ke atas OKT walaupun usia OKT telah melebihi 50 tahun yang mana ini adalah dibenarkan mengikut undang-undang sebagaimana diperuntukkan di dalam seksyen 25 Akta Kesalahan-kesalahan seksual terhadap kanak-kanak 2017 tersebut. 38. Adalah menjadi tugas dan tanggungjawab mahkamah untuk memberikan hukuman yang mana hukuman itu adalah mencerminkan akan keseriusan suatu kesalahan ( PP v Khairudin (1982) 1 MLJ 331) dan mahkamah ini berpendapat bahawa tugas tersebut telah pun dilaksanakan. E. KESIMPULAN. 39. Setelah mengambilkira prinsip dan kesemua faktor yang perlu di dalam menjatuhkan hukuman, maka mahkamah ini berpendapat bahawa sabitan yang dikenakan terhadap OKT adalah selamat dan hukuman yang diberikan adalah adil, setimpal, wajar dan mengikut undang-undang. Sekian. Disediakan oleh; KAMARUDIN BIN KAMSUN, Hakim, Mahkamah Sesyen Jenayah 1, Johor Bahru. Bertarikh: 10 Oktober 2017. Pendakwa Raya: Puan Suhaila Shafi’udin. Timbalan Pendakwa Raya Johor. OKT mewakili diri sendiri. 20	22,590	Tika 2.6.0
JA-62JSK-57-10/2017	PENDAKWARAYAPUAN SUHAILA BINTI SHAFIUDIN DEFENDAN ALIMAN BIN SARBINI	null	10/10/2017	TN KAMARUDIN BIN KAMSUN	https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=97fe0bd8-ff74-4a01-9f1b-8d118fe914dd&Inline=true	DALAM MAHKAMAH SESYEN DI JOHOR BAHRU DALAM NEGERI, JOHOR PERBICARAAN JENAYAH NO: JA – 62JSK – 57 – 10/2017 ANTARA PENDAKWA RAYA LAWAN ALIMAN BIN SARBINI ALASAN KEPUTUSAN A. PENGENALAN. 1. Di dalam kes ini, OKT telah dituduh dengan pertuduhan sebagai mana berikut:- Tuduhan Pindaan; “Bahawa kamu pada sekitar bulan Disember tahun 2014 sehingga bulan September 2017 di alamat No. 20, Parit Sulaiman, Kayu Ara Pasong, di dalam daerah Pontian, di dalam negeri Johor telah melakukan Amang seksual fizikal terhadap seorang kanak-kanak perempuan, XXX No KPT: YYY berumur 16 tahun dengan menyentuh dan melakukan perbuatan yang melibatkan kontak fizikal terhadap kanak-kanak tersebut. Oleh yang demikian kamu telah melakukan satu kesalahan di bawah seksyen 14 Akta kesalahan-kesalahan seksual terhadap kanak-kanak 2017 yang dibaca bersama seksyen 16 Akta yang sama.” 2. Terhadap pertuduhan tersebut, OKT telah mengaku bersalah dan telah didapati bersalah dan disabitkan dengan pertuduhan dan dijatuhi hukuman penjara 18 tahun dari tarikh tangkap. 3. Terhadap keputusan tersebut pihak OKT telah tidak berpuashati dan membuat rayuan terhadap Hukuman dan Sabitan. B. TERHADAP SABITAN DAN FAKTA KES PENDAKWAAN. 4. Pertuduhan pindaan dan Fakta kes telah pun dibacakan dan diterangkan kepada OKT sebelum OKT di dapati bersalah dan disabitkan dengan pertuduhan tersebut. 5. Mahkamah ini dengan itu merasakan bahawa sabitan yang dikenakan ke atas OKT adalah selamat dan tidak pernah memprejudiskan OKT dimana OKT faham segala apa yang berlaku di dalam mahkamah dan faham sifat dan akibat dari pengakuannya, yang mana beliau telah diterangkan segala sebab, sifat dan akibat dari pengakuannya, bentuk hukuman yang menunggunya dan apa yang boleh dikenakan terhadapnya kesemuanya dalam Bahasa Melayu yang mudah dan difahaminya dan beliau telah pun bersedia menghadapinya. Maka adalah tidak relevan untuk sekarang sekiranya beliau mempertikaikan sabitan yang telah dibuat keatasnya atas apa jua alasan lain melainkan bahawa beliau sendiri dengan rela hati telah membuat pengakuan bersalah terhadap kesalahan yang telah dipertuduhkan ke atasnya. 6. Selanjutnya, sebagaimana yang telah dikemukakan oleh pihak pendakwaan menerusi ekhibit P1, fakta kes ini adalah sebagaimana berikut. 7. Pada 26.9.2017 pada jam lebih kurang 1.40 petang, pengadu iaitu ibu kepada mangsa yang bernama XXX (berumur 16 tahun) mendapat panggilan telefon daripada pegawai Jabatan Kebajikan Masyrakat bernama Khairul yang berada di Hospital Pontian memaklumkan mangsa sedang di rawat di hospital Pontian. 8. Pengadu dimaklumkan mangsa telah dicabul oleh tertuduh iaitu suami kepada pengadu dan ayah kandung kepada mangsa. 9. Pada akhir bulan Disember 2014, semasa mangsa sedang tidur di ruang tamu, mangsa merasakan badannya diraba dari bahagian mata, muka bibir, lalu mangsa terjaga dan nampak tertuduh dalam keadaan meniarap di sebelah mangsa. Tertuduh telah meraba payu dara mangsa dan meraba kemaluan mangsa. Mangsa cuba menjerit tetapi tertuduh memberikan isyarat supaya mangsa diam kerana mangsa takut dengan tertuduh kerana tertuduh seorang yang garang. 10. Sejak dari tarikh tersebut, tertuduh kerap kali menyentuh bahagian badan mangsa terutamanya di bahagian payu dara mangsa. 11. Pada pertengahan bulan Mac 2015, jam lebih kurang 6.30 pagi semasa di bilik tidur mangsa ketika mangsa sedang bersiap hendak ke sekolah, tertuduh telah masuk ke dalam bilik mangsa dan mengarahkan mangsa duduk di atas katil dan kangkangkan kaki berjuntai. Mangsa ketika itu sedang memakai pakaian dalam dan tertuduh telah memasukkan lobak merah ke dalam kemaluan mangsa sehingga berdarah dan mangsa berasa sakit. Tertuduh telah memasukkan lobak tersebut lebih kurang 3 minit dan telah mengeluarkan lobak tersebut bila darah keluar dari kemaluan mangsa. 12. Mangsa telah masuk ke dalam bilik air untuk mencuci darah tersebut dan terdapat darah menitik di atas lantai dan mangsa telah mengambil mop di ruang dapur. Pengadu iaitu ibu mangsa mengesahkan nampak mangsa mengambil mop tersebut. 13. Pada bulan April 2016, selepas mangsa dijemput dari sekolah oleh tertuduh dan pulang ke rumah, tertuduh telah mengarahkan mangsa untuk berbogel dan tertuduh telah menyuruh mangsa memegang kemaluannya dan menyuruh mangsa memasukkan kemaluannya itu ke dalam kemaluan mangsa dan tertuduh telah meramas dan meraba payu dara mangsa. 14. Pada sekitar bulan Julai 2016, semasa mangsa sedang menonton televisyen, tertuduh telah mengajak mangsa ke depan pintu bilik air di bahagian dapur, tertuduh telah membuka seluar yang dipakai dan menyuruh mangsa melutut depan kemaluan tertuduh dan telah memasukkan kemaluannya ke dalam mulut mangsa. Mangsa nampak kemaluan tertuduh masuk ke dalam mulutnya. 15. Pada bulan Ogos 2016, jam lebih kurang 12.30 tengah malam, semasa mangsa sedang tidur di dalam bilik, tertuduh telah mengajak mangsa masuk ke dalam bilik tidurnya semasa ibu mangsa tiada bekerja dan telah menyuruh mangsa membuka pakaian dan telah meraba dan meramas payu dara dan dalam masa yang sama telah menggosok kemaluannya sehingga keluar air mani. 16. Pada pertengahan bulan September 2016, jam lebih kurang 5.00 pagi, semasa ibu mangsa tidak berada di rumah, tertuduh telah menyuruh mangsa ikut tertuduh ke dalam bilik tidurnya dan tertuduh telah menanggalkan pakaiannya dan tertuduh telah menindih badan mangsa dan mengesel-geselkan kemaluannya. 17. Pada 19 Julai tahun 2017, mangsa ada menceritakan kejadian tertuduh menyentuhnya kepada guru kaunseling bernama Sabariah dan semasa berjumpa dengan guru tersebut, mangsa kelihatan murung dan mangsa memberitahu dia takut dan trauma dan seperti ingin mencederakan diri kerana tertekan. Selepas daripada dimaklumkan, pengetua bersama-sama dengan pegawai kaunseling telah membawa mangsa ke hospital. 18. Pengadu dan adik-beradik mangsa pernah nampak tertuduh cuba menyentuh mangsa dan adik mangsa pernah dengar mangsa menjerit jangan dan mangsa hanya memberitahu mangsa tidur dalam keadaan ketakutan. Pengadu juga ada nampak tertuduh kerap menyentuh mangsa dan mangsa ada meluahkan rasa tidak suka. 19. Tertuduh telah dituduh di bawah seksyen 14 Akta kesalahan-kesalahan seksual terhadap kanak-kanak 2017 dan mengaku bersalah sepertimana yang dipertuduhkan. C. FAKTOR DAN PRINSIP PENGHUKUMAN. 20. Undang-undang tidak pernah membuat suatu penetapan hukuman ke atas suatu kes tertentu tetapi hanya meletakkan suatu hukuman maksima terhadapnya dan ini tidak bermakna bahawa suatu hukuman maksima hendaklah sentiasa dikenakan di dalam setiap kes mengenainya ( Mohd Jalani bin Saliman v PP [1997] 5 MLJ 551), maka terpulanglah kepada mahkamah tersebut mengenakan suatu hukuman yang dirasakan sesuai dalam lingkungan julat hukuman yang dibenarkan tertakluk kepada fakta dan keadaan kes masing-masing. Adalah menjadi tugas mahkamah untuk mengenakan suatu hukuman yang mana hukuman tersebut dapat mencerminkan keseriusan suatu kesalahan yang telah dilakukan (PP v Khairudin [1982] 1 MLJ 331). Tujuan meletakkan budibicara kepada Penghukum adalah bagi membenarkan Penghukum memberikan hukuman yang dirasakan paling sesuai di dalam setiap satu kes secara berasingan dan apa-apa kecenderungan untuk menyeragamkan hukuman bagi sesuatu kesalahan hendaklah dielakkan kerana itu bermakna pesalah tersebut dihukum bukan atas fakta kesnya tetapi disebabkan oleh jenis kesalahan yang telah dilakukannya ( Abdul Karim v R; Sundra Singh v R; Loh Kai Hoi v R [1954] MLJ 86). 21. Suatu pertimbangan yang adil perlu dilihat dan dibuat antara keperluan kepada suatu hukuman yang mencegah dan juga peluang kepada tertuduh untuk dipulihkan (Kesavan Senderan v PP [1999] 1 CLJ 343). Setiap penghukuman hendaklah bersifat ekslusif dan peribadi tergunapakai hanya kepada pesalah tersebut sahaja yang dilaras kepada keadaan moral dan kewangannya juga kepada sifat suatu kesalahan tersebut ( Low Oi Lin v R [1949] MLJ 210 ). 22. Di dalam menjatuhkan suatu hukuman, pertimbangan yang diambilkira sebelum hukuman dijatuhkan ialah kepentingan awam, keadaan suatu kesalahan tersebut dan juga latarbelakang pesalah berkenaan. Suka ditekankan bahawa menurut kes R v Sargeant (1974) 60 Cr App R 74, merumuskan bahawa “Society, through the courts, must show its abhorrence for the occurrence of particular types of crime and the only way which the courts can show this is by the sentences they pass. The courts act as a vehicle to show abhorrence for particular types of criminal conduct. However, the courts do not have to reflect public opinion. On the other hand, court could not disregard it. Perhaps the main duty of the court is to lead public opinion.”(ulasan oleh penulis buku “The process of criminal justice”). Oleh itu, mahkamahlah yang sepatutnya melaraskan dan melakarkan apa kehendak yang patut dibentuk oleh masyarakat menerusi hukuman yang dibuatnya. 23. Prinsip klasik di dalam menilai suatu hukuman yang bakal dikenakan terhadap pesalah ialah sebagaimana diputuskan dalam kes R v Sargeant, supra, iaitu: “retribution, deterrence, prevention and rehabilitation.” Kes R v Sargeant, supra, juga turut mengariskan apakah panduan di dalam menentukan suatu tempoh masa pemenjaraan yang sesuai yang patut dikenakan terhadap pesalah yang mana antara lainnya ialah; sifat dan keseriusan suatu kesalahan tersebut, keadaan dimana kesalahan tersebut dilakukan, diskaun kepada keinsafan dan akhirnya imbangan diantara kepentingan awam di dalam mencegah kesalahan tersebut dan peluang pesalah memulakan kehidupan yang baru. D. ANALISA DAN KEPUTUSAN MAHKAMAH. 24. Pada pendapat mahkamah, hukuman yang telah diberikan ke atas pertuduhan ini adalah setimpal dan wajar serta mengikut undang-undang. 25. Seksyen 14 Akta Kesalahan-kesalahan Seksual terhadap Kanak-kanak 2017 (Akta 792) memperuntukkan sebagaimana berikut; Section 14. Physical sexual assault on a child Any person who, for sexual purposes— (a) touches any part of the body of a child; (b) makes a child touch any part of the body of such person or of any other person; (c) makes a child touch any part of the child’s own body; or (d) does any other acts that involve physical contact with a child without sexual intercourse, commits an offence and shall, on conviction, be punished with imprisonment for a term not exceeding twenty years and shall also be liable to whipping. Explanation 1—The act of touching may involve the act of touching with any part of the body or with an object and may be done through anything including anything worn by the person touching or by the child touched. Explanation 2—In determining what constitutes sexual purposes, the court may take into consideration, among others, the part of the body that is touched, the nature and extent of the act of touching or the physical contact and all other circumstances surrounding the conduct. Manakala seksyen 16 Akta yang sama memperuntukkan; Section 16. Person in a relationship of trust (1) If a person who commits any offence under this Act or any offence specified in the Schedule against a child, is in a relationship of trust with the child, such person shall, in addition to the punishment to which he is liable for such offence, be punished with imprisonment for a term not exceeding five years and shall also be punished with whipping of not less than two strokes. (2) In this section, a person is said to be in a relationship of trust with a child if the child is under his care, supervision or authority, including but not limited to— (a) a parent, guardian or person who is related through full- blood or half-blood, or through marriage or adoption, including de facto adoption; (b) a person who looks after one or more children for valuable consideration for any period of time; (c) a teacher, lecturer or warden of a kindergarten, school, public institution of higher learning or private institution of higher learning; (d) any person providing healthcare services in a Government healthcare facility or private healthcare facility as defined in section 2 of the Private Healthcare Facilities and Services Act 1998 [Act 586]; (e) a coach; and (f) a public servant of whatever rank in the course of his duty under any written law in respect of the child. 26. Oleh itu jelas bahawa undang-undang telah menetapkan bahawa mana-mana orang yang telah disabitkan di bawah seksyen 14 Akta tersebut hendaklah dikenakan hukuman pemenjaraan selama tempoh tidak lebih 20 tahun dan juga hendaklah dikenakan hukuman sebatan. 27. Manakala seksyen 16 Akta yang sama memperuntukan sebagai tambahan bilamana terdapat Perhububungan Amanah (Relationship of Trust) di antara tertuduh dan mangsa maka suatu hukuman sebagai tambahan dari hukuman di dalam peruduhan kesalahan utama hendaklah dikenakan lagi ke atas pesalah iaitu tambahan hukuman penjara lagi 5 tahun dan sebatan tidak kurang dari 2 sebatan hendaklah dikenakan terhadap tertuduh. Maka untuk kes ini, mahkamah boleh mengenakan hukuman maksima penjara sehingga 25 tahun dan juga minima 2 sebatan dan maksima 24 kali sebatan. 28. Di dalam kes ini, kes ini telah diambilkira sebagai panduan; kes Mahkamah Agong ketika itu di dalam kes Mohd Abdullah Ang Swee Kang (1987) CLJ (rep) 209; yang mengatakan;- Held: [1] The Supreme Court agreed with the principle laid down in Reg.v. Barrick that in breach of trust cases in general a term of immediate imprisonment would be inevitable, save in very exceptional circumstances or where the amount of money involved was small. This must be the current sentencing policy even if the accused pleaded guilty. In the Supreme Court's view, the approach of assessing sentence adopted by the learned Judge supposedly based on English authorities by harmonising them with the maximum sentence of 20 years in s. 409 of the Penal Code,was not only misleading but was wrong in principle. When the legislature fixed a maximum penalty for an offence, the discretion of the Court in determining the extent to which in a particular case the punishment should be awarded must be exercised judicially. [2] In assessing the length of custodial sentence, the Court must look at the overall picture in perspective by considering firstly, the gravity of the type of offence committed; secondly, the facts in the commission of the offence; thirdly, the presence or absence of mitigating factors, and fourthly, the sentence that have been imposed in the past for similar offences to determine the trend of sentencing policy, if any. The fact that a sentence of imprisonment is imposed as a deterrence does not justify the sentencer in passing a sentence of greater length than the facts of the offence warrant. The gravity of the type of offence involved must be considered in the light of the particular facts of the offence. [3] A sentencer must give sufficient discount for all extenuating circumstances pertaining to the degree of culpability or criminality involved which must necessarily vary from case to case apart from other mitigating factors. Unless there is a proper reason for withholding such credits, failure to do so may result in the sentence not exercising his or her discretion judicially in assessing the level of custodial sentence. The sentence imposed on the appellant was manifestly excessive. It is generally accepted that the extent of reduction on account of a plea of guilty would be between ¼ and 1/3 of what otherwise would have been the sentence. In this particular case, apart from plea of guilty, the sentence must also be discounted to reflect the full restitution made and other mitigating factors. [4] Although the learned Judge indicated in his judgment that he had given the necessary discounts they were not reflected at all in the sentence imposed, as it was imposed without regard to the particular facts of this case and without giving the appellant any or sufficient credit for all the mitigating circumstances. The recommended prison terms in Barrick were not meant for pleading guilty cases. If the learned Judge had not fallen into error in misreading the facts and the law in Barrick and Davies he would probably have found that a 4 year sentence would adequately fit the crime which by any standard was severe enough to satisfy the justice of this case. [5] Since full restitution had been made and the appellant had not enriched himself personally by the crime, the Supreme Court found no purpose in imposing a fine in addition to custodial sentence. 29. Kesemua faktor yang dicadangkan di dalam kes tersebut telah mahkamah ini ambilkira dan diselaraskan dengan Fakta kes di hadapan kita ini sebelum mahkamah ini menjatuhkan hukuman. 30. OKT telah mengaku bersalah dan pengakuan bersalahnya ini perlu diambilkira sebagai satu faktor peringanan utama (Melvani v PP). Paling utama ialah suatu sabitan telah diperolehi tanpa kesemua pihak yang terlibat khasnya pihak pendakwaan perlu bersusah payah membuktikan kes melampaui keraguan yang munasabah mengambilkira fakta kes pada masa kejadian pelbagai kemungkinan boleh terjadi. Begitu juga banyak penjimatan masa dan kos semua pihak khasnya saksi-saksi termasuk pengelakkan faktor “humiliation” terhadap mangsa telah diperolehi dengan pengakuan salah OKT ini. OKT juga tidak mempunyai apa-apa rekod lampau. Di dalam rayuannya, OKT memohon maaf di atas kesalahannya. Beliau mengatakan telah amat menyesal dan insaf dan mohon dikenakan hukuman dari tarikh tangkap. Mempunyai 4 orang anak dan bertaubat dan berjanji tidak akan mengulangi lagi kesalahannya. 31. Hujahan pemberatan oleh pihak pendakwaan juga telah mahkamah ini ambilkira kesemuanya dimana faktor kepentingan awam adalah faktor utama di dalam pertimbangan untuk memberikan hukuman paling setimpal untuk OKT. Mahkamah juga diingatkan bahawa perbuatan OKT adalah sangat keji dan hina. OKT telah berusia 58 tahun dan perlakuan sebegini adalah tidak wajar dilakukan oleh seorang yang telah tua seperti OKT. OKT juga sebagai seorang bapa kandung dimana sebagai seorang ketua keluarga seharusnya OKT melindungi anak-anaknya dan bukannya melakukan perbuatan yang terkutuk ini ke atas anak kandung dari darah dagingnya sendiri umpama “ibarat haruan makan anaknya sendiri” dan kesalahan ini adalah merupakan satu bentuk kesalahan yang serius dan satu hukuman yang berbentuk pengajaran perlu diberikan kepada OKT agar ianya dapat menjadi hukuman dan pengajaran kepada OKT dan mana-mana bakal pesalah lain. 32. Kenyataan Impak mangsa (Victim Impact Statement) juga telah mahkamah ambilkira sebelum mengenakan hukuman yang telah dijatuhi terhadap OKT dimana mangsa mengatakan berasa stress dan trauma dan hilang keyakinan diri khasnya kepada lelaki. 33. Oleh yang demikian, tempoh pemenjaraan selama 18 tahun tersebut adalah dirasakan setimpal dengan jenayah hina dan kejam yang telah dilakukan oleh OKT terhadap anak kandungnya sendiri. Segala perlakuan berterusan OKT yang terakam di dalam ingatan mangsa selama tiga (3) tahun ini pasti tidak akan dapat dilupakan oleh mangsa selama hayatnya yang waras. 34. Dari fakta kes sendiri yang telah diakui oleh OKT menunjukkan tingkahlaku kejam dan keganasan yang telah dilakukan oleh seorang bapa ke atas anaknya. Selain dari mencabul, meraba, mengesel, menindih dan bermacam-macam lagi perlakuan arah seksual telah dikenakan ke atas mangsa secara berulangkali, OKT juga melakukan kekerasan dan kecederaan terhadap mangsa. 35. Dengan memasukkan Lobak Merah ke dalam kemaluan mangsa sehingga berlaku kecederaan dan pendarahan kepada kemaluan mangsa sehingga menitis-nitis darahnya adalah merupakan suatu perkara yang berada di luar batas kemanusiaan yang waras yang boleh dilakukan oleh seorang ayah kepada anaknya. Selain dari itu, aksi memasukkan kemaluan OKT ke dalam mulut mangsa begitu menjijikkan untuk diperlakukan oleh seorang yang telah tua seperti OKT terhadap mangsa. 36. Oleh itu, apakah bentuk hukuman yang paling layak untuk diterima oleh OKT akibat dari perbuatan jenayah yang dilakukannya itu?. Ada kalanya, pengakuan bersalah OKT tidak semestinya diambilkira secara total di dalam mempertimbangkan peringanan hukuman sebagaimana lazim sekiranya kesalahan jenayah yang dilakukan olehnya begitu mendesak untuk membuatkan faktor ini diketepikan. Keparahan kepada suatu bentuk kesalahan boleh menyebabkan OKT tidak layak kepada peringanan walaupun beliau telah mengaku bersalah sebagaimana diputuskan dalam kes-kes seperti Loh Hock Seng & Anor v PP (1980) 2 MLJ 13, FC, PP v Oo Leng Swee & Ors (1981) 1 MLJ 247, FC, Leo Say & Ors v PP (1985) 2 CLJ 155. Faktor kepentingan Awam khasnya di dalam kes jenayah seksual terhadap kanak-kanak ini adalah lebih utama dari kepentingan peribadi OKT apabila beliau mengaku bersalah untuk diambilkira – kes Sim Gek Yong v PP (1995) 1 SLR 537, Ismail Rashid v PP (1999) 4 CLJ 402 dan adalah juga diingatkan bahawa pengakuan bersalah OKT tidak lah mengambil budibicara mahkamah untuk mengenakan suatu hukuman yang maksima ke atas OKT sekiranya bentuk kesalahan tersebut mewajarkan – kes PP v Gunasekaran a/l Arjunan & Anor (2006) 5 MLJ 527, Joginder Singh v PP (1984) 2 MLJ 133, PP v Roslan Imun (1999) 3 CLJ 494, Re Hong Yong v PP (2009) 76 AMR 528. 37. Selain dari itu, di dalam mempertimbangkan hukuman sekurang-kurangnya dua (2) Sebatan yang sepatutnya di kenakan terhadap OKT sebagaimana kehendak seksyen 16 Akta tersebut, mahkamah ini merasakan bahawa melihat kepada usia dan keadaan fizikal OKT yang telah tua dan agak uzur, maka mahkamah ini menggunakan budibicaranya dengan tidak mengenakan hukuman tersebut, yang mana hukuman itu secara undang-undangnya hendaklah dikenakan ke atas OKT walaupun usia OKT telah melebihi 50 tahun yang mana ini adalah dibenarkan mengikut undang-undang sebagaimana diperuntukkan di dalam seksyen 25 Akta Kesalahan-kesalahan seksual terhadap kanak-kanak 2017 tersebut. 38. Adalah menjadi tugas dan tanggungjawab mahkamah untuk memberikan hukuman yang mana hukuman itu adalah mencerminkan akan keseriusan suatu kesalahan ( PP v Khairudin (1982) 1 MLJ 331) dan mahkamah ini berpendapat bahawa tugas tersebut telah pun dilaksanakan. E. KESIMPULAN. 39. Setelah mengambilkira prinsip dan kesemua faktor yang perlu di dalam menjatuhkan hukuman, maka mahkamah ini berpendapat bahawa sabitan yang dikenakan terhadap OKT adalah selamat dan hukuman yang diberikan adalah adil, setimpal, wajar dan mengikut undang-undang. Sekian. Disediakan oleh; KAMARUDIN BIN KAMSUN, Hakim, Mahkamah Sesyen Jenayah 1, Johor Bahru. Bertarikh: 10 Oktober 2017. Pendakwa Raya: Puan Suhaila Shafi’udin. Timbalan Pendakwa Raya Johor. OKT mewakili diri sendiri. 20	22,590	Tika 2.6.0
BA-12ANCVC-114-12/2016	PERAYU ANWAR YEOW ABDULLAH (No. K/P: 730918-12-5685) RESPONDEN PERBADANAN PENGURUSAN CBD PERDANA 1	null	09/10/2017	YA DATIN ZALITA BINTI DATO' HJ. ZAIDAN (PK)	https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=7f391982-f0c5-4f5e-ac29-997a8938e6ef&Inline=true	DALAM MAHKAMAH TINGGI MALAYA DI SHAH ALAM DALAM NEGERI SELANGOR DARUL EHSAN, MALAYSIA RAYUAN SIVIL NO.: BA-12ANCVC-114-12/2016 ANTARA ANWAR YEOW ABDULLAH (No. K/P: 730918-12-5685) … PERAYU DAN PERBADANAN PENGURUSAN CBD PERDANA 1 … RESPONDEN (Dalam perkara Notis Permohonan Bertarikh 4 Oktober 2016 (No. Kandungan Mahkamah 32) mengenai Saman No. BA-B52NCVC-37-02/2016) Dalam Mahkamah Sesyen di Shah Alam Dalam Negeri Selangor Darul Ehsan, Malaysia Antara Perbadanan Pengurusan CBD Perdana 1 … Plaintif Dan Anwar Yeo Abdullah (No. K/P: 730918-12-5685) … Defendan) GROUND OF JUDGMENT Introduction [1] This is an appeal by the Appellant who is the Defendant on the Sessions Court’s decision which dismissed the Appellant’s application (Enclosure 32) under Order 18 rule 19(b) and (d) of the Rules of Court 2012 (ROC 2012), to strike out the Respondent’s (Plaintiff) action. [2] There was a first application by the Defendant to strike out Plaintiff’s claim on the basis that Plaintiff’s claim should be filed at the Kuala Lumpur Sessions Court, however it was dismissed on 2.8.2016 with costs of RM1,000.00. This is the Defendant’s second application to strike out Plaintiff’s claim on the basis that the Plaintiff should commenced the suit at the Strata Management Tribunal. [3] For ease of reference, in this judgment, the parties will be referred to as they were in the Sessions Court. Facts [4] The relevant factual background giving rise to this appeal based on the written submission of both counsels may be briefly stated as follows: (a) The Plaintiff is a Management Corporation formed under the Strata Management Act 2013 (SMA). Based on the SMA, the Plaintiff has the statutory obligation in managing the common property of CBD Perdana 1, Cyberjaya (the Premise) and to collect, among others, management charges and sinking fund (Charges). (b) The Plaintiff on 23.2.2008 took over from the developer of the Premise, Setia Haruman Sdn Bhd as Joint Management Body and then as the Management Corporation following SMA. (c) The Defendant is the registered and beneficial owner for 5 units in the Premise that is unit 4801-0-11, 4801-1-11, 4801-2-11, 4801-3-11, 4801-4.11 (5 Separate Units). (d) The Plaintiff claimed that through a letter by the developer, the Defendant ought to have taken vacant possession on 21.5.2008 and that the Defendant has never paid the Charges, or any other charges which includes late payment charges to the Plaintiff. (e) The Plaintiff claimed that based on SMA, the Strata Title Act 1985 and the Sale and Purchase Agreement of the units between the Defendant and the developer, the Plaintiff is entitled to collect the Charges from the Premise unit owners after vacant possession was given by the developer. (f) The Plaintiff alleged that Charges amounting to RM623,571.04 (as at 29.12.2015) for all 5 Separate Units are owing to Plaintiff by Defendant since 21.5.2008 (paragraph 11 of the Statement of Claim, at page 10 of Appeal Record (Jilid 1/3)). The Plaintiff claimed that the Plaintiff had issued and delivered invoices for the 5 Separate Units from May 2008 until December 2015 (paragraph 12 Statement of Claim, Appeal Record (Jilid 1/3) and Appeal Record (Jilid 3/3)). (g) The Plaintiff also claimed for interest at 5% per annum since 21.5.2008 until full settlement. (h) The Defendant’s first application to strike out was on the ground that the Plaintiff’s claim should be filed in the Kuala Lumpur Sessions Court but the said application was dismissed on 2.8.2016 with costs of RM1,000. This is the Defendant’s second application to strike out under Order 18 rule 19 (b) and (d) of Rules of Court 2012 (ROC 2012) on the basis that the Plaintiff should commence the claim at the Strata Title Management Tribunal. Defendant’s Submission [5] The learned counsel for the Defendant submitted that the Plaintiff’s claim or any part of Plaintiff’s Statement of Claim should be struck out as it is clearly scandalous, frivolous or vexatious and an abuse of the process of this Honourable Court under Order 18 r 19(b) and (d) of ROC 2012 and based on the Supreme Court case of Bandar Builder Sdn Bhd & Ors v United Malayan Banking Corporation Bhd [1993] 3 MLJ 36. The counsel for the Defendant advanced several grounds of appeal. The main ground submitted is that the Plaintiff’s claim at the court has no jurisdiction and that Plaintiff’s joinder of action for the 5 Separate Units is to circumvent the SMA. [6] Briefly, the Defendant’s counsel submitted that the Plaintiff’s claim should be heard at the Strata Management Tribunal only which is established under Part IX of the SMA and not at the Court as originating process based on section 105 and section 106 of SMA. It was the Defendant’s contention that the Plaintiff suit was filed on 10.2.2016 and since SMA was enforced on 1.6.2016, SMA is the applicable law to the proceedings herein. The Defendant’s counsel highlighted section 105 SMA as in its written submission, page 4: “(1) The Tribunal shall have the jurisdiction to hear and determine any claims specified in Part 1 of the Fourth Schedule and where the total amount in respect of which an award of the Tribunal is sought does not exceed two hundred and fifty thousand ringgit (“250k Limitation”) or such other amount as may be prescribed to substitute the total amount. (2) For the avoidance of doubt, the Limitation Act 1953 [Act 254] shall not apply to the proceedings of the Tribunal … (emphasis in bold)” [7] The Defendant’s counsel argued that the claim for the Charges falls under the strict jurisdiction of the Tribunal following the Fourth Schedule Part I, paragraph 3 of SMA and based on the definitions of ‘Tribunal’ and ‘Charges’ under section 2 of the SMA. [8] The counsel for the Defendant relied on the case of Albilt Resources Sdn Bhd v Casaria Construction Sdn Bhd [2010] 7 CLJ 785 where the Court of Appeal had expressed their approval on the mandatory nature of the Arbitration Act 2005 to exclude the Court’s jurisdiction and argued that it is of the similar situation in the instant case of SMA. It was submitted that section 105 provides the word “shall” which, following the Federal Court’s decision in PP V Yap Min Woie [1996] 1 MLJ 169, it confers a mandatory unfettered jurisdiction upon the Tribunal by Parliament. [9] The Defendant’s counsel contended that section 106 of the SMA explicitly excluded to make way for filing claims with the Tribunal and thus Plaintiff’s claim does not fall within the exception of section 106 (1)(a) and (b) of SMA: “106. Exclusion of jurisdiction of court. (1) Where a claim is filed with the Tribunal and the claim is within the Tribunal’s jurisdiction, the issues in dispute in that claim, whether as shown in the initial claim or as emerging in the course of the hearing, shall not be the subject of proceedings between the same parties in any court unless – (a) the proceedings before the court were commenced before the claim was filed with the Tribunal; or (b) the claim before the Tribunal is withdrawn, abandoned or struck out.” [10] The counsel for the Defendant averred that the comprehensiveness of the SMA proves to show that the SMA is the most appropriate forum and pointed out to the provisions of the SMA relating to the conduct, procedure and powers of the Tribunal, its subsidiary legislation that is the Strata Management (Strata Management Tribunal) Regulations 2015 and the debates on the Strata Management Bill at Parliament. [11] In relation to the joinder of action ground, the Defendant’s counsel asserted that the Plaintiff had lumped all the sums claimed for the 5 Separate Units together so that the amount claimed is over and above the statutory limitation of RM250,000.00. It was argued that if the Plaintiff had placed a claim per unit it would be impossible as the average monthly maintenance charges is RM750 each per month where if it were to be calculated at RM250,000 limitation would mean that it must be uncollected charges of 333 months, equivalent to 27 ¾ years for each unit whereas a 6 years limitation for a claim to be taken under a civil litigation would be caught by the limitation period. To which the Defendant claimed that the Plaintiff abusively adopted a non-mandatory and/or discretionary provision under Order 15 r 1(1)(a) ROC 2012 instead of justifying the joinder and show the causes of action in reference to the case of Harris v Ashworth [1962] 1 All ER 438. It was submitted that the Plaintiff is utilizing the ROC 2012 to circumvent the clear unambiguous SMA and placed reliance on the case Sistem Lingkaran Lebuhraya Kajang (SILK) v Inch Kenneth Kajang Rubber Ltd [2011] 1 CLJ 95 where the Court of Appeal struck down an attempt to utilize the provisions of the ROC 2012 to circumvent the clear unambiguous terms of the Land Acquisition Act 1960. [12] It was argued by the Defendant’s counsel that if this appeal is not allowed, the objective of SMA would be defeated and counsel made reference to section 17A of the Interpretation Acts 1948 and 1967 and the Federal Court cases in relation to the objective and purpose of SMA, the case of Andrew Lee Siew Ling v United Overseas Bank [2013] 1 CLJ 24, the Federal Court case of Dato’ Seri Anwar Ibrahim (DSAI) v PP [2010] 4 CLJ 265 and the Federal Court case of Majlis Agama Islam Wilayah Persekutuan (MAIWP) v Victoria [2016] 4 CLJ 12. The Defendant’s counsel submitted that no prejudice will be placed on the Plaintiff if its claim is to be heard at the Tribunal and the irregularity can be cured under Order 1A and Order 2 of the ROC 2012, however in the latter, the Defendant’s counsel argued that this was not raised by the Plaintiff. Plaintiff’s Submission [13] The learned counsel for the Plaintiff submitted that the Defendant must file an application for a stay under Order 12 Rule 10 of the ROC 2012 for leave and not as an application to struck out, if the Defendant wish for the Court to transfer the matter to the Tribunal. The Plaintiff’s counsel submitted that for an Order 18 rule 19 ROC 2012 application, the Defendant must clearly show that the Plaintiff’s claim is obviously unsustainable and referred to the authorities of Solai Realty Sdn Bhd v United Overseas Bank (M) Bhd [2013] 4 MLJ 545; Hap Seng Consolidated Bhd v Darinsok bin Pangiran Apan & Ors and another appeal [2014] 1 MLJ 335. The Plaintiff’s counsel asserted that the Defendant’s appeal must be dismissed based on several grounds based on sections 105(1), 106(2) and 78(2) of the SMA. [14] The Plaintiff’s counsel submitted that the jurisdiction of the court is stipulated under section 105(1) of the SMA where the monetary jurisdiction of the Tribunal is a sum not exceeding RM250,000.00 and this matter is excluded under section 106(1)(a) SMA because there was no claim filed before the Tribunal. In addition, the Plaintiff’s counsel also submitted from its written submission that following section 78(2) of the SMA: “(2) If any sum remains unpaid by the proprietor at the end of the period specified in the notice under sub-section (1) the management corporation or the subsidiary management corporation, as the case may be, may file a summons or claim in court of competent jurisdiction or before the Tribunal for the recovery of the said sum or, as an alternative to recovery under this section, resort to recovery under section 79. [emphasis my own]” [15] It was asserted by the Plaintiff’s counsel that based on section 78(2) of the SMA, the SMA is clear in giving a choice to the parties on which forum they wish to commence action and the jurisdiction of the Courts have not been excluded. [16] In relation to the joinder of action, the counsel for the Plaintiff submitted that the Defendant’s counsel averment that the action brought for 5 Separate Units to circumvent the limitation of RM250,000.00 is baseless as the value of the claim as pleaded is RM623,500 which far exceeds the monetary jurisdiction of RM250, 000.00. The counsel for the Plaintiff does not deny that the Tribunal does exist to hear the matter but the choice of forum is provided for in the SMA to which the sum claim of RM623,571.04 would be higher as the Defendant has not paid a single cent to the Plaintiff. The Plaintiff’s counsel added that the joinder of action for the 5 Separate Units would save time and cost. THE SESSION COURT’S DECISION [17] The Sessions Court dismissed the Defendant’s application under Order 18 rule 19 ROC 2012: “Alasan Penolakan Permohonan A.18 k.19 1. Defendan adalah pemilik 5 unit hartanah yang menjadi asas kepada tuntutan plaintif. Fakta berkenaan pemilikan 5 unit tersebut tidak dipertikaikan oleh defendan. Sebagai pemilik, defendan bertanggungan untuk membayar caj-caj penyenggaraan setiap bulan bagi kesemua hartanah yang dimiliki. Namun caj-caj tersebut seperti yang didakwa oleh plaintif, tidak dibayar. 2. Plaintiff telah memfailkan tuntutan di Mahkamah berdasarkan s. 78(2) APS 2013 kerana tuntutan yang difailkan melebihi bidangkuasa Tribunal PS. Berdasarkan s. 105(1) APS, bidangkuasa Tribunal PS tidak boleh melebihi jumlah RM250,000.00. 3. Sek. 78(2) dan s. 105(1) memperuntukkan berikut: ……… 4. Mahkamah berpendapat plaintif boleh menggabungkan tuntutan bagi 5 unit walaupun perjanjian jualbeli ditandatangani secara berasingan. Ini kerana kelima-lima unit adalah kepunyaan defendan dan tidak melibatkan pemilik lain. Hartanah juga terletak di bangunan yang sama dan dengan cara ini dapat menjimatkan masa dan kos pihak-pihak. Berdasarkan alasan-alasan yang dinyatakan, Mahkamah telah menolak permohonan defendan di bawah A. 18 k. 19 dengan kos dalam kausa.” THE COURT’S FINDING [18] For Order 18 rule 19 of the ROC 2012 application, the legal principle is that the applicant must prove that the opponent’s claim for the summary process under Order 18 rule 19 should be exercised sparingly, only in plain and obvious case. The burden to prove that the case is obviously unsustainable based on any of the four limbs stipulated under parts (a) or (b) or (c) or (d) of Order 18 rule 19 rests with the applicant. There is an abundant of authorities on this and I refer to the authorities submitted by both counsels, the Federal Court’s case of Bandar Builder (supra) attributed by the Defendant’s counsel and the case of Solai Realty (supra) as referred by the Plaintiff’s counsel. [19] Order 18 rule 19(1) of the ROC 2012 which is about striking out pleadings and endorsements provides that, “19(1)The Court may at any stage of the proceedings order to be struck out or amended any pleading or the endorsement, of any writ in the action, or anything in any pleading or in the endorsement, on the ground that – (a) It discloses no reasonable cause of action or defence, as the case may be; (b) It is scandalous, frivolous or vexatious; (c) It may prejudice, embarrass or delay the fair trial of the action; or (d) It is an otherwise an abuse of the process of the Court, And may order the action to be stayed or dismissed or judgment to be entered accordingly, as the case may be. (2) No evidence shall be admissible on an application under subparagraph (1)(a). (3) This rule shall, as far as applicable, apply to an originating summons as if it were a pleading.” What is meant as ‘obviously unsustainable’ had been scrutinised in a plethora of cases. The root word is not ‘unsustainable’ but rather the word ‘obviously’ which denotes that on the face of it, the claim must be plainly or evidently unsustainable in law: Pet Far Eastern (M) Sdn Bhd v Tay Young Huat [1999] 5 MLJ 558. [20] Based on the Defendant’s application, the issue is whether the plaintiff’s claim is unsustainable that is whether its pleading is ‘scandalous’, frivolous’ or ‘vexatious’ and an abuse of the court process. The heart of the matter as contended by the Defendant that the Plaintiff’s claim should be struck out revolves around the Court’s jurisdiction under SMA. [21] The definition as to what entails to be ‘scandalous’ ‘frivolous’ or ‘vexatious’ can be found in the case of Solai Realty (supra) where in reference to the English case of Murray v Epsom Local Board [1897] 1 CH 35, it was held that, “.. ‘scandalous’ generally refers to matters which improperly cause a derogatory light on someone, usually a party to an action, with respect to moral character or uses repulsive language. …. The words ‘frivolous’ or ‘vexatious’ generally refer to a groundless action with no prospect of success, often raised to embarrass or annoy the other party to the action.” [22] This Court also wish to rely on a recent decision of the Court of Appeal in Tan Wei Hong and 4 Others v Malaysia Airlines System Berhad and 4 Others, Civil Appeal No.: W-01(NCVC)(W)-125-04/ 2016 where the principles applicable in striking out application had been meted out as guidance, and the definition of ‘abuse of process’ was looked into which the Court of Appeal finds that, “… A pleading is an abuse of process if the litigation process is used for improper purpose; e.g. where the proceedings constitute a sham; where the process of the Court is not being fairly or honestly used, or is employed for some ulterior or improper purpose;” [23] Upon careful perusal of the Plaintiff’s Statement of Claim, it is of the view that the factual allegations, if proven, clearly disclosed a cause of action based on a statutory breach. I do not see anything baseless or scandalous, nor frivolous, of the Plaintiff’s Statement of Claim where the particulars for the recovery sum is as detailed at paragraph 11 of the Statement of Claim. [24] In relation to the issue of Tribunal’s and the court’s jurisdiction under the SMA, the provisions must be scrutinized to ascertain the meaning of the provisions on the establishment of the Tribunal and the court’s jurisdiction. Section 105 of SMA provides for the jurisdiction of the Tribunal and section 106 SMA provides for the exclusion of jurisdiction of court which both provisions are reproduced here for easy reference: “105. Jurisdiction of Tribunal (1) The Tribunal shall have the jurisdiction to hear and determine any claims specified in Part I of the Fourth Schedule and where the total amount in respect of which an award of the Tribunal is sought does not exceed two hundred and fifty thousand ringgit or such other amount as may be prescribed to substitute the total amount. (2) For the avoidance of doubt, the Limitation Act 1953 shall not apply to the proceedings of the Tribunal. (3) The jurisdiction of the Tribunal shall not extend to any claim in which the title to any land, or any estate or interest in land, or any franchise, is in question.” “106. Exclusion of Jurisdiction of court. (1) Where a claim is filed with the Tribunal and the claim is within the Tribunal’s jurisdiction, the issues in dispute in that claim, whether as shown in the initial claim or as emerging in the course of the hearing, shall not be the subject of proceedings between the same parties in any court unless – (a) the proceedings before the court were commenced before the claim was filed with the Tribunal; or (b) The claim before the Tribunal is withdrawn, abandoned or struck out. (2) Where paragraph (1)(a) applies, the issues in dispute in the claim to which those proceedings relate, whether as shown in the initial claim or emerging in the course of the hearing, shall not be the subject of proceedings between the same parties before the Tribunal unless the claim before the court is withdrawn, abandoned or struck out. (3) For the purpose of this section, a claim shall be deemed to have been made with the Tribunal when section 108 has been completed.” [25] In interpreting a provision of a statute, I viewed that the subsections and the parts of the same clause of the parent Act must be read as a whole. I refer to the authority by M.N. Rao, Amita Dhanda in N S Bindra’s Interpretation of Statutes, Tenth Edition, 2007 at page 690, that the presumption and legal intendment is that each and every clause in a statute has been inserted for some useful purpose and therefore, the instrument of the Act must be read as a whole to ascertain both its intent and general purpose, also the meaning of each part. The same authors illustrate that the court is not only to look at the words, but has to look at the content, the collection and the object of such words relating to such matter and interpret the meaning according to what would appear to be the meaning intended to be conveyed. [26] Other than sections 105 and 106 of SMA, section 78(2) SMA also provides the provision relating to filing a summons or claim in court or before the Tribunal by the management corporation or the subsidiary management corporation. Section 105 of SMA spells out the limitations of the Tribunal which is stated clearly that the claim must not exceed RM250,000.00 and the jurisdiction of the Tribunal is limited where it “shall not extend to any claim” to title to any land, or estate or interest in land or any franchise. Section 106 of SMA comes with subsection (1)(a) and (b), subsections (2) and (3). Subsection (1) started off by stating “Where a claim is filed with the Tribunal..”, that it shall not be the subject of the proceedings in any court, unless the proceedings in court had commenced before the claim filed in Tribunal or where the claim before Tribunal had been withdrawn, abandoned or struck out. In ascertaining the true meaning of jurisdiction in filing a claim, I viewed that section 105 and section 106 SMA cannot be read without section 78(2) SMA. [27] Section 78 of SMA is in relation to the procedure for recovery of sums due. Section 78(1) states that where a sum becomes recoverable by the management corporation from a proprietor, the management corporation may serve on the proprietor a written notice demanding payment of the sum due within the period as specified in the notice which shall not be less than two weeks from date of service. Section 78(2) states that if any sum remains unpaid by the proprietor at the end of the period specified in the notice based under subsection (1), the management corporation may file a summons or claim in a court or before the Tribunal or resort to recovery under section 79. [28] Consequently, the heading of a section alone cannot be relied upon to ascertain the meaning of the section. Section 106’s heading stated as “Exclusion of Jurisdiction of Court” which by interpreting it in isolation with the rest of the paragraphs will not give the true meaning of the whole section 106 SMA. The same authors in N S Bindra’s Interpretation of Statutes also viewed that it would be a fundamental error to detach the first portion of a section and settle its meaning first by ignoring the rest of the section, and then proceed to apply remainder of the section on the basis that the meaning of the first part is already fixed. The Court viewed that the Defendant’s counsel’s submission on section 106(1) was without in reference to subsections (2) and (3). This Court holds the view that sections 105 and 106 must be read as whole and perhaps the whole Act, to ascertain the meaning of the Tribunal’s jurisdiction. It is the same authors’ view that no provision of a statute can be read in isolation as it has to be construed with reference to the context and in the light of other provisions: V Tulasmma v Sesha Reddy [1977] SCC 99. [29] Section 106 (1)(a) SMA states that if there was a claim filed before the Tribunal and within the Tribunal’s jurisdiction, issue in dispute shall not be subject of proceedings unless for the reasons under parts (a) or (b) of subsection (1). The reasons which is either part (a) or (b), clearly shows that issue in dispute shall not be subject of court’s proceedings unless the proceedings before the court commenced before the claim was filed with the Tribunal or the claim is withdrawn, abandoned or struck out. Subsection (2) of section 106 further emphasized the application of subsection (1)(a), the issue in dispute shall not be subject of proceedings between the same parties before the Tribunal unless the claim before the court is withdrawn, abandoned or struck out. [30] Upon careful reading of section 106(1) SMA, it throws some light that if the claim had been filed with the Tribunal, the same issues in dispute cannot be filed at the court unless the matter filed at the court commenced before the claim was filed with the Tribunal, or the claim before the Tribunal is withdrawn, abandoned or struck out. I seemed to be repeating the provision as there is no other way to interpret it as the wording is straightforward, it literally states what it means. Section 106(1) SMA clearly does not provide the mechanism to file a claim concurrently unlike in the Construction Industry Payment and Adjudication Act 2012 (CIPA) which provides the enabling provision to file concurrently, giving the claimant the choice to settle its claim at three different dispute settlement mechanisms. [31] Under the CIPA, the effect of adjudication decision is binding unless it is set aside by the High Court or settled by written agreement between parties or the dispute is finally decided by arbitration or the court: section 13(a), (b) or (c) CIPA. In addition, under section 16(1)(a) and (b) CIPA, a party may apply to the High Court for a stay of an adjudication decision in the circumstances, either when an application to set aside the adjudication decision under section 15 has been made (section 16(1)(a) CIPA) or, the subject matter of the adjudication decision is pending final determination by arbitration or the court: section 16(1)(b) CIPA. [32] It is also worth mentioning here that the decisions of the Tribunal is final and binding to the proceedings as provided under section 120 SMA. Under section 120(1)(a) and (b) SMA the Tribunal’s award shall be final and binding on all parties and the award by the Tribunal “be deemed to be an order of a court and be enforced accordingly by any party to the proceedings”. It is crystal clear that the SMA does not provide the concurrent mechanism to file a claim at the court and Tribunal simultaneously where in the latter, the Tribunal’s award shall be binding on all the parties to the proceedings. [33] The Defendant’s counsel pointed out section 17A of the Interpretation Acts 1948 and 1967 submitting that section 106 SMA should be given the purposive interpretation. Section 17A of the Interpretation Acts 1948 and 1967 embodies the concept of purposive approach which the Federal Court in the case of Chor Phaik Har v Farlim Properties Sdn Bhd [1994] 3 MLJ 345 adopted the position taken by the House of Lords in Pepper v Hart [1993] AC 593 that, on the construction of the statute that would promote the purpose or object underlying a particular Act to allow reference to White Papers, official reports and ministerial statements as a guide to interpretation of statues, Lord Griffiths observed, “.. The object of the court in interpreting legislation is to give effect so far as the language permits to the intention of the legislature. If the language proves to be ambiguous I can see no sound reason not to consult Hansard to see if there is a clear statement of the meaning that the words were intended to carry. …” [34] I have touched on the purpose of enacting the Strata Management Act 2013 in one of my decisions this year, in the case of Saujana Triangle v JMB Perdana No.Rayuan Sivil: 12ANCVC-77-08/2016 on a summary judgment claim, by referring to the Hansards, that is the debates at the Parliament (the Second Reading of the Strata Management Bill 2012 (the SM Bill) of 29.9.2012 and at the Senate of 19.12.2012) where the lacuna was identified in the implementation of the Building and Common Property (Maintenance and Management) Act 2007 (Act 663) (BCPA 2007). The SM Bill 2012 was tabled with the Strata Titles (Amendment) Bill 2012 to ensure that the amendments in both legislations are synchronised. The Minister for Housing and Local Government had stated, among others, “… Selain daripada itu juga, rang undang-undang ini juga telah pun mengambil kira peralihan akaun secara automatik kepada jawatankuasa baru JMB atau pun MC yang telah dipilih dalam tempoh tiga bulan bagi mengelakkan sebarang urusan dan transaksi berkaitan penyelenggaraan dan pengurusan bangunan terganggu yang akhirnya memberi kesan kepada penghuni secara keseluruhannya; dan (xi) antara elemen penambahbaikan yang paling penting adalah kewujudan tribunal pengurusan strata yang akan diwujudkan di bawah rang undang-undang ini. Dengan prinsip mudah dan cepat, perwujudan tribunal akan memberikan akses yang mesra pengguna kepada semua pihak yang tidak berpuas hati untuk menyalurkan tuntutan berkaitan penyelenggaraan dan pengurusan kepada tribunal tersebut. “…. Satu bab khusus berkaitan pertikaian yang melibatkan isu penyelenggaraan dan pengurusan bangunan berstrata. Pertama, ianya melibatkan pelantikan pegawai undang-undang untuk menganggotai tribunal. Tribunal pengurusan strata mempunyai kuasa untuk memutuskan keseluruhan award tidak melebihi RM250,000. Terdapat 24 klausa yang disusun secara komprehensif merangkumi bidang kuasa tribunal, pengecualian kuasa mahkamah, kriteria responden, tatacara persidangan tribunal, kehadiran perbicaraan, persidangan terbuka, rundingan penyelesaian, pelantikan pakar oleh tribunal, award tribunal, rujukan kepada mahkamah tinggi, pelupusan dokumen dan prosedur mencabar keputusan tribunal, semua adalah telah pun tertera dengan begitu jelas sekali dalam rang undang-undang ini.” [35] The debate mentioned the headings in general pertinent to the establishment of the tribunal under SMA where the details had been agreed and as passed at Parliament. As revealed in the partly extracted Hansard, the purpose of establishing a tribunal under the SMA was to facilitate claims under SMA in expeditious manner where the limitation of the claim is capped at RM250,000.00. Reading the debate as a whole, the establishment of a tribunal under SMA was to cater for the increasing complaints relating to strata title properties and the issues one of which, the refusal of proprietors to pay maintenance charges, as pointed out by the Defendant’s counsel at the second paragraph of page 88 of the House of Representatives’ debate of 16.11.2012. [36] For this reason, the relevant provisions on the establishment and jurisdiction of the Tribunal must be read as a whole. In this case, I do not see any ambiguity in sections 78, 105 and 106 of SMA. The provisions clearly stated that the claims under SMA can be filed at the court or at the Tribunal and in the latter, it is within the limitations provided and that it has not commenced in court following section 106. Therefore the purposive approach for interpretation would be irrelevant. This is consistent with the Federal Court’s case of Andrew Lee Siew Lind v United Overseas Bank [2013] 1 CLJ 24 attributed by the Defendant’s counsel that where the language of a provision is plain and unambiguous, section 17A of the Interpretation Acts 1948 and 1967 will have no application as the question of another meaning will not arise: “…Thus, it is only when a provision is capable of bearing two or more different meanings can section 17A be resorted to in order to determine the one that will promote the purpose or object of the provision. Such an exercise must be undertaken without doing any violence to the plain meaning of the provision. …” [37] Upon careful scrutiny of sections 78(2), 105 and 106 of SMA, this Court finds that they are not provisions relating to the object of the SMA or provisions on the general functions of the SMA where the construction of the provisions may connote a wide meaning. Sections 78(2), 105 and 106 SMA clearly meted out the jurisdiction of the tribunal and the limitations and Parliament will not allow such construction to be in differing meanings as it would render the whole purpose of establishing a tribunal and court’s jurisdiction as meaningless. The Court viewed that the Court has jurisdiction to hear a claim under SMA, particularly where the amount of claim exceeds RM250,000.00. [38] In relation to the case of Albilt Resources Sdn Bhd v Casaria Construction Sdn Bhd [2010] 7 CLJ 785 as referred by the Defendant’s counsel where the Court of Appeal had expressed their approval on the Arbitration Act 2005 to exclude the court’s jurisdiction, in that case, it involves a construction dispute in reference to an arbitration agreement and the defendant filed for a stay pending arbitration before filing its defence against the plaintiff’s writ and statement of claim. The Court of Appeal in that case referred to section 10 of the Arbitration Act 2005 where at page 802, it stated that section 10 provides a mandatory stay of court proceedings where there is an arbitration agreement unless the arbitration agreement is null and void, inoperative or incapable of being performed, or that there is in fact no dispute between the parties with regard to the matters to be referred. [39] This Court finds that section 10 of Arbitration Act 2005 had since been amended where the court under section 10(1)(b) order a stay of arbitration if there is no dispute between the parties, had been removed under the Arbitration (Amendment) Act 2011 and the remaining precondition for a stay of proceedings to be granted is that the agreement is not null, void, inoperative and incapable of performance. In addition, the court’s jurisdiction under section 8 of the Arbitration Act 2005 was also amended. The original section 8 of Arbitration Act 2005 reads as follows: “Unless otherwise provided, no court shall intervene in any of the matters governed by this Act.” [40] This Court finds that section 8 of Arbitration Act 2005 had been amended under the Arbitration (Amendment) Act 2011 as the provision was unclear to court’s jurisdiction and the new section 8 now reads: “No court shall intervene in matters governed by this Act, except where so provided in this Act.” Referring to the ‘Annotation to the Malaysian Arbitration Act 2005 (Amended 2011)’ by the Kuala Lumpur Regional Centre for Arbitration (KLRCA), 2013, the Explanatory Notes to the Amendment Bill 2011 provides the rationale to the amendment which its purpose is to limit court intervention to matters specifically covered by the provisions of the parent Act and to discourage the invocation of the court’s inherent powers. The SMA was enacted in 2012 and this Court finds that there is no similar provision as stipulated in the amended Arbitration Act 2005 in the SMA, to exclude court’s intervention. In view of the latest legal position under the Arbitration Act 2005, the Albilt Resources (supra) case must be distinguished from the current case. [41] In relation to the Defendant’s counsel’s argument of joinder of action by the Plaintiff, this Court viewed that the 5 Separate Units belong to the same and one person which is the Defendant. The Court viewed that the 5 Separate Units are of the same cause of action that is for the recovery of the Charges from the Defendant and the claim as pleaded by the Plaintiff is RM623,571.04 as at 29.12.2015 which exceeds the RM250,000.00 limitation imposed under the SMA. [42] For the purpose of completeness, regarding Defendant’s counsel’s submission to invoke Order 1A of the ROC 2012, this Court’s stands is that where there is a breach of mandatory provision under the ROC 2012, this Court will not invoke Order 1A as it is not curable: Duli Yang Amat Mulia Tunku Ibrahim Ismail Ibni Sultan Iskandar Al-Haj Tunku Mahkota Johor v Datuk Captain Hamzah bin Mohd Noor [2009] 4 CLJ 329. This Court holds the view that there is no procedural irregularity in this case and Plaintiff’s claim is not scandalous or vexatious nor it is an abuse of court process to warrant Plaintiff’s claim as unsustainable within the meaning of Order 18 rule 19 of the ROC 2012. This Court finds that there is a clear demarcation of jurisdiction of the Tribunal and the court’s under the SMA and the Plaintiff’s claim is legally provided under the SMA to be brought before the court. In light of the above reasons, I dismiss the appeal. Dated: 9 October 2017 (ZALITA BINTI DATO’ ZAIDAN) Judicial Commissioner Shah Alam High Court COUNSEL FOR THE APPELLANT/DEFENDANT: WILSON LIM YEAP POAY NEE Tetuan Teoh Pek Wei 33.9, Level 9, The Boulevard Mid Valley City 59200 Kuala Lumpur [Ruj: TPW.L.2373.16/PN] Tel : 03-2282 8228 Faks : 03-2282 6692 COUNSEL FOR THE RESPONDENT/PLAINTIFF: EUNICE ONG Tetuan Eunice Derek & Co Suite B-06-02, 6th Floor, Gateway Corporate Suites No. 1 Jalan Desa Kiara 50480 Mont Kiara, Kuala Lumpur [EDCO/587/CBD/2015/LIT/EO/SH] Tel : 03-6201 4087 Faks : 03-6201 4085 1	36,987	Tika 2.6.0
BA-12ANCVC-114-12/2016	PERAYU ANWAR YEOW ABDULLAH (No. K/P: 730918-12-5685) RESPONDEN PERBADANAN PENGURUSAN CBD PERDANA 1	null	09/10/2017	YA DATIN ZALITA BINTI DATO' HJ. ZAIDAN (PK)	https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=7f391982-f0c5-4f5e-ac29-997a8938e6ef&Inline=true	DALAM MAHKAMAH TINGGI MALAYA DI SHAH ALAM DALAM NEGERI SELANGOR DARUL EHSAN, MALAYSIA RAYUAN SIVIL NO.: BA-12ANCVC-114-12/2016 ANTARA ANWAR YEOW ABDULLAH (No. K/P: 730918-12-5685) … PERAYU DAN PERBADANAN PENGURUSAN CBD PERDANA 1 … RESPONDEN (Dalam perkara Notis Permohonan Bertarikh 4 Oktober 2016 (No. Kandungan Mahkamah 32) mengenai Saman No. BA-B52NCVC-37-02/2016) Dalam Mahkamah Sesyen di Shah Alam Dalam Negeri Selangor Darul Ehsan, Malaysia Antara Perbadanan Pengurusan CBD Perdana 1 … Plaintif Dan Anwar Yeo Abdullah (No. K/P: 730918-12-5685) … Defendan) GROUND OF JUDGMENT Introduction [1] This is an appeal by the Appellant who is the Defendant on the Sessions Court’s decision which dismissed the Appellant’s application (Enclosure 32) under Order 18 rule 19(b) and (d) of the Rules of Court 2012 (ROC 2012), to strike out the Respondent’s (Plaintiff) action. [2] There was a first application by the Defendant to strike out Plaintiff’s claim on the basis that Plaintiff’s claim should be filed at the Kuala Lumpur Sessions Court, however it was dismissed on 2.8.2016 with costs of RM1,000.00. This is the Defendant’s second application to strike out Plaintiff’s claim on the basis that the Plaintiff should commenced the suit at the Strata Management Tribunal. [3] For ease of reference, in this judgment, the parties will be referred to as they were in the Sessions Court. Facts [4] The relevant factual background giving rise to this appeal based on the written submission of both counsels may be briefly stated as follows: (a) The Plaintiff is a Management Corporation formed under the Strata Management Act 2013 (SMA). Based on the SMA, the Plaintiff has the statutory obligation in managing the common property of CBD Perdana 1, Cyberjaya (the Premise) and to collect, among others, management charges and sinking fund (Charges). (b) The Plaintiff on 23.2.2008 took over from the developer of the Premise, Setia Haruman Sdn Bhd as Joint Management Body and then as the Management Corporation following SMA. (c) The Defendant is the registered and beneficial owner for 5 units in the Premise that is unit 4801-0-11, 4801-1-11, 4801-2-11, 4801-3-11, 4801-4.11 (5 Separate Units). (d) The Plaintiff claimed that through a letter by the developer, the Defendant ought to have taken vacant possession on 21.5.2008 and that the Defendant has never paid the Charges, or any other charges which includes late payment charges to the Plaintiff. (e) The Plaintiff claimed that based on SMA, the Strata Title Act 1985 and the Sale and Purchase Agreement of the units between the Defendant and the developer, the Plaintiff is entitled to collect the Charges from the Premise unit owners after vacant possession was given by the developer. (f) The Plaintiff alleged that Charges amounting to RM623,571.04 (as at 29.12.2015) for all 5 Separate Units are owing to Plaintiff by Defendant since 21.5.2008 (paragraph 11 of the Statement of Claim, at page 10 of Appeal Record (Jilid 1/3)). The Plaintiff claimed that the Plaintiff had issued and delivered invoices for the 5 Separate Units from May 2008 until December 2015 (paragraph 12 Statement of Claim, Appeal Record (Jilid 1/3) and Appeal Record (Jilid 3/3)). (g) The Plaintiff also claimed for interest at 5% per annum since 21.5.2008 until full settlement. (h) The Defendant’s first application to strike out was on the ground that the Plaintiff’s claim should be filed in the Kuala Lumpur Sessions Court but the said application was dismissed on 2.8.2016 with costs of RM1,000. This is the Defendant’s second application to strike out under Order 18 rule 19 (b) and (d) of Rules of Court 2012 (ROC 2012) on the basis that the Plaintiff should commence the claim at the Strata Title Management Tribunal. Defendant’s Submission [5] The learned counsel for the Defendant submitted that the Plaintiff’s claim or any part of Plaintiff’s Statement of Claim should be struck out as it is clearly scandalous, frivolous or vexatious and an abuse of the process of this Honourable Court under Order 18 r 19(b) and (d) of ROC 2012 and based on the Supreme Court case of Bandar Builder Sdn Bhd & Ors v United Malayan Banking Corporation Bhd [1993] 3 MLJ 36. The counsel for the Defendant advanced several grounds of appeal. The main ground submitted is that the Plaintiff’s claim at the court has no jurisdiction and that Plaintiff’s joinder of action for the 5 Separate Units is to circumvent the SMA. [6] Briefly, the Defendant’s counsel submitted that the Plaintiff’s claim should be heard at the Strata Management Tribunal only which is established under Part IX of the SMA and not at the Court as originating process based on section 105 and section 106 of SMA. It was the Defendant’s contention that the Plaintiff suit was filed on 10.2.2016 and since SMA was enforced on 1.6.2016, SMA is the applicable law to the proceedings herein. The Defendant’s counsel highlighted section 105 SMA as in its written submission, page 4: “(1) The Tribunal shall have the jurisdiction to hear and determine any claims specified in Part 1 of the Fourth Schedule and where the total amount in respect of which an award of the Tribunal is sought does not exceed two hundred and fifty thousand ringgit (“250k Limitation”) or such other amount as may be prescribed to substitute the total amount. (2) For the avoidance of doubt, the Limitation Act 1953 [Act 254] shall not apply to the proceedings of the Tribunal … (emphasis in bold)” [7] The Defendant’s counsel argued that the claim for the Charges falls under the strict jurisdiction of the Tribunal following the Fourth Schedule Part I, paragraph 3 of SMA and based on the definitions of ‘Tribunal’ and ‘Charges’ under section 2 of the SMA. [8] The counsel for the Defendant relied on the case of Albilt Resources Sdn Bhd v Casaria Construction Sdn Bhd [2010] 7 CLJ 785 where the Court of Appeal had expressed their approval on the mandatory nature of the Arbitration Act 2005 to exclude the Court’s jurisdiction and argued that it is of the similar situation in the instant case of SMA. It was submitted that section 105 provides the word “shall” which, following the Federal Court’s decision in PP V Yap Min Woie [1996] 1 MLJ 169, it confers a mandatory unfettered jurisdiction upon the Tribunal by Parliament. [9] The Defendant’s counsel contended that section 106 of the SMA explicitly excluded to make way for filing claims with the Tribunal and thus Plaintiff’s claim does not fall within the exception of section 106 (1)(a) and (b) of SMA: “106. Exclusion of jurisdiction of court. (1) Where a claim is filed with the Tribunal and the claim is within the Tribunal’s jurisdiction, the issues in dispute in that claim, whether as shown in the initial claim or as emerging in the course of the hearing, shall not be the subject of proceedings between the same parties in any court unless – (a) the proceedings before the court were commenced before the claim was filed with the Tribunal; or (b) the claim before the Tribunal is withdrawn, abandoned or struck out.” [10] The counsel for the Defendant averred that the comprehensiveness of the SMA proves to show that the SMA is the most appropriate forum and pointed out to the provisions of the SMA relating to the conduct, procedure and powers of the Tribunal, its subsidiary legislation that is the Strata Management (Strata Management Tribunal) Regulations 2015 and the debates on the Strata Management Bill at Parliament. [11] In relation to the joinder of action ground, the Defendant’s counsel asserted that the Plaintiff had lumped all the sums claimed for the 5 Separate Units together so that the amount claimed is over and above the statutory limitation of RM250,000.00. It was argued that if the Plaintiff had placed a claim per unit it would be impossible as the average monthly maintenance charges is RM750 each per month where if it were to be calculated at RM250,000 limitation would mean that it must be uncollected charges of 333 months, equivalent to 27 ¾ years for each unit whereas a 6 years limitation for a claim to be taken under a civil litigation would be caught by the limitation period. To which the Defendant claimed that the Plaintiff abusively adopted a non-mandatory and/or discretionary provision under Order 15 r 1(1)(a) ROC 2012 instead of justifying the joinder and show the causes of action in reference to the case of Harris v Ashworth [1962] 1 All ER 438. It was submitted that the Plaintiff is utilizing the ROC 2012 to circumvent the clear unambiguous SMA and placed reliance on the case Sistem Lingkaran Lebuhraya Kajang (SILK) v Inch Kenneth Kajang Rubber Ltd [2011] 1 CLJ 95 where the Court of Appeal struck down an attempt to utilize the provisions of the ROC 2012 to circumvent the clear unambiguous terms of the Land Acquisition Act 1960. [12] It was argued by the Defendant’s counsel that if this appeal is not allowed, the objective of SMA would be defeated and counsel made reference to section 17A of the Interpretation Acts 1948 and 1967 and the Federal Court cases in relation to the objective and purpose of SMA, the case of Andrew Lee Siew Ling v United Overseas Bank [2013] 1 CLJ 24, the Federal Court case of Dato’ Seri Anwar Ibrahim (DSAI) v PP [2010] 4 CLJ 265 and the Federal Court case of Majlis Agama Islam Wilayah Persekutuan (MAIWP) v Victoria [2016] 4 CLJ 12. The Defendant’s counsel submitted that no prejudice will be placed on the Plaintiff if its claim is to be heard at the Tribunal and the irregularity can be cured under Order 1A and Order 2 of the ROC 2012, however in the latter, the Defendant’s counsel argued that this was not raised by the Plaintiff. Plaintiff’s Submission [13] The learned counsel for the Plaintiff submitted that the Defendant must file an application for a stay under Order 12 Rule 10 of the ROC 2012 for leave and not as an application to struck out, if the Defendant wish for the Court to transfer the matter to the Tribunal. The Plaintiff’s counsel submitted that for an Order 18 rule 19 ROC 2012 application, the Defendant must clearly show that the Plaintiff’s claim is obviously unsustainable and referred to the authorities of Solai Realty Sdn Bhd v United Overseas Bank (M) Bhd [2013] 4 MLJ 545; Hap Seng Consolidated Bhd v Darinsok bin Pangiran Apan & Ors and another appeal [2014] 1 MLJ 335. The Plaintiff’s counsel asserted that the Defendant’s appeal must be dismissed based on several grounds based on sections 105(1), 106(2) and 78(2) of the SMA. [14] The Plaintiff’s counsel submitted that the jurisdiction of the court is stipulated under section 105(1) of the SMA where the monetary jurisdiction of the Tribunal is a sum not exceeding RM250,000.00 and this matter is excluded under section 106(1)(a) SMA because there was no claim filed before the Tribunal. In addition, the Plaintiff’s counsel also submitted from its written submission that following section 78(2) of the SMA: “(2) If any sum remains unpaid by the proprietor at the end of the period specified in the notice under sub-section (1) the management corporation or the subsidiary management corporation, as the case may be, may file a summons or claim in court of competent jurisdiction or before the Tribunal for the recovery of the said sum or, as an alternative to recovery under this section, resort to recovery under section 79. [emphasis my own]” [15] It was asserted by the Plaintiff’s counsel that based on section 78(2) of the SMA, the SMA is clear in giving a choice to the parties on which forum they wish to commence action and the jurisdiction of the Courts have not been excluded. [16] In relation to the joinder of action, the counsel for the Plaintiff submitted that the Defendant’s counsel averment that the action brought for 5 Separate Units to circumvent the limitation of RM250,000.00 is baseless as the value of the claim as pleaded is RM623,500 which far exceeds the monetary jurisdiction of RM250, 000.00. The counsel for the Plaintiff does not deny that the Tribunal does exist to hear the matter but the choice of forum is provided for in the SMA to which the sum claim of RM623,571.04 would be higher as the Defendant has not paid a single cent to the Plaintiff. The Plaintiff’s counsel added that the joinder of action for the 5 Separate Units would save time and cost. THE SESSION COURT’S DECISION [17] The Sessions Court dismissed the Defendant’s application under Order 18 rule 19 ROC 2012: “Alasan Penolakan Permohonan A.18 k.19 1. Defendan adalah pemilik 5 unit hartanah yang menjadi asas kepada tuntutan plaintif. Fakta berkenaan pemilikan 5 unit tersebut tidak dipertikaikan oleh defendan. Sebagai pemilik, defendan bertanggungan untuk membayar caj-caj penyenggaraan setiap bulan bagi kesemua hartanah yang dimiliki. Namun caj-caj tersebut seperti yang didakwa oleh plaintif, tidak dibayar. 2. Plaintiff telah memfailkan tuntutan di Mahkamah berdasarkan s. 78(2) APS 2013 kerana tuntutan yang difailkan melebihi bidangkuasa Tribunal PS. Berdasarkan s. 105(1) APS, bidangkuasa Tribunal PS tidak boleh melebihi jumlah RM250,000.00. 3. Sek. 78(2) dan s. 105(1) memperuntukkan berikut: ……… 4. Mahkamah berpendapat plaintif boleh menggabungkan tuntutan bagi 5 unit walaupun perjanjian jualbeli ditandatangani secara berasingan. Ini kerana kelima-lima unit adalah kepunyaan defendan dan tidak melibatkan pemilik lain. Hartanah juga terletak di bangunan yang sama dan dengan cara ini dapat menjimatkan masa dan kos pihak-pihak. Berdasarkan alasan-alasan yang dinyatakan, Mahkamah telah menolak permohonan defendan di bawah A. 18 k. 19 dengan kos dalam kausa.” THE COURT’S FINDING [18] For Order 18 rule 19 of the ROC 2012 application, the legal principle is that the applicant must prove that the opponent’s claim for the summary process under Order 18 rule 19 should be exercised sparingly, only in plain and obvious case. The burden to prove that the case is obviously unsustainable based on any of the four limbs stipulated under parts (a) or (b) or (c) or (d) of Order 18 rule 19 rests with the applicant. There is an abundant of authorities on this and I refer to the authorities submitted by both counsels, the Federal Court’s case of Bandar Builder (supra) attributed by the Defendant’s counsel and the case of Solai Realty (supra) as referred by the Plaintiff’s counsel. [19] Order 18 rule 19(1) of the ROC 2012 which is about striking out pleadings and endorsements provides that, “19(1)The Court may at any stage of the proceedings order to be struck out or amended any pleading or the endorsement, of any writ in the action, or anything in any pleading or in the endorsement, on the ground that – (a) It discloses no reasonable cause of action or defence, as the case may be; (b) It is scandalous, frivolous or vexatious; (c) It may prejudice, embarrass or delay the fair trial of the action; or (d) It is an otherwise an abuse of the process of the Court, And may order the action to be stayed or dismissed or judgment to be entered accordingly, as the case may be. (2) No evidence shall be admissible on an application under subparagraph (1)(a). (3) This rule shall, as far as applicable, apply to an originating summons as if it were a pleading.” What is meant as ‘obviously unsustainable’ had been scrutinised in a plethora of cases. The root word is not ‘unsustainable’ but rather the word ‘obviously’ which denotes that on the face of it, the claim must be plainly or evidently unsustainable in law: Pet Far Eastern (M) Sdn Bhd v Tay Young Huat [1999] 5 MLJ 558. [20] Based on the Defendant’s application, the issue is whether the plaintiff’s claim is unsustainable that is whether its pleading is ‘scandalous’, frivolous’ or ‘vexatious’ and an abuse of the court process. The heart of the matter as contended by the Defendant that the Plaintiff’s claim should be struck out revolves around the Court’s jurisdiction under SMA. [21] The definition as to what entails to be ‘scandalous’ ‘frivolous’ or ‘vexatious’ can be found in the case of Solai Realty (supra) where in reference to the English case of Murray v Epsom Local Board [1897] 1 CH 35, it was held that, “.. ‘scandalous’ generally refers to matters which improperly cause a derogatory light on someone, usually a party to an action, with respect to moral character or uses repulsive language. …. The words ‘frivolous’ or ‘vexatious’ generally refer to a groundless action with no prospect of success, often raised to embarrass or annoy the other party to the action.” [22] This Court also wish to rely on a recent decision of the Court of Appeal in Tan Wei Hong and 4 Others v Malaysia Airlines System Berhad and 4 Others, Civil Appeal No.: W-01(NCVC)(W)-125-04/ 2016 where the principles applicable in striking out application had been meted out as guidance, and the definition of ‘abuse of process’ was looked into which the Court of Appeal finds that, “… A pleading is an abuse of process if the litigation process is used for improper purpose; e.g. where the proceedings constitute a sham; where the process of the Court is not being fairly or honestly used, or is employed for some ulterior or improper purpose;” [23] Upon careful perusal of the Plaintiff’s Statement of Claim, it is of the view that the factual allegations, if proven, clearly disclosed a cause of action based on a statutory breach. I do not see anything baseless or scandalous, nor frivolous, of the Plaintiff’s Statement of Claim where the particulars for the recovery sum is as detailed at paragraph 11 of the Statement of Claim. [24] In relation to the issue of Tribunal’s and the court’s jurisdiction under the SMA, the provisions must be scrutinized to ascertain the meaning of the provisions on the establishment of the Tribunal and the court’s jurisdiction. Section 105 of SMA provides for the jurisdiction of the Tribunal and section 106 SMA provides for the exclusion of jurisdiction of court which both provisions are reproduced here for easy reference: “105. Jurisdiction of Tribunal (1) The Tribunal shall have the jurisdiction to hear and determine any claims specified in Part I of the Fourth Schedule and where the total amount in respect of which an award of the Tribunal is sought does not exceed two hundred and fifty thousand ringgit or such other amount as may be prescribed to substitute the total amount. (2) For the avoidance of doubt, the Limitation Act 1953 shall not apply to the proceedings of the Tribunal. (3) The jurisdiction of the Tribunal shall not extend to any claim in which the title to any land, or any estate or interest in land, or any franchise, is in question.” “106. Exclusion of Jurisdiction of court. (1) Where a claim is filed with the Tribunal and the claim is within the Tribunal’s jurisdiction, the issues in dispute in that claim, whether as shown in the initial claim or as emerging in the course of the hearing, shall not be the subject of proceedings between the same parties in any court unless – (a) the proceedings before the court were commenced before the claim was filed with the Tribunal; or (b) The claim before the Tribunal is withdrawn, abandoned or struck out. (2) Where paragraph (1)(a) applies, the issues in dispute in the claim to which those proceedings relate, whether as shown in the initial claim or emerging in the course of the hearing, shall not be the subject of proceedings between the same parties before the Tribunal unless the claim before the court is withdrawn, abandoned or struck out. (3) For the purpose of this section, a claim shall be deemed to have been made with the Tribunal when section 108 has been completed.” [25] In interpreting a provision of a statute, I viewed that the subsections and the parts of the same clause of the parent Act must be read as a whole. I refer to the authority by M.N. Rao, Amita Dhanda in N S Bindra’s Interpretation of Statutes, Tenth Edition, 2007 at page 690, that the presumption and legal intendment is that each and every clause in a statute has been inserted for some useful purpose and therefore, the instrument of the Act must be read as a whole to ascertain both its intent and general purpose, also the meaning of each part. The same authors illustrate that the court is not only to look at the words, but has to look at the content, the collection and the object of such words relating to such matter and interpret the meaning according to what would appear to be the meaning intended to be conveyed. [26] Other than sections 105 and 106 of SMA, section 78(2) SMA also provides the provision relating to filing a summons or claim in court or before the Tribunal by the management corporation or the subsidiary management corporation. Section 105 of SMA spells out the limitations of the Tribunal which is stated clearly that the claim must not exceed RM250,000.00 and the jurisdiction of the Tribunal is limited where it “shall not extend to any claim” to title to any land, or estate or interest in land or any franchise. Section 106 of SMA comes with subsection (1)(a) and (b), subsections (2) and (3). Subsection (1) started off by stating “Where a claim is filed with the Tribunal..”, that it shall not be the subject of the proceedings in any court, unless the proceedings in court had commenced before the claim filed in Tribunal or where the claim before Tribunal had been withdrawn, abandoned or struck out. In ascertaining the true meaning of jurisdiction in filing a claim, I viewed that section 105 and section 106 SMA cannot be read without section 78(2) SMA. [27] Section 78 of SMA is in relation to the procedure for recovery of sums due. Section 78(1) states that where a sum becomes recoverable by the management corporation from a proprietor, the management corporation may serve on the proprietor a written notice demanding payment of the sum due within the period as specified in the notice which shall not be less than two weeks from date of service. Section 78(2) states that if any sum remains unpaid by the proprietor at the end of the period specified in the notice based under subsection (1), the management corporation may file a summons or claim in a court or before the Tribunal or resort to recovery under section 79. [28] Consequently, the heading of a section alone cannot be relied upon to ascertain the meaning of the section. Section 106’s heading stated as “Exclusion of Jurisdiction of Court” which by interpreting it in isolation with the rest of the paragraphs will not give the true meaning of the whole section 106 SMA. The same authors in N S Bindra’s Interpretation of Statutes also viewed that it would be a fundamental error to detach the first portion of a section and settle its meaning first by ignoring the rest of the section, and then proceed to apply remainder of the section on the basis that the meaning of the first part is already fixed. The Court viewed that the Defendant’s counsel’s submission on section 106(1) was without in reference to subsections (2) and (3). This Court holds the view that sections 105 and 106 must be read as whole and perhaps the whole Act, to ascertain the meaning of the Tribunal’s jurisdiction. It is the same authors’ view that no provision of a statute can be read in isolation as it has to be construed with reference to the context and in the light of other provisions: V Tulasmma v Sesha Reddy [1977] SCC 99. [29] Section 106 (1)(a) SMA states that if there was a claim filed before the Tribunal and within the Tribunal’s jurisdiction, issue in dispute shall not be subject of proceedings unless for the reasons under parts (a) or (b) of subsection (1). The reasons which is either part (a) or (b), clearly shows that issue in dispute shall not be subject of court’s proceedings unless the proceedings before the court commenced before the claim was filed with the Tribunal or the claim is withdrawn, abandoned or struck out. Subsection (2) of section 106 further emphasized the application of subsection (1)(a), the issue in dispute shall not be subject of proceedings between the same parties before the Tribunal unless the claim before the court is withdrawn, abandoned or struck out. [30] Upon careful reading of section 106(1) SMA, it throws some light that if the claim had been filed with the Tribunal, the same issues in dispute cannot be filed at the court unless the matter filed at the court commenced before the claim was filed with the Tribunal, or the claim before the Tribunal is withdrawn, abandoned or struck out. I seemed to be repeating the provision as there is no other way to interpret it as the wording is straightforward, it literally states what it means. Section 106(1) SMA clearly does not provide the mechanism to file a claim concurrently unlike in the Construction Industry Payment and Adjudication Act 2012 (CIPA) which provides the enabling provision to file concurrently, giving the claimant the choice to settle its claim at three different dispute settlement mechanisms. [31] Under the CIPA, the effect of adjudication decision is binding unless it is set aside by the High Court or settled by written agreement between parties or the dispute is finally decided by arbitration or the court: section 13(a), (b) or (c) CIPA. In addition, under section 16(1)(a) and (b) CIPA, a party may apply to the High Court for a stay of an adjudication decision in the circumstances, either when an application to set aside the adjudication decision under section 15 has been made (section 16(1)(a) CIPA) or, the subject matter of the adjudication decision is pending final determination by arbitration or the court: section 16(1)(b) CIPA. [32] It is also worth mentioning here that the decisions of the Tribunal is final and binding to the proceedings as provided under section 120 SMA. Under section 120(1)(a) and (b) SMA the Tribunal’s award shall be final and binding on all parties and the award by the Tribunal “be deemed to be an order of a court and be enforced accordingly by any party to the proceedings”. It is crystal clear that the SMA does not provide the concurrent mechanism to file a claim at the court and Tribunal simultaneously where in the latter, the Tribunal’s award shall be binding on all the parties to the proceedings. [33] The Defendant’s counsel pointed out section 17A of the Interpretation Acts 1948 and 1967 submitting that section 106 SMA should be given the purposive interpretation. Section 17A of the Interpretation Acts 1948 and 1967 embodies the concept of purposive approach which the Federal Court in the case of Chor Phaik Har v Farlim Properties Sdn Bhd [1994] 3 MLJ 345 adopted the position taken by the House of Lords in Pepper v Hart [1993] AC 593 that, on the construction of the statute that would promote the purpose or object underlying a particular Act to allow reference to White Papers, official reports and ministerial statements as a guide to interpretation of statues, Lord Griffiths observed, “.. The object of the court in interpreting legislation is to give effect so far as the language permits to the intention of the legislature. If the language proves to be ambiguous I can see no sound reason not to consult Hansard to see if there is a clear statement of the meaning that the words were intended to carry. …” [34] I have touched on the purpose of enacting the Strata Management Act 2013 in one of my decisions this year, in the case of Saujana Triangle v JMB Perdana No.Rayuan Sivil: 12ANCVC-77-08/2016 on a summary judgment claim, by referring to the Hansards, that is the debates at the Parliament (the Second Reading of the Strata Management Bill 2012 (the SM Bill) of 29.9.2012 and at the Senate of 19.12.2012) where the lacuna was identified in the implementation of the Building and Common Property (Maintenance and Management) Act 2007 (Act 663) (BCPA 2007). The SM Bill 2012 was tabled with the Strata Titles (Amendment) Bill 2012 to ensure that the amendments in both legislations are synchronised. The Minister for Housing and Local Government had stated, among others, “… Selain daripada itu juga, rang undang-undang ini juga telah pun mengambil kira peralihan akaun secara automatik kepada jawatankuasa baru JMB atau pun MC yang telah dipilih dalam tempoh tiga bulan bagi mengelakkan sebarang urusan dan transaksi berkaitan penyelenggaraan dan pengurusan bangunan terganggu yang akhirnya memberi kesan kepada penghuni secara keseluruhannya; dan (xi) antara elemen penambahbaikan yang paling penting adalah kewujudan tribunal pengurusan strata yang akan diwujudkan di bawah rang undang-undang ini. Dengan prinsip mudah dan cepat, perwujudan tribunal akan memberikan akses yang mesra pengguna kepada semua pihak yang tidak berpuas hati untuk menyalurkan tuntutan berkaitan penyelenggaraan dan pengurusan kepada tribunal tersebut. “…. Satu bab khusus berkaitan pertikaian yang melibatkan isu penyelenggaraan dan pengurusan bangunan berstrata. Pertama, ianya melibatkan pelantikan pegawai undang-undang untuk menganggotai tribunal. Tribunal pengurusan strata mempunyai kuasa untuk memutuskan keseluruhan award tidak melebihi RM250,000. Terdapat 24 klausa yang disusun secara komprehensif merangkumi bidang kuasa tribunal, pengecualian kuasa mahkamah, kriteria responden, tatacara persidangan tribunal, kehadiran perbicaraan, persidangan terbuka, rundingan penyelesaian, pelantikan pakar oleh tribunal, award tribunal, rujukan kepada mahkamah tinggi, pelupusan dokumen dan prosedur mencabar keputusan tribunal, semua adalah telah pun tertera dengan begitu jelas sekali dalam rang undang-undang ini.” [35] The debate mentioned the headings in general pertinent to the establishment of the tribunal under SMA where the details had been agreed and as passed at Parliament. As revealed in the partly extracted Hansard, the purpose of establishing a tribunal under the SMA was to facilitate claims under SMA in expeditious manner where the limitation of the claim is capped at RM250,000.00. Reading the debate as a whole, the establishment of a tribunal under SMA was to cater for the increasing complaints relating to strata title properties and the issues one of which, the refusal of proprietors to pay maintenance charges, as pointed out by the Defendant’s counsel at the second paragraph of page 88 of the House of Representatives’ debate of 16.11.2012. [36] For this reason, the relevant provisions on the establishment and jurisdiction of the Tribunal must be read as a whole. In this case, I do not see any ambiguity in sections 78, 105 and 106 of SMA. The provisions clearly stated that the claims under SMA can be filed at the court or at the Tribunal and in the latter, it is within the limitations provided and that it has not commenced in court following section 106. Therefore the purposive approach for interpretation would be irrelevant. This is consistent with the Federal Court’s case of Andrew Lee Siew Lind v United Overseas Bank [2013] 1 CLJ 24 attributed by the Defendant’s counsel that where the language of a provision is plain and unambiguous, section 17A of the Interpretation Acts 1948 and 1967 will have no application as the question of another meaning will not arise: “…Thus, it is only when a provision is capable of bearing two or more different meanings can section 17A be resorted to in order to determine the one that will promote the purpose or object of the provision. Such an exercise must be undertaken without doing any violence to the plain meaning of the provision. …” [37] Upon careful scrutiny of sections 78(2), 105 and 106 of SMA, this Court finds that they are not provisions relating to the object of the SMA or provisions on the general functions of the SMA where the construction of the provisions may connote a wide meaning. Sections 78(2), 105 and 106 SMA clearly meted out the jurisdiction of the tribunal and the limitations and Parliament will not allow such construction to be in differing meanings as it would render the whole purpose of establishing a tribunal and court’s jurisdiction as meaningless. The Court viewed that the Court has jurisdiction to hear a claim under SMA, particularly where the amount of claim exceeds RM250,000.00. [38] In relation to the case of Albilt Resources Sdn Bhd v Casaria Construction Sdn Bhd [2010] 7 CLJ 785 as referred by the Defendant’s counsel where the Court of Appeal had expressed their approval on the Arbitration Act 2005 to exclude the court’s jurisdiction, in that case, it involves a construction dispute in reference to an arbitration agreement and the defendant filed for a stay pending arbitration before filing its defence against the plaintiff’s writ and statement of claim. The Court of Appeal in that case referred to section 10 of the Arbitration Act 2005 where at page 802, it stated that section 10 provides a mandatory stay of court proceedings where there is an arbitration agreement unless the arbitration agreement is null and void, inoperative or incapable of being performed, or that there is in fact no dispute between the parties with regard to the matters to be referred. [39] This Court finds that section 10 of Arbitration Act 2005 had since been amended where the court under section 10(1)(b) order a stay of arbitration if there is no dispute between the parties, had been removed under the Arbitration (Amendment) Act 2011 and the remaining precondition for a stay of proceedings to be granted is that the agreement is not null, void, inoperative and incapable of performance. In addition, the court’s jurisdiction under section 8 of the Arbitration Act 2005 was also amended. The original section 8 of Arbitration Act 2005 reads as follows: “Unless otherwise provided, no court shall intervene in any of the matters governed by this Act.” [40] This Court finds that section 8 of Arbitration Act 2005 had been amended under the Arbitration (Amendment) Act 2011 as the provision was unclear to court’s jurisdiction and the new section 8 now reads: “No court shall intervene in matters governed by this Act, except where so provided in this Act.” Referring to the ‘Annotation to the Malaysian Arbitration Act 2005 (Amended 2011)’ by the Kuala Lumpur Regional Centre for Arbitration (KLRCA), 2013, the Explanatory Notes to the Amendment Bill 2011 provides the rationale to the amendment which its purpose is to limit court intervention to matters specifically covered by the provisions of the parent Act and to discourage the invocation of the court’s inherent powers. The SMA was enacted in 2012 and this Court finds that there is no similar provision as stipulated in the amended Arbitration Act 2005 in the SMA, to exclude court’s intervention. In view of the latest legal position under the Arbitration Act 2005, the Albilt Resources (supra) case must be distinguished from the current case. [41] In relation to the Defendant’s counsel’s argument of joinder of action by the Plaintiff, this Court viewed that the 5 Separate Units belong to the same and one person which is the Defendant. The Court viewed that the 5 Separate Units are of the same cause of action that is for the recovery of the Charges from the Defendant and the claim as pleaded by the Plaintiff is RM623,571.04 as at 29.12.2015 which exceeds the RM250,000.00 limitation imposed under the SMA. [42] For the purpose of completeness, regarding Defendant’s counsel’s submission to invoke Order 1A of the ROC 2012, this Court’s stands is that where there is a breach of mandatory provision under the ROC 2012, this Court will not invoke Order 1A as it is not curable: Duli Yang Amat Mulia Tunku Ibrahim Ismail Ibni Sultan Iskandar Al-Haj Tunku Mahkota Johor v Datuk Captain Hamzah bin Mohd Noor [2009] 4 CLJ 329. This Court holds the view that there is no procedural irregularity in this case and Plaintiff’s claim is not scandalous or vexatious nor it is an abuse of court process to warrant Plaintiff’s claim as unsustainable within the meaning of Order 18 rule 19 of the ROC 2012. This Court finds that there is a clear demarcation of jurisdiction of the Tribunal and the court’s under the SMA and the Plaintiff’s claim is legally provided under the SMA to be brought before the court. In light of the above reasons, I dismiss the appeal. Dated: 9 October 2017 (ZALITA BINTI DATO’ ZAIDAN) Judicial Commissioner Shah Alam High Court COUNSEL FOR THE APPELLANT/DEFENDANT: WILSON LIM YEAP POAY NEE Tetuan Teoh Pek Wei 33.9, Level 9, The Boulevard Mid Valley City 59200 Kuala Lumpur [Ruj: TPW.L.2373.16/PN] Tel : 03-2282 8228 Faks : 03-2282 6692 COUNSEL FOR THE RESPONDENT/PLAINTIFF: EUNICE ONG Tetuan Eunice Derek & Co Suite B-06-02, 6th Floor, Gateway Corporate Suites No. 1 Jalan Desa Kiara 50480 Mont Kiara, Kuala Lumpur [EDCO/587/CBD/2015/LIT/EO/SH] Tel : 03-6201 4087 Faks : 03-6201 4085 1	36,987	Tika 2.6.0
23NCVC-56-07/2015	PLAINTIF Tan Sri Datuk Nadraja A/L Ratnam (NRIC No.:461206-10-5441) DEFENDAN Murali A/L Subramaniam (NRIC No.:680618-08-5715)	null	09/10/2017	YA DATUK S. NANTHA BALAN	https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=ccab9a0a-bd8b-49e9-9404-c36c89795cbc&Inline=true	IN TH!~. HIGH COURT OF M \L.\Y1\.v\T Kl I. \ LUMPUR in THE S ATE 0 W11 Y\H PEKS KUTUAN aurr M TAN SR1 DATUK NADRAJA A/L RATNAM (NRIC No 4ﬁ1206—I0r5-W1) PLAINTIFF AND MURALI A/L SUBRAMANLAM (NRIC I\'o:(x8U(:18r0S-5715} DEFENDANT Ground; gA'I ggggnr ﬂ_m/0.11:1! 1 3 1; Inuoduuion 1 111:5: are my grounds ofyudgmcnr m mspect of an appllcauoll bx me plalmxff (Enclosure 153) to txpunpe/sxnkc off an “mam 11lTrmtd I-n’ me dcfcndnnt nn 1'« 1\pn\| :01’ (Enclosun: my {“th: impugned nfﬁdnr , Th: Impugncd mam. appears lu 1.111- been 115.1111 bv an dcfmdxnu mu w.um..ca by . Commlssxuner my Oaths, one jasm Bm 11.50;; (-111: cu"; '11“ pla.\11u\|Ts apphuuon 1: mad: undey Ordcv 92 mg 4 Rulcs of Court 2012 (-4100) and R111: 14 (1; Commﬂsxoncrs for mm; Rule: 1993 (“cc Rulzs"). Th: unpugned mam was Fﬂcd 1» the deisndanr m rcxponsr to thc plmnuifs commxmﬂ nppllmnnn (Enclosure 129. The cmmm n[ ma Impugned zfﬁdavu are nnr mm.“ for plrscnr purpmu. mu Mu 11.: uzlutory pro ' ' 3 Essenmlly. x xi allegnd by (h: pmmm mm the impugned afﬁdswu wns 110! m compliance wnh Rule N (1) of I11: co Rule: Rule 14 (1) ohh: co Rules rudx .5 .- my m m A Cummlssmnu fa! oam: mu mamlam a master m wma. man be vecumad me pamculnrs or Ihz xzructs max ha Ins renamed Including .1: nfﬁrmllwns. dxllmmm. acknnwledgrmmts. uﬂ‘vd.Ivn5\|nd ulherxmmunuus upnn winch uh: Cummlxsiumr nu plbwd his sci! ﬂlzvcgxxlm shall he m Form 7 m M9,»: shall he kA!\|)\| .. (ha plus: ..r bummn of AM Cnmmnnmwr rm mm: dunn: ms xnmm hour: A Cmmmusvourr fur om ital! submit m: .=;:.«.« In the mm mm.» on at balm: me in as} M Fzbnury a! cam ynr am mu mul: u nvmlnhic la llvc mu Prcsndcul an my mm uwn am :vqu<:1" Although me appllczunn ls pn:d\|caI:d rm Rule 14 (1; co mag. .. .3 also rclcvznl to rckr Io Rule :3 (2) of me co Rules wlruch pulanu to uh: duties on Co and u (ads is follows — ~m In new"; ms mnclwm. . Commwsnmer IN cum mu pelwnallyanclud many pelsan kquunng ms «mus.» mu» Ia; wnfv Ih:1d:1\uly‘lh< penanal pansculazs .5 gv/an m In: and or p.,.,;.m. um um mm on m: persan rnakmg on declanﬁnm, alﬁnnﬂmn. nlﬁdA\1L mm or m=..,=m berm: Ihe Con\m\|xiioMY. (1,; )ad mu andzxpkam \|he w...¢...s am: dncnmtnu and an cxhibus .mm xh-mm Io um dcpanml ..r mike! n! the ducumrm rm dcpvnenl nr mnku aflhe mm"; 1; a:...a menu: or Jan HUI ....a..mm dv: V-ngulﬂ wnum in dI=doculnenL mmmarymg Ihn he hlx don: mm»: ,..m. a; ...nm my -Am-um nude m .1. dacumam Io he svwm cl lmmwd. um Dart: 9 October 2017 s. Nnmlu Balan /‘ Iudzt mg». Court xuu; Lumpux Counsel: rm. R‘ Aswm. (mm. yam: I7:/amrm) for lhc Plmnnff rm K Sannwnlhv (’\|Ie.r:/J. J. Kn/rzlwum c- C...) an mg Dcfcndnm Dam’ Dhnmm} Vnaudcvan mguhcx mm 13 Devzndxa (Alma. x r 1,. .,~ Ca) fm lh:1nKcr\ mu - Fmclnsuxe ms s..m.m= Olda 4: we 14) IhI.lcso{Couxl 2012 cm: 92 mu: 4 Rules of Court 2012 Rule 13(2) Comxmsslonexs fm Oaths Rulcs 1993 Rule 14(1) Cnmmxsslnncxs for Oaths Ruin 1993 9:4: uaul my nal aﬂix his mu As my ducumnm unlu: me «mm: W mnker at‘ am dzxumenl SIXII) or arm ms Lhumbpn'n\| lhrrelu mm mm. ya) nfusr (ht strvxoes M M: ollier when u. Cnmmvwoncl hm unis: A.» sum mu Iny pevmn before hum .5 rrlxuxmz ... d<z=plIA7n, ma.au-mg army alher megnl .-mm. w ban) «Ml H: funtlmns mm am: n.m....u.m......m..a a pmmpL muinnblc and M makehnmielfnvn lrlaaanduclnllfunmumoﬂmulﬁvell mm ...a lzxsomblc hmln m Tl-::\|wlIxhl¥I\|wmFnrm6" 4. Counsel for Lhe plunuffalso mama m Ordu 41 mm 1 (7) ROC whnch provides um “awry nfﬁdavn <hnII b: signed by the dcpnnent and an /mm shall 17: cnmplelzd and ngucd by the pusoll bum whom 12 .3 swam”. may for the complaint 5. 11.: mm: basu [or me pmmum complnm A/t.r—n—uu um Ampugntd afﬁdnvu .5 as follows Accoxamg to me plmum nurnuvc, mu dc: Lrnpugned afﬁdant was served on me plamuffs sohusoxs. counsel fox me plaintiff {mm the am of Shcam Dclamorc 55 cu., Mr. R. Aswarh (zognrl-1:1 \-1th on: Ms Cham-nine: Lee Kah Yen 7 pupil m chambers at am nme) dcudtd m v1.<rI me co’; ofﬁcc m nxdu m mm the nulhenucxly of the impugned :\fﬁd;\»1t. The) tluucfnxc mended at -he ufﬁcc as 1h: co on so my 2017 nnd unputltd lht cox n.-gun: and look photographs of me co‘; rcgszu Io. Lhz Period I4 m 13 .\pm 2017 (zxhubu Auk: Enclosm 154) an“ int n And Ihc phnmgriphs shuwcd that rh: rlv.‘{endanI's nnme wax not on thc cox uglsrer [or 1‘ Apnl 2017 /\pprArenrI\, zhn Ilnpugnnd nfﬁdmu was shown in Lh: co on so May 2017 and he was med (0 vcufy lus ngnenne, Dunng uuss—zxznunnnorL the co demcd nm the Ampugned afﬁdmnr was shown to hm As sneh, that As 1 dispute as to whether the nnpngneel aiﬂdzvu was \|n he: shown to «he Co on the day when Mr Aswzdu nnned up at the co; ofﬁce. Ax an} me. by a letter dated 5 June 2017 {mm l\1L-ssxs Shcam Dclaumole In the co, 1: me slated zlvu. “..upwA nurirupemmv a/14111 nagum, wc M/Iﬁumd mm 1110! ml: nu mard Mjour Ivguttra/an u[/Fdauu hm mum h M.unzl4' u/ljubramurualw an Y7;-1pr1lZUl7 and alltfkd ,5 yourgomivrf’ 1 should Add Lhn the sand lcnu also menuonud dun Lh: lrnpugncd sfﬁdzvu was shown to (h: co. Th: co did nol lcspond to the sand letter What happened next us that (he co afﬁrmrd an nmehn-n an no August 2017 (End did nppcnr before him on 17 Apnl 2017 and hlgncd rhc impugned me 188) when Im slatzd mu (he dcfcndnm :AlT\|dn\'\|I xn his prcsenct and dlcrnftcx signed an inn register The are sud zfﬁdavu shall he referred .0 as “the co‘. ncadevh" The relevant page of the co’: negmee fox 17 Apnl 2017 was annexed as exhibit “JY-2" to the CO’: afﬁdznr. Echxlwin [v~2 showed ehn ehe dcfcndzm dxd zppcax bcfoxc ch: co on I7 Apnl 20:7 and pen: the sum ofRM3 as the fee: payable Thu piomptrd the plnnnrr In Ipply fax nn rude! to crosktxnmlnc the co. p... m u 10 11, on 14 August 2017 an Ordcr W wsued by 1h..< Conn undu Order as Kul: 2 (2; Km; (uh :11: co m pmxenl h1rns<-lfm Conn and I3: cmsuh.m11¢d on 111: 1rr1dmz :{['1zmL-Ll on 10 August 2017 and to product hh Izglsla for Inspection by me Cuun E>:h1b1t ]Y—2 also Connlncd 11.: names of vznous oLhn persons who were purpontdly deponents of summry dtclzmﬂons (‘SIT’). The plan-mff deeded to take the investigation a mp further and wrote m ch: pcrinlls nam:d 1" 1h: cm repsler (dcponcms ofrh: sad) and snughr 10 hum Kcspunscx [mm them The purposc of this cxcxclsc \\')\: 1d ISCHIELUI K11! ﬂulllcnuclfjl of exlrubn jYr2 1119;: who responded suned am they d1d hm Rppezl bcfom {ht cu on 17 April 21:17 and Lhur demnls may be found 111 uh: exhsbxrs annexed to In afﬁdavn by one Asml 1311. Suyak (ﬁn tmplagtc of Musxs sheuh Dehmoxe st Co) afﬁrrncd Oil 11 Stpltmbcr 2017 (Ellclusuxe 197). Namrally. m ugh: of the phomgmphs or the cos regmcx may Wu: taken and the denial: by some of the m-callzd dcpnvwuls hr SD: p=r :xhib1t 1122. the pli\|nuIT hid scuuus duubts on :11: auxhcnucln of [he CO’: lryaltr M luau m so fn 15 17 April 2017 15 conccmtd. Puﬂulnt 1a 1111 order zhu WM made m .1111 Court on 14 August 2017, Lhc co was acw1d1..gh- ctu:s4:xnmLned on 12 Stplembex 21117 When (he co was cmssuanuhhd by counsel for (ht ph1m1r1: he mmnlalnbd that he \vIs not obhgrd to lespond .0 (HQ lam: dated 5 Jun: 2017 from Messrs Sheam Dclamore »...shu1 I2 13 14 15. In (hr cm a(‘fda\1r,h¢ ma (ha: a solicitor came to his office and msp:crcd MS rtglslzr He ma he has nulhlng m hudc nna nlluwed th: mllnmr lo mspecl ch: rcgstu (nee. pamgmph 6 cf Lhc co’; nfﬁda\'u] 1n xespeclofthc phonowphs um were taken at ins ofﬁc: he ma that, my dapnit gumbar /M4 zmm ndalah /zdak kngkpp. As for the lcuers from Cenam xndnnduals who clmmed um rhcg: did not appezl before the co on 17 z\pnl 2017, ch: co ma my mp./.1»; kqnadn Jlﬂ Dunng cm:s—txnmLnauon. IJ1t co alxo sud mm h: thought um the person who mm: to [us ofﬁce was . Conn ofﬂcizl who was doing 2 check on has «gm: x: was pm to hhn um when M: Aswadu auendzd at on Co’: office. me Irnpugncd nmam was shoum to lnm H: said am (ht u'np\Igned nfﬁdnvn “ms nm shown to hhn. And when he was cxanuned by the counscl for «h: defendant. rh: co sand that the defendant did appear b:fore mm on 17 :\pn.\ zow, Ind ugnzd «he \mpugned nfﬁdzvn m I-us pxcscncc and Lhcrtaflcr signed on hn zegxsmr ((:Xh\|b1lJY—.7. of Lh: cox ziﬁdavk). Th: co .150 pxoduud Ins “gm: for mspecuon by Lb: Court. The xelnvanr page for I7 Apnl 2017 W15 sren m the co‘: register. The mgisiu was bound by buss straws and rh: pages an detachable Thus, the cm reglver was nul permancnrly bound up so! :1 16 The qucsnnn n<v\v1s whuher ... light or .11: p1.mag...p1.. .1... war “.1... 1., M. R .\s.m1., and .1.e1c..¢..«.1...w=.c.,s..=a by some of .1m persons namcd 1.. ma Cr): regular for 17 .\p..1 2017 (dcpanenu of :Ds] d.Is1vowAng the fan .1... shay Apptutd bgforc the co on 17 Apnl 2017.1 should dlsbehevc Lhe co and cxpungt .1.; lmpugmd nfﬁdavu on 11.: grounds .1... Rule 14(1) of mg co Rules wax: not comphed ....1. Amy... 17. 18 A1 .1.c oulsu, .. .5 Irnpoxtznl .0 ktep .1. ......d .1.a1.1.: Lssw; but 15 wlvcdwr me d=re..d.».... an lppeu before 11.: co on 1-. Apul 2017 and 5151-.:d 11.: Arnpugncd afﬁdzvil mic... 11.. co and .1.¢mm. Mgned an the CO's .=g.s.=.. -11.: co nmmmns .1... 11.; a:r¢...1.... am appear before 1...“ on 17 .\p..1 2017, ml s.g.m1 11.: lmpugned ..rr...1.....1.=r.-..e1.1... and thereafter mgncd on 1...: Itglsrer. F... 1...: pm, .1.c dﬁcndant ............... .1... .1 11...». .5 I111}; .mK..1....y an .1.c CO’: pan ... 1...... 1:1’ munlmmng 1.... wgiuu, than 11... should ..o. 1.1 ..m1.....-.1 .0 1..... and .1... mg xmpugned -..md..v.. .1.....1.1 1:: adrmtmd. 1 can ste no plauslblc reason \\hy me co would w..... .0 1.. ....m..1.(..1 about this mauvr. He hax no Interest ... .1..s .......=. nor does he dervve any 1.¢..=ﬁ. whmsuever from the pxesrnr p.om.1...g.. 1.. rm 1.: would be expnung 1.....«¢1r .0 «he p.....1..1.w..ru..cc11....o.. of the C0’: hccnsc .11.. =1.1,1.1..1 1.. ..., ...m1..:.1 1.». £n..:1..1¢... pvuucc me 1 .7 n 19 20 21. am am 5 not to say mm vhc photographs mm was taken by Mr R. '\§\»all1 m licking m ugdubdzry 11.: pltutngmplls speak so. rhcmsclvzs. Bu; 1:1 mm of :11: fact am me pages m me regstn are dcrzzhablc. 1 cnmxot ml: om Lhc possxbjllty am Lhe photographs do not shuw 2 complete picture Hence, 1: could well he . case of ch: psgt (rvrz om»: cos nfﬁdnvit) bung mrzxlaxd m m rqzisler aim: the photngnph Wu: mktn. Of course that is bad pm.“ and can lad to .11 was ufnbuses. 1;... 1 hum.-nu w conclude Lhn the pig: av-2 of me cu‘: zﬂidanz) 15 a fzbncsuon or an aﬂtrrhouglu In my um, Ihc pmnum sohuzors should have yusl turned up at m: co‘; ofﬁcc and conixontzd me to mm d1: unpugned «mam: Ind asked me co to show the cxzcr page of I11: rcgstcx for 17 April 2017 which tunes (ha defendant’: nun: and signature In um way -1.: to would have been gwzn th: oppomm, m xhaw mg exact page m m “gum (evher m a bound register ox as n loux: Irafpzge) and am would hm settled the uusuc about xvl-mrhcr Rulc 14 (1) co Rule: wax cnxupliul wuh. As 1 sud, me co clzu-ned am he was not shown th: uupugted mam. or cause. the plmnuff rmunmms mm the co was xhuwn ch: impugned amam when m R. Aswmh attended at me co‘; arm But the co has dcmcd thxs But I do me cngnisznce of the nu am in mm mm dated 5 lune 2011 n was stared um um impugned .rn4.v.. was shown to the co‘ p... mu 24. The C0 did not mpnnd Io uh: lcnzr and he smd that he was advised not In respond In the mm as h. was nnl mvolvrd wxdx the cur Hnwma, n Is sxgmﬁczm that in the amaavn or M; R. Axvmdu amnmsa on (Enclmsux: 154) ﬁled m support of Enclosure :53. (her: was no mrmion of (he {nu ma: (ha Lrnpngnrd amdavn was show to the co As my mm, even 1f(hc unpllgnnd amdavn was shown In the co. (hen rh: nm queslmn Is wherhcv ms co was asked In snnw zhc entrv in the cm mgslcr run:-spundmg In the xmpugntd :fEid.1V1\| In mas regard, n as my wcw um awn ar (hi: nnpngnea afﬂdavnt was 11) [act shown to the co on so May 2017, n appnaas am n was only shown to Lhc CU rm purposes of venfymg Khc C0's sxgnanke (see: line 1,20 Notes ofEv1dm:c p.34). In this rcguld, I may add ma: duung cross-cxnmlnauon, (hue was no suggvstjon that on 30 May zun, apan imnn venfgnng hxs signature on (11: Impugmd afﬁdawr. ma co was asked In show the cnrty 111 hi: 1v:g1ntx far 17 Ann} am’ corresponding (0 Ah: Irnpugncd zfﬁdzvn At any rate, Lh: {am am an co dsd not pxcvem any mspccuon of Lbs reglstu on 30 Mn; 2017 snggms um die co had nuthmg to hxde -aauam Befnr: I conclude I should we that I miss no Isonrslusxons our: way Ur 7h: nlher as In whcihc-2 the Lather! whn are named ... Exhnbu _n/.2 of the co’. afﬁdmnl, 4.4 or zlxd not appnx bcfor: Sh: co on 17 Apul 2017 Th: aulhcnumy oftlms: tnmes 1:! ms cox zcgxsler ma evm Lhc auxhznucxty of ms lesponsxa from some nf me souucd drponnnts of sos, is for the relevant auvhumy to mvesugale and Ink: such ncuon as may be neccssnry, M at .11. I say this becnusc I hm not had ms bcntﬁl of (H: Mal testimony umsc m—c.-«lied depnncms ofxhn sns Conclulion 26 27. 1n so in ss dut defendant Is concunzd, based an die documenlaxy and oral endence mm was placed mm ans Conn, and having due regard to um um mzmx of has whnch are mmdsm upon the mtsmuon ofdlr. impugned affidavit, I am <ansﬁ:d. as a miner ofpm\|mh1.\|1l'y.\‘hnr Ru]: (4 (1) co Rules was cnmplxtd mm and um ms dcfcndnl-:td.\|d nppezrbcfnrc the co nn 17 .-\pm 2017 and signed the Impugncd «(Edam before hun and dmlcaﬁcr signed the cons Ivguer. For Eh: reasons as stantd abate. the plmurrs zppliczuon (tnclosuze 153) 15 zccordmgly dmmsxzd w\|I.h costs of ms,ooo.oo (mm/.1 4"’. at/mm to be pm by rh: plsummo th: dcfendnm. Order ztnndlngjy, us IDM n	13,534	Pytesseract-0.3.10
W-05(M)-46-01/2017	PENDAKWARAYAPendakwaraya PERAYU RADIN IRWAN ISKANDAR BIN ISAGANI …. PERAYU	Undang-Undang Jenayah — Dadah berbahaya — Pengedaran — Sabitan dan hukuman — Sama ada elemen pemilikan telah dibuktikan — Sama ada Hakim bicara memberi pertimbangan dengan secukupnya terhadap pembelaan Perayu — Sama ada satu arahan yang serius terhadap kes pembelaan — Sama ada pendakwaan berjaya membuktikan kesnya tanpa keraguan yang munasabah — Sama ada sabitan dan hukuman selamat — Tugas mahkamah dalam mendengar rayuan —Akta Dadah Berbahaya 1952 [Akta 234], seksyen 37(d), seksyen 39B; Kanun Tatacara Jenayah, seksyen 182A(2)	09/10/2017	YA DATUK KAMARDIN BIN HASHIMKorumYA DATUK SERI HAJI MOHD ZAWAWI BIN SALLEHYA TAN SRI IDRUS BIN HARUNYA DATUK KAMARDIN BIN HASHIM	https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=cc529199-b14a-4155-b8fc-2f3b94696240&Inline=true	MRJ NO:W-05(M)-46-01/2017 1 DALAM MAHKAMAH RAYUAN MALAYSIA DI PUTRAJAYA [BIDANGKUASA RAYUAN] RAYUAN JENAYAH NO: W-05(M)-46-01/2017 ANTARA RADIN IRWAN ISKANDAR BIN ISAGANI ….PERAYU DAN PENDAKWA RAYA ….RESPONDEN [Dalam Perkara Mahkamah Tinggi Kuala Lumpur Perbicaraan Jenayah No: 45A-46-09/2016 Antara Pendakwa Raya Lawan Radin Irwan Iskandar Bin Isagani] KORUM: MOHD ZAWAWI SALLEH, HMR IDRUS HARUN, HMR KAMARDIN HASHIM, HMR MRJ NO:W-05(M)-46-01/2017 2 ALASAN PENGHAKIMAN Pendahuluan [1] Ini ialah rayuan Perayu terhadap sabitan dan hukuman mati yang telah dijatuhkan oleh Pesuruhjaya Kehakiman Mahkamah Tinggi Kuala Lumpur (‘Hakim bicara’) atas kesalahan memperedarkan dadah berbahaya di bawah Akta Dadah Berbahaya 1952 (‘Akta’) [2] Butir-butir pertuduhan terhadap Perayu ialah seperti berikut: “Bahawa kamu pada 13 Julai 2015, jam lebih kurang 11.00 malam di rumah beralamat C-8-6, Mutiara Apartment, Jalan Klang Lama, Taman Pasir Permata, di dalam Daerah Brickfields, di dalam Wilayah Persekutuan Kuala Lumpur, telah didapati mengedar dadah berbahaya iaitu Cannabis seberat 3,139 gram. Oleh itu kamu telah melakukan kesalahan di bawah seksyen 39B(1)(a) Akta Dadah Berbahaya 1952 dan boleh dihukum di bawah seksyen 39B(2) Akta yang sama.” [3] Kami telah mendengar rayuan Perayu pada 25.8.2017 dan dengan sebulat suara kami telah membenarkan rayuan Perayu. Sabitan dan hukuman mati diketepikan dan Perayu diperintah untuk dibebaskan dengan serta merta. Kini kami memperincikan alasan-alasan membenarkan rayuan Perayu. MRJ NO:W-05(M)-46-01/2017 3 Kes Pendakwaan [4] Bertindak atas maklumat, pada 13.7.2015 jam lebih kurang 11.00 malam, Inspektor Mohamad Sukri bin Hat (SP6) bersama satu pasukan polis telah membuat pemerhatian dan serbuan ke atas premis sebagaimana yang terdapat dalam pertuduhan. SP6 mendapati pintu gril hadapan premis tersebut dalam keadaan sedikit terbuka dan pintu papan dalam keadaan tidak berkunci. Setelah masuk ke dalam premis tersebut, SP6 melihat seorang lelaki (kemudiannya dicamkan sebagai Perayu) sedang duduk di atas sofa bersama dengan seorang kanak- kanak perempuan. Perayu dan kanak-kanak perempuan tersebut ialah orang yang sama yang SP6 lihat menaiki lif sebelum serbuan itu dilakukan. [5] Pemeriksaan badan Perayu oleh SP6 tidak menjumpai sebarang barang salah. SP6 dan anggota pasukannya seterusnya telah membuat pemeriksaan dalam tiga buah bilik dalam premis tersebut. Dalam bilik ketiga, SP6 telah menemui dan merampas sebuah beg berwarna biru belang kuning bertulis ‘New York’ (P6). SP6 menemui 3 ketulan mampat daun-daun kering disyaki ganja (P14A, P14B dan P14C) berada di dalam beg P6 tersebut. MRJ NO:W-05(M)-46-01/2017 4 [6] Pada jam lebih kurang 11.30 malam dan semasa SP6 dan pasukannya masih berada dalam premis tersebut, seorang wanita sampai dan masuk ke dalam premis tersebut dengan memperkenalkan dirinya sebagai penyewa premis tersebut. SP6 telah mengarahkan wanita itu untuk masuk ke dalam bilik tidur utama bersama dengan kanak-kanak perempuan dan menunggu di dalam bilik sehingga SP6 dan pasukannya selesai menjalankan pemeriksaan. Wanita itu kemudiannya dikenali sebagai Nor Azura binti Jumri (SP1) dan kanak- kanak perempuan yang berada bersama Perayu ialah anak perempuan kepada Perayu dan SP1. Siasatan mendapati bahawa Perayu adalah merupakan bekas suami kepada SP1 dan kehadiran Perayu di premis tersebut adalah untuk melawat anak perempuannya. [7] Tiga (3) ketulan mampat daun-daun kering (P14A, P14B, dan P14C) telah dihantar kepada ahli kimia, Dr. Vanita a/p Kunalan (SP3), untuk dianalisis. Hasil analisis yang dijalankan, SP3 mengesahkan bahawa barang-barang kes iaitu (3) ketulan mampat daun-daun kering tersebut mengandungi Cannabis dengan jumlah berat 3,139 gram, hal perkara dalam pertuduhan. SP3 turut mengesahkan bahawa Cannabis MRJ NO:W-05(M)-46-01/2017 5 adalah sejenis dadah berbahaya yang tersenarai dalam Jadual Pertama Akta. Dapatan Hakim bicara diakhir kes pendakwaan [8] Di akhir kes pendakwaan, Hakim bicara mendapati pihak pendakwaan telah berjaya membuktikan semua elemen pertuduhan. Hakim bicara telah menerima keterangan ahli kimia (SP3) mengenai analisis yang telah dijalankan bagi mencapai keputusan bahawa 3 ketulan mampat daun-daun kering yang dirampas adalah Cannabis seberat 3,139 gram dan tersenarai dalam Jadual Pertama Akta sebagai dadah berbahaya. Hakim bicara juga mendapati tidak ada keraguan mengenai identiti barang kes dan rantaian keterangan terhadap barang kes dadah yang dipertuduhkan juga tidak terputus. [9] Mengenai elemen kawalan dan jagaan terhadap barang kes dadah yang dipertuduhkan, Hakim bicara telah menerima keterangan lisan SP1 yang menyatakan bahawa beliau melihat Perayu telah membawa masuk beg yang mengandungi dadah ke dalam premis yang disewa oleh SP1 pada sehari sebelum kejadian dan disimpan dalam bilik ketiga. Hakim bicara telah menggunapakai anggapan di bawah seksyen 37(d) Akta MRJ NO:W-05(M)-46-01/2017 6 terhadap Perayu untuk membuktikan elemen pemilikan dan pengetahuan Perayu ke atas dadah yang dipertuduhkan. [10] Untuk elemen pengedaran, Hakim bicara telah menggunapakai anggapan di bawah seksyen 37(da)(vi) Akta oleh kerana berat dadah yang terlibat melebihi had berat minima 200 gram yang ditetapkan di bawah perenggan tersebut. Setelah berpuashati pihak pendakwaan telah berjaya membuktikan satu kes prima facie, Perayu telah diperintahkan untuk membela diri atas pertuduhan yang dihadapkan. Pembelaan Perayu [11] Perayu telah memilih untuk memberi keterangan membela diri secara bersumpah dari kandang saksi. Hanya Perayu sahaja memberi keterangan untuk menyokong kes pembelaan. Pembelaan Perayu dapat dilihat dalam Penghakiman Hakim bicara yang secara ringkasnya seperti berikut (di m/s 82 – 85 Rekod Rayuan 1): “(a) Selepas bercerai dengan isterinya (SP1), Tertuduh tidak tinggal di Apartment tersebut kerana bergaduh dan tidak dapat melihat anaknya lagi; (b) Selepas bercerai, Tertuduh biasanya akan berjumpa dengan anaknya di rumah bapa Azura dan di Mid Valley tanpa pengetahuan (SP1); MRJ NO:W-05(M)-46-01/2017 7 (c) Selepas bercerai, ada pernah sekali (satu hari sebelum kejadian) jumpa dengan anak di Apartment kerana Azura (SP1) suruh datang; (d) Kakak Azura (SP5), Azizan anak Azura (SP4), Azura (SP1) dan Tertuduh ada mempunyai kunci apartment tersebut; (e) Pada 12 Julai 2015, Tertuduh menalipon Azura (SP1). Hari tersebut adalah hari cuti dan sebab hari cutilah Tertuduh dapat berjumpa dengan anaknya; (f) Oleh kerana Tertuduh hendak berjumpa dengan anak, Azura (SP1) telah menyuruhnya datang ke rumah selepas Asar; (g) Tertuduh telah menalipon Azura (SP1) bahawa dia telah tiba di depan rumah. Azura telah membuka pintu dan menyuruh Tertuduh masuk tetapi Tertuduh tidak masuk ke dalam Apartment; (h) Tertuduh meminta kebenaran Azura (SP1) untuk membawa anaknya keluar dan pergi ke Pasar Ramadhan sehinggalah waktu hendak berbuka; (i) Apabila balik semula ke apartment, Azura (SP1) telah menjemput Tertuduh masuk dan berbuka bersama-sama; (j) Tertuduh tidak bercadang untuk bermalam tetapi setelah selesai solat Maghrib dan Isyak dan kerana lewat malam, anaknya menahan Tertuduh daripada beredar balik; (k) Semasa datang ke Apartment tersebut, Tertuduh tidak membawa apa-apa barang kecuali IC dan handphone sahaja; MRJ NO:W-05(M)-46-01/2017 8 (l) Pada esok harinya (13 Julai 2015), Azura (SP1) telah mengejutkan Tertuduh untuk keluar dari Apartment tersebut kerana Azura hendak pergi kerja; (m) Tertuduh telah keluar dahulu dari rumah tersebut dan apabila keluar, Tertuduh tiada kunci kepada Apartment; (n) Dua minggu sebelum bercerai, Tertuduh telah menyerahkan kunci kepada kawannya, FIZI GEMUK bertujuan untuk membaiki lampu rumah yang rosak dan paip yang telah lama; (o) Tertuduh tidak minta semula kunci apartment pada FIZI GEMUK kerana hendak bercerai dan telah duduk di Seremban; (p) Anak Tertuduh ada menyatakan bahawa ada Uncle datang dan setelah pengesahan dibuat kepada Azizan juga mengesahkan bahawa Alan Cina ada pernah datang ke Apartment tersebut; (q) Tertuduh ada berhubung semula dengan Azura (SP1) pada 13 Julai 2015 untuk berjumpa dengan anaknya lagi; (r) Azura menyatakan bahawa beliau sedang sibuk dan anaknya pada ketika itu berada di rumah bapanya; (s) Pada malam hari kejadian, Tertuduh telah memangku anaknya yang sedang tidur untuk naik ke tingkat atas rumah dan Azura (SP1) ada menyerahkan kunci Apartment tersebut kepada Tertuduh; (t) Apabila Tertuduh naik ke tingkat atas rumah dan mendapati bahawa grill tidak berkunci dan pintu rumah juga tidak berkunci dan terus masuk ke dalam rumah dengan membaringkan anaknya ke atas sofa di ruang tamu; MRJ NO:W-05(M)-46-01/2017 9 (u) Sebelum ini memang Tertuduh berjumpa dengan anak di rumah bapa Mertuanya (Bapa Azura), tetapi memandangkan hubungan Tertuduh dengan Bapa Mertua adalah tidak baik, Azura menyuruhnya untuk tunggu di bawah Apartment; (v) Tertuduh menafikan ada membawa beg biru tersebut; (w) Tertuduh menafikan tentang dadah tersebut.” [12] Setelah meneliti keterangan kes pembelaan, hakim bicara telah menolak pembelaan Perayu sebagai satu pemikiran terkemudian (“afterthought”) dan rekaan terbaru (“recent invention”) berbanding dengan keterangan kukuh kes pendakwaan melalui keterangan SP1. Hakim bicara turut menolak keterangan pembelaan Perayu bahawa dia tidak mempunyai kunci premis tersebut. Hakim bicara juga menolak pembelaan Perayu mengenai kemungkinan premis itu telah diakses oleh beberapa orang pihak ketiga, terutama kekasih SP1, seorang lelaki berbangsa Cina dengan nama gelaran “Alan Cinak’. Selanjutnya Hakim bicara memutuskan bahawa pembelaan Perayu hanya satu penafian semata-mata (“bare denial”). [13] Dalam penghakimannya, Hakim bicara menyatakan bahawa beliau tidak mempercayai pembelaan Perayu dan pembelaan Perayu telah MRJ NO:W-05(M)-46-01/2017 10 gagal untuk menimbulkan keraguan yang munasabah terhadap kes pendakwaan. Kami petik dapatan dan keputusan Hakim bicara pada akhir Penghakiman beliau di m/s 112 – 113 Rekod Rayuan Jilid 1 seperti berikut: “76. Tahap pembuktian pihak-pihak juga telah dibincangkan dan dijelaskan dalam kes-kes tersebut dan diambil perhatian pada membuat pertimbangan keseluruhan kes ini. Gambaran keseluruhannya yang dilihat diakhir kes adalah Tertuduh sememangnya membawa beg biru tersebut yang mana mengandungi dadah berbahaya kedalam rumah Azura (SP1) dan meletakkannya dalam bilik ketiga. Dalam mengadili perbicaraan kes ini, saya sentiasa mengingati diri dalam memberi amaran mengenai penerimaan keterangan (SP1), saya berpuas hati bahawa keterangan (SP1) adalah benar dan tidak diragui. Saya tidak mempercayai alasan Tertuduh untuk berjumpa dengan anaknya di Apartment tempat kejadian. Dalam keadaan tersebut dan semasa ketiadaan Azura di rumah, Tertuduh telah mengedar dadah-dadah berbahaya. Saya tidak mempercayai pembelaan yang dikemukakan oleh Tertuduh bahawa beliau menjadi mangsa penganaiyaan dan rancangan perangkap oleh bekas isterinya, Azura (SP1). Keterangan yang dikemukakan oleh Tertuduh didapati tidak munasabah dan membangkitkan apa-apa keraguan dalam kes pendakwaan. DENGAN YANG DEMIKIAN, SAYA BERPUASHATI BAHAWA PEMBELAAN TERTUDUH ADALAH TIDAK MUNASABAH LANGSUNG DAN TIDAK MEMBANGKITKAN SEBARANG KERAGUAN YANG MUNASABAH DALAM KES PENDAKWAAN. SAYA JUGA BERPUASHATI BAHAWA PEMBELAAN TELAH GAGAL UNTUK MEMATAHKAN ANGGAPAN SEKSYEN 37(d)(da) AKTA DADAH BERBAHAYA 1952. SEBALIKNYA SAYA BERPUASHATI BAHAWA PIHAK TIMBALAN PENDAKWA MRJ NO:W-05(M)-46-01/2017 11 RAYA TELAH BERJAYA MEMBUKTIKAN KES INI MELAMPAUI KERAGUAN YANG MUNASABAH (BEYOND ALL REASONABLE DOUBT). ATAS ALASAN-ALASAN YANG SEDEKIKIAN, SAYA MENDAPATI TERTUDUH BERSALAH DAN DISABITKAN KESALAHAN MENURUT SEKSYEN 39(B)(1)(a) AKTA DADAH BERBAHAYA, 1952 YANG MANA MEMBAWA HUKUMAN MATI MANDATORI SEKIRANYA DISABITKAN KESALAHAN TERSEBUT. JUSTERU ITU, SAYA MEMERINTAHKAN AGAR TERTUDUH DIBAWA DAN DITAHAN DI PENJARA YANG SAH SELEPAS DARIPADA INI SEHINGGA KEMUDIANNYA DIBAWA KE SUATU TEMPAT KHAS BAGI MENJALANI HUKUMAN GANTUNG DI LEHER SAMPAI MATI MANDATORI.” Alasan Rayuan Perayu [14] Peguam bela terpelajar Perayu telah membangkitkan 4 alasan rayuan dalam penghujahannya untuk menggesa Mahkamah ini membenarkan rayuan Perayu, iaitu: (a) bahawa elemen pemilikan telah gagal dibuktikan; (b) Perayu gagal mendapat perbicaraan yang adil disebabkan komen atau ulasan yang memburuk-burukkan oleh hakim bicara; (c) kegagalan Hakim bicara memberi pertimbangan dengan secukupnya pembelaan terhadap Perayu; dan (d) siasatan polis tidak lengkap dimana rakaman CCTV dan keterangan bebas yang lain tidak diperolehi bagi menyokong keterangan SP1. MRJ NO:W-05(M)-46-01/2017 12 [15] Berkaitan dengan alasan rayuan di(a), peguam bela terpelajar berhujah bahawa Hakim bicara telah bergantung sepenuhnya kepada keterangan SP1 dalam mensabitkan Perayu. Selain daripada keterangan SP1, tidak ada sebarang keterangan lain, sama ada keterangan langsung mahupun keterangan mengikut keadaan, yang dapat mengaitkan Perayu dengan dadah yang dirampas dari bilik ketiga premis tersebut. Peguam bela terpelajar turut menghujahkan bahawa tiada keterangan yang dikemukakan yang dapat menunjukkan bahawa Perayu mempunyai kawalan dan jagaan terhadap premis dan beg yang mengandungi barang kes dadah yang dipertuduhkan. [16] Peguam bela terpelajar turut menghujahkan bahawa premis itu disewa dan didiami oleh SP1. Perayu bukanlah penghuni (“occupier”) di premis tersebut. Perayu hanya seorang pelawat (“visitor”) di premis tersebut untuk berjumpa dengan anak perempuannya di situ. Kehadiran Perayu di premis itu dengan sendirinya tidak boleh menjadikan Perayu sebagai mempunyai kawalan dan jagaan terhadap premis dan dadah yang tersembunyi di dalam premis tersebut. MRJ NO:W-05(M)-46-01/2017 13 [17] Peguam bela terpelajar juga menghujahkan bahawa Perayu tidak mempunyai pengetahuan terhadap dadah di dalam bilik ketiga premis tersebut disebabkan faktor-faktor berikut: (a) keterangan SP6 menyatakan semasa serbuan dan rampasan barang kes, kelakuan Perayu ‘bersahaja’ saja; (b) barang kes dadah berada dalam keadaan yang tidak dapat dilihat dengan mudah; (c) Perayu tidak berada dalam keadaan berdekatan (close proximity) dengan dadah yang dirampas; dan (d) tiada terdapat DNA atau kesan cap jari Perayu pada beg dan juga pada barang kes dadah yang dirampas. [18] Peguam bela terpelajar menghujahkan bahawa Hakim bicara gagal untuk membuat pertimbangan secara maksima dan menerima secara bulat-bulat keterangan SP1 sedangkan SP1 sebagai penyewa dan penghuni rumah itu mengakui SP1 adalah saksi yang mempunyai kepentingan. Keterangan saksi berkepentingan, seperti SP1, sepatutnya diterima dengan secara berhati-hati dan perlu kepada keterangan sokongan. [19] Berkaitan dengan alasan di (b), peguam bela terpelajar merujuk kepada kami komen-komen yang telah diungkapkan oleh Hakim bicara semasa perbicaraan berlangsung yang menunjukkan bahawa Hakim MRJ NO:W-05(M)-46-01/2017 14 bicara telah “prejudged” terhadap kebersalahan Perayu. Peguam bela terpelajar menghujahkan bahawa komen-komen yang berbentuk “bias” yang dibuat oleh Hakim bicara tersebut telah menimbulkan prejudis dan ketidakadilan kepada Perayu dan telah melanggar Perkara 5 Perlembagaan Persekutuan. Seterusnya peguam bela terpelajar menghujahkan bahawa Perayu telah dinafikan hak untuk mendapatkan perbicaraan secara adil. [20] Berkaitan dengan alasan kegagalan Hakim bicara dalam membuat penilaian secukupnya pembelaan Perayu, dihujahkan bahawa Hakim bicara telah terpengaruh sepenuhnya kepada keterangan SP1 yang sepatutnya diterima dengan penuh berhati-hati dan memerlukan keterangan sokongan disebabkan SP1 ialah seorang saksi yang mempunyai kepentingan. Malahan, saksi Pegawai Penyiasat, Inspektor Prabu a/l Avadiappan (SP7) turut bersetuju bahawa SP1 sepatutnya menjadi saspek utama dan sewajarnya dituduh atas kesalahan yang sama berdasarkan fakta bahawa SP1 adalah penghuni sebenar premis tersebut. Kegagalan Hakim bicara dalam membuat pertimbangan secukupnya terhadap pembelaan Perayu adalah merupakan satu salaharahan yang serius yang mengakibatkan berlakunya kegagalan keadilan terhadap Perayu. MRJ NO:W-05(M)-46-01/2017 15 [21] Mengenai alasan terakhir berkaitan siasatan polis yang tidak lengkap dan secara sambil-lewa, peguam bela terpelajar menghujahkan bahawa wujud kelompangan dalam kes pendakwaan apabila pihak polis gagal untuk mendapatkan keterangan terbaik bagi mengaitkan Perayu dengan dadah yang dipertuduhkan. Pihak polis telah gagal untuk mengambil tindakan untuk mengesan kehadiran DNA profail atau cap jari Perayu pada beg dan juga pada barang kes dadah yang dirampas. Begitu juga kegagalan pihak polis untuk mengemukakan rakaman CCTV di kejiranan tersebut walaupun SP8 mengakui terdapat kamera CCTV di kawasan tersebut. Melalui rakaman CCTV tersebut akan dapat menunjukkan dengan sebenarnya siapakah yang telah membawa masuk beg berisi dadah dan meletakkannya dalam premis yang berkenaan. Dapatan dan Keputusan Kami Aspek Keterangan SP1 [22] Berdasarkan penelitian kami kepada Rekod Rayuan dan Penghakiman Hakim bicara, kami bersetuju bahawa Hakim bicara telah bergantung sepenuhnya kepada keterangan lisan SP12 dalam mensabitkan Perayu dengan pertuduhan. Hakim bicara telah menerima keterangan SP1 secara bulat-bulat dan atas nilai muka (“face value”) tanpa membuat pertimbangan terhadap fakta bahawa SP1 seorang MRJ NO:W-05(M)-46-01/2017 16 saksi yang berkepentingan. Daripada keterangan yang telah diberikan oleh SP1 sendiri serta berdasarkan kepada keseluruhan keterangan dalam kes di hadapan kami, tidak syak lagi bahawa SP1 adalah seorang saksi yang mempunyai kepentingan dalam kes ini. Keterangan SP1 sewajarnya diteliti dan diterima dengan secara berhati-hati oleh Hakim bicara dan keterangan saksi sedemikian wajar memerlukan keterangan yang lain sebagai sokongan. Pada pandangan kami, keterangan SP1 bukanlah keterangan yang kukuh untuk membuat sabitan ke atas Perayu oleh Hakim bicara menjadi satu dapatan dan keputusan yang selamat untuk dipertahankan. [23] Hakim bicara telah terkhilaf apabila menerima keterangan SP1 secara bulat-bulat dan dalam membuat dapatan bahawa SP1 seorang saksi yang kredibel. Dapatan kami bahawa SP1 bukanlah seorang saksi yang berkredibel adalah berdasarkan kepada faktor-faktor seperti berikut: (a) SP1 adalah merupakan penyewa sebenar premis dimana beg berisi dadah dirampas. SP1 mempunyai kunci premis dan kad akses dan SP1 juga mempunyai ‘care and management’ serta kawalan dan jagaan terhadap premis itu, sedangkan Perayu hanyalah merupakan seorang pelawat (“visitor”) kepada premis itu; MRJ NO:W-05(M)-46-01/2017 17 (b) SP1 sendiri mengakui bahawa beliau adalah seorang saksi yang mempunyai kepentingan dan mengakui keterangan yang beliau berikan bertujuan untuk melindungi dirinya sendiri; (c) SP1 pada permulaannya menyatakan bahawa Perayu tidak membawa apa-apa barang (beg) semasa Perayu datang ke rumahnya. Sebaliknya, selepas penangguhan dan kes dipanggil semula, SP1 telah menukar keterangannya dengan menyatakan bahawa Perayu datang dengan membawa sebuah beg yang disimpan dalam bilik ketiga; (d) keterangan SP6 memyatakan bahawa dia mengetahui Perayu akan sampai ke premis itu bersama dengan seorang kanak-kanak perempuan dengan menggunakan lif di blok No. 1 kerana telah diberitahu oleh sumbernya. Bagaimanakah SP6 mendapat maklumat tepat ini sedangkan SP1 menyuruh Perayu mendukung anak mereka yang sedang tidur untuk naik terlebih dahulu menggunakan lif di blok berkenaan. SP1 telah memberikan kunci premis itu kepada Perayu. Kemungkinan ini adalah helah dan perangkap oleh SP1 tidak boleh dinafikan sama sekali; (e) fakta yang tidak disangkal bahawa telah berlaku salah faham antara bapa kepada SP1 dengan Perayu mengenai hak lawatan Perayu yang sebelum ini dipersetujui di rumah bapa SP1, bekas bapa mertua kepada Perayu; (f) Perayu telah berpisah dengan SP1 akibat tidak sefahaman dan SP1 telah mempunyai teman lelaki atau kekasih yang baru; (g) SP1 langsung tidak ditahan mahupun diperiksa oleh SP6. Sebaliknya terus diarahkan oleh SP6 untuk berada bersama anaknya di dalam bilik utama. MRJ NO:W-05(M)-46-01/2017 18 [24] Keterangan SP1 berikut yang dirakamkan oleh Hakim bicara, pada padangan kami, menimbulkan keraguan terhadap kebolehpercayaan saksi ini. Perkara terpenting dalam kes ini ialah berkaitan dengan hal perkara dalam pertuduhan, beg (P6) yang berisi dadah yang dipertuduhkan. SP1 menyatakan bahawa dia tidak ingat Perayu ada membawa apa-apa barang apabila Perayu datang ke rumah sewanya. Apabila keterangan SP1 disambung semula selepas ditangguh kerana mahkamah berhenti rehat, SP1 telah secara tiba-tiba menyatakan dia ingat bahawa Perayu datang dengan membawa sebuah beg. Keterangan SP1 seperti di m/s 11 – 12 RR Jld.2 kami perturunkan seperti berikut: “Q : OKT ada bawa apa-apa? A : Saya tidak ingat OKT ada bawa apa-apa barang ke Apartment saya. Mahkamah: Sekarang telah jam 1.00 tengahari. Sambung bicara pada jam 2.15 petang. t.t. (YA DATO’ HAJI MOHAMAD SHARIFF BIN HAJI ABU SAMAH) 2.30 petang Kes Sambung Bicara pihak-pihak yang sama. DPP : Pohon untuk memanggil semula saksi (SP1) Mahkamah: Saksi (SP1) dipanggil semula. Saksi diingatkan atas ikrar sumpah terdahulu. MRJ NO:W-05(M)-46-01/2017 19 Pemeriksaan utama (sambungan) Q : Saya tanya sekali lagi, boleh puan ingat sama ada OKT ada bawa apa-apa pada hari dia datang ke Apartment tersebut? A : Sekarang saya ingat, pada 12 Julai 2015 pada sebelah petang, semasa OKT datang ke Apartment saya, dia ada membawa satu beg.” [penekanan ditambah] [25] SP1 sebagai penyewa dan juga sebagai penghuni premis tersebut mengakui statusnya sebagai seorang saksi yang mempunyai kepentingan. Fakta ini juga gagal dipertimbangkan langsung oleh Hakim bicara. Sebaliknya, Hakim bicara membuat dapatan yang tidak disokong oleh mana-mana keterangan kukuh apabila beliau membuat dapatan bahawa Perayu mempunyai kawalan dan jagaan terhadap premis tersebut dengan andaian Perayu mempunyai kunci premis tersebut. Hakim bicara langsung gagal untuk membuat pertimbangan akan keterangan SP1 yang menyatakan SP1 telah memberi kunci premis tersebut kepada Perayu untuk Perayu masuk ke dalam premis bersama anak mereka sementara SP1 pergi memakir keretanya. Keterangan pembelaan Perayu turut menyatakan bahawa kunci premis yang berada pada Perayu sebelum kejadian telah diserahkan semula kepada SP1 melalui “Fizi Gemuk”. Keterangan ini juga langsung tidak dihargai oleh Hakim bicara dalam menilai pembelaan Perayu. Malahan MRJ NO:W-05(M)-46-01/2017 20 keterangan pembelaan Perayu telah ditolak sepenuhnya atas alasan satu rekaan, penafian semata-mata dan sebagai satu pemikiran terkemudian oleh Hakim bicara. Setelah menilai pembelaan Perayu, kami sekali lagi tidak bersetuju dengan dapatan Hakim bicara tersebut. [26] Dalam soal-balas, SP1 mengakui bahawa dia bersetuju bahawa keterangan yang diberikan bertujuan adalah untuk melindungi diri sendiri. Dengan itu tidak dapat disangkal bahawa SP1 sebenarnya adalah saksi yang mempunyai kepentingan. Undang-undang mantap menyatakan bahawa keterangan saksi berkepentingan hendaklah diterima dan dinilai berhati-hati. Keterangan SP1 mengenai perkara ini kami petik di m/s 29 – 30 RR Jld.2, seperti berikut: “Q : Awak saksi berkepentingan? A : Ya, tidak setuju saya merupakan saksi yang berkepentingan. DPP : Bantahan. Saksi ini tidak tahu maksud saksi berkepentingan. J : Soalan dibenarkan. AF : Dalam bahasa mudah, awak nak protect diri sendiri? A : Setuju.”. [27] Pegawai Penyiasat (SP7) dalam keterangannya turut bersetuju bahawa SP1 adalah orang yang disyaki dan sepatutnya turut dipertuduhkan bersama dengan Perayu. Keterangan SP7 semasa MRJ NO:W-05(M)-46-01/2017 21 disoal-balas dan semasa pemeriksaan semula di m/s 127 dan 130 RR Jld.2, seperti berikut: “Q : Selepas rakam percakapan Azura, awak dapati pada hari kejadian dia ada di tempat kejadian? A : Ya, setuju. Q : Dia inform dia penghuni yang sewa rumah itu? A : Ya. Q : Dia ada kata dia ada satu set kunci? A : Ya. Q : Azura ada kawalan dan jagaan terhadap keseluruhan rumah itu? A : Ya. Q : Secara spesifik, Azura ada kawalan dan jagaan terhadap bilik ketiga? A : Setuju. Q : Azura ada pengetahuan terhadap barang-barang dalam rumah dan bilik ketiga? Betul? A : Setuju. Q : Azura juga perlu menjadi suspek? A : Setuju. Q : Azura tidak ditangkap? A : Ya” “Q : Azura ada kepentingan? A : Setuju, Azura ada kepentingan. Q : Azura yang meletakkan beg itu? Ada kemungkinan? A : Saya tidak pasti dan ada kemungkinan Azura letakkan beg itu. Q : Kes ini adalah set up? A : Saya tidak pasti.” MRJ NO:W-05(M)-46-01/2017 22 Re-Examination of SP7 “Q : Sepatutnya Azura adalah suspek? A : Dia adalah penghuni rumah dan ada kawalan dan jagaan. Q : Kenapa Azura selepas siasatan tidak dinamakan sebagai suspek? A : Hasil siasatan apabila statement penghuni diambil, dia memberitahu bahawa OKT sudah tidak tinggal bersama dengan Azura dan pada saya sendiri Azura ini sepatutnya dituduh bersama-sama. [28] Dalam keadaan kes ini, Hakim bicara tidak sewajarnya menerima keterangan SP1 secara bulat-bulat. Hakim bicara sewajarnya mengambil peringatan yang telah diberikan oleh Edgar Joseph Jr. HMP dalam kes Arulpragasan a/l Sandaraju v. PP [1997] 1 MLJ 1, seperti berikut: “I must add, lest I be accused of an oversight, that I have not overlooked the fact that there was also the evidence about the recovery of the appellant’s Bank Simpanan Nasional savings book, from the brown bag. It will be recalled that the appellant’s story was that his bag was not the brown bag but the yellow bag. The driver Kabir contradicted this. The appellant may well have been lying about this. On the other hand, so may Kabir who was an obvious suspect – at least, the police thought so, for otherwise they would not have arrested and detained him for 14 days. But, assuming that the ppellant has lied when he denied ownership of the brown bag, that does not necessarily conclude the case against MRJ NO:W-05(M)-46-01/2017 23 him, for the question remains: was the recovery of the rolls of cannabis and the Bank Simpanan Nasional Savings Book from the brown bag, only consistent with the appellant’s guilt? What if the rolls of cannabis had been planted there by someone else? There was ample time and opportunity for this for the brown bag lay unattended in the pondok and later in the driver’s cabin for quite a while. These was no suggestion that either the brown bag or the compartment in the driver’s cabin from which it was recovered was locked. According to Insp Ismail bin Dan, the police party which consisted of five men, had proceeded to the factory in two vehicles – Insp Ismail in his own car accompanied by Det/Cpl Amir while Insp Wan Rashid, Det Murad and Det Saad, travelled in a police van. On arrival at the factory, the police party did not proceed straightaway to the lorry; instead, Insp Ismail accompanied by Insp Wan Rashid, proceeded to the office near the factory to seek the permission of its manager to conduct a search of the lorry but before doing so, Insp Ismail had instructed his three men above- named to keep the lorry and those on it under observation. However, none of his three men were called to say that they had in fact carried out that instruction and, if so, what was the result of their observation. It was only after making that detour at the office that the police party approached the lorry. By which time, whoever the culprit was – the appellant or Kabir – would have had early warning of an amminent police strike, for how could they have missed noticing the arrival of the police van. There was no suggestion that the behavior of the appellant was in any way abnormal at or about the time of his arrest. This was a case where there were at least three persons on the scene, namely, the appellant, the security guard Ravi Shankar and the driver MRJ NO:W-05(M)-46-01/2017 24 Kabir. Of the trio, the appellant was the youngest and the most vulnerable, being a lad of just 18 years, while Ravi Shankar and Kabir were mature men aged 23 and 38 years respectively. And although Ravi Shankar and the appellant were perfect strangers, the former did know Kabir. Clearly, the judge adopted an oversimplistic and Nelsonian approach to the case for the prosecution, in that he failed to take into account and/or to give proper weight to and/or to draw proper inferences from every fact which told in favour of the appellant, and thus, failed to review the evidence from all angles, with the result that a miscarriage of justice may well have occurred. In these circumstances, the circumstantial evidence did not exclusively and inevitably connect the appellant to the cannabis, the subject matter of the charge and so the proverbial cap did not exclusively fit the appellant.”. [29] Begitu juga dalam kes Gooi Loo Seng v. PP [1993] 2 MLJ 137, Hakim Mahkamah Persekutuan yang sama telah memberikan pandangan dan peringatan yang sama agar Hakim bicara tidak melihat keterangan saksi berkepentingan hanya dengan “sebelah mata” (“Nelsonian approach”). Di muka surat 141 – 142 kes itu, Edgar Joseph Jr HMP menyatakannya seperti berikut: “We note also that the trial judge accepted at full face value the testimony of Tan Ah Kwai that although she had a seto of keys to the bedroom she never ever entered it when the appellant was not in. In MRJ NO:W-05(M)-46-01/2017 25 thus accepting the testimony of Tan Ah Kwai, the trial judge does not seem to have recognized that Tan Ah Kwai might have had every possible to suppress the truth and to lie, if necessary, at the expence ot the appellant, bearing in mind that she was an obvious suspect. In any event, we consider that Tan Ah Kwai’s testimony on this point was, to put it mildly, and improbable story. The fact of the matter was that she could have had access to the bedroom, and if necessary, with her friends, without attracting the attention of the appellant, if she so wished. The trial judge however adopted a Nelsonian approach to Tan Ah Kwai’s testimony, and as a result, rejected the crucial part of the defence case which was that the heroin was concealed in his bedroom without his knowledge. But, of equal importance, was the point that the trial judge failed to recognize the significance of the contents of the search list; in particular, as we have already remarked, that it told a materially different story to that deposed to by Insp. Nordin regarding the circumstances under which the heroin was recovered, and as a result, he inferred that the appellant had custody and control of the heroin and knew of its nature. The search list, prepared by Insp. Nordin himself, virtually on the spot, was entirely consistent with the appellant’s version that i t was not he but Insp. Nordin who had found the heroin at the bottom of the plastic cupboard, and so flatly contradicted Insp. Nordin’s version that it was the appellant who had prevented Wahid from conducting a search of the plastic cupboard, and had then obligingly recovered the heroin from the bottom of the cupboard and handed it over to Insp. Nordin. And Wahid, though available, was not called by the prosecution. Had the trial judge approached the prosecution case in the manner we have indicated, we cannot confidently say that he would or must inevitably have rejected the appellant’s version that he had no MRJ NO:W-05(M)-46-01/2017 26 knowledge of the presence of the heroin in the bedroom and that it could have been hidden there by others having access to the bedroom in his absence. We need hardly add, that even if the appellant had known of the presence of the heroin in his bedroom, that by itself would not have been sufficient to establish that he was in possession or in control of it given the fact that others too, and certainly his girlfriend Tan Ah Kwai, had access to the bedroom and could have concealed the heroin there. At the end of the day, this was a case of the proverbial cap which might have fitted not just the head of the appellant but that of others as well. Clearly, therefore, the trial judge, was bound to, but did not view the whole of the evidence objectively and from all angles, with the result that the appellant had lost the chance which was fairly open to him of being acquitted. On this point, we consider that non-direction amonts to a misdirection, for in the words of Pickford J in R v Bundy: ‘…the trial was not satisfactory, and the case was not put to the jury in a way to ensure their due appreciation of the value of the evidence’. We must treat the failure of a trial judge sitting alone, to direct himself correctly in the same way as a failure to direct a jury correctly. In these circumstances, a miscarriage of justice may well have occurred. Accordingly, we had no alternative but to allow the appeal, quash the conviction and to substitute in lieu thereof, an order of acquittal and discharge.”. [30] Kami berpandangan bahawa Hakim bicara terkhilaf apabila telah gagal untuk membuat pertimbangan dengan secukupnya terhadap MRJ NO:W-05(M)-46-01/2017 27 pembelaan Perayu yang menafikan sebarang pengetahuan terhadap dadah yang dipertuduhkan. Pertimbangan sewajarnya patut juga diberikan terhadap kemungkinan bahawa dadah yang dipertuduhkan telah diletakkkan oleh SP1 sendiri di dalam bilik ketiga. Kemungkinan ini tidak boleh diketepikan sama sekali berdasarkan kepada keadaan animositi dan motif dipihak SP1 untuk memerangkap Perayu. Pandangan sama telah diutarakan oleh Azahar Mohamed HMR dalam kes Shahrizal bin Said dan satu lagi Lwn. PR [2013] 5 MLJ 464 di m/s 472 – 473, seperti berikut: “[18] Berbalik kepada kes di hadapan kami, bukan sahaja SP5 mempunyai akses kepada bilik kedua tersebut, malahan keterangan seterusnya menunjukkan bahawa SP5 telah terjun melalui tingkap di bilik kedua. Nampaknya, SP5 telah berani menggadaikan nyawanya dengan terjun dari tingkat enam kerana hendak melarikan diri daripada ditangkap oleh pihak polis. Dalam hal keadaan yang sedemikian, pada hemat kami, hakim bicara sepatutnya meneliti dan memberi pertimbangan yang sewajarnya bahawa kedua-dua perayu tidak mempunyai sebarang pengetahuan mengenai kewujudan dadah berbahaya tersebut dalam bilik yang berkenaan dan bahawa dadah berbahaya itu mungkin disembunyikan di situ oleh SP5 sendiri. Hakim bicara kelihatan menerima penafian SP5 yang dadah berbahaya tersebut bukan milik beliau. Hakim bicara dalam menerima penafian SP5 itu nampaknya tidak terfikir bahawa SP5 mungkin mempunyai sesuatu motif untuk melindungi kebenaran dan berbohong sewaktu memberi keterangan di mahkamah dengan mengambil kira bahawa SP5 sendiri merupakan orang yang disyaki dengan jelasnya apabila MRJ NO:W-05(M)-46-01/2017 28 beliau sanggup menggadaikan nyawanya dengan terjun dari tingkat enam. [19] Pada hemat kami, hakim bicara telah gagal mengarahkan diri beliau dengan betul kerana tidak melihat keseluruhan keterangan secara objektif dan dari segala sudut, di mana berkesudahan dengan kedua-dua perayu telah kehilangan peluang yang terbuka kepada mereka untuk dibebaskan dan dilepaskan. Pada hemat kami, ketidakarahan ini terjumlah kepada kesalaharahan dan dalam hal ini, suatu salah laksana keadilan mungkin telah berlaku. Dalam hubungan ini, Edgar Joseph Jr HMS dalam kes Gooi Loo Seng v Public Prosecutor itu telah berkata: Clearly, therefore, the trial judge, was bound to, but did not view the whole of the evidence objectively and from all angles, with the result that the appellant had lost the chance which was fairly open to him of being acquitted. On this point, we consider that non-direction amounts to a misdirection, for, in the words of Pickford J in R v Bundy 5 Cr App R 270: the trial was not satisfactory, and the case was not put to the jury in a way to ensure their due appreciation of the value of the evidence. We must treat the failure of a trial Judge sitting alone, to direct himself correctly in the same was a failure to direct a jury correctly. In these circumstances, a miscarriage of justice may well have occurred.”. [31] Keterangan yang diterimapakai oleh Hakim bicara dalam mensabitkan Perayu hanya bersadarkan kepada keterangan SP1 sahaja semata-mata. SP1 jelas merupakan seorang saksi yang berkepentingan. Hakim bicara telah gagal untuk mengikuti keputusan MRJ NO:W-05(M)-46-01/2017 29 kes-kes terdahulu yang memutuskan bahawa keterangan sokongan yang diperlukan terhadap keterangan saksi berkepentingan dalam mensabitkan seseorang tertuduh. Dalam kes Rozmi bin Yusof v. PP [2013] 5 MLJ 66, Mahkamah ini telah menekankan akan peri pentingnya keterangan sokongan dalam siatuasi kes seperti ini. Di m/s 72 – 73 kes itu, Hamid Sultan HMR menyatakannya seperti berikut: “[10] In the instant case SP8 the brother of accused was an interested witness and he did participate in the fight. His evidence ought to be treated with caution and was not done so in the instant case. We have dealt with this area of jurisprudence in great detail in Public Prosecutor v Thenegaran a/l Murugan [2013] 3 MLJ 328, we do not wish to repeat the same. In Magendran a/l Mohan v Public Prosecutor [2011] 6 MLJ 1; [2011] 1 CLJ 805 the Federal Court had this to say: It is clear to us that from her testimony she was an interested witness with a grudge against the appellant and had a purpose of her own to serve. In our judgment her evidence must be treated with caution and requires corroboration. [11] In our considered view the failure by the trial judge to follow the directions set out in Magendran’s case in respect of caution and corroboration makes the decision perverse and not according to law. This will also attract art 5(1) of the Federal Constitution to order an acquittal as the evidence to convict was based solely on PW8’s evidence which is not safe and according to law. The court has no jurisdiction to deprive the life and liberty of the subject unless the decision is made according to law. Article 5(1) stated as follows: MRJ NO:W-05(M)-46-01/2017 30 No person shall be deprived of his life or personal liberty save in accordance with law.”. [32] Dalam penghakimannya, Hakim bicara menyatakan keterangan SP1 disokong oleh keterangan SP6 mengenai identiti beg P6. Dengan hormatnya, keterangan SP6 mengenai identiti beg P6 yang berisi dadah yang dipertuduhkan bukanlah merupakan keterangan sokongan yang sewajarnya dicari oleh mahkamah untuk mensabitkan Perayu. Keterangan sokongan sepatutnya adalah terhadap keterangan matan SP1 yang mendakwa beg P6 tersebut telah dibawa oleh Perayu dan diletakkan dalam bilik ketiga rumah yang disewa dan didiami oleh SP1. Setelah meneliti Rekod Rayuan, kami tidak ada menemui walau secebis keteranganpun yang dapat menyokong keterangan SP1 atas perkara matan tersebut. Komen berlawanan oleh Hakim bicara [33] Bantahan peguam bela terpelajar adalah terhadap komen yang tidak wajar yang dibuat oleh Hakim bicara yang dihujahkan sehingga menyebabkan ketidakadilan terhadap Perayu serta melanggar Perkara 5(1) Perlembagaan Persekutuan yang menghendakki satu perbicaraan yang adil diadakan. Komen-komen yang berlawanan yang dibantah MRJ NO:W-05(M)-46-01/2017 31 oleh peguam bela terpelajar adalah seperti yang terkandung dalam Rekod Rayuan Tambahan (“RRT”) di m/s 12 – 16, seperti berikut: “Mahkamah : Saya bercadang kita habiskan dia. Takde saksi lain lagi? Panggil la Lan Cina dan Fizi Gemuk? Peguam : Fizi Gemuk saya percaya apa yang dimaklumkan ada di dalam tahanan. Mahkamah : Why don’t you put to your defence? Betul tak Fizi Gemuk kena tangkap dengan polis? Jadi put la pada Fizi Gemuk tu. Baru la kemas sikit. Peguam : Dalam Notes ada kalau Yang Arif tengok pada SP6. Mahkamah : Did you put to the police, Fizi Gemuk one of the suspect in the case involving drugs. Betul ke tak? Peguam : Yang Arif kami dimaklumkan berkenaan FIzi Gemuk ditangkap oleh SP6 dalam kandang. Kami tahu berkenaan fakta yang dia dah ditangkap dimaklumkan oleh SP6 ketika perbicaraan Mahkamah : Dalam Notes of Evidence ke? Ada ke? Peguam : Kalau boleh disemak oleh rakan bijaksana saya, dimaklumkan di muka surat 79 – “Fizi Gemuk ditangkap dibawah LLPK.” Mahkamah : Ada ke? Nothing in my record. Saya tak pernah dengar pun saksi ini cakap. But not in my record yang you are put question to the raiding officer berkenaan Fizi Gemuk kena tangkap ni. Peguam : Ada Yang Arif. Buleh rujuk CRT, ada dimaklumkan. Mahkamah : Itu je. Tak de fakta lain. Kalau fakta lagi, you boleh lepaskan dia ni. Peguam : Yang Arif, berkenaan Fizi Gemuk, kami percaya kami dah put kepada semua witness dan kewujudan dia MRJ NO:W-05(M)-46-01/2017 32 dipastikan oleh SP6 yang kata dia ditangkap dibawah LLPK dalam keterangan. Mahkamah : Tak pa. It’s up to you if you feel that you want to produce Fizi Gemuk get the court’s order. Then we can produce Fizi Gemuk. Tiada masalah. Peguam : Baik Yang Arif. Mahkamah : If you think Fizi Gemuk relevant to your case, kita boleh panggil dia untuk bagi keterangan. At least you can save hislife. Until and unless Fizi Gemuk come and appear, takde bende…pasal Azizan tu dah takde bende dah, kita nakkan satu benda yang mencurigakan. Come and creat some doubt and I’m very happy to release him. Peguam : Yang Arif, about Fizi Gemuk ada access to the house, I believe SP1 pun dah sahkan bende tu Yang Arif, Dalam keterangan SP1. Mahkamah : Betul lah, Fizi Gemuk dia ada. Tapi nobody can confirm dia ada pergi rumah tu, ada accessible ke rumah tu. Nobody can confirm, except the name. Tapi, since dah ada dalam LLPK ni, you can get the court’s order. Kita boleh produce dia. Peguam : We will consider that. Mahkamah : Other than you just let go jer bende tu, kita tak dapat nak pastikan. Cuba bincang balik. If you feel that Fizi Gemuk can help this case, otherwise kita hanya dengar dia punya story jer. Sekarang ni dia all the time jumpa anak dekat rumah bapa dia. Jadi kalau hari itu dia jumpa pertama kali, dia balik lah. Peguam : We have to check on the daughter juga Yang Arif. Because I believe the daughter pun can confirm. MRJ NO:W-05(M)-46-01/2017 33 Mahkamah : The daughter tu budak kecil. Budak kecil ni payah. Kita cakap “Ya”..“Ya”. “Awak makan ais krim?”. “Makan.”. Peguam : Ya, everything can be tested. Mahkamah : Budak kecil ni payah sikit, because umur dia ni below age. Dia ikut apa kita cakap. Tapi kalau macam ni, now the question dia used to see the daughter, all the time dekat rumah bapa dia. Hari tu dia jumpa anak dia sekali, dah la. Balik la. Why take you to wait until malam-malam, call several time buat apa. Anak dekat rumah bapa. Go, jumpa anak dekat rumah bapa. Pasal apa tunggu Azura. This is something.. Peguam : Dia takde tunggu Azura, Yang Arif. Takde cakap tunggu Azura. Mahkamah : Dalam telefon Azura kata anak kat rumah abah. Peguam : That’s why dia tunggu, Yang Arif. Mahkamah : Buat apa tunggu Azura, pergi la rumah abah. Peguam : Saya rasa dia dah explain. Mahkamah : Tak pa, that’s your story. You’ll be in danger. Pasal selalu dia jumpa dekat rumah abah dia. Jadi bila Azura bagi tau dia, pukul 6.30 tu anak kat mana? Anak kat rumah Abah ni. Lepas tu dia call-call Azura lagi banyak kali tak dapat. Sampai lah malam kan. Baru dapat call Azura. Baru dapat jumpa Azura. Azura kata tunggu la kat bawah. Betul tak? Peguam : Betul, Yang Arif. Mahkamah : Jadi maknanya by that time Azura dah pergi ambil anak kat rumah abah. Peguam : That is the story. MRJ NO:W-05(M)-46-01/2017 34 Mahkamah : Persoalannya disini, within that time tu, tunggu sampai 2 jam, tunggu Azura dari jam 8.30 sampai 10.30 malam, Azura dah bagi tau dah 6.30 tadi anak kat rumah abah. Peguam : Baik, Yang Arif. I’ll do that, Yang Arif. Mahkamah : These are the things yang saya nampak. Saya tidaklah rasa gentar untuk mengambil tindakan yang kemuncak itu. Tapi kalau ada jalan lain, saya nak lepaskan dia. Saya tak mahu ambil tindakan yang akhir itu. Tapi the way you’re putting your case, you are putting him to the gallows. Peguam : Baik, Yang Arif. Mahkamah : Saya cukup risau benda ni, cuba cari jalan, but if you feel that Fizi Gemuk can help, call him. Kalau tidak, saya tak de choice. My hands are tight. Only one punishment. You got to think about it. So macam mana? Sekarang kalau nak postpone, bila? Panjang lagi? Minggu depan tak boleh? But if you want to call Fizi Gemuk, give me the detail, then we can issue order to produce him and we see how tha thing goes. Peguam : Baik Yang Arif. Mahkamah : Saya ingat DPP pun boleh bantu la kalau dia kat mana-mana pun. TPR : Baik Yang Arif. Mahkamah : Tapi En. Lokman, just think about it, baca balik keterangan tu, apabila keterangan tu dah ada kat situ, the court has already form its mind towards him. It is serious punishment. So, kalau kita postpone, kita put next week, boleh? 5 dan 6 boleh? MRJ NO:W-05(M)-46-01/2017 35 Peguam : Pada 5 hb saya ada kes di Mahkamah Persekutuan, Kes: Liang Weng Heng v. Timbalan Menteri Dalam Negeri (05-18408-2016) Mahkamah : Kes Sambung Bicara pada 9 Januari 2017 jam 9 pagi t.t. (YA DATO’ HAJI MOHAMAD SHARIFF BIN HAJI ABU SAMAH)”. [34] Kami faham tentang kegusaran serta kebimbangan peguam bela terpelajar apabila komen-komen Hakim bicara menampakkan dapatan “prejudged” Hakim bicara yang memprejudiskan Perayu. Hakim bicara seolah-olah telah dari awal lagi menolak pembelaan Perayu. Ini dapat dilihat dengan jelas dalam Penghakiman Hakim bicara tersebut seperti di m/s 85 – 94 RR Jld.1 yang kami simpulkan seperti berikut: “Adakah benar tujuan Perayu untuk berjumpa dengan anaknya? Sekiranya Perayu ingin berjumpa dengan anaknya, mengapakah perlu berjumpa di Apartment (SP1). Kalaulah Perayu sudah berjumpa dengan anaknya pada 12 Julai 2015, mengapakah perlunya berjumpa untuk kali kedua pada 13 Julai 2015?” [35] Hakim bicara seterusnya mempertikaikan niat sebenar Perayu untuk berjumpa dengan anaknya di rumah SP1. Sebaliknya, Hakim bicara menyatakan sekiranya benar tujuan Perayu untuk berjumpa dengan anaknya adalah lebih baik untuk berbuat demikian di rumah MRJ NO:W-05(M)-46-01/2017 36 bapa SP1 (bekas bapa mertua Perayu). Hakim bicara menolak sama sekali keterangan Perayu dan keterangan sokongan SP1 bahawa wujud perselisihan faham diantara Perayu dengan bekas bapa mertuanya mengenai hak lawatan Perayu terhadap anaknya di rumah bekas bapa mertuanya. Di m/s 94 RR Jld.1, Hakim bicara menolak pembelaan Perayu dengan membuat kesimpulan yang memprejudiskan seperti berikut: “Justeru, pada hemat saya keterangan Tertuduh untuk berjumpa dengan anaknya hanyalah suatu helah dan alasan yang sangat tidak masuk akal bagi mengecapi “hidangan istimewa” yang terdapat dalam Apartment tersebut dan pada hakikatnya Tertuduh tahu akan perbuatannya. Misteri tindakan Tertuduh ini terbongkar apabila dadah- dadah berbahaya ditemui dalam beg biru yang dibawanya.” [36] Kami bersetuju dengan hujahan peguam bela terpelajar bahawa hak keperlembagaan Perayu di bawah Perkara 5.1 untuk mendapat perbicaraan dengan adil telah tercalar. Kami berpegang kepada Penghakiman Mahkamah Persekutuan mengenai isu yang sama diputuskan dalam kes Lee Kwan Woh v. PP [2009] 5 MLJ 301 seperti berikut: “[17] …………………” Accordingly, the rule of law in all its facets and dimensions is included in the expression ‘law’ wherever used in the Constitution. Hence, the expression ‘law’ in art 5(1) includes written law MRJ NO:W-05(M)-46-01/2017 37 and the common law of England, that is to say the rule of law and all its integral components and in both its procedural and substantive dimensions. For, it is now settle that the rule of law has both procedural and substantive dimensions. See Pierson v Secretary of State for the Home Department [1997] 3 All ER 577, where where at p 606, Lord Steyn said: ‘The rule of law in its wider sense has procedural and substantive effect.’ [17] We also find support for the view we have expressed from the judgment of Lord Diplock in Ong Ah Chuan v Public Prosecutor [1981] 1 MLJ 64, where, when dealing with arts 9 and 12 of the Singapore Constitution which are identical to arts 5 and 8 respectively he said: In a constitution founded on the Westminister model and particularly in thart part of it that purports to assure to all individual citizens the continued enjoyment of fundamental liberties or rights, references to ‘law’ in such contexts as ‘inaccordance with law’, ‘protection of the law’ and the like, in Their Lordships’ view, refer to a system of law which incorporates those fundamental rules of natural justice that had formed part and parcel of the common law of England that was in operation in Singapore at the commencement of the Constitution. It would have been taken for granted by the makers of the Constitution that the ‘law’ to which citizens could have recourse for the propection of fundamental liberties assured to them by the Constitution would bt a system of law that did not flout those fundamental rules. It is clear from this passage that the rules of natural justice, which is the procedural aspect of the rule of law, is an integral part of arts 5(1) and 8(1). In short, procedural fairness is incorporated in these two articles. [18] Drawing, the threads together, it is clear from the authorities that it is a fundamental right guaranteed by art 5(1) that a person’s life (in its MRJ NO:W-05(M)-46-01/2017 38 widest sense) or his or her personal liberty (in its widest sense) may not be deprived save in accordance with state action that is fair both in point of procedure and substance. Whether an impugned state action is substantively or procedurally fair must depend on the fact pattern of each case. However, when the principle is applied to a criminal case, what it means is that an accused has a constitutionally guaranteed right to receive a fair trial by an impartial tribunal and to have a just decision on the afacts. If there is an infraction of any of these rights, the accused is entitled to an acquittal. Whether there has been a fail trial by an impartial tribulan or a just decision depends on the facts of each case. While upon the subject under discussion we would refer with approval to the judgment of Edgar Joseph Jr J (as he then was) in Public Prosecutor v Choo Chuan Wang [1992] 2 CLJ 1242, where he held that: Article 5(1) of our Constitution does imply in favour of an accused person the right to a fair hearing within a reasonable time by an impartial court established by law. It follows that if an accused person can establish a breach of this right then, in the words of Sandhawalia CJ in Madheshwardhari Singh v The State (ibid) (Madheshwardhari Singh and Anor v State of Bihar AIR (Pat) 1986 324), he would be entitled to an unconditional release and the charges leveled against him would fall to the ground. [19] We must consider the impact of what we have said thus far on the facts of the instant case. In our judgment, the constitutionally guaranteed right in an accused to a fair trial includes his right to make a submission of no case at the close of the prosecution’s case. It is a right that he or she may waive. But he or she cannot be deprived of it. That unfortunately is what happened here. The accused accordingly did not have a fair trial and art 5(1) was violated. Following Public MRJ NO:W-05(M)-46-01/2017 39 Prosecutor v Choo Chuan Wang he is entitled to have his conviction set on this ground.”. [37] Pandangan yang sama telah disuarakan oleh Mahkamah Rayuan Jenayah di Singapura dalam kes Roseli bin Amat & ors v. PP [1989] 2 MLJ 65 dimana Thean J manyatakannya di m/s 69 – 70, seperti berikut: “In view of the remarks or observations which we have examined, it is doubtful whether the learned judge had fairly evaluated the evidence of the complainant and the appellants. They point very strongly to the unhappy fact that the learned judge did not keep an open mind throughout the trial and examine and weigh carefully the evidence of the complainant and that of the appellants. These unsatisfactory features of the trial were further compounded by the following passage of his judgment: At the end of her [complainant’s] cross-examination I was convinced that Orranuch Nilprang was a witness of truth and that she had submitted to the four of you under duress as she was afraid that you would either hurt or kill her. On this, the learned judge, with respect, was clearly in error. We wish to repeat what Lord Diplock said in Haw Tua Tau v PP (at p 51): …Whoever has the function of deciding facts on the trial of a criminal offence should keep an open mind about the veracity and accuracy of recollection of any individual witness, whether called for the prosecution or the defence, until after all the evidence to be tendered in the case on behalf of either side has been heard and it is possible to assess to what extent (if any) that witness’s evidence has been MRJ NO:W-05(M)-46-01/2017 40 confirmed, explained or contradicted by the evidence of other witnesses. It is true that the learned judge said that at the end of the case he scrutinized again the evidence adduced by the prosecution and that of the appellants. However, he ought not to have come to any definite conclusion, which he appeared to have done, on the credibility of the complaint – and that was purely on her own evidence – and on other matters which we have discussed until he had heard all the evidence adduced by the prosecution and evidence adduced by the defence. Only then would he be in a position to assess or evaluate fair ly the evidence before him and make findings of facts and finally arrive at a conclusion. We now turn to the final question whether the convictions in the circumstances can stand. This is far from being a case of a couple of isolated imprudent remarks made injudiciously by a trial judge in unguarded moments in the course of a long trial – such incidents we can well appreciate and understand. The instant case unfortunately is much more than that. The passages of the transcript which we have reviewed and in which are found definite views and findings of the learned judge on material issues – some of them at an early stage of the trial – are far too compelling: they indicate starkly that the learned judge had pre-determined these material issues adversely against the appellants long before they had fully presented their case. With great reluctance, we have reached the unavoidable conclusion that the convictions should not be allowed to stand. Accordingly, we allow the appeal and quash the convictions and the sentences. We have considered whether we should now order a new trial. In our judgment, having regard to the long laps of time since the alleged offence and the fact that the appellants have by now served a term of imprisonment of over three years it would be unfair to subject them again to a long trial MRJ NO:W-05(M)-46-01/2017 41 on the same charges. We therefore do not propose to make such an order.”. Kegagalan membuat pertimbangan secukupnya terhadap pembelaan Perayu [38] Seksyen 182A(1) KAJ memperuntukkan bahawa Hakim bicara hendaklah menimbang dan meneliti keseluruhan keterangan, termasuklah keterangan pihak pembelaan. Dengan kata lain, pembelaan Perayu tidak boleh diketepikan begitu sahaja sebagai satu rekaan terbaru dan satu pemikiran terkemudian sebagaimana yang diputuskan oleh Hakim bicara dalam kes di hadapan kami. Kami bersetuju dengan hujahan peguam bela terpelajar bahawa Hakim bicara telah gagal untuk membuat pertimbangan dengan secukupnya terhadap pembelaan Perayu. Sekiranya pembelaan Perayu ditimbangkan dengan secukupnya, Hakim bicara akan membuat dapatan yang berbeza iaitu bahawa pihak pembelaan telah berjaya mematahkan anggapan pengedaran di bawah seksyen 37(da) Akta atas imbangan kebarangkalian dan seterusnya bahawa pembelaan Perayu telah berjaya membangkitkan keraguan yang munasabah terhadap kes pihak pendakwaan. MRJ NO:W-05(M)-46-01/2017 42 [39] Hakim bicara telah gagal membuat pertimbangan terhadap fakta- fakta matan dalam pembelaan Perayu yang tidak disangkal oleh pihak pendakwaan. Antaranya: (a) Perayu tidak ditangkap bersama barang kes dadah; (b) Perayu menafikan elemen pemilikan; (c) Tidak ada terdapat ‘overt act’; (d) Tiada DNA/cap jari Perayu pada beg P6 dan pada barang kes; (e) Perayu bukan penyewa rumah itu dan bukan juga penghuni rumah di mana dadah dirampas; (f) Perayu hanya seorang pelawat (visitor) datang ke rumah itu untuk berjumpa dengan anak perempuannya yang berada dalam jagaan bekas isterinya (SP1) yang menyewa dan menghuni rumah itu; (g) Walaupun SP6 menyatakan telah sekian lama mengekori pergerakan Perayu, namun tiada keterangan dari SP6 mahupun dair anggota pasukkannya yang melihat Perayu pada mana-mana masa ada memegang/membawa beg P6 tersebut selain daripada keterangan SP1, saksi berkepentingan dan yang meragukan; (h) Perayu ditangkap di ruang tamu dan tidak dalam bilik ketiga dimana dadah ditemui. [40] Dalam kes Koo Wing Cheung v. PP [2014] 1 CLJ 46, Azahar Mohamed HMR (sekarang HMP) menyatakan mengenai isu yang sama seperti berikut: “[19] Therefore, against the backdrop of the above defence, in our judgment, the learned trial judge was duty-bound to take into account and give proper weight to the matters to which we have adverted to. In this case, both the appellants were arrested in the master bedroom. MRJ NO:W-05(M)-46-01/2017 43 There were no drugs recovered in the master bedroom. No keys to the said house were recovered from either of the appellants. In this regard, mere presence in one of the four rooms of the house without more did not show that both the appellants had or appeared to have the care or management of the house and the presumption that they were occupier could not be raised (see: PP v. Lai Ah Bee [1974] 1 LNS 119; [1974] 1 MLJ 74). It should perhaps be emphasized that there was evidence that other persons had custody and control of the house, and hence had access to the house. As we have indicated earlier, a Perodua Myvi was seen at the said house by PW11 while carrying out surveillance on the house and that a Proton Wira which was seized from the porch of the said house did not belong to either of the appellants. The evidence points to the possibility of some other persons who could have placed the offending drugs there. There was evidence that DW3 stayed in the room next to the kitchen on the ground floor. There was also evidence that Chee Chai was the occupier of the said premises. There was evidence that Chee Chai was in possession of P57 which contained the drugs and that it was Chee Chai who wrote the words “do not touch” and pasted the same on P57. There was evidence that Chee Chai had possession of P77, a few days before when he took out P77 and offered the drugs contained in P77 to DW3 and two others. All these were never judicially and adequately considered by the learned trial judge in his judgment. The learned trial judge had failed to view the evidence of the defence objectively and from all angles. Now, by virtue of s. 182A of the CPC at the conclusion of the trial, the learned trial judge must consider all the evidence adduced before him and shall decide whether the prosecution had proved its case beyond reasonable doubt. As a result, the learned trial judge had failed to give the evidence adduced by the defence its due weight and importance and which if duly considered was capable of raising more than a reasonable doubt in the case of the prosecution against both the appellants (see: Yusoff Kassim v. PP MRJ NO:W-05(M)-46-01/2017 44 [1992] 3 CLJ 1535; [1992] 1 CLJ (Rep) 376). The learned trial judge failed to critically and judicially appreaciate the entire evidence in favour of the appellants. In our judgment, the failure to take into consideration the entire evidence adduced by the defence and the failure to undertake judicial appreciation of the defence, as we have highlighted above, amounted in effect to a failure to consider a defence which had been put forward. In our view, this is a serious non-direction which amounts to a misdirection by the court below warranting appellate intervention (see: Er Ah Kiat v. PP [1965] 1 LNS 37; [1965] 2 MLJ 238). In this regard, Edgar Joseph Jr SCJ in Gooi Loo Seng v. PP [1993] 3 CLJ 1; [1993] 2 MLJ 137 said: Clearly, therefore, the trial Judge, was bound to, but did not view the whole of the evidence objectively and from all angles, with the result that the appellant had lost the chance which was fairly open to him of being acquitted. On this point, we consider that non-direction amounts to a misdirection, for, in the words of Pick J in R v. Bundy 5 Cr App R 270: The trial was not satisfactory, and the case was not put to the jury in a way to ensure their due appreciation of the value of the evidence. We must treat the failure of a trial Judge sitting alone, to direct himself correctly in the same as a failure to direct a jury correctly. In these circumstances, a miscarriage of justice may well have occurred.”. [41] Kegagalan Hakim bicara dalam membuat pertimbangan dengan secukupnya pembelaan Perayu merupakan satu salaharah yang serius yang mewajarkan campurtangan Mahkamah atasan. Perkara ini telah MRJ NO:W-05(M)-46-01/2017 45 diputuskan oleh Balia Yusof Hj. Wahi HMR (sekarang HMP) dalam kes Zulkefly bin Had v. PP [2014] 6 CLJ 64, seperti berikut: “[20] Di akhir perbicaraan, tugas hakim bicara adalah untuk meneliti kesemua keterangan yang telah dikemukakan di hadapannya dan memutuskan sama ada pihak pendakwaan telah membuktikan suatu kes melampaui keraguan. Seksyen 182A(1) Kanun Acara Jenayah jelas memperuntukkan perihal tersebut. Di dalam mengadakan peruntukan tersebut, Parlimen dengan jelas menyatakan “all the evidence adduced before it”. Penekanan haruslah diberikan kepada perkataan “all” yang memberikan maksud keseluruhan dan kesemua keterangan, sama ada dari pihak pembelaan ataupun pendakwaan. Apa-apa ketinggalan atau kegagalan hakim bicara berbuat demikian adalah merupakan suatu salah arah dan ini mewajarkan Mahkamah Rayuan untuk campur tangan. Kegagalan hakim bicara mengambil kira dan membuat aprisiasi mana-mana keterangan pembelaan telah memprejudiskan Perayu. Hak samarata dan untuk mendapatkan “fair trial” Perayu telah dicabul. Tiada Mahkamah di dalam mana-mana jua sistem perundangan di dalam mana-mana “civilized society” boleh menerima perkara sedemikian.” Siasatan Pihak Polis Yang Sambil Lewa dan Tidak Lengkap [42] Bantahan peguam bela mengenai isu ini berkaitan dengan kegagalan pihak polis, terutamanya oleh Pegawai Penyiasat, Inspektor Prabu a/l Avadiappan (SP7) untuk membuat siasatan yang lengkap dan teliti. Sebaliknya, pihak pendakwaan bergantung sepenuhnya kepada keterangan lisan SP1. Aspek yang gagal disiasat oleh SP7 termasuklah MRJ NO:W-05(M)-46-01/2017 46 kegagalan untuk mendapatkan rakaman CCTV di kawasan perumahan tersebut. Juga gagal disiasat oleh SP7 ialah buku rekod keluar masuk pelawat yang terdapat di Pondok Pengawal Keselamatan serta kesan DNA/cap jari pada barang kes dadah. Selain itu, terdapat pakaian lelaki dalam rumah itu yang turut gagal disiasat oleh SP7. Dalam keterangan semasa pemeriksaan balas, SP7 menyatakan seperti berikut: “Q : Selepas siasatan dibuat, hanya keterangan Azura, pemilik rumah dan anaknya diambil. Hanya keterangan penyewa rumah sahaja yang menyatakan bahawa OKT membawa beg itu? A : Setuju. Q : Dalam kes ini rumah adalah disewa oleh Azura dan OKT tiada dekat dengan barang kes, seharusnya ada siasatan lain perlu dibuat, perlu ada independent evidence lain? A : Setuju. Q : Adakah sangat penting untuk awak rampas barang lelaki? A : Penting jika merujuk kepada tempat kejadian. ……. Q : Ada pakaian orang lain dalam bilik utama? A : Dalam statement Azura, ada pakaian OKT. Pakaian hanya ada di dalam bilik utama saja. Q : Soalan saya macam ini. Pakaian dalam rumah, tadi Inspektor kata ada dan kita tak tahu pakaian ini milik siapa. Kalau Inspektor rampas, sama ada kita boleh buat clothes fit test, suruh OKT pakai dan buat DNA test, boleh dapat satu bukti yang konklusif pakaian ini milik siapa. Setuju? A : Setuju.”. MRJ NO:W-05(M)-46-01/2017 47 [43] SP7 tidak merampas pakaian lelaki yang ditemui di dalam bilik utama rumah itu apabila SP1 memberitahu SP7 bahawa pakaian tersebut milik Perayu. Tambahan pula Perayu menyatakan teman lelaki SP1 yang bernama ‘Alan Cinak’ turut tinggal di rumah itu bersama SP1. Fakta ini juga langsung tidak dipertimbangkan oleh Hakim bicara sebaliknya ditolak begitu sahaja. [44] Dalam kes PP v. Tukiman bin Demin [2008] 4 MLJ 79, Hakim Mohd. Zawawi Salleh (sekarang HMR) dalam menyampaikan penghakimannya atas isu yang sama, memutuskan seperti berikut: “21.4 The drugs were not found on the acused but in the room to which several person have equal access. The presence of SP7, SP10 and Samiun bin Mohd Dah and other bachelors (‘budak-budak bujang’) in the house, raise some doubts as to whether it could be said affirmatively that the drugs were in the possession of the accused or either one of them or all of them are in joint possession of the said drugs. Where possession is not clear, as in the present case, when the offending drugs may be attributed to more than one individual, possession requires some nexus, link, or other connection between the accused and the offending drugs. In this case, there is no evidence of additional incriminating circumstancesim-plicating the accused sucah as finger prints, incriminating statements, efforts to avoid arrest or the offending drugs were concealed in any portion of the room. The bare- bones of the prosecution case is the contraband was found in the accused’s room. Under the circumstances, the prosecution’s case is MRJ NO:W-05(M)-46-01/2017 48 barren of establishing linking or demonstrating a nexus between the accused and the offending drugs.” [45] Dalam kes PP v. Mok Kar Poh [2001] 5 CLJ 206, Hakim Zainun Ali (sekarang HMP) menyatakan mengenai isu yang sama seperti berikut: “Next comes the question of the fingerprints of the accused. It is the defence’s contention that the failure of the prosecution to dust the six packages for fingerprints and the failure to take hand swaps or nail clippings from the accused to show whether there are traces of drugs on his hands, would be to their detriment, since it does not show any link between the accused and the drugs. Possession is also not to be inferred in the absence of this nexus. Although this concedes that the above methods in some situations are merely procedural, it would be a wise prosecution which would do all things necessary to bring home the charge. It is almost careless and capricious to say that since the accused was arrested on the spot and his identity is khown, what good would taking fingerprints and nail clippings do? It is this court’s view that it would be prodent for the prosecution not to be oblivious to the obvious methods required to close the gap. Thus it is clear from the facts and surrounding circumstances, that the question of custody and control and by necessary implication, possession which is in nature, is not made out by the prosecution. Since knowledge is a vital element to impute possession and in the absence of any evidence of actual knowledge, it therefore cannot be MRJ NO:W-05(M)-46-01/2017 49 said with conviction that the circumstances clearly and irresistibly point to the fact that the accused had knowledge of the said drugs.”. [46] Keterangan SP7 mengenai rakaman CCTV semasa disoal-balas, ialah seperit berikut: “Q : Orang yang boleh pastikan keluar masuk adalah pengawal keselamatan. Ada rakam percakapannya? A : Saya tidak rakam percakapan. Q : Di pondok itu terdapatnya CCTV? A : Setuju. Q : Tapi awak tidak siasat? A : Pengawal kata tidak berfungsi. Saya ada buat siasatan. Q : Selain daripada pengawal keselamatan, samada OKT masuk dan bawa beg, hanya boleh dipastikan oleh pegawai- pegawai management? A : Tidak setuju. PUT : Pada tarikh sebelum kejadian dan hari kejadian bahawa CCTV adalah berfungsi? A : Saya dapati setelah ditanya pada pengawal dan pihak management, CCTV tidak berfungsi. Saya pasti hanya dari statement pengawal dan management. …… Q : CCTV. Ada rakaman percakapan Pengawal diambil? A : Tiada. Dan tiada surat dihantar kepada pihak management.” [47] Kepentingan rakaman CCTV didalam kes ini adalah sangat penting memandangkan hanya keterangan SP1 yang tidak disokong MRJ NO:W-05(M)-46-01/2017 50 menyatakan beg berisi dadah yang dipertuduhkan telah dibawa oleh Perayu. Dalam kes See Kek Chuan v. PP [2013] 6 MLJ 885, Abdul Malik Ishak HMR memutuskan atas isu yang sama seperti berikut: “[29] The importance of the CCTV footage cannot be doubted. It would clear the lingering doubt of whether Ah Fatt carried the black bag and threw it to the floor and bolted at the lobby of the said hotel leaving the appellant to face the music, so to speak, or it was the appellant who was all alone was seen by PW3 carrying the black bag in his right hand and entering the lobby of the said hotel and was placed under arrest by PW3. Had the CCTV footage being produced, the High Court judge would be in a better position to verify the prosecution’s version. Bereft of the CCTV footage, the High Court judge should have invoked the presumption under s 114(g) of the Evidence Act 1950 bearing in mind ‘that evidence which could be and is not produced would if produced be unfavourable to the person who withholds it’ and acquitted and discharged the appellant without calling for his defence. [30] Right from the very start, the importance of the CCTV footage was highlighted by the defence. PW4 was categorical when he testified that the police had requested and was given the CCTV tape. PW9 testified that there were CCTVs focused at 32 locations at the said hotel and also at the lobby. These CCTVs would surely verify the version of the prosecution if tendered. Yet, not a single CCTV tape was produced and tendered by the prosecution. [31] The High Court judge acknowledge that the police had requested for a copy of the CCTV and a copy was in fact given to the police. At p 246 of the appeal record at jilid 3, His Lordship said: MRJ NO:W-05(M)-46-01/2017 51 SP4 – adalah Pegawai Keselamatan di Sunway Resort – keterangan saksi ini semasa disoalbalas oleh pihak pembelaan tertumpu kepada bilik kawalan CCTV di mana beliau mengatakan bahawa tiada anggota polis ditempatkan di bilik kawalan CCTV. Saksi ini juga mengatakan bahawa di kawasan lobi hotel terdapat CCTV dan selepas tangkapan dibuat pihak polis ada meminta salinan CCTV yang mana satu salinan rakaman CCTV telah diberikan. [32] Contrary to the evidence by PW4, PW9 testified that CCTV recording was not given to the police because there was no written request by the police for a copy of the CCTV. Since the police did not record the statement of PW9, there was no oppsortunity for the learned deputy who conducted the prosecution to impeach the credit of PW9. Thus, we have two sets of evidence in regard to the nagging question of whether a copy of the CCTV was given to the police. These two contradictory or variant narratives struck at the very root of the prosecution’s case and it must surely bebefit the defence… [33] In our judgement, the non-production of the CCTV footage amounts to a withholding or suppression of evidence and if it was produced, it would be unfavourable to the prosecution and, consequently, the adverse presumption under s 114(g) of the Evidence Act 1950 must be invoked against the prosecution. [34] It goes without saying the the non-production of the CCTV footage had disadvantage or prejudiced the defence and the truth of the prosecution’s case could not verified. Indeed in a criminal trial, fairness must be displayed by the prosecution. And the concepts of a fair trial and fairness have been recognized by our Malaysia Courts.” MRJ NO:W-05(M)-46-01/2017 52 [48] Kegagalan SP7 untuk mengemukakan rakaman CCTV berpunca daripada penjelasan daripada pengawal keselamatan yang menyatakan bahawa kamera CCTV tidak berfungsi. SP7 menyatakan ada merakamkan percakapan bawah seksyen 112 KAJ dari pengawal keselamatan berkenaan. Namun begitu pengawal keselamatan berkenaan gagal dipanggil untuk memberi keterangan, malahan percakapan 112 KAJ penama itu juga gagal dikemukakan ke Mahkamah. Ini menjadikan keterangan SP7 bahawa kamera CCTV tidak berfungsi sebagai satu keterangan dengar cakap (‘hearsay’). Mahkamah Persekutuan, melalui George Seah HMP dalam kes Leong Hong Khie v. PP [1986] 2 MLJ 206 telah membuat keputusan berikut mengenai isu yang sama: “The general rule is that hearsay evidence is not admissible as proof of a fact which has been stated by a third person. This rule has been long established as a fundamental principle of the law of evidence. To quote Lord Normand in Teper v R [1952] AC 480 486: “The rule against the admission of hearsay evidence is fundamental. It is not the best evidence, and it is not delivered on oath. The truthfulness and accuracy of the person whose words are spoken by another witness cannot be tested by cross-examination and the light which his demeanour would throw on his testimony is lost.” In our opinion, another reason is the danger that hearsay evidence may be concocted, fabricated and tailored to suit the witness’s testimony. Notwithstanding this general rule certain exceptions have been MRJ NO:W-05(M)-46-01/2017 53 recognized upon the ground of necessity or convenience. In Malaysia, these exceptions are set out in section 32 of the Evidence Act 1950.”. [49] Kami berpandangan bahawa penjelasan yang diberikan oleh SP7 tidak boleh diterima kerana ia adalah satu keterangan dengar cakap. Kami dapati tiada penjelasan lain yang telah diberikan oleh pihak pendakwaan terhadap kegagalan mereka mengemukakan rakaman CCTV ke Mahkamah. Oleh yang demikian anggapan berlawanan di bawah seksyen 114(g) Akta Keterangan 1950 seharusnya digunapakai oleh Hakim bicara memihak kepada Perayu. Kesimpulan [50] Atas alasan-alasan yang telah kami huraikan di atas, kami dengan sebulat suara mendapati bahawa terdapat merit dalam rayuan Perayu. Sabitan terhadap Perayu adalah tidak selamat. Dengan itu, kami membenarkan rayuan Perayu. Sabitan dan hukuman mati oleh Mahkamah Tinggi dengan ini diketepikan dan digantikan dengan perintah Perayu dilepas dan dibebaskan dari pertuduhan. Bertarikh: 9 Oktober 2017 t.t (KAMARDIN BIN HASHIM) Hakim Mahkamah Rayuan Malaysia MRJ NO:W-05(M)-46-01/2017 54 Peguam cara: Bagi Pihak Perayu: Luqman Mazlan, Yazzer Azzat dan Rahmat Mohamed Tetuan Amir Faliq & Syahidah Suite 7 – FO – S, Ipoh Tower, Tower Regency Hotel, Jalan Dato’ Seri Ahmad Said, 30450 Ipoh, Perak. Bagi Pihak Responden: Nurshafini bte Mustafha Timbalan Pendakwa Raya Jabatan Peguam Negara Putrajaya.	78,827	Tika 2.6.0
15 – 94 – 06/2016	PEMOHON MD NAHAR BIN NOORDIN (No. K/P: 570508-07-5551) … PEMOHON RESPONDEN TADBIR TANAH DAERAH HULU LANGAT … RESPONDEN	null	09/10/2017	YA DATO' HAJI MOHD YAZID BIN HAJI MUSTAFA	https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=d0c18de9-a2f1-45fa-b486-59f2a6a1ae08&Inline=true	1 DALAM MAHKAMAH TINGGI MALAYA DI SHAH ALAM DALAM NEGERI SELANGOR DARUL EHSAN PERUJUKAN TANAH NO. 15 – 94 – 06/2016 Dalam Perkara Akta Pengambilan Tanah 1960; Dan Dalam Perkara Tanah yang terletak di bawah Hakmilik No. Lot 2437, GM 583, Mukim Hulu Langat, Daerah Hulu Langat, Selangor Darul Ehsan; ANTARA MD NAHAR BIN NOORDIN (No. K/P: 570508-07-5551) … PEMOHON DAN PENTADBIR TANAH DAERAH HULU LANGAT … RESPONDEN GROUNDS OF JUDGMENT THE FACTS 1. The Applicant’s land was acquired under the Land Acquisition Act 1960. The declaration to acquire the Applicant’s land was made in Form D dated 7.11.2013. The enquiry only commenced some 2 years 2 later on 23.4.2015. The Respondent delivered his award in Form H dated 9.6.2015 but only served it on the Applicant on 23.7.2015. 2. The Applicant was dissatisfied with the Respondent’s award and filed his objection in Form N on 3.9.2015. The Respondent referred the objection to the High Court pursuant to section 38(5) of the Land Acquisition Act 1960. The Respondent filed the reference bundle under Ikatan Borang O dated 13.6.2016 but did not serve it on the Applicant. 3. The hearing of the land reference under section 45 of the Land Acquisition Act 1960 was fixed on 17.7.2017. The Applicant had f iled his private valuer’s valuation report and the rebuttal report. The Applicant also served a notice to direct the Respondent’s appearance in Court and to cross-examine the Respondent on the basis and amount of the Respondent’s award in Form H. 4. The notice issued by the Applicant to the Respondent fulf illed all the requirements of section 43 of the Land Acquisition Act 1960 in that it gave sufficient notice to the Respondent - date on which the Court will proceed to hear and determine the objection; the details of the land and the direction to appear before the Court at such hearing. For all purpose and intent, the objective of the mandatory requirement of section 43 of the Land Acquisition Act 1960 has been fulfilled by the Applicant’s notice 5. On the hearing date, the Respondent was present. In the presence of the two assessors, the Government assessor Mohd Rofi Bin Yusof and the private assessor Mohd Azuan Bin Abu Mansol as the private 3 assessor, the State Legal Officer/Federal Counsel Mohd Abdul Hakim bin Mohd Ali, raised an objection that the Respondent cannot be compelled to appear in Court nor to be cross-examined. Due to this objection, I adjourned the land reference and directed both sides to address me on whether a PTD can be compelled to appear and be cross-examined in a land reference hearing. 6. Both sides filed their written submissions on the aforesaid issues. I heard counsel from both sides on 12.9.2017 and fixed this matter for decision on 26.9.2017. I thank the Applicant’s counsel, Mr. Rosli Dahlan and Ms. Ho Ai Ting for a very detailed submission that has assisted me in coming to the ruling that I am making herein. These are the grounds of my decision. APPEARANCE AND CROSS-EXAMINATION OF PTD 7. The parties to a land reference are principally the land owner as Applicant and the Pentadbir Tanah Daerah (PTD) as Respondent. 8. In my 2 years of conducting land reference cases in Shah Alam, I have observed that the PTD has never been cross-examined on his award. This has resulted in an impression that the PTD cannot be cross-examined, and hence the objection by the Federal Counsel when faced with this request by the Applicant’s counsel. 9. It is often forgotten that there is an express statutory provision on the requirement for the PTD to attend Court at the land reference hearing. This is specifically set out in section 43 of the Land Acquisition Act 1960 which states: 4 “On receiving a reference from the Land Administrator pursuant to section 38 (5), the Court shall cause a notice in Form P, specifying the day on which the Court will proceed to hear and determine the objection contained in such reference, to be served on the following persons, and directing their appearance before the Court at that hearing- (a) the applicant; (b) the person or corporation, if any, on whose behalf the proceedings were instituted pursuant to section 3; (c) all persons interested in the objection, except such, if any, as have consented without protest to receive payment of the compensation awarded; and (d) if the objection is in regard to the area of the land or to the amount of the compensation, the Land Administrator. (emphasis added) 10. The word “shall” in section 43 of the Land Acquisition Act 1960 connotes a mandatory requirement for the PTD to be served with a notice to appear before the Court at the land reference hearing whenever his award is challenged in regard to the area of the land or to the amount of compensation (see Coutts v. Commonwealth (1985) ALR 699 at p. 713; Azman bin Jufri v. Medtronic Australasia Pty Ltd [2015] 6 MLJ 841 at p. 855; Kijal Resort Sdn Bhd v. Pentadbir Tanah Kemaman & Anor [2016] 1 MLJ 544 at p. 579 and 580) which established the principle that the word ‘shall’ or ‘must’ is prima facie a mandatory provision which must be complied with without exception. 5 11. It is to be noted that section 43(d) of the Land Acquisition Act 1960 is in pari materia with section 20(c) of the Indian Land Acquisition Act of 1894 which states: “The Court shall thereupon cause a notice specifying the day on which the Court will proceed to determine the objection, and directing their appearance before the Court on that day, to be served on the following persons, namely: - (c) if the objection is in regard to the area of the land or to the amount of the compensation, the Collector.” 12. As the Malaysian Land Acquisition Act 1960 is based on the then Indian Land Acquisition Act of 1894, assistance can also be found in the Indian cases. In Bishnu Prosad v. Binoy Krishna A.I.R. (32) 1945 Calcutta 142, the High Court of Calcutta at p.143 held: “The proceeding in Court below was misconceived and defective from the beginning. The Collector ought to have been given notice under s.20 of the Act and the case should have been tried as a valuation case”. 13. Prima facie, section 43(d) of the Land Acquisition Act 1960 makes it mandatory for the PTD to be required to attend a land reference hearing whenever the PTD’s award is being challenged. There is good reason for that statutory provision. 14. The subject matter of the land reference hearing is a challenge against the amount of the Respondent’s award. Therefore, the Respondent must be heard at the hearing to defend his award consistent with the principle of audi alteram patem. In the Privy Council case of B Surinder Singh Kanda v. The Government of 6 the Federation of Malaya [1962] 1 LNS 9, Lord Denning at p. 4 succinctly described that natural justice entails: “If the right to be heard is to be a real right which is worth anything, it must carry with it a right in the accused man to know the case which is made against him. He must know what evidence has been given and what statements have been made affecting him; and then he must be given a fair opportunity to correct or contradict them.” 15. The manner in which the Respondent defends his position is by the process of examination and cross-examination. This fundamental principle has time and again been reaffirmed including recently by the Court of Appeal in Ramasamy Amaippan v. Kwan Lee Pin; Majlis Peguam Malaysia (Intervener) [2017] 1 LNS 718 at p. 6 and 7: “[12] No one could have described it any better. A denial of cross examination is a material non-compliance amounting to a breach of natural justice. In the celebrated case of Council of Civil Service Unions v Minister for the Civil Service [1983] UKHL 6 (“the CCSU case”) a non- compliance of natural justice qualifies as a ground to quash the impugned decision on the ground of procedural impropriety, which Lord Diplock had explained as a decision that was made in defiance of set procedures prescribed by a statute or where the ‘rules of natural justice’ have not been adhered to by the decision-maker. The twin pillars upon which the rules of natural justice are hoisted consist of the rule against bias or Nemo iudex in causa sua, which basically means that a man ought not to be a judge in his own cause, and secondly, the audi alteram patem rule, which encapsulates the right of the other side to be heard. In an article entitled “The Rule against Bias” by Mathew Groves (2009) UMonashLRS 10 it was observed that while the hearing rule, being the right to be heard, governs the procedural features of decision making, the bias rule governs the attitude or the state of mind of the decision maker. 7 We found that observation to be an apt one. It captures in gist, what the rules of natural justice entail in practical terms, in the context of judicial and quasi-judicial proceedings. An astute adherence to this important concept will invariably result in impartiality, a much sought-after commodity in all forms of tribunals which decide on the rights and liabilities of litigating parties.” 16. Once section 43 of the Land Acquisition Act 1960 makes it mandatory for the PTD to appear at the land reference hearing, then it must be for a purpose. It cannot be that the PTD is required to appear only to watch the proceedings from the public gallery. Sanjiva Row’s Law of Land Acquisition and Compensation, 8th Edition by Justice K Shanmukham at p. 544 and 545 explains that the word “appearance” in section 20(c) of the Indian Land Acquisition Act of 1894 means as follows: “Section 20(c) requires a notice to be served on the Collector when the dispute relates to the area of the land acquired or to the amount of compensation….. The section is silent as to what a notice under cll (b) and (c) of the section would contain. Presumably, the notice contemplated is a substitute for a summons on a defendant under the Civil Procedure Code ‘to appear and answer the claim’ made by the applicant. Consequently, the High Court of Calcutta has held that on receipt of notice under cl (c), the Collector must enter appearances and should defend the case exactly as he would defend a government suit. It is the duty of the Collector to see that evidence is forthcoming to show the fairness of the amount which he has given as compensation. The Collector must remember that the court will decide on the evidence before it about the amount of compensation that should be given, and he must, 8 therefore, be prepared with reliable evidence at the trial. In a proceeding for ascertainment of compensation, on a reference under s 18, the claimant is to be regarded as the plaintiff and the government as the defendant. No proceeding can properly go on in the absence of the representative of the government. In valuation references under cl (c), the answer on the part of the Collector is already contained in his reference to the court and all that is left for the government is to appear and defend the award… Since, as has been already stated, a notice under this section is a substitute for summons under the Code of Civil Procedure, it follows that if a person interested fails to appear on being served with notice under this section, the consequences following upon such failure to appear will be the same as those for non-appearance of a plaintiff or of a defendant on service of summons under the provisions of the Code of Civil Procedure.” (See also Commentary on The Land Acquisition Act by Om Prakash Aggarwala and V.G. Ramachandran’s The Law of Land Acquisition and Compensation, 8th Edition by Justice G.C. Mathur.) 17. Therefore, I am of the view that the express provision of section 43 of the Land Acquisition Act 1960 requires the PTD to appear in person at the land reference hearing to give evidence to defend the award that he had made in respect of the area of land or, in this case the amount of compensation. The express provision of the statute is not devoid of meaning. It must be given its full and plain effect (Navaradnam v. Suppian Chettiar [1973] 1 MLJ 173 at p. 176, FC; Dato’ Seri Anwar bin Ibrahim v. Public Prosecutor [2010] 2 MLJ 312 at p. 325 and 326, FC; Hari Bhadur Ghale v. P P [2012] 7 CLJ 789 at p. 795, FC). 9 18. I should also address the concern that the PTD cannot be compelled to appear and be cross-examined because in conducting the land enquiry and making his award, the PTD was carrying out a quasi- judicial role 19. In my view and for reasons that I will explain, that contention is misconceived. There are numerous instances where the PTD has been called to be cross-examined in land matters in their exercise of quasi-judicial functions (see Tong Tiong Kim v. Pentadbir Tanah Daerah Johor Bahru & Anor [1994] 4 CLJ 916 at p. 918 and 919; Oliver Young v. Collector of Land Revenue, Batu Pahat [1972] 2 MLJ 208 at p. 209). 20. It is also misconceived to liken the role of a PTD under the Land Acquisition Act 1960 to that of the President of an Industrial Court because of the express wording of section 24(2) of the Industrial Relations Act 1967 which specifically prohibits the President from being made a witness or a party, as submitted by the Federal Counsel, as follows: “(2) Notwithstanding anything to the contrary in any written law, no member of the Court shall be compelled by any court to appear as a witness or party in any proceedings before that Court in relation to any act, matter or thing performed by him as a member of the Court under this Act.” 21. There is no such similar express provision under the Land Acquisition Act 1960. On the contrary, the whole scheme of the Land Acquisition Act 1960 necessarily requires the PTD to be a party on behalf of the State Authority who acquires the private land. This is clearly borne 10 out by section 43(d) of the Land Acquisition Act 1960 which compels and makes the appearance of the PTD a mandatory requirement at the land reference hearing. 22. It has often been said that the Land Acquisition Act 1960 is a draconian legislation with specific safeguards built in to it where the special provisions of the Land Acquisition Act 1960 must be strictly adhered to by the relevant public authorities and made applicable to all relevant parties. Strict compliance with the prescribed procedures under the Land Acquisition Act 1960 is mandatory and cannot be dispensed with willy-nilly (see Ee Chong Pang & Ors v. The Land Administrator of the District of Alor Gajah & Anor [2013] 3 CLJ 649 at p. 656 and 657, CA; Ng Kim Moi & Ors v. Pentadbir Tanah Daerah, Seremban, Negeri Sembilan Darul Khusus [2004] 3 CLJ 131 at p. 144, CA; Sistem Lingkaran Lebuhraya Kajang Sdn Bhd v. Inch Kenneth Rubber Ltd & Anor & Other Appeals [2011] 1 CLJ 95 at p. 100, CA) 23. I have considered the two cases cited by the Federal Counsel (Setia Usaha Tetap Kementerian Pelajaran v. Collector of Land Revenue [1972] 2 MLJ 155 and Mohd Saperi Mohd Nasir v. Pentadbir Tanah Daerah, Alor Gajah [1998] 1 CLJ Supp 287) and I am of the view that they do not apply to the present case. 24. The scheme of the Land Acquisition Act 1960 requiring the PTD to be cross-examined is to enable the peculiar facts and circumstances of this case, the credibility or otherwise of the JPPH’s Report, the appropriateness of the PTD’s Award and what is a fair, reasonable and adequate compensation to be paid to the Applicant to be 11 ascertained by this Court assisted by the Learned Assessors as prescribed by sections 12, 40A and 47 of the Land Acquisition Act 1960 consistent with the intent and spirit of Article 13 of the Federal Constitution. 25. Therefore, I hold as follows: a) Section 43 of the Land Acquisition Act 1960 mandatorily requires the PTD to appear in person at a land reference hearing; b) The PTD’s appearance is to defend the case exactly as he would defend a government suit as he is a party to the suit; c) In making his appearance, it is the duty of the PTD to see that evidence is forthcoming to show the fairness of the amount which he has given as compensation; d) Therefore, it is mandatory for the PTD to appear and be prepared with reliable evidence at the land reference hearing to answer the claim made by the land owner/ applicant by way of cross- examination. YA DATO’ HAJI MOHD YAZID BIN HAJI MUSTAFA JUDGE (LJC) SHAH ALAM HIGH COURT 9 OCTOBER 2017 12 Parties PP: Encik Rosli Dahlan bersama Ms Ho Ai Ting SLA: En Muhd Abd Hakim	17,172	Tika 2.6.0
W-05(M)-46-01/2017	PENDAKWARAYAPendakwaraya PERAYU RADIN IRWAN ISKANDAR BIN ISAGANI …. PERAYU	Undang-Undang Jenayah — Dadah berbahaya — Pengedaran — Sabitan dan hukuman — Sama ada elemen pemilikan telah dibuktikan — Sama ada Hakim bicara memberi pertimbangan dengan secukupnya terhadap pembelaan Perayu — Sama ada satu arahan yang serius terhadap kes pembelaan — Sama ada pendakwaan berjaya membuktikan kesnya tanpa keraguan yang munasabah — Sama ada sabitan dan hukuman selamat — Tugas mahkamah dalam mendengar rayuan —Akta Dadah Berbahaya 1952 [Akta 234], seksyen 37(d), seksyen 39B; Kanun Tatacara Jenayah, seksyen 182A(2)	09/10/2017	YA DATUK KAMARDIN BIN HASHIMKorumYA DATUK SERI HAJI MOHD ZAWAWI BIN SALLEHYA TAN SRI IDRUS BIN HARUNYA DATUK KAMARDIN BIN HASHIM	https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=cc529199-b14a-4155-b8fc-2f3b94696240&Inline=true	MRJ NO:W-05(M)-46-01/2017 1 DALAM MAHKAMAH RAYUAN MALAYSIA DI PUTRAJAYA [BIDANGKUASA RAYUAN] RAYUAN JENAYAH NO: W-05(M)-46-01/2017 ANTARA RADIN IRWAN ISKANDAR BIN ISAGANI ….PERAYU DAN PENDAKWA RAYA ….RESPONDEN [Dalam Perkara Mahkamah Tinggi Kuala Lumpur Perbicaraan Jenayah No: 45A-46-09/2016 Antara Pendakwa Raya Lawan Radin Irwan Iskandar Bin Isagani] KORUM: MOHD ZAWAWI SALLEH, HMR IDRUS HARUN, HMR KAMARDIN HASHIM, HMR MRJ NO:W-05(M)-46-01/2017 2 ALASAN PENGHAKIMAN Pendahuluan [1] Ini ialah rayuan Perayu terhadap sabitan dan hukuman mati yang telah dijatuhkan oleh Pesuruhjaya Kehakiman Mahkamah Tinggi Kuala Lumpur (‘Hakim bicara’) atas kesalahan memperedarkan dadah berbahaya di bawah Akta Dadah Berbahaya 1952 (‘Akta’) [2] Butir-butir pertuduhan terhadap Perayu ialah seperti berikut: “Bahawa kamu pada 13 Julai 2015, jam lebih kurang 11.00 malam di rumah beralamat C-8-6, Mutiara Apartment, Jalan Klang Lama, Taman Pasir Permata, di dalam Daerah Brickfields, di dalam Wilayah Persekutuan Kuala Lumpur, telah didapati mengedar dadah berbahaya iaitu Cannabis seberat 3,139 gram. Oleh itu kamu telah melakukan kesalahan di bawah seksyen 39B(1)(a) Akta Dadah Berbahaya 1952 dan boleh dihukum di bawah seksyen 39B(2) Akta yang sama.” [3] Kami telah mendengar rayuan Perayu pada 25.8.2017 dan dengan sebulat suara kami telah membenarkan rayuan Perayu. Sabitan dan hukuman mati diketepikan dan Perayu diperintah untuk dibebaskan dengan serta merta. Kini kami memperincikan alasan-alasan membenarkan rayuan Perayu. MRJ NO:W-05(M)-46-01/2017 3 Kes Pendakwaan [4] Bertindak atas maklumat, pada 13.7.2015 jam lebih kurang 11.00 malam, Inspektor Mohamad Sukri bin Hat (SP6) bersama satu pasukan polis telah membuat pemerhatian dan serbuan ke atas premis sebagaimana yang terdapat dalam pertuduhan. SP6 mendapati pintu gril hadapan premis tersebut dalam keadaan sedikit terbuka dan pintu papan dalam keadaan tidak berkunci. Setelah masuk ke dalam premis tersebut, SP6 melihat seorang lelaki (kemudiannya dicamkan sebagai Perayu) sedang duduk di atas sofa bersama dengan seorang kanak- kanak perempuan. Perayu dan kanak-kanak perempuan tersebut ialah orang yang sama yang SP6 lihat menaiki lif sebelum serbuan itu dilakukan. [5] Pemeriksaan badan Perayu oleh SP6 tidak menjumpai sebarang barang salah. SP6 dan anggota pasukannya seterusnya telah membuat pemeriksaan dalam tiga buah bilik dalam premis tersebut. Dalam bilik ketiga, SP6 telah menemui dan merampas sebuah beg berwarna biru belang kuning bertulis ‘New York’ (P6). SP6 menemui 3 ketulan mampat daun-daun kering disyaki ganja (P14A, P14B dan P14C) berada di dalam beg P6 tersebut. MRJ NO:W-05(M)-46-01/2017 4 [6] Pada jam lebih kurang 11.30 malam dan semasa SP6 dan pasukannya masih berada dalam premis tersebut, seorang wanita sampai dan masuk ke dalam premis tersebut dengan memperkenalkan dirinya sebagai penyewa premis tersebut. SP6 telah mengarahkan wanita itu untuk masuk ke dalam bilik tidur utama bersama dengan kanak-kanak perempuan dan menunggu di dalam bilik sehingga SP6 dan pasukannya selesai menjalankan pemeriksaan. Wanita itu kemudiannya dikenali sebagai Nor Azura binti Jumri (SP1) dan kanak- kanak perempuan yang berada bersama Perayu ialah anak perempuan kepada Perayu dan SP1. Siasatan mendapati bahawa Perayu adalah merupakan bekas suami kepada SP1 dan kehadiran Perayu di premis tersebut adalah untuk melawat anak perempuannya. [7] Tiga (3) ketulan mampat daun-daun kering (P14A, P14B, dan P14C) telah dihantar kepada ahli kimia, Dr. Vanita a/p Kunalan (SP3), untuk dianalisis. Hasil analisis yang dijalankan, SP3 mengesahkan bahawa barang-barang kes iaitu (3) ketulan mampat daun-daun kering tersebut mengandungi Cannabis dengan jumlah berat 3,139 gram, hal perkara dalam pertuduhan. SP3 turut mengesahkan bahawa Cannabis MRJ NO:W-05(M)-46-01/2017 5 adalah sejenis dadah berbahaya yang tersenarai dalam Jadual Pertama Akta. Dapatan Hakim bicara diakhir kes pendakwaan [8] Di akhir kes pendakwaan, Hakim bicara mendapati pihak pendakwaan telah berjaya membuktikan semua elemen pertuduhan. Hakim bicara telah menerima keterangan ahli kimia (SP3) mengenai analisis yang telah dijalankan bagi mencapai keputusan bahawa 3 ketulan mampat daun-daun kering yang dirampas adalah Cannabis seberat 3,139 gram dan tersenarai dalam Jadual Pertama Akta sebagai dadah berbahaya. Hakim bicara juga mendapati tidak ada keraguan mengenai identiti barang kes dan rantaian keterangan terhadap barang kes dadah yang dipertuduhkan juga tidak terputus. [9] Mengenai elemen kawalan dan jagaan terhadap barang kes dadah yang dipertuduhkan, Hakim bicara telah menerima keterangan lisan SP1 yang menyatakan bahawa beliau melihat Perayu telah membawa masuk beg yang mengandungi dadah ke dalam premis yang disewa oleh SP1 pada sehari sebelum kejadian dan disimpan dalam bilik ketiga. Hakim bicara telah menggunapakai anggapan di bawah seksyen 37(d) Akta MRJ NO:W-05(M)-46-01/2017 6 terhadap Perayu untuk membuktikan elemen pemilikan dan pengetahuan Perayu ke atas dadah yang dipertuduhkan. [10] Untuk elemen pengedaran, Hakim bicara telah menggunapakai anggapan di bawah seksyen 37(da)(vi) Akta oleh kerana berat dadah yang terlibat melebihi had berat minima 200 gram yang ditetapkan di bawah perenggan tersebut. Setelah berpuashati pihak pendakwaan telah berjaya membuktikan satu kes prima facie, Perayu telah diperintahkan untuk membela diri atas pertuduhan yang dihadapkan. Pembelaan Perayu [11] Perayu telah memilih untuk memberi keterangan membela diri secara bersumpah dari kandang saksi. Hanya Perayu sahaja memberi keterangan untuk menyokong kes pembelaan. Pembelaan Perayu dapat dilihat dalam Penghakiman Hakim bicara yang secara ringkasnya seperti berikut (di m/s 82 – 85 Rekod Rayuan 1): “(a) Selepas bercerai dengan isterinya (SP1), Tertuduh tidak tinggal di Apartment tersebut kerana bergaduh dan tidak dapat melihat anaknya lagi; (b) Selepas bercerai, Tertuduh biasanya akan berjumpa dengan anaknya di rumah bapa Azura dan di Mid Valley tanpa pengetahuan (SP1); MRJ NO:W-05(M)-46-01/2017 7 (c) Selepas bercerai, ada pernah sekali (satu hari sebelum kejadian) jumpa dengan anak di Apartment kerana Azura (SP1) suruh datang; (d) Kakak Azura (SP5), Azizan anak Azura (SP4), Azura (SP1) dan Tertuduh ada mempunyai kunci apartment tersebut; (e) Pada 12 Julai 2015, Tertuduh menalipon Azura (SP1). Hari tersebut adalah hari cuti dan sebab hari cutilah Tertuduh dapat berjumpa dengan anaknya; (f) Oleh kerana Tertuduh hendak berjumpa dengan anak, Azura (SP1) telah menyuruhnya datang ke rumah selepas Asar; (g) Tertuduh telah menalipon Azura (SP1) bahawa dia telah tiba di depan rumah. Azura telah membuka pintu dan menyuruh Tertuduh masuk tetapi Tertuduh tidak masuk ke dalam Apartment; (h) Tertuduh meminta kebenaran Azura (SP1) untuk membawa anaknya keluar dan pergi ke Pasar Ramadhan sehinggalah waktu hendak berbuka; (i) Apabila balik semula ke apartment, Azura (SP1) telah menjemput Tertuduh masuk dan berbuka bersama-sama; (j) Tertuduh tidak bercadang untuk bermalam tetapi setelah selesai solat Maghrib dan Isyak dan kerana lewat malam, anaknya menahan Tertuduh daripada beredar balik; (k) Semasa datang ke Apartment tersebut, Tertuduh tidak membawa apa-apa barang kecuali IC dan handphone sahaja; MRJ NO:W-05(M)-46-01/2017 8 (l) Pada esok harinya (13 Julai 2015), Azura (SP1) telah mengejutkan Tertuduh untuk keluar dari Apartment tersebut kerana Azura hendak pergi kerja; (m) Tertuduh telah keluar dahulu dari rumah tersebut dan apabila keluar, Tertuduh tiada kunci kepada Apartment; (n) Dua minggu sebelum bercerai, Tertuduh telah menyerahkan kunci kepada kawannya, FIZI GEMUK bertujuan untuk membaiki lampu rumah yang rosak dan paip yang telah lama; (o) Tertuduh tidak minta semula kunci apartment pada FIZI GEMUK kerana hendak bercerai dan telah duduk di Seremban; (p) Anak Tertuduh ada menyatakan bahawa ada Uncle datang dan setelah pengesahan dibuat kepada Azizan juga mengesahkan bahawa Alan Cina ada pernah datang ke Apartment tersebut; (q) Tertuduh ada berhubung semula dengan Azura (SP1) pada 13 Julai 2015 untuk berjumpa dengan anaknya lagi; (r) Azura menyatakan bahawa beliau sedang sibuk dan anaknya pada ketika itu berada di rumah bapanya; (s) Pada malam hari kejadian, Tertuduh telah memangku anaknya yang sedang tidur untuk naik ke tingkat atas rumah dan Azura (SP1) ada menyerahkan kunci Apartment tersebut kepada Tertuduh; (t) Apabila Tertuduh naik ke tingkat atas rumah dan mendapati bahawa grill tidak berkunci dan pintu rumah juga tidak berkunci dan terus masuk ke dalam rumah dengan membaringkan anaknya ke atas sofa di ruang tamu; MRJ NO:W-05(M)-46-01/2017 9 (u) Sebelum ini memang Tertuduh berjumpa dengan anak di rumah bapa Mertuanya (Bapa Azura), tetapi memandangkan hubungan Tertuduh dengan Bapa Mertua adalah tidak baik, Azura menyuruhnya untuk tunggu di bawah Apartment; (v) Tertuduh menafikan ada membawa beg biru tersebut; (w) Tertuduh menafikan tentang dadah tersebut.” [12] Setelah meneliti keterangan kes pembelaan, hakim bicara telah menolak pembelaan Perayu sebagai satu pemikiran terkemudian (“afterthought”) dan rekaan terbaru (“recent invention”) berbanding dengan keterangan kukuh kes pendakwaan melalui keterangan SP1. Hakim bicara turut menolak keterangan pembelaan Perayu bahawa dia tidak mempunyai kunci premis tersebut. Hakim bicara juga menolak pembelaan Perayu mengenai kemungkinan premis itu telah diakses oleh beberapa orang pihak ketiga, terutama kekasih SP1, seorang lelaki berbangsa Cina dengan nama gelaran “Alan Cinak’. Selanjutnya Hakim bicara memutuskan bahawa pembelaan Perayu hanya satu penafian semata-mata (“bare denial”). [13] Dalam penghakimannya, Hakim bicara menyatakan bahawa beliau tidak mempercayai pembelaan Perayu dan pembelaan Perayu telah MRJ NO:W-05(M)-46-01/2017 10 gagal untuk menimbulkan keraguan yang munasabah terhadap kes pendakwaan. Kami petik dapatan dan keputusan Hakim bicara pada akhir Penghakiman beliau di m/s 112 – 113 Rekod Rayuan Jilid 1 seperti berikut: “76. Tahap pembuktian pihak-pihak juga telah dibincangkan dan dijelaskan dalam kes-kes tersebut dan diambil perhatian pada membuat pertimbangan keseluruhan kes ini. Gambaran keseluruhannya yang dilihat diakhir kes adalah Tertuduh sememangnya membawa beg biru tersebut yang mana mengandungi dadah berbahaya kedalam rumah Azura (SP1) dan meletakkannya dalam bilik ketiga. Dalam mengadili perbicaraan kes ini, saya sentiasa mengingati diri dalam memberi amaran mengenai penerimaan keterangan (SP1), saya berpuas hati bahawa keterangan (SP1) adalah benar dan tidak diragui. Saya tidak mempercayai alasan Tertuduh untuk berjumpa dengan anaknya di Apartment tempat kejadian. Dalam keadaan tersebut dan semasa ketiadaan Azura di rumah, Tertuduh telah mengedar dadah-dadah berbahaya. Saya tidak mempercayai pembelaan yang dikemukakan oleh Tertuduh bahawa beliau menjadi mangsa penganaiyaan dan rancangan perangkap oleh bekas isterinya, Azura (SP1). Keterangan yang dikemukakan oleh Tertuduh didapati tidak munasabah dan membangkitkan apa-apa keraguan dalam kes pendakwaan. DENGAN YANG DEMIKIAN, SAYA BERPUASHATI BAHAWA PEMBELAAN TERTUDUH ADALAH TIDAK MUNASABAH LANGSUNG DAN TIDAK MEMBANGKITKAN SEBARANG KERAGUAN YANG MUNASABAH DALAM KES PENDAKWAAN. SAYA JUGA BERPUASHATI BAHAWA PEMBELAAN TELAH GAGAL UNTUK MEMATAHKAN ANGGAPAN SEKSYEN 37(d)(da) AKTA DADAH BERBAHAYA 1952. SEBALIKNYA SAYA BERPUASHATI BAHAWA PIHAK TIMBALAN PENDAKWA MRJ NO:W-05(M)-46-01/2017 11 RAYA TELAH BERJAYA MEMBUKTIKAN KES INI MELAMPAUI KERAGUAN YANG MUNASABAH (BEYOND ALL REASONABLE DOUBT). ATAS ALASAN-ALASAN YANG SEDEKIKIAN, SAYA MENDAPATI TERTUDUH BERSALAH DAN DISABITKAN KESALAHAN MENURUT SEKSYEN 39(B)(1)(a) AKTA DADAH BERBAHAYA, 1952 YANG MANA MEMBAWA HUKUMAN MATI MANDATORI SEKIRANYA DISABITKAN KESALAHAN TERSEBUT. JUSTERU ITU, SAYA MEMERINTAHKAN AGAR TERTUDUH DIBAWA DAN DITAHAN DI PENJARA YANG SAH SELEPAS DARIPADA INI SEHINGGA KEMUDIANNYA DIBAWA KE SUATU TEMPAT KHAS BAGI MENJALANI HUKUMAN GANTUNG DI LEHER SAMPAI MATI MANDATORI.” Alasan Rayuan Perayu [14] Peguam bela terpelajar Perayu telah membangkitkan 4 alasan rayuan dalam penghujahannya untuk menggesa Mahkamah ini membenarkan rayuan Perayu, iaitu: (a) bahawa elemen pemilikan telah gagal dibuktikan; (b) Perayu gagal mendapat perbicaraan yang adil disebabkan komen atau ulasan yang memburuk-burukkan oleh hakim bicara; (c) kegagalan Hakim bicara memberi pertimbangan dengan secukupnya pembelaan terhadap Perayu; dan (d) siasatan polis tidak lengkap dimana rakaman CCTV dan keterangan bebas yang lain tidak diperolehi bagi menyokong keterangan SP1. MRJ NO:W-05(M)-46-01/2017 12 [15] Berkaitan dengan alasan rayuan di(a), peguam bela terpelajar berhujah bahawa Hakim bicara telah bergantung sepenuhnya kepada keterangan SP1 dalam mensabitkan Perayu. Selain daripada keterangan SP1, tidak ada sebarang keterangan lain, sama ada keterangan langsung mahupun keterangan mengikut keadaan, yang dapat mengaitkan Perayu dengan dadah yang dirampas dari bilik ketiga premis tersebut. Peguam bela terpelajar turut menghujahkan bahawa tiada keterangan yang dikemukakan yang dapat menunjukkan bahawa Perayu mempunyai kawalan dan jagaan terhadap premis dan beg yang mengandungi barang kes dadah yang dipertuduhkan. [16] Peguam bela terpelajar turut menghujahkan bahawa premis itu disewa dan didiami oleh SP1. Perayu bukanlah penghuni (“occupier”) di premis tersebut. Perayu hanya seorang pelawat (“visitor”) di premis tersebut untuk berjumpa dengan anak perempuannya di situ. Kehadiran Perayu di premis itu dengan sendirinya tidak boleh menjadikan Perayu sebagai mempunyai kawalan dan jagaan terhadap premis dan dadah yang tersembunyi di dalam premis tersebut. MRJ NO:W-05(M)-46-01/2017 13 [17] Peguam bela terpelajar juga menghujahkan bahawa Perayu tidak mempunyai pengetahuan terhadap dadah di dalam bilik ketiga premis tersebut disebabkan faktor-faktor berikut: (a) keterangan SP6 menyatakan semasa serbuan dan rampasan barang kes, kelakuan Perayu ‘bersahaja’ saja; (b) barang kes dadah berada dalam keadaan yang tidak dapat dilihat dengan mudah; (c) Perayu tidak berada dalam keadaan berdekatan (close proximity) dengan dadah yang dirampas; dan (d) tiada terdapat DNA atau kesan cap jari Perayu pada beg dan juga pada barang kes dadah yang dirampas. [18] Peguam bela terpelajar menghujahkan bahawa Hakim bicara gagal untuk membuat pertimbangan secara maksima dan menerima secara bulat-bulat keterangan SP1 sedangkan SP1 sebagai penyewa dan penghuni rumah itu mengakui SP1 adalah saksi yang mempunyai kepentingan. Keterangan saksi berkepentingan, seperti SP1, sepatutnya diterima dengan secara berhati-hati dan perlu kepada keterangan sokongan. [19] Berkaitan dengan alasan di (b), peguam bela terpelajar merujuk kepada kami komen-komen yang telah diungkapkan oleh Hakim bicara semasa perbicaraan berlangsung yang menunjukkan bahawa Hakim MRJ NO:W-05(M)-46-01/2017 14 bicara telah “prejudged” terhadap kebersalahan Perayu. Peguam bela terpelajar menghujahkan bahawa komen-komen yang berbentuk “bias” yang dibuat oleh Hakim bicara tersebut telah menimbulkan prejudis dan ketidakadilan kepada Perayu dan telah melanggar Perkara 5 Perlembagaan Persekutuan. Seterusnya peguam bela terpelajar menghujahkan bahawa Perayu telah dinafikan hak untuk mendapatkan perbicaraan secara adil. [20] Berkaitan dengan alasan kegagalan Hakim bicara dalam membuat penilaian secukupnya pembelaan Perayu, dihujahkan bahawa Hakim bicara telah terpengaruh sepenuhnya kepada keterangan SP1 yang sepatutnya diterima dengan penuh berhati-hati dan memerlukan keterangan sokongan disebabkan SP1 ialah seorang saksi yang mempunyai kepentingan. Malahan, saksi Pegawai Penyiasat, Inspektor Prabu a/l Avadiappan (SP7) turut bersetuju bahawa SP1 sepatutnya menjadi saspek utama dan sewajarnya dituduh atas kesalahan yang sama berdasarkan fakta bahawa SP1 adalah penghuni sebenar premis tersebut. Kegagalan Hakim bicara dalam membuat pertimbangan secukupnya terhadap pembelaan Perayu adalah merupakan satu salaharahan yang serius yang mengakibatkan berlakunya kegagalan keadilan terhadap Perayu. MRJ NO:W-05(M)-46-01/2017 15 [21] Mengenai alasan terakhir berkaitan siasatan polis yang tidak lengkap dan secara sambil-lewa, peguam bela terpelajar menghujahkan bahawa wujud kelompangan dalam kes pendakwaan apabila pihak polis gagal untuk mendapatkan keterangan terbaik bagi mengaitkan Perayu dengan dadah yang dipertuduhkan. Pihak polis telah gagal untuk mengambil tindakan untuk mengesan kehadiran DNA profail atau cap jari Perayu pada beg dan juga pada barang kes dadah yang dirampas. Begitu juga kegagalan pihak polis untuk mengemukakan rakaman CCTV di kejiranan tersebut walaupun SP8 mengakui terdapat kamera CCTV di kawasan tersebut. Melalui rakaman CCTV tersebut akan dapat menunjukkan dengan sebenarnya siapakah yang telah membawa masuk beg berisi dadah dan meletakkannya dalam premis yang berkenaan. Dapatan dan Keputusan Kami Aspek Keterangan SP1 [22] Berdasarkan penelitian kami kepada Rekod Rayuan dan Penghakiman Hakim bicara, kami bersetuju bahawa Hakim bicara telah bergantung sepenuhnya kepada keterangan lisan SP12 dalam mensabitkan Perayu dengan pertuduhan. Hakim bicara telah menerima keterangan SP1 secara bulat-bulat dan atas nilai muka (“face value”) tanpa membuat pertimbangan terhadap fakta bahawa SP1 seorang MRJ NO:W-05(M)-46-01/2017 16 saksi yang berkepentingan. Daripada keterangan yang telah diberikan oleh SP1 sendiri serta berdasarkan kepada keseluruhan keterangan dalam kes di hadapan kami, tidak syak lagi bahawa SP1 adalah seorang saksi yang mempunyai kepentingan dalam kes ini. Keterangan SP1 sewajarnya diteliti dan diterima dengan secara berhati-hati oleh Hakim bicara dan keterangan saksi sedemikian wajar memerlukan keterangan yang lain sebagai sokongan. Pada pandangan kami, keterangan SP1 bukanlah keterangan yang kukuh untuk membuat sabitan ke atas Perayu oleh Hakim bicara menjadi satu dapatan dan keputusan yang selamat untuk dipertahankan. [23] Hakim bicara telah terkhilaf apabila menerima keterangan SP1 secara bulat-bulat dan dalam membuat dapatan bahawa SP1 seorang saksi yang kredibel. Dapatan kami bahawa SP1 bukanlah seorang saksi yang berkredibel adalah berdasarkan kepada faktor-faktor seperti berikut: (a) SP1 adalah merupakan penyewa sebenar premis dimana beg berisi dadah dirampas. SP1 mempunyai kunci premis dan kad akses dan SP1 juga mempunyai ‘care and management’ serta kawalan dan jagaan terhadap premis itu, sedangkan Perayu hanyalah merupakan seorang pelawat (“visitor”) kepada premis itu; MRJ NO:W-05(M)-46-01/2017 17 (b) SP1 sendiri mengakui bahawa beliau adalah seorang saksi yang mempunyai kepentingan dan mengakui keterangan yang beliau berikan bertujuan untuk melindungi dirinya sendiri; (c) SP1 pada permulaannya menyatakan bahawa Perayu tidak membawa apa-apa barang (beg) semasa Perayu datang ke rumahnya. Sebaliknya, selepas penangguhan dan kes dipanggil semula, SP1 telah menukar keterangannya dengan menyatakan bahawa Perayu datang dengan membawa sebuah beg yang disimpan dalam bilik ketiga; (d) keterangan SP6 memyatakan bahawa dia mengetahui Perayu akan sampai ke premis itu bersama dengan seorang kanak-kanak perempuan dengan menggunakan lif di blok No. 1 kerana telah diberitahu oleh sumbernya. Bagaimanakah SP6 mendapat maklumat tepat ini sedangkan SP1 menyuruh Perayu mendukung anak mereka yang sedang tidur untuk naik terlebih dahulu menggunakan lif di blok berkenaan. SP1 telah memberikan kunci premis itu kepada Perayu. Kemungkinan ini adalah helah dan perangkap oleh SP1 tidak boleh dinafikan sama sekali; (e) fakta yang tidak disangkal bahawa telah berlaku salah faham antara bapa kepada SP1 dengan Perayu mengenai hak lawatan Perayu yang sebelum ini dipersetujui di rumah bapa SP1, bekas bapa mertua kepada Perayu; (f) Perayu telah berpisah dengan SP1 akibat tidak sefahaman dan SP1 telah mempunyai teman lelaki atau kekasih yang baru; (g) SP1 langsung tidak ditahan mahupun diperiksa oleh SP6. Sebaliknya terus diarahkan oleh SP6 untuk berada bersama anaknya di dalam bilik utama. MRJ NO:W-05(M)-46-01/2017 18 [24] Keterangan SP1 berikut yang dirakamkan oleh Hakim bicara, pada padangan kami, menimbulkan keraguan terhadap kebolehpercayaan saksi ini. Perkara terpenting dalam kes ini ialah berkaitan dengan hal perkara dalam pertuduhan, beg (P6) yang berisi dadah yang dipertuduhkan. SP1 menyatakan bahawa dia tidak ingat Perayu ada membawa apa-apa barang apabila Perayu datang ke rumah sewanya. Apabila keterangan SP1 disambung semula selepas ditangguh kerana mahkamah berhenti rehat, SP1 telah secara tiba-tiba menyatakan dia ingat bahawa Perayu datang dengan membawa sebuah beg. Keterangan SP1 seperti di m/s 11 – 12 RR Jld.2 kami perturunkan seperti berikut: “Q : OKT ada bawa apa-apa? A : Saya tidak ingat OKT ada bawa apa-apa barang ke Apartment saya. Mahkamah: Sekarang telah jam 1.00 tengahari. Sambung bicara pada jam 2.15 petang. t.t. (YA DATO’ HAJI MOHAMAD SHARIFF BIN HAJI ABU SAMAH) 2.30 petang Kes Sambung Bicara pihak-pihak yang sama. DPP : Pohon untuk memanggil semula saksi (SP1) Mahkamah: Saksi (SP1) dipanggil semula. Saksi diingatkan atas ikrar sumpah terdahulu. MRJ NO:W-05(M)-46-01/2017 19 Pemeriksaan utama (sambungan) Q : Saya tanya sekali lagi, boleh puan ingat sama ada OKT ada bawa apa-apa pada hari dia datang ke Apartment tersebut? A : Sekarang saya ingat, pada 12 Julai 2015 pada sebelah petang, semasa OKT datang ke Apartment saya, dia ada membawa satu beg.” [penekanan ditambah] [25] SP1 sebagai penyewa dan juga sebagai penghuni premis tersebut mengakui statusnya sebagai seorang saksi yang mempunyai kepentingan. Fakta ini juga gagal dipertimbangkan langsung oleh Hakim bicara. Sebaliknya, Hakim bicara membuat dapatan yang tidak disokong oleh mana-mana keterangan kukuh apabila beliau membuat dapatan bahawa Perayu mempunyai kawalan dan jagaan terhadap premis tersebut dengan andaian Perayu mempunyai kunci premis tersebut. Hakim bicara langsung gagal untuk membuat pertimbangan akan keterangan SP1 yang menyatakan SP1 telah memberi kunci premis tersebut kepada Perayu untuk Perayu masuk ke dalam premis bersama anak mereka sementara SP1 pergi memakir keretanya. Keterangan pembelaan Perayu turut menyatakan bahawa kunci premis yang berada pada Perayu sebelum kejadian telah diserahkan semula kepada SP1 melalui “Fizi Gemuk”. Keterangan ini juga langsung tidak dihargai oleh Hakim bicara dalam menilai pembelaan Perayu. Malahan MRJ NO:W-05(M)-46-01/2017 20 keterangan pembelaan Perayu telah ditolak sepenuhnya atas alasan satu rekaan, penafian semata-mata dan sebagai satu pemikiran terkemudian oleh Hakim bicara. Setelah menilai pembelaan Perayu, kami sekali lagi tidak bersetuju dengan dapatan Hakim bicara tersebut. [26] Dalam soal-balas, SP1 mengakui bahawa dia bersetuju bahawa keterangan yang diberikan bertujuan adalah untuk melindungi diri sendiri. Dengan itu tidak dapat disangkal bahawa SP1 sebenarnya adalah saksi yang mempunyai kepentingan. Undang-undang mantap menyatakan bahawa keterangan saksi berkepentingan hendaklah diterima dan dinilai berhati-hati. Keterangan SP1 mengenai perkara ini kami petik di m/s 29 – 30 RR Jld.2, seperti berikut: “Q : Awak saksi berkepentingan? A : Ya, tidak setuju saya merupakan saksi yang berkepentingan. DPP : Bantahan. Saksi ini tidak tahu maksud saksi berkepentingan. J : Soalan dibenarkan. AF : Dalam bahasa mudah, awak nak protect diri sendiri? A : Setuju.”. [27] Pegawai Penyiasat (SP7) dalam keterangannya turut bersetuju bahawa SP1 adalah orang yang disyaki dan sepatutnya turut dipertuduhkan bersama dengan Perayu. Keterangan SP7 semasa MRJ NO:W-05(M)-46-01/2017 21 disoal-balas dan semasa pemeriksaan semula di m/s 127 dan 130 RR Jld.2, seperti berikut: “Q : Selepas rakam percakapan Azura, awak dapati pada hari kejadian dia ada di tempat kejadian? A : Ya, setuju. Q : Dia inform dia penghuni yang sewa rumah itu? A : Ya. Q : Dia ada kata dia ada satu set kunci? A : Ya. Q : Azura ada kawalan dan jagaan terhadap keseluruhan rumah itu? A : Ya. Q : Secara spesifik, Azura ada kawalan dan jagaan terhadap bilik ketiga? A : Setuju. Q : Azura ada pengetahuan terhadap barang-barang dalam rumah dan bilik ketiga? Betul? A : Setuju. Q : Azura juga perlu menjadi suspek? A : Setuju. Q : Azura tidak ditangkap? A : Ya” “Q : Azura ada kepentingan? A : Setuju, Azura ada kepentingan. Q : Azura yang meletakkan beg itu? Ada kemungkinan? A : Saya tidak pasti dan ada kemungkinan Azura letakkan beg itu. Q : Kes ini adalah set up? A : Saya tidak pasti.” MRJ NO:W-05(M)-46-01/2017 22 Re-Examination of SP7 “Q : Sepatutnya Azura adalah suspek? A : Dia adalah penghuni rumah dan ada kawalan dan jagaan. Q : Kenapa Azura selepas siasatan tidak dinamakan sebagai suspek? A : Hasil siasatan apabila statement penghuni diambil, dia memberitahu bahawa OKT sudah tidak tinggal bersama dengan Azura dan pada saya sendiri Azura ini sepatutnya dituduh bersama-sama. [28] Dalam keadaan kes ini, Hakim bicara tidak sewajarnya menerima keterangan SP1 secara bulat-bulat. Hakim bicara sewajarnya mengambil peringatan yang telah diberikan oleh Edgar Joseph Jr. HMP dalam kes Arulpragasan a/l Sandaraju v. PP [1997] 1 MLJ 1, seperti berikut: “I must add, lest I be accused of an oversight, that I have not overlooked the fact that there was also the evidence about the recovery of the appellant’s Bank Simpanan Nasional savings book, from the brown bag. It will be recalled that the appellant’s story was that his bag was not the brown bag but the yellow bag. The driver Kabir contradicted this. The appellant may well have been lying about this. On the other hand, so may Kabir who was an obvious suspect – at least, the police thought so, for otherwise they would not have arrested and detained him for 14 days. But, assuming that the ppellant has lied when he denied ownership of the brown bag, that does not necessarily conclude the case against MRJ NO:W-05(M)-46-01/2017 23 him, for the question remains: was the recovery of the rolls of cannabis and the Bank Simpanan Nasional Savings Book from the brown bag, only consistent with the appellant’s guilt? What if the rolls of cannabis had been planted there by someone else? There was ample time and opportunity for this for the brown bag lay unattended in the pondok and later in the driver’s cabin for quite a while. These was no suggestion that either the brown bag or the compartment in the driver’s cabin from which it was recovered was locked. According to Insp Ismail bin Dan, the police party which consisted of five men, had proceeded to the factory in two vehicles – Insp Ismail in his own car accompanied by Det/Cpl Amir while Insp Wan Rashid, Det Murad and Det Saad, travelled in a police van. On arrival at the factory, the police party did not proceed straightaway to the lorry; instead, Insp Ismail accompanied by Insp Wan Rashid, proceeded to the office near the factory to seek the permission of its manager to conduct a search of the lorry but before doing so, Insp Ismail had instructed his three men above- named to keep the lorry and those on it under observation. However, none of his three men were called to say that they had in fact carried out that instruction and, if so, what was the result of their observation. It was only after making that detour at the office that the police party approached the lorry. By which time, whoever the culprit was – the appellant or Kabir – would have had early warning of an amminent police strike, for how could they have missed noticing the arrival of the police van. There was no suggestion that the behavior of the appellant was in any way abnormal at or about the time of his arrest. This was a case where there were at least three persons on the scene, namely, the appellant, the security guard Ravi Shankar and the driver MRJ NO:W-05(M)-46-01/2017 24 Kabir. Of the trio, the appellant was the youngest and the most vulnerable, being a lad of just 18 years, while Ravi Shankar and Kabir were mature men aged 23 and 38 years respectively. And although Ravi Shankar and the appellant were perfect strangers, the former did know Kabir. Clearly, the judge adopted an oversimplistic and Nelsonian approach to the case for the prosecution, in that he failed to take into account and/or to give proper weight to and/or to draw proper inferences from every fact which told in favour of the appellant, and thus, failed to review the evidence from all angles, with the result that a miscarriage of justice may well have occurred. In these circumstances, the circumstantial evidence did not exclusively and inevitably connect the appellant to the cannabis, the subject matter of the charge and so the proverbial cap did not exclusively fit the appellant.”. [29] Begitu juga dalam kes Gooi Loo Seng v. PP [1993] 2 MLJ 137, Hakim Mahkamah Persekutuan yang sama telah memberikan pandangan dan peringatan yang sama agar Hakim bicara tidak melihat keterangan saksi berkepentingan hanya dengan “sebelah mata” (“Nelsonian approach”). Di muka surat 141 – 142 kes itu, Edgar Joseph Jr HMP menyatakannya seperti berikut: “We note also that the trial judge accepted at full face value the testimony of Tan Ah Kwai that although she had a seto of keys to the bedroom she never ever entered it when the appellant was not in. In MRJ NO:W-05(M)-46-01/2017 25 thus accepting the testimony of Tan Ah Kwai, the trial judge does not seem to have recognized that Tan Ah Kwai might have had every possible to suppress the truth and to lie, if necessary, at the expence ot the appellant, bearing in mind that she was an obvious suspect. In any event, we consider that Tan Ah Kwai’s testimony on this point was, to put it mildly, and improbable story. The fact of the matter was that she could have had access to the bedroom, and if necessary, with her friends, without attracting the attention of the appellant, if she so wished. The trial judge however adopted a Nelsonian approach to Tan Ah Kwai’s testimony, and as a result, rejected the crucial part of the defence case which was that the heroin was concealed in his bedroom without his knowledge. But, of equal importance, was the point that the trial judge failed to recognize the significance of the contents of the search list; in particular, as we have already remarked, that it told a materially different story to that deposed to by Insp. Nordin regarding the circumstances under which the heroin was recovered, and as a result, he inferred that the appellant had custody and control of the heroin and knew of its nature. The search list, prepared by Insp. Nordin himself, virtually on the spot, was entirely consistent with the appellant’s version that i t was not he but Insp. Nordin who had found the heroin at the bottom of the plastic cupboard, and so flatly contradicted Insp. Nordin’s version that it was the appellant who had prevented Wahid from conducting a search of the plastic cupboard, and had then obligingly recovered the heroin from the bottom of the cupboard and handed it over to Insp. Nordin. And Wahid, though available, was not called by the prosecution. Had the trial judge approached the prosecution case in the manner we have indicated, we cannot confidently say that he would or must inevitably have rejected the appellant’s version that he had no MRJ NO:W-05(M)-46-01/2017 26 knowledge of the presence of the heroin in the bedroom and that it could have been hidden there by others having access to the bedroom in his absence. We need hardly add, that even if the appellant had known of the presence of the heroin in his bedroom, that by itself would not have been sufficient to establish that he was in possession or in control of it given the fact that others too, and certainly his girlfriend Tan Ah Kwai, had access to the bedroom and could have concealed the heroin there. At the end of the day, this was a case of the proverbial cap which might have fitted not just the head of the appellant but that of others as well. Clearly, therefore, the trial judge, was bound to, but did not view the whole of the evidence objectively and from all angles, with the result that the appellant had lost the chance which was fairly open to him of being acquitted. On this point, we consider that non-direction amonts to a misdirection, for in the words of Pickford J in R v Bundy: ‘…the trial was not satisfactory, and the case was not put to the jury in a way to ensure their due appreciation of the value of the evidence’. We must treat the failure of a trial judge sitting alone, to direct himself correctly in the same way as a failure to direct a jury correctly. In these circumstances, a miscarriage of justice may well have occurred. Accordingly, we had no alternative but to allow the appeal, quash the conviction and to substitute in lieu thereof, an order of acquittal and discharge.”. [30] Kami berpandangan bahawa Hakim bicara terkhilaf apabila telah gagal untuk membuat pertimbangan dengan secukupnya terhadap MRJ NO:W-05(M)-46-01/2017 27 pembelaan Perayu yang menafikan sebarang pengetahuan terhadap dadah yang dipertuduhkan. Pertimbangan sewajarnya patut juga diberikan terhadap kemungkinan bahawa dadah yang dipertuduhkan telah diletakkkan oleh SP1 sendiri di dalam bilik ketiga. Kemungkinan ini tidak boleh diketepikan sama sekali berdasarkan kepada keadaan animositi dan motif dipihak SP1 untuk memerangkap Perayu. Pandangan sama telah diutarakan oleh Azahar Mohamed HMR dalam kes Shahrizal bin Said dan satu lagi Lwn. PR [2013] 5 MLJ 464 di m/s 472 – 473, seperti berikut: “[18] Berbalik kepada kes di hadapan kami, bukan sahaja SP5 mempunyai akses kepada bilik kedua tersebut, malahan keterangan seterusnya menunjukkan bahawa SP5 telah terjun melalui tingkap di bilik kedua. Nampaknya, SP5 telah berani menggadaikan nyawanya dengan terjun dari tingkat enam kerana hendak melarikan diri daripada ditangkap oleh pihak polis. Dalam hal keadaan yang sedemikian, pada hemat kami, hakim bicara sepatutnya meneliti dan memberi pertimbangan yang sewajarnya bahawa kedua-dua perayu tidak mempunyai sebarang pengetahuan mengenai kewujudan dadah berbahaya tersebut dalam bilik yang berkenaan dan bahawa dadah berbahaya itu mungkin disembunyikan di situ oleh SP5 sendiri. Hakim bicara kelihatan menerima penafian SP5 yang dadah berbahaya tersebut bukan milik beliau. Hakim bicara dalam menerima penafian SP5 itu nampaknya tidak terfikir bahawa SP5 mungkin mempunyai sesuatu motif untuk melindungi kebenaran dan berbohong sewaktu memberi keterangan di mahkamah dengan mengambil kira bahawa SP5 sendiri merupakan orang yang disyaki dengan jelasnya apabila MRJ NO:W-05(M)-46-01/2017 28 beliau sanggup menggadaikan nyawanya dengan terjun dari tingkat enam. [19] Pada hemat kami, hakim bicara telah gagal mengarahkan diri beliau dengan betul kerana tidak melihat keseluruhan keterangan secara objektif dan dari segala sudut, di mana berkesudahan dengan kedua-dua perayu telah kehilangan peluang yang terbuka kepada mereka untuk dibebaskan dan dilepaskan. Pada hemat kami, ketidakarahan ini terjumlah kepada kesalaharahan dan dalam hal ini, suatu salah laksana keadilan mungkin telah berlaku. Dalam hubungan ini, Edgar Joseph Jr HMS dalam kes Gooi Loo Seng v Public Prosecutor itu telah berkata: Clearly, therefore, the trial judge, was bound to, but did not view the whole of the evidence objectively and from all angles, with the result that the appellant had lost the chance which was fairly open to him of being acquitted. On this point, we consider that non-direction amounts to a misdirection, for, in the words of Pickford J in R v Bundy 5 Cr App R 270: the trial was not satisfactory, and the case was not put to the jury in a way to ensure their due appreciation of the value of the evidence. We must treat the failure of a trial Judge sitting alone, to direct himself correctly in the same was a failure to direct a jury correctly. In these circumstances, a miscarriage of justice may well have occurred.”. [31] Keterangan yang diterimapakai oleh Hakim bicara dalam mensabitkan Perayu hanya bersadarkan kepada keterangan SP1 sahaja semata-mata. SP1 jelas merupakan seorang saksi yang berkepentingan. Hakim bicara telah gagal untuk mengikuti keputusan MRJ NO:W-05(M)-46-01/2017 29 kes-kes terdahulu yang memutuskan bahawa keterangan sokongan yang diperlukan terhadap keterangan saksi berkepentingan dalam mensabitkan seseorang tertuduh. Dalam kes Rozmi bin Yusof v. PP [2013] 5 MLJ 66, Mahkamah ini telah menekankan akan peri pentingnya keterangan sokongan dalam siatuasi kes seperti ini. Di m/s 72 – 73 kes itu, Hamid Sultan HMR menyatakannya seperti berikut: “[10] In the instant case SP8 the brother of accused was an interested witness and he did participate in the fight. His evidence ought to be treated with caution and was not done so in the instant case. We have dealt with this area of jurisprudence in great detail in Public Prosecutor v Thenegaran a/l Murugan [2013] 3 MLJ 328, we do not wish to repeat the same. In Magendran a/l Mohan v Public Prosecutor [2011] 6 MLJ 1; [2011] 1 CLJ 805 the Federal Court had this to say: It is clear to us that from her testimony she was an interested witness with a grudge against the appellant and had a purpose of her own to serve. In our judgment her evidence must be treated with caution and requires corroboration. [11] In our considered view the failure by the trial judge to follow the directions set out in Magendran’s case in respect of caution and corroboration makes the decision perverse and not according to law. This will also attract art 5(1) of the Federal Constitution to order an acquittal as the evidence to convict was based solely on PW8’s evidence which is not safe and according to law. The court has no jurisdiction to deprive the life and liberty of the subject unless the decision is made according to law. Article 5(1) stated as follows: MRJ NO:W-05(M)-46-01/2017 30 No person shall be deprived of his life or personal liberty save in accordance with law.”. [32] Dalam penghakimannya, Hakim bicara menyatakan keterangan SP1 disokong oleh keterangan SP6 mengenai identiti beg P6. Dengan hormatnya, keterangan SP6 mengenai identiti beg P6 yang berisi dadah yang dipertuduhkan bukanlah merupakan keterangan sokongan yang sewajarnya dicari oleh mahkamah untuk mensabitkan Perayu. Keterangan sokongan sepatutnya adalah terhadap keterangan matan SP1 yang mendakwa beg P6 tersebut telah dibawa oleh Perayu dan diletakkan dalam bilik ketiga rumah yang disewa dan didiami oleh SP1. Setelah meneliti Rekod Rayuan, kami tidak ada menemui walau secebis keteranganpun yang dapat menyokong keterangan SP1 atas perkara matan tersebut. Komen berlawanan oleh Hakim bicara [33] Bantahan peguam bela terpelajar adalah terhadap komen yang tidak wajar yang dibuat oleh Hakim bicara yang dihujahkan sehingga menyebabkan ketidakadilan terhadap Perayu serta melanggar Perkara 5(1) Perlembagaan Persekutuan yang menghendakki satu perbicaraan yang adil diadakan. Komen-komen yang berlawanan yang dibantah MRJ NO:W-05(M)-46-01/2017 31 oleh peguam bela terpelajar adalah seperti yang terkandung dalam Rekod Rayuan Tambahan (“RRT”) di m/s 12 – 16, seperti berikut: “Mahkamah : Saya bercadang kita habiskan dia. Takde saksi lain lagi? Panggil la Lan Cina dan Fizi Gemuk? Peguam : Fizi Gemuk saya percaya apa yang dimaklumkan ada di dalam tahanan. Mahkamah : Why don’t you put to your defence? Betul tak Fizi Gemuk kena tangkap dengan polis? Jadi put la pada Fizi Gemuk tu. Baru la kemas sikit. Peguam : Dalam Notes ada kalau Yang Arif tengok pada SP6. Mahkamah : Did you put to the police, Fizi Gemuk one of the suspect in the case involving drugs. Betul ke tak? Peguam : Yang Arif kami dimaklumkan berkenaan FIzi Gemuk ditangkap oleh SP6 dalam kandang. Kami tahu berkenaan fakta yang dia dah ditangkap dimaklumkan oleh SP6 ketika perbicaraan Mahkamah : Dalam Notes of Evidence ke? Ada ke? Peguam : Kalau boleh disemak oleh rakan bijaksana saya, dimaklumkan di muka surat 79 – “Fizi Gemuk ditangkap dibawah LLPK.” Mahkamah : Ada ke? Nothing in my record. Saya tak pernah dengar pun saksi ini cakap. But not in my record yang you are put question to the raiding officer berkenaan Fizi Gemuk kena tangkap ni. Peguam : Ada Yang Arif. Buleh rujuk CRT, ada dimaklumkan. Mahkamah : Itu je. Tak de fakta lain. Kalau fakta lagi, you boleh lepaskan dia ni. Peguam : Yang Arif, berkenaan Fizi Gemuk, kami percaya kami dah put kepada semua witness dan kewujudan dia MRJ NO:W-05(M)-46-01/2017 32 dipastikan oleh SP6 yang kata dia ditangkap dibawah LLPK dalam keterangan. Mahkamah : Tak pa. It’s up to you if you feel that you want to produce Fizi Gemuk get the court’s order. Then we can produce Fizi Gemuk. Tiada masalah. Peguam : Baik Yang Arif. Mahkamah : If you think Fizi Gemuk relevant to your case, kita boleh panggil dia untuk bagi keterangan. At least you can save hislife. Until and unless Fizi Gemuk come and appear, takde bende…pasal Azizan tu dah takde bende dah, kita nakkan satu benda yang mencurigakan. Come and creat some doubt and I’m very happy to release him. Peguam : Yang Arif, about Fizi Gemuk ada access to the house, I believe SP1 pun dah sahkan bende tu Yang Arif, Dalam keterangan SP1. Mahkamah : Betul lah, Fizi Gemuk dia ada. Tapi nobody can confirm dia ada pergi rumah tu, ada accessible ke rumah tu. Nobody can confirm, except the name. Tapi, since dah ada dalam LLPK ni, you can get the court’s order. Kita boleh produce dia. Peguam : We will consider that. Mahkamah : Other than you just let go jer bende tu, kita tak dapat nak pastikan. Cuba bincang balik. If you feel that Fizi Gemuk can help this case, otherwise kita hanya dengar dia punya story jer. Sekarang ni dia all the time jumpa anak dekat rumah bapa dia. Jadi kalau hari itu dia jumpa pertama kali, dia balik lah. Peguam : We have to check on the daughter juga Yang Arif. Because I believe the daughter pun can confirm. MRJ NO:W-05(M)-46-01/2017 33 Mahkamah : The daughter tu budak kecil. Budak kecil ni payah. Kita cakap “Ya”..“Ya”. “Awak makan ais krim?”. “Makan.”. Peguam : Ya, everything can be tested. Mahkamah : Budak kecil ni payah sikit, because umur dia ni below age. Dia ikut apa kita cakap. Tapi kalau macam ni, now the question dia used to see the daughter, all the time dekat rumah bapa dia. Hari tu dia jumpa anak dia sekali, dah la. Balik la. Why take you to wait until malam-malam, call several time buat apa. Anak dekat rumah bapa. Go, jumpa anak dekat rumah bapa. Pasal apa tunggu Azura. This is something.. Peguam : Dia takde tunggu Azura, Yang Arif. Takde cakap tunggu Azura. Mahkamah : Dalam telefon Azura kata anak kat rumah abah. Peguam : That’s why dia tunggu, Yang Arif. Mahkamah : Buat apa tunggu Azura, pergi la rumah abah. Peguam : Saya rasa dia dah explain. Mahkamah : Tak pa, that’s your story. You’ll be in danger. Pasal selalu dia jumpa dekat rumah abah dia. Jadi bila Azura bagi tau dia, pukul 6.30 tu anak kat mana? Anak kat rumah Abah ni. Lepas tu dia call-call Azura lagi banyak kali tak dapat. Sampai lah malam kan. Baru dapat call Azura. Baru dapat jumpa Azura. Azura kata tunggu la kat bawah. Betul tak? Peguam : Betul, Yang Arif. Mahkamah : Jadi maknanya by that time Azura dah pergi ambil anak kat rumah abah. Peguam : That is the story. MRJ NO:W-05(M)-46-01/2017 34 Mahkamah : Persoalannya disini, within that time tu, tunggu sampai 2 jam, tunggu Azura dari jam 8.30 sampai 10.30 malam, Azura dah bagi tau dah 6.30 tadi anak kat rumah abah. Peguam : Baik, Yang Arif. I’ll do that, Yang Arif. Mahkamah : These are the things yang saya nampak. Saya tidaklah rasa gentar untuk mengambil tindakan yang kemuncak itu. Tapi kalau ada jalan lain, saya nak lepaskan dia. Saya tak mahu ambil tindakan yang akhir itu. Tapi the way you’re putting your case, you are putting him to the gallows. Peguam : Baik, Yang Arif. Mahkamah : Saya cukup risau benda ni, cuba cari jalan, but if you feel that Fizi Gemuk can help, call him. Kalau tidak, saya tak de choice. My hands are tight. Only one punishment. You got to think about it. So macam mana? Sekarang kalau nak postpone, bila? Panjang lagi? Minggu depan tak boleh? But if you want to call Fizi Gemuk, give me the detail, then we can issue order to produce him and we see how tha thing goes. Peguam : Baik Yang Arif. Mahkamah : Saya ingat DPP pun boleh bantu la kalau dia kat mana-mana pun. TPR : Baik Yang Arif. Mahkamah : Tapi En. Lokman, just think about it, baca balik keterangan tu, apabila keterangan tu dah ada kat situ, the court has already form its mind towards him. It is serious punishment. So, kalau kita postpone, kita put next week, boleh? 5 dan 6 boleh? MRJ NO:W-05(M)-46-01/2017 35 Peguam : Pada 5 hb saya ada kes di Mahkamah Persekutuan, Kes: Liang Weng Heng v. Timbalan Menteri Dalam Negeri (05-18408-2016) Mahkamah : Kes Sambung Bicara pada 9 Januari 2017 jam 9 pagi t.t. (YA DATO’ HAJI MOHAMAD SHARIFF BIN HAJI ABU SAMAH)”. [34] Kami faham tentang kegusaran serta kebimbangan peguam bela terpelajar apabila komen-komen Hakim bicara menampakkan dapatan “prejudged” Hakim bicara yang memprejudiskan Perayu. Hakim bicara seolah-olah telah dari awal lagi menolak pembelaan Perayu. Ini dapat dilihat dengan jelas dalam Penghakiman Hakim bicara tersebut seperti di m/s 85 – 94 RR Jld.1 yang kami simpulkan seperti berikut: “Adakah benar tujuan Perayu untuk berjumpa dengan anaknya? Sekiranya Perayu ingin berjumpa dengan anaknya, mengapakah perlu berjumpa di Apartment (SP1). Kalaulah Perayu sudah berjumpa dengan anaknya pada 12 Julai 2015, mengapakah perlunya berjumpa untuk kali kedua pada 13 Julai 2015?” [35] Hakim bicara seterusnya mempertikaikan niat sebenar Perayu untuk berjumpa dengan anaknya di rumah SP1. Sebaliknya, Hakim bicara menyatakan sekiranya benar tujuan Perayu untuk berjumpa dengan anaknya adalah lebih baik untuk berbuat demikian di rumah MRJ NO:W-05(M)-46-01/2017 36 bapa SP1 (bekas bapa mertua Perayu). Hakim bicara menolak sama sekali keterangan Perayu dan keterangan sokongan SP1 bahawa wujud perselisihan faham diantara Perayu dengan bekas bapa mertuanya mengenai hak lawatan Perayu terhadap anaknya di rumah bekas bapa mertuanya. Di m/s 94 RR Jld.1, Hakim bicara menolak pembelaan Perayu dengan membuat kesimpulan yang memprejudiskan seperti berikut: “Justeru, pada hemat saya keterangan Tertuduh untuk berjumpa dengan anaknya hanyalah suatu helah dan alasan yang sangat tidak masuk akal bagi mengecapi “hidangan istimewa” yang terdapat dalam Apartment tersebut dan pada hakikatnya Tertuduh tahu akan perbuatannya. Misteri tindakan Tertuduh ini terbongkar apabila dadah- dadah berbahaya ditemui dalam beg biru yang dibawanya.” [36] Kami bersetuju dengan hujahan peguam bela terpelajar bahawa hak keperlembagaan Perayu di bawah Perkara 5.1 untuk mendapat perbicaraan dengan adil telah tercalar. Kami berpegang kepada Penghakiman Mahkamah Persekutuan mengenai isu yang sama diputuskan dalam kes Lee Kwan Woh v. PP [2009] 5 MLJ 301 seperti berikut: “[17] …………………” Accordingly, the rule of law in all its facets and dimensions is included in the expression ‘law’ wherever used in the Constitution. Hence, the expression ‘law’ in art 5(1) includes written law MRJ NO:W-05(M)-46-01/2017 37 and the common law of England, that is to say the rule of law and all its integral components and in both its procedural and substantive dimensions. For, it is now settle that the rule of law has both procedural and substantive dimensions. See Pierson v Secretary of State for the Home Department [1997] 3 All ER 577, where where at p 606, Lord Steyn said: ‘The rule of law in its wider sense has procedural and substantive effect.’ [17] We also find support for the view we have expressed from the judgment of Lord Diplock in Ong Ah Chuan v Public Prosecutor [1981] 1 MLJ 64, where, when dealing with arts 9 and 12 of the Singapore Constitution which are identical to arts 5 and 8 respectively he said: In a constitution founded on the Westminister model and particularly in thart part of it that purports to assure to all individual citizens the continued enjoyment of fundamental liberties or rights, references to ‘law’ in such contexts as ‘inaccordance with law’, ‘protection of the law’ and the like, in Their Lordships’ view, refer to a system of law which incorporates those fundamental rules of natural justice that had formed part and parcel of the common law of England that was in operation in Singapore at the commencement of the Constitution. It would have been taken for granted by the makers of the Constitution that the ‘law’ to which citizens could have recourse for the propection of fundamental liberties assured to them by the Constitution would bt a system of law that did not flout those fundamental rules. It is clear from this passage that the rules of natural justice, which is the procedural aspect of the rule of law, is an integral part of arts 5(1) and 8(1). In short, procedural fairness is incorporated in these two articles. [18] Drawing, the threads together, it is clear from the authorities that it is a fundamental right guaranteed by art 5(1) that a person’s life (in its MRJ NO:W-05(M)-46-01/2017 38 widest sense) or his or her personal liberty (in its widest sense) may not be deprived save in accordance with state action that is fair both in point of procedure and substance. Whether an impugned state action is substantively or procedurally fair must depend on the fact pattern of each case. However, when the principle is applied to a criminal case, what it means is that an accused has a constitutionally guaranteed right to receive a fair trial by an impartial tribunal and to have a just decision on the afacts. If there is an infraction of any of these rights, the accused is entitled to an acquittal. Whether there has been a fail trial by an impartial tribulan or a just decision depends on the facts of each case. While upon the subject under discussion we would refer with approval to the judgment of Edgar Joseph Jr J (as he then was) in Public Prosecutor v Choo Chuan Wang [1992] 2 CLJ 1242, where he held that: Article 5(1) of our Constitution does imply in favour of an accused person the right to a fair hearing within a reasonable time by an impartial court established by law. It follows that if an accused person can establish a breach of this right then, in the words of Sandhawalia CJ in Madheshwardhari Singh v The State (ibid) (Madheshwardhari Singh and Anor v State of Bihar AIR (Pat) 1986 324), he would be entitled to an unconditional release and the charges leveled against him would fall to the ground. [19] We must consider the impact of what we have said thus far on the facts of the instant case. In our judgment, the constitutionally guaranteed right in an accused to a fair trial includes his right to make a submission of no case at the close of the prosecution’s case. It is a right that he or she may waive. But he or she cannot be deprived of it. That unfortunately is what happened here. The accused accordingly did not have a fair trial and art 5(1) was violated. Following Public MRJ NO:W-05(M)-46-01/2017 39 Prosecutor v Choo Chuan Wang he is entitled to have his conviction set on this ground.”. [37] Pandangan yang sama telah disuarakan oleh Mahkamah Rayuan Jenayah di Singapura dalam kes Roseli bin Amat & ors v. PP [1989] 2 MLJ 65 dimana Thean J manyatakannya di m/s 69 – 70, seperti berikut: “In view of the remarks or observations which we have examined, it is doubtful whether the learned judge had fairly evaluated the evidence of the complainant and the appellants. They point very strongly to the unhappy fact that the learned judge did not keep an open mind throughout the trial and examine and weigh carefully the evidence of the complainant and that of the appellants. These unsatisfactory features of the trial were further compounded by the following passage of his judgment: At the end of her [complainant’s] cross-examination I was convinced that Orranuch Nilprang was a witness of truth and that she had submitted to the four of you under duress as she was afraid that you would either hurt or kill her. On this, the learned judge, with respect, was clearly in error. We wish to repeat what Lord Diplock said in Haw Tua Tau v PP (at p 51): …Whoever has the function of deciding facts on the trial of a criminal offence should keep an open mind about the veracity and accuracy of recollection of any individual witness, whether called for the prosecution or the defence, until after all the evidence to be tendered in the case on behalf of either side has been heard and it is possible to assess to what extent (if any) that witness’s evidence has been MRJ NO:W-05(M)-46-01/2017 40 confirmed, explained or contradicted by the evidence of other witnesses. It is true that the learned judge said that at the end of the case he scrutinized again the evidence adduced by the prosecution and that of the appellants. However, he ought not to have come to any definite conclusion, which he appeared to have done, on the credibility of the complaint – and that was purely on her own evidence – and on other matters which we have discussed until he had heard all the evidence adduced by the prosecution and evidence adduced by the defence. Only then would he be in a position to assess or evaluate fair ly the evidence before him and make findings of facts and finally arrive at a conclusion. We now turn to the final question whether the convictions in the circumstances can stand. This is far from being a case of a couple of isolated imprudent remarks made injudiciously by a trial judge in unguarded moments in the course of a long trial – such incidents we can well appreciate and understand. The instant case unfortunately is much more than that. The passages of the transcript which we have reviewed and in which are found definite views and findings of the learned judge on material issues – some of them at an early stage of the trial – are far too compelling: they indicate starkly that the learned judge had pre-determined these material issues adversely against the appellants long before they had fully presented their case. With great reluctance, we have reached the unavoidable conclusion that the convictions should not be allowed to stand. Accordingly, we allow the appeal and quash the convictions and the sentences. We have considered whether we should now order a new trial. In our judgment, having regard to the long laps of time since the alleged offence and the fact that the appellants have by now served a term of imprisonment of over three years it would be unfair to subject them again to a long trial MRJ NO:W-05(M)-46-01/2017 41 on the same charges. We therefore do not propose to make such an order.”. Kegagalan membuat pertimbangan secukupnya terhadap pembelaan Perayu [38] Seksyen 182A(1) KAJ memperuntukkan bahawa Hakim bicara hendaklah menimbang dan meneliti keseluruhan keterangan, termasuklah keterangan pihak pembelaan. Dengan kata lain, pembelaan Perayu tidak boleh diketepikan begitu sahaja sebagai satu rekaan terbaru dan satu pemikiran terkemudian sebagaimana yang diputuskan oleh Hakim bicara dalam kes di hadapan kami. Kami bersetuju dengan hujahan peguam bela terpelajar bahawa Hakim bicara telah gagal untuk membuat pertimbangan dengan secukupnya terhadap pembelaan Perayu. Sekiranya pembelaan Perayu ditimbangkan dengan secukupnya, Hakim bicara akan membuat dapatan yang berbeza iaitu bahawa pihak pembelaan telah berjaya mematahkan anggapan pengedaran di bawah seksyen 37(da) Akta atas imbangan kebarangkalian dan seterusnya bahawa pembelaan Perayu telah berjaya membangkitkan keraguan yang munasabah terhadap kes pihak pendakwaan. MRJ NO:W-05(M)-46-01/2017 42 [39] Hakim bicara telah gagal membuat pertimbangan terhadap fakta- fakta matan dalam pembelaan Perayu yang tidak disangkal oleh pihak pendakwaan. Antaranya: (a) Perayu tidak ditangkap bersama barang kes dadah; (b) Perayu menafikan elemen pemilikan; (c) Tidak ada terdapat ‘overt act’; (d) Tiada DNA/cap jari Perayu pada beg P6 dan pada barang kes; (e) Perayu bukan penyewa rumah itu dan bukan juga penghuni rumah di mana dadah dirampas; (f) Perayu hanya seorang pelawat (visitor) datang ke rumah itu untuk berjumpa dengan anak perempuannya yang berada dalam jagaan bekas isterinya (SP1) yang menyewa dan menghuni rumah itu; (g) Walaupun SP6 menyatakan telah sekian lama mengekori pergerakan Perayu, namun tiada keterangan dari SP6 mahupun dair anggota pasukkannya yang melihat Perayu pada mana-mana masa ada memegang/membawa beg P6 tersebut selain daripada keterangan SP1, saksi berkepentingan dan yang meragukan; (h) Perayu ditangkap di ruang tamu dan tidak dalam bilik ketiga dimana dadah ditemui. [40] Dalam kes Koo Wing Cheung v. PP [2014] 1 CLJ 46, Azahar Mohamed HMR (sekarang HMP) menyatakan mengenai isu yang sama seperti berikut: “[19] Therefore, against the backdrop of the above defence, in our judgment, the learned trial judge was duty-bound to take into account and give proper weight to the matters to which we have adverted to. In this case, both the appellants were arrested in the master bedroom. MRJ NO:W-05(M)-46-01/2017 43 There were no drugs recovered in the master bedroom. No keys to the said house were recovered from either of the appellants. In this regard, mere presence in one of the four rooms of the house without more did not show that both the appellants had or appeared to have the care or management of the house and the presumption that they were occupier could not be raised (see: PP v. Lai Ah Bee [1974] 1 LNS 119; [1974] 1 MLJ 74). It should perhaps be emphasized that there was evidence that other persons had custody and control of the house, and hence had access to the house. As we have indicated earlier, a Perodua Myvi was seen at the said house by PW11 while carrying out surveillance on the house and that a Proton Wira which was seized from the porch of the said house did not belong to either of the appellants. The evidence points to the possibility of some other persons who could have placed the offending drugs there. There was evidence that DW3 stayed in the room next to the kitchen on the ground floor. There was also evidence that Chee Chai was the occupier of the said premises. There was evidence that Chee Chai was in possession of P57 which contained the drugs and that it was Chee Chai who wrote the words “do not touch” and pasted the same on P57. There was evidence that Chee Chai had possession of P77, a few days before when he took out P77 and offered the drugs contained in P77 to DW3 and two others. All these were never judicially and adequately considered by the learned trial judge in his judgment. The learned trial judge had failed to view the evidence of the defence objectively and from all angles. Now, by virtue of s. 182A of the CPC at the conclusion of the trial, the learned trial judge must consider all the evidence adduced before him and shall decide whether the prosecution had proved its case beyond reasonable doubt. As a result, the learned trial judge had failed to give the evidence adduced by the defence its due weight and importance and which if duly considered was capable of raising more than a reasonable doubt in the case of the prosecution against both the appellants (see: Yusoff Kassim v. PP MRJ NO:W-05(M)-46-01/2017 44 [1992] 3 CLJ 1535; [1992] 1 CLJ (Rep) 376). The learned trial judge failed to critically and judicially appreaciate the entire evidence in favour of the appellants. In our judgment, the failure to take into consideration the entire evidence adduced by the defence and the failure to undertake judicial appreciation of the defence, as we have highlighted above, amounted in effect to a failure to consider a defence which had been put forward. In our view, this is a serious non-direction which amounts to a misdirection by the court below warranting appellate intervention (see: Er Ah Kiat v. PP [1965] 1 LNS 37; [1965] 2 MLJ 238). In this regard, Edgar Joseph Jr SCJ in Gooi Loo Seng v. PP [1993] 3 CLJ 1; [1993] 2 MLJ 137 said: Clearly, therefore, the trial Judge, was bound to, but did not view the whole of the evidence objectively and from all angles, with the result that the appellant had lost the chance which was fairly open to him of being acquitted. On this point, we consider that non-direction amounts to a misdirection, for, in the words of Pick J in R v. Bundy 5 Cr App R 270: The trial was not satisfactory, and the case was not put to the jury in a way to ensure their due appreciation of the value of the evidence. We must treat the failure of a trial Judge sitting alone, to direct himself correctly in the same as a failure to direct a jury correctly. In these circumstances, a miscarriage of justice may well have occurred.”. [41] Kegagalan Hakim bicara dalam membuat pertimbangan dengan secukupnya pembelaan Perayu merupakan satu salaharah yang serius yang mewajarkan campurtangan Mahkamah atasan. Perkara ini telah MRJ NO:W-05(M)-46-01/2017 45 diputuskan oleh Balia Yusof Hj. Wahi HMR (sekarang HMP) dalam kes Zulkefly bin Had v. PP [2014] 6 CLJ 64, seperti berikut: “[20] Di akhir perbicaraan, tugas hakim bicara adalah untuk meneliti kesemua keterangan yang telah dikemukakan di hadapannya dan memutuskan sama ada pihak pendakwaan telah membuktikan suatu kes melampaui keraguan. Seksyen 182A(1) Kanun Acara Jenayah jelas memperuntukkan perihal tersebut. Di dalam mengadakan peruntukan tersebut, Parlimen dengan jelas menyatakan “all the evidence adduced before it”. Penekanan haruslah diberikan kepada perkataan “all” yang memberikan maksud keseluruhan dan kesemua keterangan, sama ada dari pihak pembelaan ataupun pendakwaan. Apa-apa ketinggalan atau kegagalan hakim bicara berbuat demikian adalah merupakan suatu salah arah dan ini mewajarkan Mahkamah Rayuan untuk campur tangan. Kegagalan hakim bicara mengambil kira dan membuat aprisiasi mana-mana keterangan pembelaan telah memprejudiskan Perayu. Hak samarata dan untuk mendapatkan “fair trial” Perayu telah dicabul. Tiada Mahkamah di dalam mana-mana jua sistem perundangan di dalam mana-mana “civilized society” boleh menerima perkara sedemikian.” Siasatan Pihak Polis Yang Sambil Lewa dan Tidak Lengkap [42] Bantahan peguam bela mengenai isu ini berkaitan dengan kegagalan pihak polis, terutamanya oleh Pegawai Penyiasat, Inspektor Prabu a/l Avadiappan (SP7) untuk membuat siasatan yang lengkap dan teliti. Sebaliknya, pihak pendakwaan bergantung sepenuhnya kepada keterangan lisan SP1. Aspek yang gagal disiasat oleh SP7 termasuklah MRJ NO:W-05(M)-46-01/2017 46 kegagalan untuk mendapatkan rakaman CCTV di kawasan perumahan tersebut. Juga gagal disiasat oleh SP7 ialah buku rekod keluar masuk pelawat yang terdapat di Pondok Pengawal Keselamatan serta kesan DNA/cap jari pada barang kes dadah. Selain itu, terdapat pakaian lelaki dalam rumah itu yang turut gagal disiasat oleh SP7. Dalam keterangan semasa pemeriksaan balas, SP7 menyatakan seperti berikut: “Q : Selepas siasatan dibuat, hanya keterangan Azura, pemilik rumah dan anaknya diambil. Hanya keterangan penyewa rumah sahaja yang menyatakan bahawa OKT membawa beg itu? A : Setuju. Q : Dalam kes ini rumah adalah disewa oleh Azura dan OKT tiada dekat dengan barang kes, seharusnya ada siasatan lain perlu dibuat, perlu ada independent evidence lain? A : Setuju. Q : Adakah sangat penting untuk awak rampas barang lelaki? A : Penting jika merujuk kepada tempat kejadian. ……. Q : Ada pakaian orang lain dalam bilik utama? A : Dalam statement Azura, ada pakaian OKT. Pakaian hanya ada di dalam bilik utama saja. Q : Soalan saya macam ini. Pakaian dalam rumah, tadi Inspektor kata ada dan kita tak tahu pakaian ini milik siapa. Kalau Inspektor rampas, sama ada kita boleh buat clothes fit test, suruh OKT pakai dan buat DNA test, boleh dapat satu bukti yang konklusif pakaian ini milik siapa. Setuju? A : Setuju.”. MRJ NO:W-05(M)-46-01/2017 47 [43] SP7 tidak merampas pakaian lelaki yang ditemui di dalam bilik utama rumah itu apabila SP1 memberitahu SP7 bahawa pakaian tersebut milik Perayu. Tambahan pula Perayu menyatakan teman lelaki SP1 yang bernama ‘Alan Cinak’ turut tinggal di rumah itu bersama SP1. Fakta ini juga langsung tidak dipertimbangkan oleh Hakim bicara sebaliknya ditolak begitu sahaja. [44] Dalam kes PP v. Tukiman bin Demin [2008] 4 MLJ 79, Hakim Mohd. Zawawi Salleh (sekarang HMR) dalam menyampaikan penghakimannya atas isu yang sama, memutuskan seperti berikut: “21.4 The drugs were not found on the acused but in the room to which several person have equal access. The presence of SP7, SP10 and Samiun bin Mohd Dah and other bachelors (‘budak-budak bujang’) in the house, raise some doubts as to whether it could be said affirmatively that the drugs were in the possession of the accused or either one of them or all of them are in joint possession of the said drugs. Where possession is not clear, as in the present case, when the offending drugs may be attributed to more than one individual, possession requires some nexus, link, or other connection between the accused and the offending drugs. In this case, there is no evidence of additional incriminating circumstancesim-plicating the accused sucah as finger prints, incriminating statements, efforts to avoid arrest or the offending drugs were concealed in any portion of the room. The bare- bones of the prosecution case is the contraband was found in the accused’s room. Under the circumstances, the prosecution’s case is MRJ NO:W-05(M)-46-01/2017 48 barren of establishing linking or demonstrating a nexus between the accused and the offending drugs.” [45] Dalam kes PP v. Mok Kar Poh [2001] 5 CLJ 206, Hakim Zainun Ali (sekarang HMP) menyatakan mengenai isu yang sama seperti berikut: “Next comes the question of the fingerprints of the accused. It is the defence’s contention that the failure of the prosecution to dust the six packages for fingerprints and the failure to take hand swaps or nail clippings from the accused to show whether there are traces of drugs on his hands, would be to their detriment, since it does not show any link between the accused and the drugs. Possession is also not to be inferred in the absence of this nexus. Although this concedes that the above methods in some situations are merely procedural, it would be a wise prosecution which would do all things necessary to bring home the charge. It is almost careless and capricious to say that since the accused was arrested on the spot and his identity is khown, what good would taking fingerprints and nail clippings do? It is this court’s view that it would be prodent for the prosecution not to be oblivious to the obvious methods required to close the gap. Thus it is clear from the facts and surrounding circumstances, that the question of custody and control and by necessary implication, possession which is in nature, is not made out by the prosecution. Since knowledge is a vital element to impute possession and in the absence of any evidence of actual knowledge, it therefore cannot be MRJ NO:W-05(M)-46-01/2017 49 said with conviction that the circumstances clearly and irresistibly point to the fact that the accused had knowledge of the said drugs.”. [46] Keterangan SP7 mengenai rakaman CCTV semasa disoal-balas, ialah seperit berikut: “Q : Orang yang boleh pastikan keluar masuk adalah pengawal keselamatan. Ada rakam percakapannya? A : Saya tidak rakam percakapan. Q : Di pondok itu terdapatnya CCTV? A : Setuju. Q : Tapi awak tidak siasat? A : Pengawal kata tidak berfungsi. Saya ada buat siasatan. Q : Selain daripada pengawal keselamatan, samada OKT masuk dan bawa beg, hanya boleh dipastikan oleh pegawai- pegawai management? A : Tidak setuju. PUT : Pada tarikh sebelum kejadian dan hari kejadian bahawa CCTV adalah berfungsi? A : Saya dapati setelah ditanya pada pengawal dan pihak management, CCTV tidak berfungsi. Saya pasti hanya dari statement pengawal dan management. …… Q : CCTV. Ada rakaman percakapan Pengawal diambil? A : Tiada. Dan tiada surat dihantar kepada pihak management.” [47] Kepentingan rakaman CCTV didalam kes ini adalah sangat penting memandangkan hanya keterangan SP1 yang tidak disokong MRJ NO:W-05(M)-46-01/2017 50 menyatakan beg berisi dadah yang dipertuduhkan telah dibawa oleh Perayu. Dalam kes See Kek Chuan v. PP [2013] 6 MLJ 885, Abdul Malik Ishak HMR memutuskan atas isu yang sama seperti berikut: “[29] The importance of the CCTV footage cannot be doubted. It would clear the lingering doubt of whether Ah Fatt carried the black bag and threw it to the floor and bolted at the lobby of the said hotel leaving the appellant to face the music, so to speak, or it was the appellant who was all alone was seen by PW3 carrying the black bag in his right hand and entering the lobby of the said hotel and was placed under arrest by PW3. Had the CCTV footage being produced, the High Court judge would be in a better position to verify the prosecution’s version. Bereft of the CCTV footage, the High Court judge should have invoked the presumption under s 114(g) of the Evidence Act 1950 bearing in mind ‘that evidence which could be and is not produced would if produced be unfavourable to the person who withholds it’ and acquitted and discharged the appellant without calling for his defence. [30] Right from the very start, the importance of the CCTV footage was highlighted by the defence. PW4 was categorical when he testified that the police had requested and was given the CCTV tape. PW9 testified that there were CCTVs focused at 32 locations at the said hotel and also at the lobby. These CCTVs would surely verify the version of the prosecution if tendered. Yet, not a single CCTV tape was produced and tendered by the prosecution. [31] The High Court judge acknowledge that the police had requested for a copy of the CCTV and a copy was in fact given to the police. At p 246 of the appeal record at jilid 3, His Lordship said: MRJ NO:W-05(M)-46-01/2017 51 SP4 – adalah Pegawai Keselamatan di Sunway Resort – keterangan saksi ini semasa disoalbalas oleh pihak pembelaan tertumpu kepada bilik kawalan CCTV di mana beliau mengatakan bahawa tiada anggota polis ditempatkan di bilik kawalan CCTV. Saksi ini juga mengatakan bahawa di kawasan lobi hotel terdapat CCTV dan selepas tangkapan dibuat pihak polis ada meminta salinan CCTV yang mana satu salinan rakaman CCTV telah diberikan. [32] Contrary to the evidence by PW4, PW9 testified that CCTV recording was not given to the police because there was no written request by the police for a copy of the CCTV. Since the police did not record the statement of PW9, there was no oppsortunity for the learned deputy who conducted the prosecution to impeach the credit of PW9. Thus, we have two sets of evidence in regard to the nagging question of whether a copy of the CCTV was given to the police. These two contradictory or variant narratives struck at the very root of the prosecution’s case and it must surely bebefit the defence… [33] In our judgement, the non-production of the CCTV footage amounts to a withholding or suppression of evidence and if it was produced, it would be unfavourable to the prosecution and, consequently, the adverse presumption under s 114(g) of the Evidence Act 1950 must be invoked against the prosecution. [34] It goes without saying the the non-production of the CCTV footage had disadvantage or prejudiced the defence and the truth of the prosecution’s case could not verified. Indeed in a criminal trial, fairness must be displayed by the prosecution. And the concepts of a fair trial and fairness have been recognized by our Malaysia Courts.” MRJ NO:W-05(M)-46-01/2017 52 [48] Kegagalan SP7 untuk mengemukakan rakaman CCTV berpunca daripada penjelasan daripada pengawal keselamatan yang menyatakan bahawa kamera CCTV tidak berfungsi. SP7 menyatakan ada merakamkan percakapan bawah seksyen 112 KAJ dari pengawal keselamatan berkenaan. Namun begitu pengawal keselamatan berkenaan gagal dipanggil untuk memberi keterangan, malahan percakapan 112 KAJ penama itu juga gagal dikemukakan ke Mahkamah. Ini menjadikan keterangan SP7 bahawa kamera CCTV tidak berfungsi sebagai satu keterangan dengar cakap (‘hearsay’). Mahkamah Persekutuan, melalui George Seah HMP dalam kes Leong Hong Khie v. PP [1986] 2 MLJ 206 telah membuat keputusan berikut mengenai isu yang sama: “The general rule is that hearsay evidence is not admissible as proof of a fact which has been stated by a third person. This rule has been long established as a fundamental principle of the law of evidence. To quote Lord Normand in Teper v R [1952] AC 480 486: “The rule against the admission of hearsay evidence is fundamental. It is not the best evidence, and it is not delivered on oath. The truthfulness and accuracy of the person whose words are spoken by another witness cannot be tested by cross-examination and the light which his demeanour would throw on his testimony is lost.” In our opinion, another reason is the danger that hearsay evidence may be concocted, fabricated and tailored to suit the witness’s testimony. Notwithstanding this general rule certain exceptions have been MRJ NO:W-05(M)-46-01/2017 53 recognized upon the ground of necessity or convenience. In Malaysia, these exceptions are set out in section 32 of the Evidence Act 1950.”. [49] Kami berpandangan bahawa penjelasan yang diberikan oleh SP7 tidak boleh diterima kerana ia adalah satu keterangan dengar cakap. Kami dapati tiada penjelasan lain yang telah diberikan oleh pihak pendakwaan terhadap kegagalan mereka mengemukakan rakaman CCTV ke Mahkamah. Oleh yang demikian anggapan berlawanan di bawah seksyen 114(g) Akta Keterangan 1950 seharusnya digunapakai oleh Hakim bicara memihak kepada Perayu. Kesimpulan [50] Atas alasan-alasan yang telah kami huraikan di atas, kami dengan sebulat suara mendapati bahawa terdapat merit dalam rayuan Perayu. Sabitan terhadap Perayu adalah tidak selamat. Dengan itu, kami membenarkan rayuan Perayu. Sabitan dan hukuman mati oleh Mahkamah Tinggi dengan ini diketepikan dan digantikan dengan perintah Perayu dilepas dan dibebaskan dari pertuduhan. Bertarikh: 9 Oktober 2017 t.t (KAMARDIN BIN HASHIM) Hakim Mahkamah Rayuan Malaysia MRJ NO:W-05(M)-46-01/2017 54 Peguam cara: Bagi Pihak Perayu: Luqman Mazlan, Yazzer Azzat dan Rahmat Mohamed Tetuan Amir Faliq & Syahidah Suite 7 – FO – S, Ipoh Tower, Tower Regency Hotel, Jalan Dato’ Seri Ahmad Said, 30450 Ipoh, Perak. Bagi Pihak Responden: Nurshafini bte Mustafha Timbalan Pendakwa Raya Jabatan Peguam Negara Putrajaya.	78,827	Tika 2.6.0
01(f)-5-02/2016(Q)	PERAYU STATE GOVERNMENT OF SARAWAK … APPELLANT/ 4th DEFENDAN T RESPONDEN 1. MASA ANAK NANGKAI 2. CHRISTOPHER AMBU 3. ENGKANA TALAP 4. SINJU SENABONG 5. UBAN BUNDAN 6. ALBERT WALTER SKINNER TULIS 7. JACOB EMANG 8. LEN JUBANG 9. LIAP ANAK GILING 10. IVANHOE ANTHONY BELON 11. MORICE RENGGI 12. GIMA BELON … RESPONDEN TS	Reported in [2017] 5 MLJ 549 Constitutional Law — Constitution — Acquisition of property — Respondents filed action in High Court claiming they were original title holders or native customary rights (‘NCR’) owners of lands within development area and never surrendered, abandoned, lost or waived their NCR rights — Whether appellants in breach of art 13 of the Federal Constitution by compulsorily acquired respondents’ NCR lands without giving compensation — Federal Constitution, Article 13 Land Law — Customary land — Native customary rights — Respondents filed action in High Court claiming they were original title holders or native customary rights (‘NCR’) owners of lands within development area and never surrendered, abandoned, lost or waived their NCR rights — Whether consenting NCR owners/interveners had locus in present case — Whether it was proven that respondents’ NCR lands were within development area — Whether s 8 of the Sarawak Land Code violated — Land Custody and Development Authority Ordinance (No 4 of 1981) ss 11 & 15 — Sarawak Land Code s 8	07/10/2017	YA TAN SRI DATUK SURIYADI BIN HALIM OMARKorumYAA TUN MD RAUS BIN SHARIFYA TAN SRI DATUK SURIYADI BIN HALIM OMARYA TAN SRI DATUK ZAINUN BINTI ALIYA DATO' BALIA YUSOF BIN HAJI WAHIYA TAN SRI JEFFREY TAN KOK WHA	https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=9544a126-7fe9-4bdf-ba48-4f5caf9bb72e&Inline=true	08( )-299-04/2012(A) 1 IN THE FEDERAL COURT OF MALAYSIA (APPELLATE JURISDICTION) CIVIL APPEAL NO.: 01(f)-5-02/2016(Q) BETWEEN STATE GOVERNMENT OF SARAWAK … APPELLANT/ 4th DEFENDANT AND 1. MASA ANAK NANGKAI 2. CHRISTOPHER AMBU 3. ENGKANA TALAP 4. SINJU SENABONG 5. UBAN BUNDAN 6. ALBERT WALTER SKINNER TULIS 7. JACOB EMANG 8. LEN JUBANG 9. LIAP ANAK GILING 10. IVANHOE ANTHONY BELON 11. MORICE RENGGI 12. GIMA BELON …RESPONDENTS/ AND IN THE FEDERAL COURT OF MALAYSIA (APPELLATE JURISDICTION) CIVIL APPEAL NO. 01(f)-6-02/2016 (Q) BETWEEN 2 1. LEMBAGA PEMBANGUNAN DAN LINDUNGAN TANAH …APPELLANTS/ 1st DEFENDANT 2. PELITA HOLDINGS SDN BHD …2nd DEFENDANT 3. TETANGGA AKRAB PELITA (PANTU) SDN BHD …3rd DEFENDANT AND 1 MASA ANAK NANGKAI 2. CHRISTOPHER AMBU 3. ENGKANA TALAP 4. SINJU SENABONG 5. UBAN BUNDAN 6. ALBERT WALTER SKINNER TULIS 7. JACOB EMANG 8. LEN JUBANG 9. LIAP ANAK GILING 10. IVANHOE ANTHONY BELON 11. MORICE RENGGI 12. GIMA BELON …RESPONDENTS/ PLAINTIFFS AND IN THE FEDERAL COURT OF MALAYSIA (APPELLATE JURISDICTION) CIVIL APPEAL NO.: 01(f)-8-02/2016(Q) & CIVIL APPEAL NO.: Q-01(f)-9-02/2016(Q) 3 BETWEEN Penghulu Beliang Beliang Anak Jubang …APPELLANTS/ INTERVERNERS (Intervener on behalf of himself and all the NCR claimants of within the Development Area as gazetted on the 14.09.2006 in the Sarawak Gazette L.N. No. 79/2006 and described as “the Sg. Tenggang NCR Development Area) AND 1. MASA ANAK NANGKAI 2. CHRISTOPHER AMBU 3. ENGKANA TALAP 4. SINJU SENABONG 5. UBAN BUNDAN 6. ALBERT WALTER SKINNER TULIS 7. JACOB EMANG 8. LEN JUBANG 9. LIAP ANAK GILING 10. IVANHOE ANTHONY BELON 11. MORICE RENGGI 12. GIMA BELON …RESPONDENTS/ PLAINTIFFS In the matter of Court of Appeal, Civil Appeal No. Q-01-(IM)-131-2011 heard together with Civil Appeal No.: Q-01-165-2011) Civil Appeal No.: Q-01-(IM)-131-2011 4 BETWEEN Penghulu Beliang Beliang Anak Jubang … APPELLANTS/ INTERVERNERS (Intervener on behalf of himself and all the NCR claimants of within the Development Area as gazetted on the 14.09.2006 in the Sarawak Gazette L.N. No. 79/2006 and described as “the Sg. Tenggang NCR Development Area) AND 1. MASA ANAK NANGKAI 2. CHRISTOPHER AMBU 3. ENGKANA TALAP 4. SINJU SENABONG 5. UBAN BUNDAN 6. ALBERT WALTER SKINNER TULIS 7. JACOB EMANG 8. LEN JUBANG 9. LIAP ANAK GILING 10. IVANHOE ANTHONY BELON 11. MORICE RENGGI 12. GIMA BELON …RESPONDENTS/ PLAINTIFFS CORAM: RAUS SHARIF, CJ SURIYADI HALIM OMAR, FCJ ZAINUN ALI, FCJ BALIA YUSOF WAHI, FCJ JEFFREY TAN, FCJ 5 JUDGMENT OF THE COURT [1] The plaintiffs, hereinafter referred to as the respondents, filed a claim at the High Court at Kuching against Lembaga Pembangunan Dan Lindungan Tanah (LCDA), Pelita Holdings Sdn. Bhd (PHSB), Tetangga Akrab Pelita (Pantu) Sdn Bhd (TAPSB), and the State Government of Sarawak, respectively the 1st, 2nd, 3rd and 4th defendants (hereinafter interchangeably referred to as the 1st, 2nd, 3rd and the 4th appellants or collectively as the appellants). [2] The respondents won both at the High Court and the Court of Appeal, and hence the appeal before us by the appellants. [3] The facts unravelled showed that within an area earmarked and gazetted for development, there were occupants (Consenting NCR Owners), who had agreed that their Native Customary Rights (NCR) lands be merged and consolidated for development. To put into effect that agreement, the Consenting NCR Owners then entered into a 6 Principal Deed dated 3.9.2004 with the State Government of Sarawak (the 4th appellant) and PHSB (2nd appellant). For the development of the plots of land, the 2nd appellant, as trustee of the Consenting NCR Owners, entered into a Joint Venture Agreement (the JVA) dated 3.9.2004 with a joint venture company i.e. the 3rd appellant incorporated by the 2nd appellant and Tetangga Akrab Sdn Bhd (TASB). TASB was not a party to this suit. [4] The area for development, in short, was a State Government sanctioned development project, described as “The Sungai Tenggang NCR Land Development Area (hereinafter referred to as the Development Area) declared vide the Land Custody and Development Authority Order 2006 dated 8.8.2006 (“the Development Order”). An oil palm plantation project was also undertaken, established and on-going in that Development Area. [5] The Development Order was made under section 11(1) of the Land Custody and Development Authority Ordinance (No. 4 of 1981) (“LCDA Ordinance”), and duly 7 published in the Sarawak Gazette under SWK LN. 79 dated 14.9.2006. [6] It must be borne in mind that the respondents were neither parties to the Principal Deed nor the JVA. [7] In a nutshell, in the Statement of Claim, the respondents claimed that they were the original title holders or NCR owners of the lands within the Development Area and had never surrendered, abandoned, lost or waived their NCR rights. There was also no prior or proper extinguishment of their rights according to law and no provision was made for any compensation to them. The respondents also alleged that the Principal Deed, the JVA and the activities on their NCR land were invalid. [8] The respondents in their amended Statement of Claim prayed inter alia, for a declaration that they were the original title holders or were the NCR land owners of the Development Area, that their Articles 5 and 3 rights under the Federal Constitution had been violated, and that the 8 actions of the 1st, 2nd and 3rd appellants were ultra vires the Sarawak Land Code (in short the JVA with non-natives and the Principal Deed were void). [9] In their defence, the appellants denied that the oil palm plantation project undertaken, established and on- going in the Development Area, had encroached the respondents’ alleged NCR land. The appellants put the respondents to strict proof of their alleged NCR rights. [10] Before us, the appellants submitted that the respondents had no cause of action, as the NCR lands claimed by them were in fact unsurveyed State land; that the alleged respondents’ plots of land were virgin forest. The effect of this submission is that the appellants denied the respondents’ ownership of any NCR land in the Development Area. In sharp contrast, the Consenting NCR landowners’ plots of land were within the Development Area, and had been duly surveyed, verified and properly documented. 9 [11] Furthermore, this government sanctioned project was lawful, as apart from the development being carried out with the sanction and approval of the 4th appellant and the Consenting NCR Owners, the respondents also knew of it, and thus denied of any violation of their rights under the Federal Constitution. [12] The appellants submitted in the course of the appeal that the NCR lands were immediately amalgamated, and that titles were to be issued in the name of the joint venture company, without the participating landowners having any legal and/or beneficial interest on the titles. [13] After a full trial, the High Court allowed this respondents’ claim and ruled against the appellants on 18.2.2011. The High Court held that the respondents were entitled to their claim to lands under NCR in the Development Area, that the destruction of the respondents' NCR lands by the appellants was unlawful, and accordingly ordered damages to be assessed by the Deputy Registrar. The appellants were ordered to surrender vacant possession 10 of the respondents’ NCR plots of land. The appellants were also restrained from entering, occupying, clearing or in any way carrying out works in the respondents’ NCR lands. [14] Being dissatisfied with the decision of the High Court, the appellants (1st, 2nd and 3rd appellants) appealed to the Court of Appeal vide Civil Appeal No. Q-01-(IM)-131- 11. The 4th appellant filed a separate appeal vide Civil Appeal No. Q-01-165-2011. [15] At the Court of Appeal, the Consenting NCR Owners and participants of the Development Area (henceforth to be referred to as the interveners), totaling 361 people applied to intervene in the appeals. On 21.10.2011 the Court of Appeal granted leave to the interveners to participate in the appeals. The respondents did not appeal against the order of the Court of Appeal granting leave to the interveners. [16] The interveners thereafter filed civil appeal No. 01(f)- 8 & 9-02/2016(Q). Regardless of their late entry in the appeal, as the issues posed by them are similar to those 11 argued by the 1st, 2nd, 3rd and 4th appellants, the interveners shall also be referred collectively as the appellants (and only referred to as the interveners when the need arises). [17] On 29.12.2014 the Court of Appeal dismissed all appeals and affirmed the decision of the High Court. The Court of Appeal held in a nutshell that the respondents had been deprived of their NCR lands, which were sources of their livelihood, and had lost the rights to their property in direct violation of the Federal Constitution. [18] The Court of Appeal opined that the JVA was also in contravention of section 8 of the Sarawak Land Code, as neither the 2nd nor 3rd appellants were declared natives, and that things invalid from the beginning could not be made valid by any subsequent act. That being so, the respondents were entitled to their claim to lands under NCR in the Development Areas. The Court of Appeal held that there was absolutely no legal basis for the 1st, 2nd and 3rd appellants to remain on the respondents’ land and thus must vacate the same. 12 [19] Dissatisfied with the decision of the Court of Appeal, the appellants successfully applied for leave, on 14.1.2016, on the following questions of law: Civil Appeals No. 01(f)-5 & 6-02/2016(Q) (a) Whether a Court is entitled to make an Order for delivery of vacant possession to some of the claimants of native customary land which is within a Development Area declared by the Minister under section 11 of the Land Custody and Development Authority Ordinance (No.4/81)( the Ordinance) to be developed thereunder. (b) Where a native, whose native customary land is within a Development Area declared under Section 11 of the Ordinance, but does not agree with the scheme of development thereunder, the proper order and/or legal remedy to be granted to him by the Court, ought to be a declaration that the Minister should acquire his Native Customary Rights under 13 Section 15 of the Ordinance or exclude his land from the Development Area under section 11(4)? (c) Whether section 11(4) of the Ordinance is in breach of Article 13 of the Federal Constitution? (d) Whether section 72 of the Courts of Judicature Act, 1964 could apply to a case where irregularity in the Judgment or proceedings in the lower Court arose from the trial Judge making injudicious, disparaging and offensive remarks against witnesses of one party and consequently, his impartiality has been raised as an issue before the Court of Appeal? (e) Whether a Joint Venture Agreement to develop native customary land within a Development Area declared under Section 11 of the Ordinance is invalid and/or remains invalid due to contravention of Section 8 of Sarawak Land Code if : 14 i. one of the parties thereto was a non-native at the date of such agreement; but ii. subsequently, declared or deemed a "native" pursuant to Section 9(1) (d) of the Land Code? and (f) Does a plaintiff claiming to nullify a trust deed or a joint venture agreement for the development of native customary land within a Development Area declared under section 11 of the Land Custody Development Authority Ordinance (no. 4/81) have to prove that he has native customary law within the Development Area? Civil Appeals No. 01(f)-8 & 9-02/2016(Q) 1. Whether the Court can ignore the fact that the Applicants/ Interveners are the landowners whose NCR land has been consolidated and declared a development area. 15 2. Whether the Court had acted in breach of the rules of natural justice when ordering vacant possession of the said NCR land. 3. Whether the Court can make a restraining Order against the 1st Appellant/ Defendant who are Trustees of the Applicants/ Interveners herein whose NCR land had been duly verified within the said Development Area as declared by the said Development Order the validity of which has never been expressly adjudicated upon. 4. Whether the Court can order the 1st Appellant/ Defendant as the agent of the State Government of Sarawak to deliver possession of the said Development Area to the Plaintiffs/ Respondents. [20] A perusal of the Notices of Appeal to the Federal Court filed by the appellants show that they were appeals against the entire decision of the Court of Appeal for having 16 affirmed the High Court’s decision in respect of the respondents’ claim. [21] The crux of the questions relates to the issues of whether the respondents’ alleged NCR lands were within the Development Area and whether the declaratory reliefs granted by the High Court were proper and legal having regard to sections 11(4) and 15 of the LCDA Ordinance. Furthermore, the leave questions require us to decide whether the Principal Deed and the JVA had violated section 8 of the Sarawak Land Code. The appellants’ submission [22] The appellants submitted that there was no factual basis to support the grant of declaration by the High Court as the respondents did not possess any NCR land within the Development Area. Further, the LCDA Ordinance makes provisions for the Minister to exclude the respondents’ NCR land from the Development Area if any, or to acquire the same with payment of compensation so as to enable the 17 development of the Development Area to continue for the benefit of the interveners. [23] The appellants also submitted that the onus was on the respondents to discharge the evidential burden to support their claims that they had NCR over their claimed lands within the Development Area. The appellants submitted that no cogent evidence was adduced by the respondents who thus failed to establish their case, let alone justified the granting of the declarations sought by them. [24] It was not denied by the appellants that Exhibit D75 (a map) showed that certain portions of the area claimed by the respondents of their NCR lands were situated within or overlapped with some portion of the Development Area, a concession arrived at after the Development Area was surveyed, and the individual lots identified and verified by the area headmen. Regardless of the concession, the appellants argued that none of the respondents succeeded in proving that they had any NCR land within the 18 Development Area except for the 1st respondent. In short, mere assertion did not amount to proof of their NCR over the Development Area. [25] It was also argued that the High Court’s order granting vacant possession to the respondents pre-empted or impeded the exercise of the statutory powers conferred on the Minister under sections 11(4), 15(2), 15(3), 15(4), 15(5) and 15(6) of the LCDA Ordinance. The appellants argued that section 11(4) of the LCDA Ordinance does not involve extinguishment of the respondents’ NCR land but rather, the alteration of the Development Area so that the respondents could be excluded therefrom for the benefit of the interveners. [26] As regards the illegality of the Principal Deed and the JVA, the appellants submitted that the question argued by the respondents of whether the JVA was invalid, was due to the fact that the 2nd and 3rd appellants (PHSB and TAPSB respectively) were non-natives. The appellants denied this argument and replied that they were declared and deemed 19 “native” pursuant to section 9(1) (d) of the Sarawak Land Code. Hence, no contravention of section 8 of the Land Code took place. The respondents’ submission [27] In reply, learned counsel for the respondents argued that the appellants were well aware that the establishment of the respondents’ NCR land had been proved during the trial at the High Court, and also accepted by the Court of Appeal. In short, finding of facts were made by both Courts. The respondents argued that the allegation of the appellants that their encroached area was outside the Development Area was baseless and untrue. [28] It was argued by the respondents that neither were they consulted nor had they given their consent during the implementation of the oil palm project. In fact they were ignored when they raised their objections to the destruction of their properties. 20 [29] On the issue of the validity of the Principal Deed and the JVA, the respondents argued that these documents, which purported to confer rights or privileges over the NCR lands on persons, companies or corporation who were not natives of Sarawak, were deemed illegal and void under section 8 of the Sarawak Land Code. This argument was in response to the argument submitted by the appellants earlier. [30] The respondents alleged that a breach of section 8 of the Sarawak Land Code was further compounded when on 6.1.2010, by a Deed of Agreement dated 6.1.2010, TASB transferred 60% of its shareholding in TAPSB (the JV company) to Kim Loong Corporation Sdn Bhd, which was not a native of Sarawak. The JV company only became a native on 27.9.2007 three years after the oil palm project started. The respondents submitted that there was thus a contravention of the LCDA Ordinance. (Note: even though the Statement of Claim was filed on 3.3.2005 and amended on 21.6.2006, the respondents never re-amended their amended Statement of Claim to include the above transfer 21 of the 60% shareholding in TAPSB to Kim Loong. As parties are bound by their respective pleadings we refrain from delving into this issue.) [31] The respondents also challenged the locus of the interveners, suggesting that they lost all interest in the NCR lands in dispute when they signed the Principal Deed and the JVA, with the 1st, 2nd, 3rd and 4th appellants. By executing the documents, the interveners vested and/or assigned all their rights over the NCR lands to the 2nd appellant, who now is the beneficial owner and trustee of the NCR lands. The respondents submitted that the Court of Appeal thus erred in allowing the interveners to intervene. [32] We find this argument quite perplexing, as, if the Principal Deed and the JVA were allegedly invalid, surely the interveners could not have lost their rights? With no appeal having been filed by the respondents against the order of the Court of Appeal allowing the interveners to intervene, the respondents were thus prevented from raising this issue of locus before us. 22 Decision [33] The Sarawak Land Code does not abrogate or extinguish the pre-existing NCR which existed prior to 1 January 1958, or impose a total ban on future creation of native customary rights. The phrase “in accordance with the native customary law” in section 5(1) of the Sarawak Land Code is a clear restatement of the law that the laws of Sarawak recognize NCR that existed prior to 1 January 1958. [34] Section 5 of the Sarawak Land Code provides that until a document of title is issued, a native that has acquired NCR is deemed to be a licensee of the government. Under s.5(2) of the Sarawak Land Code, the underlying basis for the recognition of a particular NCR acquired lawfully is the occupation of and usage of land according to customary practices of the community or communities concerned. It was clarified in Sapiah Mahmud v. Superintendent of Lands and Surveys Samarahan Division & Ors [2009] 9 CLJ 567, applying the principles laid down in Nor Anak Nyawai & Ors v Borneo Pulp Plantation Sdn Bhd & javascript:DispAct=window.open('/Members/DisplayAct.aspx?CaseActCode=MY_QE_SOA_0000_0081&ActSectionNo=5.&SearchId=1fedcourtc','_DisplayAct','');DispAct.focus() javascript:DispCase=window.open('/Members/DisplayCase.aspx?CaseId=2856988161&SearchId=1fedcourtc','_DisplayCase','');DispCase.focus() javascript:DispCase=window.open('/Members/DisplayCase.aspx?CaseId=2856988161&SearchId=1fedcourtc','_DisplayCase','');DispCase.focus() javascript:DispCase=window.open('/Members/DisplayCase.aspx?CaseId=2856988161&SearchId=1fedcourtc','_DisplayCase','');DispCase.focus() 23 Ors [2001] 2 CLJ 769 that a claim under NCR to land is based on continuous occupation, though the occupation need not be actual occupation. Superintendent of Land and Surveys Miri Division & Anor v. Madeli Salleh [2007] 6 CLJ 509 FC affirmed that 'occupation' need not necessarily mean actual physical presence on the land. [35] As long as the native has control over the land through supervision and continual visitation, that would suffice (Director of Forest, Sarawak & Anor v. TR Sandah Tabau & Ors and Other Appeals [2017] 3 CLJ 1). [36] Under native custom, a native may abandon his NCR land or claim to the NCR land. A claimant who has acquired rights over the NCR land, but allowed without objection, the use of the land by others, is held to have abandoned any customary rights which he may have acquired either by himself or in any other manner over the land (Nyalong v. The Superintendent of Lands & Surveys 2nd Division, Simanggang [1967] 1 LNS 116; [1967] 2 MLJ 249). javascript:DispCase=window.open('/Members/DisplayCase.aspx?CaseId=1852911105&SearchId=1fedcourtc','_DisplayCase','');DispCase.focus() javascript:DispCase=window.open('/Members/DisplayCase.aspx?CaseId=1852911105&SearchId=1fedcourtc','_DisplayCase','');DispCase.focus() 24 [37] In order for the respondents here to successfully establish their alleged NCR, as described in their Statement of Claim, it was imperative for them to establish first that these NCR lands were within the Development Area or overlap it. [38] According to paragraph 4(a) of the amended Statement of Claim, the respondents pleaded that their NCR lands were located in the area delineated in red on the map annexed to the amended Statement of Claim, marked “B”. It is trite law that litigants, in this case the respondents, are bound by their pleadings, and without more the alleged NCR lands must be those shown in Map B. [39] It was the factual finding of the High Court that the respondents were entitled to their claim to NCR lands in the Development Area. As said above, this finding was also accepted by the Court of Appeal. [40] As we needed to arrive at our own finding, we sifted the evidence adduced before the trial court to decide 25 whether the respondents had discharged the burden of proof that their lands were included in the Development Area, and also succeeded in establishing their NCR claims. PW8 (Nicholas Mujah Anak Asun), who gave evidence on behalf of the respondents, identified the claims of the respondents in Map B (P3). He testified that he was the person who prepared P3. In the course of the hearing he admitted being a social worker and had P3 prepared only after a request was made by the respondents. [41] The appellants tendered an alternative map i.e. D75, (prepared by a neutral licensed map maker). It revealed that certain portions of the respondents’ claimed NCR lands were indeed located within the Development Area. The Development Area was surveyed, and the individual lots within it were identified and verified by the map maker. This map which was of great help to the interveners’ claim over their respective NCR lands, as it confirmed their ownership, but unfortunately failed to establish the 360 respondents as owners of any NCR land within that area. 26 [42] From the evidence adduced by both parties, we are satisfied that the appellants had successfully established the interveners as verified owners of identifiable lots in the Development Area as shown in the enlarged map of D75, shaded in yellow. [43] The matter did not end there. It surfaced in the course of the hearing, as per the evidence of DW20 (Abdullah Chek), that there were in existence pockets of areas of unclaimed lots with no verified owners in the Development Area, as highlighted in D75 shaded in red. [44] Having sifted all the evidence, in particular with P3 being uncontroverted as regards the red area (hereinafter referred to as the red area in D75), which identifies the respondents’ claimed NCR lands to be on it, we are satisfied that the red area in D75, supposedly unclaimed and unverified, were plots of NCR land owned by some of the respondents. 27 [45] Even though the issue of the Development Order was never pleaded by the respondents, it is incumbent upon us to decide on its legality, as the substratum of the whole project in the Development Area is that Development Order dated 8.8.2006. [46] The Development Order was made pursuant to section 11(1) of the LCDA Ordinance, which reads: “11(1) Where it appears to the Minister … the Minister may by order in the Gazette declare such area of land (whether alienated land, unalienated land or Native Customary Land) to be a Development Area …” [47] The appellants in anticipation of this issue, in their written submission (para 2.1) also submitted that this Development Order was never challenged. Having considered the pleadings and the evidence we hold the view that the Development Order is valid. 28 [48] Section 11 of the LCDA Ordinance in short empowers the Minister to declare an area as a Development Area and determine its extent. Furthermore, under section 11(4) of the LCDA Ordinance the Minister may at any time by order in the Gazette alter, replace or extend any Development Area. The Minister thus may exclude or add land to an existing Development Area. [49] For purposes of this appeal, section 11 of the LCDA Ordinance cannot be read in isolation but read together with section 15(1) of the same Ordinance. It reads: “15(1) Where it is not possible to develop any land by arrangement or agreement with the owner, the Authority may, with the approval of the Minister, acquire such land by compulsory acquisition for purpose of carrying out any of its functions under this Ordinance.” [50] Section 15(6) of the LCDA Ordinance provides that compensation shall be payable by the Authority in respect of any land compulsorily acquired under sub-section (1). 29 Thus, section 15 of the LCDA Ordinance apart from providing for compulsory acquisition, also provides a mechanism of payment of compensation to the landowners. [51] Nevertheless, it was alleged by the respondents that the allusion to section 11(4) of the LCDA was found to be in breach of Article 13 of the Federal Constitution by the Court of Appeal. For ease of reference we reproduce Article 13 of the Federal Constitution, and it reads as follows: “13. Rights to property (1) No person shall be deprived of property save in accordance with law. (2) No law shall provide for the compulsory acquisition or use of property without adequate compensation.” [52] In order to establish that a breach under Article 13 of the Federal Constitution has taken place, it must be shown that there was compulsory acquisition of the NCR lands without compensation, or was inadequate. Earlier at paragraph 44 we made a finding of fact that the red area in 30 D75 (coincidentally of the same colour as in the respondents’ amended Statement of Claim) is owned by some of the respondents, and subsequently acquired by compulsory acquisition for development. And it is a fact that the affected respondents were not compensated for the acquisition of those lots in the red area in D75. Since the respondents’ NCR lands in the red area in D75 were acquired compulsorily by the appellants without any compensation, there clearly was a breach of their constitutional rights. That has to be righted. [53] In the circumstances of the case, with the red area in D75 having been compulsorily acquired under section 15 (1) of the LCDA Ordinance for development, and the respondents remaining uncompensated, we hold the view that it is statutorily required that we order compensation be paid to the affected respondents pursuant to section 15(6) of the LCDA Ordinance (see Bisi Jinggot v Superintendant of Lands and Surveys, Kuching Division & Ors [2013] 6 CLJ 805). For purposes of identifying and compensating the rightful NCR owner, an inquiry needs to be held by the authority concerned. 31 [54] This solution of compensating the rightful NCR owner not only allows the development of the palm oil project to continue uninterrupted but compensates the respondents, and thus circumvent any breach of Article 13 of the Federal Constitution. The compensation satisfies Article 13’s demand that no one is to be deprived of property unless in accordance with law, and such law having provision for adequate compensation in the event of any property being compulsorily acquired. [55] Any usurpation of the function of the Minister is also conveniently avoided, unlike the order of the High Court which ordered delivery of vacant possession to the respondents despite the advance stage of the oil palm project. [56] We now discuss the legality of the JVA and the Principal Deed. As mentioned at paragraphs 29 and 30 above, the respondents ventilated that these two documents 32 were invalid as the 2nd and 3rd appellants were non-natives. In short section 8 of the Sarawak Land Code was violated. [57] Section 8 of the Sarawak Land Code states: “8. Save as provided in section 9 – (a) A person who is not a native of Sarawak may not acquire any rights or privileges whatever over any Native Area Land, Native Customary Land or Interior Area land; …” [58] Section 9 of the same Code states: “9. Acquisition of land by non-natives (1) Section 8 shall not be deemed to prohibit the acquisition by any non-native of any land to which the provisions of that section apply, or for any rights or interest in or over such land – (a) … (d) where such non-native has been deemed to be a native, by the Majlis Mesyuarat Kerajaan Negeri, by 33 notification in the Gazette, in respect of any category of dealing over Native Area Land as stipulated in the notification” [59] The evidence showed that pursuant to section 9(1) (d) of the Sarawak Land Code, by notifications in the Gazette, the 2nd appellant was deemed to be native with effect from 1.12.1995 whilst the 3rd appellant was deemed to be native with effect from 3.9.2004. We hold that the High Court judge had misdirected himself when he held that the JVA and the Principal Deed could not have valid retrospective effect. We find support in the case of Boustead Plantations Bhd & Anor v Kadam Embuyang & Ors and other appeals [2015] 1 MLJ 546 where the Court of Appeal (at pages 65-66) opined that: “[31] We were in agreement with the submissions of learned counsel Datuk JC Fong for the State that the gazetted Directions (D2 and D3) in so far as it deemed PHSB and JVC as natives had validity 34 retrospectively. Firstly, the prohibitions vide s. 8 were expressly subject to the provisions of s. 9 and, secondly, there was nothing in s. 9(1)(d) which stipulated that the notification thereunder was only to have effect prospectively.” [60] With the remedial action taken, and the 2nd and 3rd appellants being declared and deemed “natives” retrospectively, the High Court was in error when it decided that the JVA and the Principal Deed were in contravention of section 8 of the Sarawak Land Code. In short, we find the JVA and the Principal Deed valid. [61] We lastly undertake a brief discussion of the tenor and language used by the High Court judge in his grounds of judgment and decide whether his ‘injudicious, disparaging and offensive remarks fell foul of section 72 of the CJA 1964. This provision reads: “72. No judgment or order of the High Court, or of any Judge, shall be reversed or 35 substantially varied on appeal, nor a new trial ordered by the Court of Appeal, on account of any error, defect, or irregularity, whether in the decision or otherwise not affecting the merits or the jurisdiction of the Court.” [62] It is beyond dispute that the High Court judge had descended into the arena as reflected in the abrasive words used in his grounds of judgment against witnesses which raised an issue of probable impartiality. Such an inclination affects the evaluation of the evidence before the trial judge, his view on the credibility of the witnesses, and generally affects the dignity of the Court. In the circumstances of the case, even though the unnecessarily harsh words do not fall under the phrase “error, defect or irregularity”, it is perhaps not inappropriate to remind judges to refrain from descending into the arena for fear of clouding his eventual judgment. [63] In the circumstances of the case, and for the aforesaid reasons, we therefore allow the appellants’ appeals 36 without costs. We hereby set aside the decisions of the High Court and the Court of Appeal and substitute their orders in the following terms: 1. the Development Order, Principal Deed and the JVA are found to be valid; 2. the red area in D75 is NCR land owned by some of the respondents; 3. the Authorities are to regularize the compulsory acquisition of the NCR lands from the rightful owners in the red area in D75, if necessary; 4. an enquiry is to be held in order to identify the rightful NCR owners in the red area in D75; and 5. the rightful owners of the red area in D75 are to be compensated by the Authorities pursuant to section 15 of the LCDA Ordinance. 37 64. Due to the nature of the appeals, and the way we have dealt with the matter before us, we find no necessity to answer the questions. Dated this 7th day of November 2017 Signed SURIYADI HALIM OMAR Federal Court Judge Malaysia For the Appellants/1st, 2nd, 3rd & 4th Defendants: Datuk J.C Fong State Legal Counsel Jabatan Peguam Besar Negeri Sarawak Sim Hui Chuang Lim Lip Sze Messrs. Reddi & Co. For the Appellants/Interveners: Mr. Lim Swee Huat Messrs. S.H. Lim & Co. Advocates For the Respondents: Mr. Dominique Ng Messrs. Dominique Ng & Associates	36,626	Tika 2.6.0
M-02(NCVC)(W)-1142-06/2016	PERAYU 1. SHA KANNAN 2. KAMBARAMAN SHANMUKHAM RESPONDEN 1. ARUNACHALAM A/L VENKATACHALAM 2. VENKATACHALAM @ VENGA A/L KUPPAN	Contract — Act done to benefit another — Beneficiaries of the estate of the late father and grandfather had borrowed monies from the Respondents — Whether Appellants had proved their case premised on fraud and misrepresentation — Whether the causes of action of the Appellants were timed barred — What were the intentions of the parties when they executed the two Tamil documents — Contracts Act 1950, s 71; Limitation Act 1953	06/10/2017	YAA TAN SRI DATUK SERI PANGLIMA DAVID WONG DAK WAHKorumYAA TAN SRI DATUK SERI PANGLIMA DAVID WONG DAK WAHYA DATO' UMI KALTHUM BINTI ABDUL MAJIDYA DATO' SRI HASNAH DATO' MOHAMMED HASHIM	https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=08d25e40-8e89-4e04-8a7d-55d62136ede0&Inline=true	DALAM MAHKAMAH RAYUAN DI MALAYSIA (BINDANG KUASA RAYUAN) RAYUAN SIVIL NO: M-02(NCVC)(W)-1142-06/2016 1. SHA KANNAN 2. KAMBARAMAN SHANMUKHAM ...PERAYU – PERAYU DAN 1. ARUNACHALAM A/L VENKATACHALAM 2. VENKATACHALAM @ VENGA A/L KUPPAN juga dikenali sebagai RM. KP. Venkatachalam (K/P No 290620-71-5233) …RESPONDENT – RESPONDENT (DALAM MAHKAMAH TINGGI MALAYA DI MELAKA, GUAMAN NO: 22NCVC -10-02/2015) 1. SHA KANNAN 2. KAMBARAMAN SHANMUKHAM ...PLAINTIF-PLAINTIF DAN 1. ARUNACHALAM A/L VENKATACHALAM 2. VENKATACHALAM @ VENGA A/L KUPPAN juga dikenali sebagai RM. KP. Venkatachalam (K/P No 290620-71-5233) ... DEFENDAN – DEFENDAN HEARD TOGETHER WITH RAYUAN SIVIL NO. M-02(NCVC)(W)-1143-06/2016 BETWEEN SANKARANARAYANAN PALANIAYAPPA CHETTIAR …PERAYU AND 1. ARUNACHALAM A/L VENKATACHALAM 2. VENKATACHALAM @ VENGA A/L KUPPAN JUGA DIKENALI SEBAGAI RM. KP. VENKATACHALAM (K/P NO 290620-71-5233) …RESPONDEN – RESPONDEN (DALAM MAHKAMAH TINGGI DI MAHKAMAH TINGGI MALAYA DI MELAKA GUAMAN NO: 22NCVC -11-02/2015) ANTARA SANKARANARAYANAN PALANIYAPPA CHETTIAR …PLAINTIF DAN 1. ARUNACHALAM A/L VENKATACHALAM 2. VENKATACHALAM @ VENGA A/L KUPPAN JUGA DIKENALI SEBAGAI RM. KP. VENKATACHALAM (K/P NO 290620-71-5233) …DEFENDAN - DEFENDAN CORAM: DAVID WONG DAK WAH, JCA UMI KALTHUM BINTI ABDUL MAJID, JCA HASNAH BINTI DATO’ MOHAMMED HASHIM, JCA JUDGMENT OF THE COURT Introduction: 1. Before us are two appeals, namely Rayuan Sivil NO: M-02(NCVC)(W)-1142-06/2016 (Appeal 1142) and Rayuan Sivil NO. M-02(NCVC)(W)-1143-06/2016 (Appeal 1143). 2. In both appeals, the genesis of the disputes was two Tamil documents executed by various parties. For the Plaintiffs/ Appellants their main contention was that they can launch their causes of action premised on the coercion and misrepresentation exerted on the signatories of the aforesaid Tamil documents. For the Defendants/Respondents their defence, inter alia, in substance was that the causes of action (if any) accrued in 1998 and since the suits were commenced only in 2015, the suits were blantantly caught by the Limitation Act 1953. 3. The learned trial Judge heard both cases together and sustained the contentions of the Respondents and accordingly dismissed the claims of the Appellants resulting in the two appeals before us. 4. We heard the appeals and after due consideration to respective submissions of counsel, we dismissed the appeals and now give our reasons. Background facts: 5. The Appellants (Sha Kannan and Kambaraman) in Appeal 1142 are the executors of the estate of PL Shanmukham who was their father and all are Indian nationals. PL Shanmukham (the late father) is the son of the deceased Palaniappa Chettiar. 6. The Appellant (Sankaranarayanan Palaniayappa Chettiar) in Appeal 1143 is the surviving son of the deceased Palaniappa Chettier (the late grandfather) and the executor of the estate of the aforesaid. 7. The late grandfather owned properties in Malaysia with some owned as co proprietors with his sons. 8. The 1st Respondent is an Advocate and Solicitor practising under the name and style of Sault & Co in Melaka while the 2nd Respondent (since deceased) was the father of the 1st Respondent and was actively involved in the day to day running of the aforesaid firm. 9. The 2nd Respondent was a good friend of the late father and hence the firm of Sault & Co was engaged to handle the estate of the late grandfather. 10. It is undisputed that the beneficiaries of the estate of the late father and grandfather had borrowed monies from the Respondents and these borrowings are evidenced in two Tamil documents. In respect of Appeal 1142, the translated English Version is in Ikatan Teras Perayu – page 16 – 23. As for Appeal 1143, the translated English Version is in Ikatan Teras Perayu – page 16 – 23. There is no dispute as to the correctness or accuracy of the translations. 11. In Appeal 1142, the Tamil document is typewritten document and signed by the late father and witnessed by the Appellants themselves. In Appeal 1143, the Tamil document is a handwritten document authored by the Appellant himself. 12. The two Tamil documents contain details of adjustments of monies and how those owed monies are to be repaid by the beneficiaries. It was the contention of the Respondents that the monies owed were to be offset by the properties listed in the two Tamil documents. 13. Opposing the stand of the Respondents, the Appellants contended that the two Tamil documents were merely loan documents and the properties were merely securities to the loans which did not give any right to the Respondents to transfer those properties to themselves. Pleadings: 14. The Appellants’ claims in Appeal 1142 are set out in paragraph 21 of their statement of claim (Appeal 1142 appeal record – Jilid 1 Bahagian A page 20) as follows: (a) An order that the 1st Respondent return all the original titles of all the immovable assets of the deceased of the Appellants. (b) An order that the 1st Respondent return all the blank transfer forms executed in escrow by the deceased and in his possession to the Appellants. (c) A declaration that the transfer of the property comprised Geran Nos 21562, 21563, 21564, 21565, 21566 and 42436 bagi Lot No 932, 933, 934, 935, 936 and 1150 situated in Seksyen 3, Bandar George Town, Negeri Pulau Pinang (Ayer Hitam Property) to the extent of 1/14 share of the deceased is void and illegal and an order directing the Pendaftar Hakmilik Tanah Pulau Pinang or any relevant authorised authority to effect the said cancellation and restore the deceased as the rightful owner. 15. The Appellant’s claims in Appeal 1143 are set out in paragraph 19 of the statement of claim (Appeal 1143 appeal record – Jilid 1 Bahagian A page 24) as follows: (a) An order that the 1st Respondent return all the original titles of all the immovable assets of the deceased of the Appellants. (b) An order that the 1st Respondent return all the blank transfer forms executed in escrow by the deceased and in his possession to the Appellants. (c) A declaration that the transfer of the property comprised Geran Nos 21562, 21563, 21564, 21565, 21566 and 42436 bagi Lot No 932, 933, 934, 935, 936 and 1150 situated in Seksyen 3, Bandar George Town, Negeri Pulau Pinang (Ayer Hitam Property) to the extent of 1/14 share of the deceased is void and illegal and an order directing the Pendaftar Hakmilik Tanah Pulau Pinang or any relevant authorised authority to effect the said cancellation and restore the deceased as the rightful owner. 16. One can note here the claims in both appeals are identical. 17. The substance of the defence of the Respondents for Appeal 1142 are as set out in paragraphs 10 (1) to 10(16) (Appeal 1142 appeal record – Jilid 1 Bahagian A page 53) and the relevant paragraphs state as follows: 18. The Respondents’ defence for Appeal 1143 are as set out paragraph 9 (Appeal 1143 appeal record – Jilid 1 Bahagian A page 45) and the relevant sub paragraphs state as follows: 19. The Appellants in Appeal 1142 in their reply set out in paragraph 15 (Appeal 1142 appeal record – Jilid 1 Bahagian A page 67) states as follows: The Plaintiffs refer to paragraph 10(14) and verily believe and state that the document in Tamil was obtained by coercion and misrepresentation that it was only a security document for the loan and as such cannot be treated as an valid agreement/admission for sale. 20. The Appellants in Appeal 1143 in their reply set out in paragraph 15 (Appeal 1143 appeal record – Jilid 1 Bahagian A page 58) states as follows: The Plaintiff refers to paragraph 9(14) and verily believes that the said document in Tamil was obtained by coercion and misrepresentation and that the said document was only a security document for the loans and the said document cannot be construed as a valid sale agreement/admission. High Court decision: 21. This was how the learned Judge dealt with the allegation of fraud and misrepresentation: 6. Setelah mempertimbangkan keterangan yang dikemukakan, lisan dan dokumentar serta fakta-fakta yang dipersetujui, dan penghujahan kedua-dua pihak, saya memutuskan bahawa plaintif-plaintif telah gagal, atas imbangan kebarangkalian, untuk membuktikan dakwaan dan tuntutan mereka terhadap defendan-defendan. Saya dapati plaintif-plaintif, dalam kedua-dua kes, telah gagal untuk membuktikan, atas imbangan kebarangkalian, adanya penipuan dan frod dilakukan oleh defendan-defendan sepertimana yang didakwa. Saya catatkan bahawa semua dokumen bertulisan Tamil dan surat cara yang berkaitan dengannya telah dibuat dan disaksikan oleh pihak plaintif sendiri terutamanya si mati bapa. Kesemua saksi plaintif yang dipanggil di mahkamah tidak mempunyai pengetahuan terus atau dapat menunjukkan bagaimana dan di mana perlakuan frod, penipuan atau pengaruh tidak wajar tersebut. Kebanyakan keterangan yang diberikan merupakan keterangan dengar cakap dan secara am sahaja. Fakta perlantikan seorang yang bernama Aliman Musri, dalam kes yang berlainan, dan penafian perlantikan peguam Yap Koon Roy semata, tidak mencukupi untuk membawa ke satu kesimpulan kemungkinan adanya frod dilakukan. Hakikat adanya dokumen bertulisan Tamil (oleh pihak plaintif sendiri) dan perjanjian jual beli bertarikh 3.11.1997 berkenaan hartanah Ayer Hitam serta disokong oleh fakta persetujuan (sepertimana dinyatakan di atas) bahawa adanya pinjaman daripada dan melalui defendan-defendan dan pindah milik hartanah Ayer Hitam tersebut (ms 117: Ikatan B), dengan tersendirinya mematahkan dakwaan ini. Dalam hal ini, saya bersetuju dengan penghujahan peguam defendan. 22. On the issue of limitation pleaded by the Respondents, the learned Judge found as follows: 8. Saya juga berpendapat pembelaan berkenaan dengan tindakan plaintif-plaintif dalam kedua-dua guaman tersebut telah dihalang oleh had masa (setelah lebih 17 tahun berlalu); dan, mereka juga diestop daripada mengambil tindakan ini sepertimana yang dihujahkan oleh peguam defendan. Saya dapati transaksi yang dicabar berlaku pada tahun 1997 dan 1998 terutama inter alia yang berkaitan dengan perjanjian jual beli bertarikh 3.11.1997 (ms 98: Ikatan B), dan urus niaga yang berkaitan dengan dokumen bertulisan Tamil serta surat-menyurat yang berkaitan dengannya (seperti ms 111 et seq: Ikatan B), seharusnya diambil tindakan dalam masa yang dibenarkan dalam Akta Had Masa 1985 setelah plaintif meminta berkali-kali penjelasan daripada defendan berkenaan urus niaga tersebut dan tidak mendapat apa-apa respons daripada mereka. Mereka seharusnya mengambil tindakan dalam masa yang dibenarkan daripada tarikh timbulnya kausa tindakan atas kegagalan memberi respons tersebut dan bukan menunggu sehingga 17/18 tahun berlalu. Dalam keadaan ini, saya berpendapat tindakan mereka telah terhalang oleh had masa. Our grounds of decision: 23. After having heard submissions from respective counsel and perused the pleadings of respective parties we formed the view that the determinative issues before us were these: 1. Whether the Appellants had proved their case premised on fraud and misrepresentation? 2. Whether the causes of action of the Appellants were timed barred by the Limitation Act 1953? 3. What were the intentions of the parties when they executed the two Tamil documents? Issue 1 – Have the Appellants discharged their burden of proof? 24. The burden of proof is always on the party who asserts the affirmative. Terrel Ag CJ in the much-quoted case of Selvaduray v Chinniah [1939] MLJ 253, at page 254, said as follows: “The burden of proof under section 102 of the Evidence Enactment is upon the person who would fail if no evidence at all were given on either side, and accordingly the Plaintiff must establish his case. If he fails to do so it will not avail him to turn around and say that the Defendant has not established his. The Defendant can say ‘it is wholly immaterial whether I prove my case or not. You have not proved yours’ ( see the Judgment of the Privy Council in Raja Chandranath Roy v Ramjai Mazumdar 6 bengal Law Reports, page 303).” 25. In the recent case of U Television Sdn Bhd and Tan Sri Dato Seri Vincent Tan Chee Yioun v Comintel Sdn Bhd Civil Appeal No: 02(f)-12-03/2016 (W), the Federal Court made the following observations on what the “burden of proof” entails: 35. On the meaning and application of the term “burden of proof” section 101 of the Evidence Act 1950 [“the Act”] states that it is the burden to establish a case which rests throughout on the party who assert the affirmative of the issue. The “burden of proof” in section 102 of the Act is the burden to adduce evidence, to make out or rebut the claim. The “burden of proof” in section 102 of the Act shifts from one side to the other according to the weight of the evidence. 26. With the aforesaid principle of law at the foremost of our minds, we examined what had transpired at the trial. In Appeal 1142, it was not disputed that both the Appellants were present at the trial and only the 1st Appellant took the stand and gave testimony. When cross-examined, the 1st Appellant conceded that he had no personal knowledge of the transactions fashioned out by his late father and it was only his late father who knew what really transpired. By this very concession, the law is quite clear and that is those evidence were at best hearsay evidence which in law has no evidential value. Lord Normand in Teper v Are [1952] AC 480, 486 explained the value of hearsay evidence in this way: “The rule against the admission of hearsay evidence is fundamental. It is not the best evidence, and it is not delivered on oath. The truthfulness and accuracy of the person whose words are spoken by another witness cannot be tested by cross-examination and the light which his demeanour would throw on his testimony is lost.” 27. In Appeal 1143, it was also not disputed that the Appellant did not take the stand but instead sent his grandson to tender a statement sworn before a notary public in India. His reason for his absence was that he had a medical issue but no evidence was produced to prove that medical impediment. Again, when cross-examined, the grandson witness conceded that he had no personal knowledge of the transactions fashioned by his grandfather. Again, that concession in fact did not enhance the case for the Appellant. On the contrary, the Appellant had failed miserably in discharging his burden of proof. 28. In the circumstances, we were in full agreement with the learned Judge when he found that the Appellants had failed badly in discharging their burden of proof. Issue 2 – Limitation: 29. The relevant factual matrix here is this. The two Tamil documents and the memorandum of transfers were signed in 1997 and 1998 respectively. The Limitation Act 1953 prescribes that a period of six years to commence any legal suit to challenge the validity of the aforesaid documents. In the cases at hand, the legal actions were commenced some 17 to 18 years later. 30. The response of the Appellants to this plea of limitation was that they did not discover the fraudulent transfers until recently. Here the claims were premised on coercion and misrepresentation on the signatories of the two Tamil documents. In respect of Appeal 1142, the signatory was the late father, PL Shanmukham while in Appeal 1143, the signatory was the Appellant himself. The acts of coercion and misrepresentation must have been exerted on those two persons who signed the two Tamil documents and allegedly by the 2nd Respondent. In both cases, there was not one iota of evidence to show such coercion or misrepresentation. Nor was there any evidence in writing that there were compliants by the late father and the Appellant in Appeal 1143. Even if there were verbal complaints as alleged in the pleadings, no action was taken by the late father and the Appellant in Appeal 1143. This inaction can only lead to one irrefutable conclusion and that is they knew what they had signed and they had no complaints on the two Tamil documents. 31. Further, it should be noted that if there were causes for complaints, they were personal to the people privy to the two Tamil documents. And when they did not take out any legal suit, limitation sets in and in this case there had been a delay of 17 to 18 years and no explanation by anyone privy to the transactions to explain why there was inaction. 32. Further we also found that the doctrine of laches to be applicable in view of the unexplained delay in launching the two legal actions. The doctrine of laches is based on the maxim that "equity aids the vigilant and not those who slumber on their rights." This is succinctly explained by Lord Selborne in the landmark case of Lindsay Petroleum Co v. Hurd 874 LRPC 221: But in every case if an argument against relief which otherwise would be just is founded on mere delay, that delay of course not amounting to a bar by any Statute of Limitations, the validity of that defence must be tried upon principles substantially equitable. Two circumstances always important in such cases are the length of the delay, and the nature of the acts done during the interval, which might affect either party and cause a balance of justice or injustice in taking the one course or the other so far as relates to the remedy. 33. In the Malaysian context, we have the case of Alfred Templeton & Ors v. Low Yat Holdings Bhd & Anor [1989] 2 MLJ 202 where Edgar Joseph Jr. J of the High Court of Penang held as follows: Laches is an equitable defence implying lapse of time and delay in prosecuting a claim. A court of equity refuses its aid to a stale demand where the plaintiff has slept upon his rights and acquiesced for a great length of time. He is then said to be barred by laches. In determining whether there has been such a delay as to amount to laches the court considers whether there has been acquiescence on the plaintiff's part and any change of position that has occurred on the part of the defendant. The doctrine of laches rests on the consideration that it is unjust to give a plaintiff a remedy where he has by his conduct done that which might fairly be regarded as equivalent to a waiver of it or where by his conduct and neglect he has, though not waiving the remedy, put the other party in a position in which it would not be reasonable to place him if the remedy were afterwards to be asserted: 14 Halsbury's Laws of England (3rd Ed) paras 1181, 1182. Laches has been succinctly described as 'inaction with one eye's open'. 34. In the present case, in our view there can be little doubt that the delay had highly prejudiced the Respondents’ position in properly defending the claim. A span of 18 years is a long time to say the least. Equity demands that litigants on both sides are not put in a position where one side is put in a unfavourable position by the delay of the other side. The Courts must ensure that the playing field is fair to all. 35. Finally on this aspect of the appeal, we agreed with the learned counsel for the Respondents where it was submitted that if there were in fact coercions or misrepresentations, they would be exerting coercions and misrepresentations on themselves as the signatories were witnessed by the Appellants themselves in Appeal 1142 while in Appeal 1143, the Appellant himself had written the Tamil document himself and signed the same. In anyone’s view, the contentions of the Appellants were without merits. Issue 3: Intentions of the two Tamil documents 36. The complaint here by the Appellants was that the two Tamil documents were only loan documents with the properties used as securities and cannot be treated as a licence to convey the relevant properties. 37. In constructing any contract, it is settled law that the Courts must give it a meaning reflective of the words employed by the contracting parties. The contract must also be read as a whole and interpreted in a manner consistent to the commercial reality. 38. Having perused the two Tamil documents in their entirety, we formed the view that they were much more than mere loan agreements. They contain in detail terms as to how the loan amounts were to be repaid to the lenders plus terms giving the Respondents the requisite powers to implement the terms contained therein. The intentions of the parties were amplified in two common clauses of the documents which read as follows: (9) In order to carry out the matters mentioned in this document, I agree to sign in and give all required document and otherwise render all co-operation. (10) As per the above accounts, all my credits and debits with you have been settled, I confirm that I have no claims, demands whatsoever now or in the future against you. 39. Giving the plain and natural meaning to the above two clauses in the context of the entirety of the two Tamil documents, there can be only one meaning ascribed to them and that is that the parties had intended to allow the Respondents to do what had been and being done to implement the terms of the two Tamil documents. To sustain the meaning ascribed to by the Appellants would be bluntly rewriting the terms of a written contract by this Court which obviously cannot be done under any circumstances. 40. Further we agreed with learned counsel for the Respondent in submitting that the defence of settled account should be sustained. The case of Bishun Chand v Girdhari Lal and another [1934] AIR PC 147 states, at page 151, left side, the nature of an account stated in the following manner: … “ the essence of an account stated is not the character of the items on one side or the other but the fact that there are cross items of account and that the parties mutually agree the several amounts of each and, by treating the items so agreed on the other side as discharging the items on the other side pro tanto, go on to agree that the balance is only payable. Such a transaction in truth bilateral, and creates a new debt and a new cause of action. There are mutual promises, the one side agreeing to accept the amount of the balance of the debt as true … and to pay it, the other side agreeing the entire debt as at a certain figure and then agreeing it has been discharged to such and such an extent, so that there will be complete satisfaction on payment of the agreed balance.. The account stated is accordingly binding, save that it may be reopened on any ground – for instance, fraud or mistake – which would justify setting aside any other agreement.” 41. The two Tamil documents read as a whole in our view equated to an account stated and the law is clear in that an account stated can only be reopened on the ground of fraud which in this case had not been proved at all. Conclusion: 42. This was a case where the Limitation Act 1953 had also applied with its full force. Not only that, the factual matrix also demanded us to apply the doctrine of laches for the simple reason that a long-time span had elapsed and to allow the Appellants to ventilate their grievances would be wholly unjust on the Respondents in defending the claims. And finally, the intentions of the parties were also clearly set out in writing and the Courts had no choice but to give effect to those clear intentions. 43. For reasons set out above, we dismissed the two appeals with costs in the sum of RM10,000.00 each subject to payment of allocatur fees. We also ordered that the respective deposits to be refunded to the Appellants. Dated: 6 October 2017 (DAVID WONG DAK WAH) Judge Court of Appeal Malaysia For the Appellants : C. Megalai With her KM. Nachammai Messrs. Meg, Nacha, ahir & Co. For the Respondents : Krishna Dallumah With him YH. Yong & Farhan Mirza Messrs. Sault Scott & Co. Notice: This copy of the Court's Reasons for Judgment is subject to formal revision. 1	24,004	Tika 2.6.0
M-02(NCVC)(W)-1142-06/2016	PERAYU 1. SHA KANNAN 2. KAMBARAMAN SHANMUKHAM RESPONDEN 1. ARUNACHALAM A/L VENKATACHALAM 2. VENKATACHALAM @ VENGA A/L KUPPAN	Contract — Act done to benefit another — Beneficiaries of the estate of the late father and grandfather had borrowed monies from the Respondents — Whether Appellants had proved their case premised on fraud and misrepresentation — Whether the causes of action of the Appellants were timed barred — What were the intentions of the parties when they executed the two Tamil documents — Contracts Act 1950, s 71; Limitation Act 1953	06/10/2017	YAA TAN SRI DATUK SERI PANGLIMA DAVID WONG DAK WAHKorumYAA TAN SRI DATUK SERI PANGLIMA DAVID WONG DAK WAHYA DATO' UMI KALTHUM BINTI ABDUL MAJIDYA DATO' SRI HASNAH DATO' MOHAMMED HASHIM	https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=08d25e40-8e89-4e04-8a7d-55d62136ede0&Inline=true	DALAM MAHKAMAH RAYUAN DI MALAYSIA (BINDANG KUASA RAYUAN) RAYUAN SIVIL NO: M-02(NCVC)(W)-1142-06/2016 1. SHA KANNAN 2. KAMBARAMAN SHANMUKHAM ...PERAYU – PERAYU DAN 1. ARUNACHALAM A/L VENKATACHALAM 2. VENKATACHALAM @ VENGA A/L KUPPAN juga dikenali sebagai RM. KP. Venkatachalam (K/P No 290620-71-5233) …RESPONDENT – RESPONDENT (DALAM MAHKAMAH TINGGI MALAYA DI MELAKA, GUAMAN NO: 22NCVC -10-02/2015) 1. SHA KANNAN 2. KAMBARAMAN SHANMUKHAM ...PLAINTIF-PLAINTIF DAN 1. ARUNACHALAM A/L VENKATACHALAM 2. VENKATACHALAM @ VENGA A/L KUPPAN juga dikenali sebagai RM. KP. Venkatachalam (K/P No 290620-71-5233) ... DEFENDAN – DEFENDAN HEARD TOGETHER WITH RAYUAN SIVIL NO. M-02(NCVC)(W)-1143-06/2016 BETWEEN SANKARANARAYANAN PALANIAYAPPA CHETTIAR …PERAYU AND 1. ARUNACHALAM A/L VENKATACHALAM 2. VENKATACHALAM @ VENGA A/L KUPPAN JUGA DIKENALI SEBAGAI RM. KP. VENKATACHALAM (K/P NO 290620-71-5233) …RESPONDEN – RESPONDEN (DALAM MAHKAMAH TINGGI DI MAHKAMAH TINGGI MALAYA DI MELAKA GUAMAN NO: 22NCVC -11-02/2015) ANTARA SANKARANARAYANAN PALANIYAPPA CHETTIAR …PLAINTIF DAN 1. ARUNACHALAM A/L VENKATACHALAM 2. VENKATACHALAM @ VENGA A/L KUPPAN JUGA DIKENALI SEBAGAI RM. KP. VENKATACHALAM (K/P NO 290620-71-5233) …DEFENDAN - DEFENDAN CORAM: DAVID WONG DAK WAH, JCA UMI KALTHUM BINTI ABDUL MAJID, JCA HASNAH BINTI DATO’ MOHAMMED HASHIM, JCA JUDGMENT OF THE COURT Introduction: 1. Before us are two appeals, namely Rayuan Sivil NO: M-02(NCVC)(W)-1142-06/2016 (Appeal 1142) and Rayuan Sivil NO. M-02(NCVC)(W)-1143-06/2016 (Appeal 1143). 2. In both appeals, the genesis of the disputes was two Tamil documents executed by various parties. For the Plaintiffs/ Appellants their main contention was that they can launch their causes of action premised on the coercion and misrepresentation exerted on the signatories of the aforesaid Tamil documents. For the Defendants/Respondents their defence, inter alia, in substance was that the causes of action (if any) accrued in 1998 and since the suits were commenced only in 2015, the suits were blantantly caught by the Limitation Act 1953. 3. The learned trial Judge heard both cases together and sustained the contentions of the Respondents and accordingly dismissed the claims of the Appellants resulting in the two appeals before us. 4. We heard the appeals and after due consideration to respective submissions of counsel, we dismissed the appeals and now give our reasons. Background facts: 5. The Appellants (Sha Kannan and Kambaraman) in Appeal 1142 are the executors of the estate of PL Shanmukham who was their father and all are Indian nationals. PL Shanmukham (the late father) is the son of the deceased Palaniappa Chettiar. 6. The Appellant (Sankaranarayanan Palaniayappa Chettiar) in Appeal 1143 is the surviving son of the deceased Palaniappa Chettier (the late grandfather) and the executor of the estate of the aforesaid. 7. The late grandfather owned properties in Malaysia with some owned as co proprietors with his sons. 8. The 1st Respondent is an Advocate and Solicitor practising under the name and style of Sault & Co in Melaka while the 2nd Respondent (since deceased) was the father of the 1st Respondent and was actively involved in the day to day running of the aforesaid firm. 9. The 2nd Respondent was a good friend of the late father and hence the firm of Sault & Co was engaged to handle the estate of the late grandfather. 10. It is undisputed that the beneficiaries of the estate of the late father and grandfather had borrowed monies from the Respondents and these borrowings are evidenced in two Tamil documents. In respect of Appeal 1142, the translated English Version is in Ikatan Teras Perayu – page 16 – 23. As for Appeal 1143, the translated English Version is in Ikatan Teras Perayu – page 16 – 23. There is no dispute as to the correctness or accuracy of the translations. 11. In Appeal 1142, the Tamil document is typewritten document and signed by the late father and witnessed by the Appellants themselves. In Appeal 1143, the Tamil document is a handwritten document authored by the Appellant himself. 12. The two Tamil documents contain details of adjustments of monies and how those owed monies are to be repaid by the beneficiaries. It was the contention of the Respondents that the monies owed were to be offset by the properties listed in the two Tamil documents. 13. Opposing the stand of the Respondents, the Appellants contended that the two Tamil documents were merely loan documents and the properties were merely securities to the loans which did not give any right to the Respondents to transfer those properties to themselves. Pleadings: 14. The Appellants’ claims in Appeal 1142 are set out in paragraph 21 of their statement of claim (Appeal 1142 appeal record – Jilid 1 Bahagian A page 20) as follows: (a) An order that the 1st Respondent return all the original titles of all the immovable assets of the deceased of the Appellants. (b) An order that the 1st Respondent return all the blank transfer forms executed in escrow by the deceased and in his possession to the Appellants. (c) A declaration that the transfer of the property comprised Geran Nos 21562, 21563, 21564, 21565, 21566 and 42436 bagi Lot No 932, 933, 934, 935, 936 and 1150 situated in Seksyen 3, Bandar George Town, Negeri Pulau Pinang (Ayer Hitam Property) to the extent of 1/14 share of the deceased is void and illegal and an order directing the Pendaftar Hakmilik Tanah Pulau Pinang or any relevant authorised authority to effect the said cancellation and restore the deceased as the rightful owner. 15. The Appellant’s claims in Appeal 1143 are set out in paragraph 19 of the statement of claim (Appeal 1143 appeal record – Jilid 1 Bahagian A page 24) as follows: (a) An order that the 1st Respondent return all the original titles of all the immovable assets of the deceased of the Appellants. (b) An order that the 1st Respondent return all the blank transfer forms executed in escrow by the deceased and in his possession to the Appellants. (c) A declaration that the transfer of the property comprised Geran Nos 21562, 21563, 21564, 21565, 21566 and 42436 bagi Lot No 932, 933, 934, 935, 936 and 1150 situated in Seksyen 3, Bandar George Town, Negeri Pulau Pinang (Ayer Hitam Property) to the extent of 1/14 share of the deceased is void and illegal and an order directing the Pendaftar Hakmilik Tanah Pulau Pinang or any relevant authorised authority to effect the said cancellation and restore the deceased as the rightful owner. 16. One can note here the claims in both appeals are identical. 17. The substance of the defence of the Respondents for Appeal 1142 are as set out in paragraphs 10 (1) to 10(16) (Appeal 1142 appeal record – Jilid 1 Bahagian A page 53) and the relevant paragraphs state as follows: 18. The Respondents’ defence for Appeal 1143 are as set out paragraph 9 (Appeal 1143 appeal record – Jilid 1 Bahagian A page 45) and the relevant sub paragraphs state as follows: 19. The Appellants in Appeal 1142 in their reply set out in paragraph 15 (Appeal 1142 appeal record – Jilid 1 Bahagian A page 67) states as follows: The Plaintiffs refer to paragraph 10(14) and verily believe and state that the document in Tamil was obtained by coercion and misrepresentation that it was only a security document for the loan and as such cannot be treated as an valid agreement/admission for sale. 20. The Appellants in Appeal 1143 in their reply set out in paragraph 15 (Appeal 1143 appeal record – Jilid 1 Bahagian A page 58) states as follows: The Plaintiff refers to paragraph 9(14) and verily believes that the said document in Tamil was obtained by coercion and misrepresentation and that the said document was only a security document for the loans and the said document cannot be construed as a valid sale agreement/admission. High Court decision: 21. This was how the learned Judge dealt with the allegation of fraud and misrepresentation: 6. Setelah mempertimbangkan keterangan yang dikemukakan, lisan dan dokumentar serta fakta-fakta yang dipersetujui, dan penghujahan kedua-dua pihak, saya memutuskan bahawa plaintif-plaintif telah gagal, atas imbangan kebarangkalian, untuk membuktikan dakwaan dan tuntutan mereka terhadap defendan-defendan. Saya dapati plaintif-plaintif, dalam kedua-dua kes, telah gagal untuk membuktikan, atas imbangan kebarangkalian, adanya penipuan dan frod dilakukan oleh defendan-defendan sepertimana yang didakwa. Saya catatkan bahawa semua dokumen bertulisan Tamil dan surat cara yang berkaitan dengannya telah dibuat dan disaksikan oleh pihak plaintif sendiri terutamanya si mati bapa. Kesemua saksi plaintif yang dipanggil di mahkamah tidak mempunyai pengetahuan terus atau dapat menunjukkan bagaimana dan di mana perlakuan frod, penipuan atau pengaruh tidak wajar tersebut. Kebanyakan keterangan yang diberikan merupakan keterangan dengar cakap dan secara am sahaja. Fakta perlantikan seorang yang bernama Aliman Musri, dalam kes yang berlainan, dan penafian perlantikan peguam Yap Koon Roy semata, tidak mencukupi untuk membawa ke satu kesimpulan kemungkinan adanya frod dilakukan. Hakikat adanya dokumen bertulisan Tamil (oleh pihak plaintif sendiri) dan perjanjian jual beli bertarikh 3.11.1997 berkenaan hartanah Ayer Hitam serta disokong oleh fakta persetujuan (sepertimana dinyatakan di atas) bahawa adanya pinjaman daripada dan melalui defendan-defendan dan pindah milik hartanah Ayer Hitam tersebut (ms 117: Ikatan B), dengan tersendirinya mematahkan dakwaan ini. Dalam hal ini, saya bersetuju dengan penghujahan peguam defendan. 22. On the issue of limitation pleaded by the Respondents, the learned Judge found as follows: 8. Saya juga berpendapat pembelaan berkenaan dengan tindakan plaintif-plaintif dalam kedua-dua guaman tersebut telah dihalang oleh had masa (setelah lebih 17 tahun berlalu); dan, mereka juga diestop daripada mengambil tindakan ini sepertimana yang dihujahkan oleh peguam defendan. Saya dapati transaksi yang dicabar berlaku pada tahun 1997 dan 1998 terutama inter alia yang berkaitan dengan perjanjian jual beli bertarikh 3.11.1997 (ms 98: Ikatan B), dan urus niaga yang berkaitan dengan dokumen bertulisan Tamil serta surat-menyurat yang berkaitan dengannya (seperti ms 111 et seq: Ikatan B), seharusnya diambil tindakan dalam masa yang dibenarkan dalam Akta Had Masa 1985 setelah plaintif meminta berkali-kali penjelasan daripada defendan berkenaan urus niaga tersebut dan tidak mendapat apa-apa respons daripada mereka. Mereka seharusnya mengambil tindakan dalam masa yang dibenarkan daripada tarikh timbulnya kausa tindakan atas kegagalan memberi respons tersebut dan bukan menunggu sehingga 17/18 tahun berlalu. Dalam keadaan ini, saya berpendapat tindakan mereka telah terhalang oleh had masa. Our grounds of decision: 23. After having heard submissions from respective counsel and perused the pleadings of respective parties we formed the view that the determinative issues before us were these: 1. Whether the Appellants had proved their case premised on fraud and misrepresentation? 2. Whether the causes of action of the Appellants were timed barred by the Limitation Act 1953? 3. What were the intentions of the parties when they executed the two Tamil documents? Issue 1 – Have the Appellants discharged their burden of proof? 24. The burden of proof is always on the party who asserts the affirmative. Terrel Ag CJ in the much-quoted case of Selvaduray v Chinniah [1939] MLJ 253, at page 254, said as follows: “The burden of proof under section 102 of the Evidence Enactment is upon the person who would fail if no evidence at all were given on either side, and accordingly the Plaintiff must establish his case. If he fails to do so it will not avail him to turn around and say that the Defendant has not established his. The Defendant can say ‘it is wholly immaterial whether I prove my case or not. You have not proved yours’ ( see the Judgment of the Privy Council in Raja Chandranath Roy v Ramjai Mazumdar 6 bengal Law Reports, page 303).” 25. In the recent case of U Television Sdn Bhd and Tan Sri Dato Seri Vincent Tan Chee Yioun v Comintel Sdn Bhd Civil Appeal No: 02(f)-12-03/2016 (W), the Federal Court made the following observations on what the “burden of proof” entails: 35. On the meaning and application of the term “burden of proof” section 101 of the Evidence Act 1950 [“the Act”] states that it is the burden to establish a case which rests throughout on the party who assert the affirmative of the issue. The “burden of proof” in section 102 of the Act is the burden to adduce evidence, to make out or rebut the claim. The “burden of proof” in section 102 of the Act shifts from one side to the other according to the weight of the evidence. 26. With the aforesaid principle of law at the foremost of our minds, we examined what had transpired at the trial. In Appeal 1142, it was not disputed that both the Appellants were present at the trial and only the 1st Appellant took the stand and gave testimony. When cross-examined, the 1st Appellant conceded that he had no personal knowledge of the transactions fashioned out by his late father and it was only his late father who knew what really transpired. By this very concession, the law is quite clear and that is those evidence were at best hearsay evidence which in law has no evidential value. Lord Normand in Teper v Are [1952] AC 480, 486 explained the value of hearsay evidence in this way: “The rule against the admission of hearsay evidence is fundamental. It is not the best evidence, and it is not delivered on oath. The truthfulness and accuracy of the person whose words are spoken by another witness cannot be tested by cross-examination and the light which his demeanour would throw on his testimony is lost.” 27. In Appeal 1143, it was also not disputed that the Appellant did not take the stand but instead sent his grandson to tender a statement sworn before a notary public in India. His reason for his absence was that he had a medical issue but no evidence was produced to prove that medical impediment. Again, when cross-examined, the grandson witness conceded that he had no personal knowledge of the transactions fashioned by his grandfather. Again, that concession in fact did not enhance the case for the Appellant. On the contrary, the Appellant had failed miserably in discharging his burden of proof. 28. In the circumstances, we were in full agreement with the learned Judge when he found that the Appellants had failed badly in discharging their burden of proof. Issue 2 – Limitation: 29. The relevant factual matrix here is this. The two Tamil documents and the memorandum of transfers were signed in 1997 and 1998 respectively. The Limitation Act 1953 prescribes that a period of six years to commence any legal suit to challenge the validity of the aforesaid documents. In the cases at hand, the legal actions were commenced some 17 to 18 years later. 30. The response of the Appellants to this plea of limitation was that they did not discover the fraudulent transfers until recently. Here the claims were premised on coercion and misrepresentation on the signatories of the two Tamil documents. In respect of Appeal 1142, the signatory was the late father, PL Shanmukham while in Appeal 1143, the signatory was the Appellant himself. The acts of coercion and misrepresentation must have been exerted on those two persons who signed the two Tamil documents and allegedly by the 2nd Respondent. In both cases, there was not one iota of evidence to show such coercion or misrepresentation. Nor was there any evidence in writing that there were compliants by the late father and the Appellant in Appeal 1143. Even if there were verbal complaints as alleged in the pleadings, no action was taken by the late father and the Appellant in Appeal 1143. This inaction can only lead to one irrefutable conclusion and that is they knew what they had signed and they had no complaints on the two Tamil documents. 31. Further, it should be noted that if there were causes for complaints, they were personal to the people privy to the two Tamil documents. And when they did not take out any legal suit, limitation sets in and in this case there had been a delay of 17 to 18 years and no explanation by anyone privy to the transactions to explain why there was inaction. 32. Further we also found that the doctrine of laches to be applicable in view of the unexplained delay in launching the two legal actions. The doctrine of laches is based on the maxim that "equity aids the vigilant and not those who slumber on their rights." This is succinctly explained by Lord Selborne in the landmark case of Lindsay Petroleum Co v. Hurd 874 LRPC 221: But in every case if an argument against relief which otherwise would be just is founded on mere delay, that delay of course not amounting to a bar by any Statute of Limitations, the validity of that defence must be tried upon principles substantially equitable. Two circumstances always important in such cases are the length of the delay, and the nature of the acts done during the interval, which might affect either party and cause a balance of justice or injustice in taking the one course or the other so far as relates to the remedy. 33. In the Malaysian context, we have the case of Alfred Templeton & Ors v. Low Yat Holdings Bhd & Anor [1989] 2 MLJ 202 where Edgar Joseph Jr. J of the High Court of Penang held as follows: Laches is an equitable defence implying lapse of time and delay in prosecuting a claim. A court of equity refuses its aid to a stale demand where the plaintiff has slept upon his rights and acquiesced for a great length of time. He is then said to be barred by laches. In determining whether there has been such a delay as to amount to laches the court considers whether there has been acquiescence on the plaintiff's part and any change of position that has occurred on the part of the defendant. The doctrine of laches rests on the consideration that it is unjust to give a plaintiff a remedy where he has by his conduct done that which might fairly be regarded as equivalent to a waiver of it or where by his conduct and neglect he has, though not waiving the remedy, put the other party in a position in which it would not be reasonable to place him if the remedy were afterwards to be asserted: 14 Halsbury's Laws of England (3rd Ed) paras 1181, 1182. Laches has been succinctly described as 'inaction with one eye's open'. 34. In the present case, in our view there can be little doubt that the delay had highly prejudiced the Respondents’ position in properly defending the claim. A span of 18 years is a long time to say the least. Equity demands that litigants on both sides are not put in a position where one side is put in a unfavourable position by the delay of the other side. The Courts must ensure that the playing field is fair to all. 35. Finally on this aspect of the appeal, we agreed with the learned counsel for the Respondents where it was submitted that if there were in fact coercions or misrepresentations, they would be exerting coercions and misrepresentations on themselves as the signatories were witnessed by the Appellants themselves in Appeal 1142 while in Appeal 1143, the Appellant himself had written the Tamil document himself and signed the same. In anyone’s view, the contentions of the Appellants were without merits. Issue 3: Intentions of the two Tamil documents 36. The complaint here by the Appellants was that the two Tamil documents were only loan documents with the properties used as securities and cannot be treated as a licence to convey the relevant properties. 37. In constructing any contract, it is settled law that the Courts must give it a meaning reflective of the words employed by the contracting parties. The contract must also be read as a whole and interpreted in a manner consistent to the commercial reality. 38. Having perused the two Tamil documents in their entirety, we formed the view that they were much more than mere loan agreements. They contain in detail terms as to how the loan amounts were to be repaid to the lenders plus terms giving the Respondents the requisite powers to implement the terms contained therein. The intentions of the parties were amplified in two common clauses of the documents which read as follows: (9) In order to carry out the matters mentioned in this document, I agree to sign in and give all required document and otherwise render all co-operation. (10) As per the above accounts, all my credits and debits with you have been settled, I confirm that I have no claims, demands whatsoever now or in the future against you. 39. Giving the plain and natural meaning to the above two clauses in the context of the entirety of the two Tamil documents, there can be only one meaning ascribed to them and that is that the parties had intended to allow the Respondents to do what had been and being done to implement the terms of the two Tamil documents. To sustain the meaning ascribed to by the Appellants would be bluntly rewriting the terms of a written contract by this Court which obviously cannot be done under any circumstances. 40. Further we agreed with learned counsel for the Respondent in submitting that the defence of settled account should be sustained. The case of Bishun Chand v Girdhari Lal and another [1934] AIR PC 147 states, at page 151, left side, the nature of an account stated in the following manner: … “ the essence of an account stated is not the character of the items on one side or the other but the fact that there are cross items of account and that the parties mutually agree the several amounts of each and, by treating the items so agreed on the other side as discharging the items on the other side pro tanto, go on to agree that the balance is only payable. Such a transaction in truth bilateral, and creates a new debt and a new cause of action. There are mutual promises, the one side agreeing to accept the amount of the balance of the debt as true … and to pay it, the other side agreeing the entire debt as at a certain figure and then agreeing it has been discharged to such and such an extent, so that there will be complete satisfaction on payment of the agreed balance.. The account stated is accordingly binding, save that it may be reopened on any ground – for instance, fraud or mistake – which would justify setting aside any other agreement.” 41. The two Tamil documents read as a whole in our view equated to an account stated and the law is clear in that an account stated can only be reopened on the ground of fraud which in this case had not been proved at all. Conclusion: 42. This was a case where the Limitation Act 1953 had also applied with its full force. Not only that, the factual matrix also demanded us to apply the doctrine of laches for the simple reason that a long-time span had elapsed and to allow the Appellants to ventilate their grievances would be wholly unjust on the Respondents in defending the claims. And finally, the intentions of the parties were also clearly set out in writing and the Courts had no choice but to give effect to those clear intentions. 43. For reasons set out above, we dismissed the two appeals with costs in the sum of RM10,000.00 each subject to payment of allocatur fees. We also ordered that the respective deposits to be refunded to the Appellants. Dated: 6 October 2017 (DAVID WONG DAK WAH) Judge Court of Appeal Malaysia For the Appellants : C. Megalai With her KM. Nachammai Messrs. Meg, Nacha, ahir & Co. For the Respondents : Krishna Dallumah With him YH. Yong & Farhan Mirza Messrs. Sault Scott & Co. Notice: This copy of the Court's Reasons for Judgment is subject to formal revision. 1	24,004	Tika 2.6.0
02(f)-16-03/2017 (K)	PERAYU LOW CHI YONG (Berniaga sebagai Reynox Fertichem Industries) …APPELLANT RESPONDEN 1. LOW CHI HONG 2. REYNOX SDN BHD (No. Syarikat: 796218-T) … RESPONDEN TS	Trade Marks — Appeal — Trademark and passing off — Infringement of — Trademark used in partnership with consent and approval — Dispute between parties — Notice sent to refrain from using trademark — Whether by conduct of respondent and facts of case, there was infringement — Whether protection afforded by Act 175 could not be sustained — Whether the appellant assign the trade mark to the respondents — Trade Marks Act 1976 [Act 175] sections 35, 40, 41, 47, 55	06/10/2017	YA TAN SRI DATUK SURIYADI BIN HALIM OMARKorumYAA TAN SRI DATO' SERI ZULKEFLI BIN AHMAD MAKINUDINYA TAN SRI DATUK SURIYADI BIN HALIM OMARYA TAN SRI HASAN BIN LAHYA TAN SRI DATUK ZAINUN BINTI ALIYA TAN SRI DATO' WIRA AZIAH BINTI ALI	https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=95a44557-98fa-47cf-ab7c-3e4130fc87c6&Inline=true	08( )-299-04/2012(A) 1 IN THE FEDERAL COURT OF MALAYSIA (APPELLATE JURISDICTION) CIVIL APPEAL NO: 02(f)-16-03/2017 (K) BETWEEN LOW CHI YONG (Berniaga sebagai Reynox Fertichem Industries) …APPELLANT AND 1. LOW CHI HONG 2. REYNOX SDN BHD (No. Syarikat: 796218-T) …RESPONDENTS (In the Court of Appeal Malaysia Civil Appeal No: K-02(NCVC)(W)-426-03/2015) Between 1. Low Chi Hong 2. Reynox Sdn. Bhd. (No. Syarikat: 796218-T) … Appellants And Low Chi Yong (Berniaga sebagai Reynox Fertichem Industries) … Respondent CORAM: ZULKEFLI AHMAD MAKINUDIN, PCA SURIYADI HALIM OMAR, FCJ HASAN LAH, FCJ ZAINUN ALI, FCJ AZIAH ALI, FCJ 2 JUDGMENT OF THE COURT [1] The plaintiff, [hereinafter referred to as the appellant], filed a claim at the High Court at Alor Setar against the defendants (hereinafter referred to as the respondents) for infringement of his “Reynox” registered trade mark (the trade mark) and for passing off. Reynox was the trade mark name for liquid fertilizer. [2] The 1st respondent is the brother of the appellant. [3] In their defence the respondents alleged that the registration of the trade mark for liquid fertilizer had been obtained by the appellant by fraud committed on the 1st respondent. The respondents alleged that the trade mark was to be registered in the name of the appellant and the 1 s t respondent initially, and thereafter to be transferred to the 2nd respondent. [4] The 2nd respondent was formed to take over the production, business, sale and distribution of the 3 abovementioned Reynox liquid fertilizer, with the appellant and the 1st respondent each owning equal share in the 2nd respondent. The appellant was also a director in the 2nd respondent. [5] In short, it was a family business, to trade in the Reynox liquid fertilizer business acquired from RH One Marketing earlier by the appellant and the 1st respondent. [6] A partnership (partnership firm) was also formed by the appellant and the 1st respondent, which also used the trade mark. Since the question before us relates to the 2nd respondent only, the answer to the leave question will only be confined to the 2nd respondent [see paragraph 13]. [7] By way of a counterclaim, the respondents alleged that the action by the appellant in registering the Reynox trade mark in his sole name had been done mala fide and by deception, and as such the appellant’s right to register the said trade mark was disputed. The 1st respondent’s counterclaim against the appellant was for a declaration 4 that the appellant was not entitled to the trade mark in his own name. [8] After a full trial, the High Court allowed the appellant’s claim and dismissed the respondents’ counterclaim, with costs of RM20,000.00. In gist, the High Court held that the trade mark “Reynox” had been registered in the name of the appellant and was the registered owner of the trade mark. He thus had the exclusive right pursuant to section 35(1) of the Trade Marks Act 1976 (the TMA 1976) to use the trade mark. [9] The High Court decided that the appellant had successfully established all the elements under section 38 of the TMA 1976, and that the respondents had infringed the trade mark. [10] The High Court also held that the respondents could not rely on section 40(1)(a) of the TMA 1976 as it was not pleaded in their defence. This sub-section promulgates the use of the trade mark in good faith by a person in his own 5 name, in order to avoid an infringement of the trade mark under section 38 (1) of the TMA 1976. [11] Being dissatisfied with the decision of the High Court, the respondents filed a Notice of Appeal to the Court of Appeal. On 23.4.2015 the Court of Appeal allowed the respondents’ appeal and set aside the whole decision of the High Court. The Court of Appeal held the view that the trade mark had been used by the respondents with the consent and approval of the appellant. [12] Further, the Court of Appeal opined that the conduct of the appellant was not only unjust and inequitable, but also oppressive when the appellant took upon himself to terminate the use of the trade mark without reasonable notice. The conduct of the appellant would have caused immediate loss and damage to the 2nd respondent, which was an active trading company. The Court of Appeal therefore refused to entertain such inequitable and oppressive conduct of the appellant. 6 [13] Dissatisfied with the decision of the Court of Appeal, the appellant successfully applied for leave before us on 6.2.2017, on the following question of law: “Whether by giving his consent to the use of his registered trade mark to a company or a firm he is still a shareholder/director of the company or a partner of the partnership firm, can he be considered as having abandoned his exclusive right to the trade mark in perpetuity even if he does not derive any benefit therefrom (and has withdrawn from the company) and also be said to be guilty of estoppel, acquiescence or laches.” [14] The above leave question relates to the issue of whether the appellant has abandoned his exclusive right to the trade mark in perpetuity, by giving his consent to the use of his registered trade mark to a company or a firm, when he was still a shareholder/director of the company or a partner of the partnership firm, even though not deriving any benefit therefrom (and withdrew subsequently from the 7 company), and whether he could be said to be guilty of estoppel, acquiescence or laches in the circumstances of the case. [15] As the issue of passing off is not part of the leave question, we have consciously avoided commenting on it. We also have not touched on the effect of the leave question on the partnership firm as it is not a party to this proceedings. [16] A scrutiny of the Notice of Appeal to the Federal Court filed by the appellant shows that it was an appeal against the partial decision of the Court of Appeal for having reversed the High Court’s decision in respect of the appellant’s claim. However, the dismissal of the counterclaim by the High Court was upheld. The appellant’s submission [17] The appellant submitted that he is the sole registered proprietor of the trade mark since 13.5.2005, and had not committed any fraud in registering the trade mark 8 in his name, as the business of liquid fertilizer under the trade mark was started by him. [18] He also submitted that he never assigned his trade mark to the 2nd respondent i.e Reynox Sdn Bhd, any entity or to anyone, at all material times. There was certainly no express assignment and no exclusive license granted to th e respondents in using the trade mark. He argued that although he had allowed the trade mark to be used by the 2nd respondent, he did not assign the trade mark to be used in perpetuity. [19] As the registered proprietor of the trade mark, he was entitled to withdraw the consent given to the 2nd respondent to use his trade mark for a product under the same class. After the appellant withdrew from the 2nd respondent, the respondents were thus disentitled to use the trade mark, in light of the consent or license to use it having been terminated by a notice of withdrawal dated 20.12.2012. 9 [20] Learned counsel for the appellant contended that prior to the setting up of the 2nd respondent, the trade mark was used exclusively by the appellant and was only allowed to be used by the 1st respondent after he was brought in as a shareholder into the 2nd respondent. Regardless of the concession by the appellant, he still enjoyed his exclusive right to the trade mark as the registered owner under section 35 of the TMA 1976. [21] The appellant submitted that he never abandoned his rights over the trade mark. The fact that the 1st respondent was attempting to register the appellant’s trade mark demonstrated that the appellant had not abandoned his rights. His consistent conduct could not in any way amount to abandonment, acquiescence or laches. [22] The appellant also submitted that the 1st respondent did not come to court with clean hands and had acted in bad faith. He ventilated that the High Court was right in holding that the 1st respondent did not fall within the exceptions under section 40 of the TMA 1976 as he was not 10 an innocent party. He knew that the trade mark belonged to the appellant but yet attempted to misappropriate and register it in his own name. The unclean hands of the 1st respondent was compounded when he used the 2nd respondent to make a 4th application dated 6.3.2013 to register the trade mark. The respondents’ submission [23] In reply, learned counsel for the respondents argued that the appellant had compromised the exclusive use of the trade mark when he allowed the respondents to use it without any restriction. Further, no evidence was presented in court by the appellant to demonstrate that he had imposed any conditions on the use of the trade mark. [24] Apart from the issue of consent, the respondents’ basis for the challenge of the trade mark was co-ownership of the trade mark. The 1st respondent argued that at all times, he was under the mistaken belief that the trade mark was registered under the names of both the appellant and 11 himself. It was the contention of the respondents that the appellant surreptitiously registered the trade mark in his name on 13.5.2005 but yet informed the 1st respondent that it was registered in both their names. [25] In the course of the appeal, the respondents argued that in light of the appellant’s actions and conduct (in not enforcing the exclusive right over the trade mark since 2005) showed that he had waived his rights over the use of the trade mark. The appellant was thus precluded from exercising his legal rights over the trade mark due to his abandonment of his rights, let alone subject to the doctrine of estoppel, acquiescence and laches. [26] The respondents rested their case on the submission that, as assignees of the trade mark, they had the right to use and freely carry on the business of liquid fertilizer carrying the trade mark. The appellant thus had failed to maintain his action against them for infringement of the trade mark. 12 Our decision [27] Generally, the burden of proof in a trade mark infringement case lies with the plaintiff (in this case the appellant). He has to establish by a preponderance of evidence that he owns a valid registered trade mark (there can be no infringement if the appellant owns an invalid trade mark), and the defendant (in this appeal the respondents) has used the plaintiff’s trade mark in the course of trade without consent. That unlawful usage of the trade mark owned by the plaintiff (appellant) has caused deception or confusion among the prospective customers (Boh Plantations Sdn Bhd v Gui Nee Chuan & Ors (1975) 2 MLJ 213). In the latter case of Boh Plantations Gill CJ had occasion to state: “In an action for infringement the plaintiff complains that the defendant has infringed his trade mark by taking in its entirety, or by taking a substantial portion of it, or by colourably imitating it, and he relies on his 13 statutory title to the exclusive use of the mark in question for goods of a specified kind.” [28] In the current appeal the respondents have taken the trade mark in its entirety and carrying on trade using that trade mark. [29] We now touch in detail the evidence and law pertaining to this appeal. It is not disputed that the appellant had registered the “Reynox” trade mark with the Intellectual Property Corporation of Malaysia (MyIPO), on 13.5.2005. The registration was for liquid fertilizer under Class 1 in respect of chemicals used in agriculture, and was for a period of ten (10) years i.e. from 13.5.2005 to 13.5.2015. The appellant then renewed it until 13.5.2025 pursuant to section 41(1) of the TMA 1976. This provision provides for the renewal of registration of that trade mark for a period of 10 years from the date of expiration of the original registration, or of the last renewal date of registration, as the case may be. 14 [30] Section 36(1) of the TMA 1976 provides that in all legal proceedings relating to a registered trade mark (including applications under section 45) the fact that a person is registered as proprietor of the trade mark shall be prima facie evidence of the validity of the original registration of the trade mark and of all subsequent assignments and transmissions thereof. In other words, the registration of the trade mark by the appellant on 13.5. 2005 is prima facie evidence of its validity. [31] Under section 37 of the TMA 1976, to rebut the conclusiveness of the registration as promulgated under section 36, the respondents need to show that: (a) the original registration was obtained by fraud; (b) the trade mark offends against section 14; or (c) the trade mark was not, at the commencement of the proceedings, distinctive of the goods or services of the registered proprietor. [32] On the facts before us, there is not an iota of evidence to show that the respondents have been successful 15 in establishing the ingredients of section 37 of the TMA 1976 to rebut section 36 of the TMA 1976. Therefore the registration of the trade mark is valid. [33] With the trade mark being valid, pursuant to section 35(1) of the TMA 1976, the appellant has the exclusive right to use the “Reynox” trade mark, and also the right to prevent other persons (not being registered users) from using the trade mark or any mark similar to it for liquid fertilizer used in agriculture. [34] Section 35(1) of the TMA 1976 reads as follows: “35 Rights given by registration (1) Subject to the provisions of this Act, the registration of a person as registered proprietor of a trade mark (other than a certification trade mark) in respect of any goods or services shall, if valid, give or be deemed to have been given to that person the exclusive right to the use of the trade mark in relation to those goods or services subject to any 16 conditions, amendments, modifications or limitations entered in the Register.” [35] To successfully establish an action for infringement of trade mark, the appellant needs to establish that the respondents have infringed section 38 of the TMA 1976. As an initial observation, we hold the view that section 38 of the TMA 1976 is a general provision relating to a registered trade mark. It sets out the meaning of an infringement of trade mark and the circumstances when the infringement has taken place. [36] Section 38 reads as follows: “38 Infringement of a trade mark (1) A registered trade mark is infringed by a person who, not being the registered proprietor of the trade mark or registered user of the trade mark using by way of permitted use, uses a mark which is identical with it or so nearly resembling it as is likely to deceive or cause confusion in the course of 17 trade in relation to goods or services in respect of which the trade mark is registered in such a manner as to render the use of the mark likely to be taken either- (a) as being use as a trade mark; (b) in a case in which the use is use upon the goods or in physical relation thereto or in an advertising circular, or other advertisement, issued to the public, as importing a reference to a person having the right either as registered proprietor or as registered user to use the trade mark or to goods with which the person is connected in the course of trade; or (c) in a case in which the use is use at or near the place where the services are available or performed or in an advertising circular or other advertisement issued to the publ ic, as importing a reference to a person having a right either as registered proprietor or as 18 registered user to use the trade mark or to services with the provision of which the person is connected in the course of trade.” [37] Under section 38 of the TMA 1976 the appellant needs to establish the following ingredients, inter alia: (i) the respondent used a mark identical with or so nearly resembling the trade mark as is likely to deceive or cause confusion; (ii) the respondent is not the registered proprietor or the registered user of the trade mark; (iii) the respondent was using the offending trade mark in the course of trade; (iv) the respondent was using the offending trade mark in relation to goods or services within the scope of the registration; and (v) the respondent used the offending mark in such a manner as to render the use likely to be taken either as being use as a trade mark or as importing a reference to the registered 19 proprietor or the registered user or to their goods or services. (see Fabrique Ebel Societe Anonyme v. Sykt Perniagaan Tukang Jam City Port & Ors [1989] 1 CLJ 919; [1989] 1 CLJ (Rep) 537 and Leo Pharmaceutical Products Ltd A/S (Lovens Kemiske Fabrik Producktionsaktieselskab) v. Kotra Pharma (M) Sdn Bhd [2012] 10 CLJ 507; [2009] 1 LNS 548). [38] The evidence reveals that the respondents did use the appellant’s trade mark on notice boards, brochures, receipts and business cards, with the dressing and get up of the respondents’ fertilizer being similar to the appellant’s liquid fertilizer bearing the trade mark. This has led to confusion, and leading to purchasers to believe that the respondents’ products and the appellant’s products are the same and/or associated despite the want of business relationship between them, after the appellant and the respondents had split up. [39] In dealing with section 38 of the TMA 1976, Zulkefli Ahmad Makinudin J (as he then was) in Hu Kim Ai & Anor v. javascript:DispCase=window.open('/Members/DisplayCase.aspx?CaseId=2331249153&SearchId=8fedcourtc','_DisplayCase','');DispCase.focus() javascript:DispCase=window.open('/Members/DisplayCase.aspx?CaseId=2331249153&SearchId=8fedcourtc','_DisplayCase','');DispCase.focus() javascript:DispCase=window.open('/Members/DisplayCase.aspx?CaseId=2331249153&SearchId=8fedcourtc','_DisplayCase','');DispCase.focus() javascript:DispCase=window.open('/Members/DisplayCase.aspx?CaseId=2849244162&SearchId=8fedcourtc','_DisplayCase','');DispCase.focus() javascript:DispCase=window.open('/Members/DisplayCase.aspx?CaseId=2849244162&SearchId=8fedcourtc','_DisplayCase','');DispCase.focus() javascript:DispCase=window.open('/Members/DisplayCase.aspx?CaseId=2849244162&SearchId=8fedcourtc','_DisplayCase','');DispCase.focus() javascript:DispCase=window.open('/Members/DisplayCase.aspx?CaseId=2697071105&SearchId=1fedcourtc','_DisplayCase','');DispCase.focus() 20 Liew Yew Thoong [2004] 5 CLJ 515; [2004] 7 MLJ 590; [2005] 6 AMR 363 held, inter alia: “In using the 'Five Stars Device' trademark, the defendant used a trademark, which was identical in every sense with the plaintiff's registered trademark with the exception of the word 'Blansacar'. The defendant copied the exact stylised design of the plaintiffs' trademark, the arrangement of the five stars and the position of the 'Five Stars Device'. The evidence adduced further shows that there was actual confusion caused by the defendant's offending watches as it so nearly resembles the plaintiffs' registered trademark and as both watches were also referred by the same Chinese characters 'Wu Xing Shang Jiang', it would be difficult for buyers who do not understand English to differentiate between the two watches. It was also not disputed that the plaintiff's registered trademark and the defendant's trademark were both applied to and used on watches. On the evidence, the javascript:DispCase=window.open('/Members/DisplayCase.aspx?CaseId=2697071105&SearchId=1fedcourtc','_DisplayCase','');DispCase.focus() 21 defendant had therefore infringed the plaintiffs' registered trademark as the elements for infringement of trademark laid down in s. 38 of the Act had been fulfilled (emphasis supplied).” (See also Yomeishu Seizo Co Ltd & Ors v. Sinma Medical Products (M) Sdn Bhd [1996] 2 BLJ 142; [1996] 2 MLJ 334; [1996] 3 AMR 3058; Aristoc Ltd v. Rysta Ltd & Anor (1945) 62 RPC 65). [40] In view of the evidential finding, we are satisfied that the appellant has established a prima facie case of infringement of his trade mark by the respondents. [41] The substantive defence of the respondents is that the appellant had consented to the use of the trade mark by the respondents. For this defence, the respondents relied on section 40 of the TMA 1976, a statutory exception to section 38(1) of the TMA 1976. Section 40 of the TMA 1976 reads as follows: “40 Acts not constituting infringement javascript:DispAct=window.open('/Members/DisplayAct.aspx?CaseActCode=MY_FS_ACT_1976_175&ActSectionNo=38.&SearchId=1fedcourtc','_DisplayAct','');DispAct.focus() javascript:DispAct=window.open('/Members/DisplayAct.aspx?CaseActCode=MY_FS_ACT_1976_175&ActSectionNo=38.&SearchId=1fedcourtc','_DisplayAct','');DispAct.focus() javascript:DispCase=window.open('/Members/DisplayCase.aspx?CaseId=2537163265&SearchId=1fedcourtc','_DisplayCase','');DispCase.focus() javascript:DispCase=window.open('/Members/DisplayCase.aspx?CaseId=2537163265&SearchId=1fedcourtc','_DisplayCase','');DispCase.focus() 22 (1) Notwithstanding anything contained in this Act, the following acts do not constitute an infringement of a trade mark- (a) the use in good faith by a person of his own name or the name of his place of business or the name of the place of business of any of his predecessors in business; (b) the use in good faith by a person of a description of the character or quality of his goods or services, and in the case of goods not being a description that would be likely to be taken as importing any reference as is mentioned in paragraph 38(1)(b) or paragraph 56(3)(b); (c) the use by a person of a trade mark in relation to goods or services in respect of which he has by himself or his predecessors in business, continuously used the trade mark from a date before- (i) the use of the registered trade mark by the registered proprietor, by his predecessors in 23 business or by a registered user of the trade mark; or (ii) the registration of the trade mark, whichever is the earlier; (d) in relation to goods connected in the course of trade with the registered proprietor or a registered user of the trade mark if, as to those goods or a bulk of which they form part, the registered proprietor or the registered user in conforming to the permitted use has applied the trade mark and has not subsequently removed or obliterated it or has at any time expressly or impliedly consented to the use of the trade mark; (dd) the use by a person of a trade mark in relation to goods or services to which the registered proprietor or registered user has at any time expressly or impliedly consented to; (e) the use of the trade mark by a person in relation to goods or services adapted to form part of, or to be accessory to, other goods or services in relation to which the trade mark has been 24 used without infringement of the right given or might for the time being be so used, if the use of the trade mark is reasonably necessary in order to indicate that the goods or services are so adapted and neither the purpose nor the effect of the use of trade mark is to indicate otherwise than in accordance with the facts a connection in the course of trade between any person and the goods or services; and (f) the use of a trade mark, which is one of two or more registered trade marks which are substantially identical, in exercise of the right to the use of that trade mark given by registration as provided by this Act.” [42] Under section 40(1)(dd) of the TMA 1976, infringement of the trade mark is avoided if the appellant, being the registered proprietor of the trade mark, at any time expressly or impliedly consents to the use of it by any other person. 25 [43] There is ample evidence to establish that the appellant had instructed his solicitors to send out notices dated 20.12.2012 to the 1st respondent and to the 2nd respondent respectively stating, inter alia, that the appellant was the sole registered proprietor of the trade mark, and as such the respondents and their servants and/or agents should refrain from using the trade mark with immediate effect in any way or manner in the course of trade which would infringe the appellant’s trade mark. [44] The evidence reveals that despite the receipt of the said notices, the respondents produced, sold and supplied products which were similar to the appellant’s products under the trade mark. The respondents argued that the consent continued on and still existed despite the withdrawal of the consent by the appellant vide the abovementioned notices of 20.12.2012. That consent to use the trade mark was by way of an assignment or license given to the 2nd respondent when the appellant was still with it. 26 [45] There is no doubt that consent was given by the appellant when he still was the shareholder and director of the 2nd respondent. The next relevant question is whether the consent was still valid after his resignation from the 2 nd respondent, particularly after the withdrawal of the consent through the notices dated 20.12.2012. As stated above the respondents argued that the consent persists due to an assignment granted by the appellant to the respondents. [46] Black’s Law Dictionary (Edited by Bryana A. Garner, Deluxe Ninth Edition) states that “consent” means “Agreement, approval, or permission as to some act or purpose, esp. given voluntarily by a competent person; legally effective assent”. “Express consent” means “Consent that is clearly and unmistakably stated” whereas “Implied consent” means “Consent inferred from one’s conduct rather than from one’s direct expression”. Without the need of an exhaustive and laborious research, consent entails permission given by a competent person. In this case, as given by the appellant who has a valid trade mark. 27 [47] Going by Black’s definitions, once that consent is withdrawn the legally effective assent ends. Therefore the question posed in paragraph 44 must be answered in the negative i.e. after withdrawing from the 2nd respondent, and after the notices were issued. [48] It is trite law that the appellant being the proprietor of the trade mark can assign his trade mark to an assignee by way of registration pursuant to section 47 of the TMA 1976. Section 47 of the TMA 1976 reads as: “47 Registration of assignment (1) Where a person becomes entitled by assignment or transmission to a registered trade mark he shall make application to the Registrar to register his title and the Registrar shall, on receipt of the appl ication and proof of title to his satisfaction, register that person as the proprietor of the trade mark in respect of the goods or services in respect of which the assignment or transmission has effect and cause particulars of the assignment or transmission to be entered in the Register…” 28 [49] The respondents advanced the argument of an assignment pursuant to section 55 of the TMA 1976, which permits a registered trade mark to be assigned with or without goodwill of the business concerned in the goods or services in respect of which the trade is registered. So, did the appellant assign the trade mark to the respondents? [50] Section 47 of the TMA 1976, which establishes proprietorship over the trade mark to the assignee pursuant to an assignment by the original registered owner, has an evidential value. For purposes of this appeal, unless an entry has been made by the Registrar, no document or instrument to prove title of the assigned trade mark shall be admissible in Court (unless the Court otherwise directs). That valid assignment will entitle the assignee to exercise the trade mark rights, being the recorded owner within the meaning of section 47 of the TMA 1976, and binds third parties to his assigned rights. In this case, there is no evidence of the alleged assignment being registered. Without any evidence to prove that the consent given by the appellant was indeed an assignment, and with there being 29 want of proof of such assignment, we hold the view that the appellant never assigned the trade mark to the respondents. In short the argument of consent having been given by the appellant must fail (see also the conclusion in paragraph 46). The doctrine of abandonment, acquiescence, estoppel and laches [51] For completeness sake we now discuss briefly issues of the doctrine of abandonment, acquiescence, estoppel and laches as submitted by the respondents. [52] Let us start with what Narayanan in "Law of Trade Marks and Passing Off'" in paragraph 24.74 authored: "To 'abandon' means to give up absolutely and irrevocably. Although a long period of no-use might indicate an intention to abandon, non-use alone is not enough. There must be other factors involved before such conclusion can be arrived at as for example the liquidation of the company which 30 owns the mark or a declared intention not to resume user... The question of abandonment is one of intention to be inferred from the facts of the particular case. No particular length of time is necessary for abandonment." [53] Having sifted the evidence we are unable to find any evidence to conclude that the appellant has abandoned his rights over the trade mark, let alone in perpetuity. In fact we found ample evidence to establish the opposite. He not only has served notices of the withdrawal of consent to the respondents, but also renewed the registration of the trade mark until 13.5.2025. [54] As reflected by the leave question, the respondents have collectively contended that the appellant is guilty of estoppel, acquiescence and laches in the circumstances of the case. For starters, the respondents argued that the appellant is estopped from preventing the respondents from continuing to do business under the trade mark and that the appellant’s action and conduct since 2005 show that he 31 had waived his rights to enforce the use of the trade mark. As regards the doctrine of acquiescence, the respondents instead of identifying evidence that could establish its applicability, had merely highlighted cases that propounded this doctrine. Suffice to say that, for purposes of this appeal, this doctrine is founded upon the conduct of the appellant, who being the registered owner of the trade mark, had knowingly remained silent and not raising any objection to the infringement of his trade mark by the respondents, eventually leading to the detriment of the respondents (Protor v Bennis (1887) 36 Ch D 740; Willmont v Barber (1980) 15 Ch D 96). [55] On the issue of laches, the respondents blamed the appellant for not enforcing his right, despite being the registered owner of the trade mark. The delay caused losses to the respondents. In support of its their case, the respondents brought the case of Alfred Templeton & Ors v Low Yat Holdings Sdn Bhd & Anor [1989] 2 MLJ 202 to our attention where it was held that: 32 “Laches is an equitable defence implying lapse of time and delay in prosecuting a claim. A court of equity refuses its aid to a stale demand where the plaintiff has slept upon his rights and acquiesced for a great length of time. He is then said to be barred by laches. In determining whether there has been such a delay as to amount to laches the court considers whether there has been acquiescence on the plaintiff’s part and any change of position that has occurred on the part of the defendant. The doctrine of laches rests on the consideration that is unjust to give a plaintiff a remedy where he has by his conduct done that which might fairly be regarded as equivalent to a waiver of it or where by his conduct and neglect he has, though not waiving the remedy, put the other party in a position in which it would not be reasonable to place him if the remedy were afterwards to be asserted.” [56] On the totality of the evidence, as the respondents have failed to establish consent on the part of the appellant, 33 an integral ingredient leading to a successful establishment of the doctrine of estoppel, acquiescence and laches, we therefore have no hesitation in ruling that they have also failed to establish their defences under these doctrines. [57] We instead find that the respondents are the unauthorized users of the trade mark, after the appellant had retracted his consent especially after exiting from the 2nd respondent. Conclusion [58] On the above reasons we are satisfied that the appellant has exclusivity over the trade mark as it was registered under his name only. There was no dispute that consent was granted to the 2nd respondent to distribute the liquid fertilizer under the trade mark when the appellant was still a shareholder/director of this company but withdrew that consent after he left the 2nd respondent. [59] In light of the clear provisions of the TMA 1976, where the protection given to the appellant as the registered 34 owner of the trade mark are clearly spelt out, and as consent was never given by him to the respondents after leaving the 2nd respondent (and any assignment was never established), let alone the collective exceptions to the infringement in the TMA 1976, the principles of abandonment, estoppel, acquiescence and laches were never proved, the position of the respondents was therefore untenable. [60] In the circumstances of the case we allow the appellant’s appeal with costs. On the premise that consent was never given by the appellant the leave question posed is answered in the negative. [61] We therefore set aside the decision of the Court of Appeal and reinstate the decision of the High Court. Dated this 6th day of November 2017 signed SURIYADI HALIM OMAR Federal Court Judge Malaysia 35 For the Appellant: Mr. T.C. Lim Ms. Karin Lin Ai Ching Mr. A. Suppiah Messrs. TC Lim & Co For the Respondent: Mr. Sean Teh Weng Kim Mr. Lawrence Boudville Messrs. Sim & Sean	36,531	Tika 2.6.0
22NCVC-640-10/2016	PLAINTIF EASY REGION ENGINEERING SDN BHD (No. Syarikat: 853832-A) DEFENDAN BUREAU VERITAS (M) SDN BHD (No. Syarikat: 159907-P)	null	04/10/2017	YA DATUK S. NANTHA BALAN	https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=03780bd5-ca34-4c5a-9cc9-0d9581534b02&Inline=true	DALAM MAHKAM.-\H nN<;<;1 m KU.\J_:\ LL'Ml’LR {Iwmc ,\MA1m EASY REGION ENGINEERING SDN BHD PLAINTIFF (Nu Sg.nr1.k .x53s12— \; DAN BUREAU VERITAS (M) SDN BHD DEFENDANT (No Syanknt: 15<1~>o7—1>) M NT ﬂwll nm// lmmducuon 1 ram are rm grounds of judgmtnt my a mu am. Thu p\|a\|nI:\|ff\rns me defendant‘: sub—conLmcloz m mspcct of 3 pwytcl known as “lnspzcuon and Cunﬂcanon—Sclxlumbezger Mzlaysxa" (“the pvrujcct") W1-ma mvolwed Lhc Ansptcuon. sezucmg and cemﬁcnunn nfdrllhng and bfnng equ\pm:nr ﬂu’ ml me 5:51: a: the premwes of Sclulumbugu “TA (u) .\:.ln. Bhd. (“Schlumbergu"V, The defendant \\n< 5cMurnb<rgev'x mam cnnmqclru im the pawn \s the .J¢r=uam‘.- <ub—c-rntrncmr undsr mg pmwct. the plnmmT cnl jnln" and «-a.4.nn¢ cnrncd our ‘W0 l\1)u>uf\|ubs, Iumcx --. jobs" ».....:s- ‘H1: .»zupL* of work under usxdexlt gobs and ml—hoc yobs \-.15 usplzmud bv mu m h): mm: to Quesuon 7 m ins mums smwnenr (own) men reads 2 — "L1 c... ynn ehlmnu an nm...,.. olwnrk ....a.m.. Irnjm” A m mu tin: mic! ... mm I 7 3...,» ..r mm ... mu M r- .. pqcsi-1-ha us can ln \|en:mL xnd as mm earlicr. (he swpc of Wm unmwen m: mspetumn, sarvxcmg ...: nenmcamm ..r mnngana Iimru e<1I4uI>mn:I:\Ss'Huml1:uer‘,~ Wtmmx For m we olwcrk ma am m .m (B) of emu x — Snap: or Work rm. pages!“ n. us ca». Scmmnhrrger would Kw: P05 Imlrusruvrh for me \¢ndM/ m..u.m u. aw», pusnnncl m pcrtorm spemﬁc mspettian, sew mg oicenmcaumv «mm :5 » mwd Hy Schhlmhcrncv :.. (um. uh: Dvlmdull uuuld :e\|a\ Sdulumbagaix .m...m.m m Ihr Plamuﬁ W: a Nuuﬂulmn u/' lmprshun ('~s‘uI"y A; um nap: at WMK «ma m. ml hut dzplmmtnl of pcnnnul no smnmne-mu Ilrn-Isn .... . m-p-um mu; m mm... t\|l:II'KV:r\I:uuV"'l ‘mi in s.m.....:..-r..r a.. . industry, we wnmvnly an mm mm No: me u:.;m...g nu ma Hrwnml and wrvmex mzuvved. ﬁchvumhzlgel WIWH my manpnwn chums (‘Mnnpvwer Chnrgs‘) and serum charge: r.um.- M llns ms Me .... um.-... ‘Sc-Wk: cn.....v- Iunxly ....a 1... .=_v.......x .. lb: «er... .1... n..a...u. m (mm: :_.,r . . r.\|...,.».a rr «ME ummmn.:um uz chzdukolkzlzsund P.-mus n In: an m pigs :49 m ssz -nu. ma Mznpvner (huge: ...: Smibe cmgu 1.» Ad rm Jabs VKKYM be under HzmSKA]In1h) As mm arhu than was a sum (hang: m In: xnupr ul want 1... 01: mm dunng the mm mm. Ihcrclmv. mm: was my .. my-u (hung: m mm“ 1—Sova1ul:oVRu¢sazn4 Pn:u mm m: l'm;:sI M mum w Ilw p<r.w...u umlm um l:1x:r W Award exam 2 Schedule gram and Pnes umkr mg Lmer of/nun] can is: S¢(7I .. W. m In wt : an 11.: M...,,.»... can,“ ...»: Suvum cam; fur Ad um Mu would :. umkr mum (A) m no at (mum: 2 Schmule of lulu And P M. um! rtlrrnf;-xxxnnd 1.. mm. m IVK Ad Ha: um um: VS mum xwvc ofwmk uhach .5 .....m “cm 07 m’ Izxmlm \ 7 Soup: bf Wnrk(P§e 347 ram nu. nap: ufmurk :..y..ma mm m:a..m.: or run lune ﬂaoenmnl .24 .-mum: .- senuumbu-ws pmm... m ,.,,,..m .u .m.....u alum-nllunnun .4. lh:\|n11Iulry.IInI .—....m ... m.n.. Ahurjnbvxu “wmdmz.v-xx". nu : mu 2: However. .111 1.. M ... .11 large Mm allrwmz; .m..¢.. .. lln‘ said wnIv1vI>'l!I:vu md dur ' Dlﬂ to IM PIu1u1Ts Inn .1; mum“. rxv¢'3“= nu ve -=--rm -nu -m.,..1mm M ,.m.... 11.1.: n.an...rs vnvoicw it: n .1 sub‘: mm: music: .1. 1. 9.1 all‘ mm. .1. m....1m 1...u-N. .1. Dzfuudv-I 1.1 »,~ mam .....a= p-m...1.».. p..m..m wwmts 1.1111 ..,, 3.1111 cm; 1.. .z...1.... mm 1.. My: m..,..m VM .1. 3 1 .w..m»..n._ me paruwlnu of v.mchmeufo\Inrwx s.. ...u..-«.,. Ix/fnvwnx-\w «mm. . [kmwmvm mm ‘xnbmlms kmuzxaa L .Mw.mmm xnumazn ‘muanm 1 mmmmm Iowan’: Immm . zx.1.ra\M.n11uuun ‘lhuumu ummmm ‘ s rxmvvrmvvmmguv 1.,u..m. .mm:.. . r,xrmv/vN\«n7/nrmA Innn/Ivan ..4.n.;m -1... I xuunxvozna us for uiaI:— 11. Th: panics fam-mlaucd the follomngl 11.1 \K'1-mhtrxlru: dufendum 1. lublu m ply the mm uf 1um,13a.1w.97 m thc plaintiff rm me nuuundxng ‘mom. 112 \W'heLlmr the dtfendnnfs Dunduct amounts (0 zd.:-msuon on 2\|-1: pm of me defendant towards me sum clumud by me plunuff 11.3 W1-1:11-1:: .11: phInLIﬂ's emplnycci/wmkcls (nanpamr) czmied on! the 511.1 wurk from January 2015.“ [mm 15 April 2015. mums: 11.4 \V/heme: mg defendant has knowltdge of and Is 11.111» 11»-/1:11: :11: Anvonr llﬂmud .. 11cm Nu 15 111 me Stuemenl nf cmm for the sum or RMl0,09‘J as 11.5 W1-1:1.hex 11,: defcndnm mama 11.: pmnnzn lenu ofdumnd dated 2 February 2016. 111. xvumm Ihc dcfmdznr 1; 111171: 11.1 pzy mg plamufi for any nf1h<111vo1::< m11:d1n paragraph (1 of me smanem o[Ch1xn 11.7 xv/11.1 are 111: terms of mg sulrconlxacl bcnvenn me phvnuffand ma d:fcm.lan1> hpeuﬁcnlly: (3) \V\|1:t}1:r the terms or the mam conrucl 1mwm. M111...-11x.,;=. and me dntfzudznr would form :11: 171511 of :11: (anus oithe suh— contract bnrwccn thc pla11'1L1ff 11nd aw dzfendant; (1,) Whuhcx 111. dzfemlu-1115 um: 11: pty xrvxza charges rm the tendon: .0113 lo the pmurr ox whelhcr me defendant 1; onlv 111171: to ply mlnpnwu chargn for (1.: mum: yobs to me p1..nu:1. 11.3 Whether (he. plaIn1:if[1s zutmnﬂucally cnnlled [0 be paid fax :11 me 1nvo1ccs Ltsued by .11: pmnurt 10 me dufundnnz .11 xc:<p<:l of .1.. plmzcl 11 9 Whedmer me deimdmr had adm1l'1ad 11.111111: 11351: 19 mm paymem m m plannnff for my of me Invnlccs xlmcd m paraggwph z. uftlnc Statement 1.1 cm... mumu LCQHJIJIIIHAZII 11.1n\meam the d¢re..d.m i. cnnllcd ru : mfvnd 1), due plmnuff far the imn of RM2a,772 4D,bcm1z the second or double pzyrnmt of am (3; mvolcts whmh had been paid by the dtfendmt Lo mg plainnff. 11 l1Whcrher the defendant 1: ennrled m a «Fund I),- me plamuff rm the sum ufRMl61.90Z 00, being . pzyrntnt of servxce chnrges L0 vhe plmnuff. Summary om: plaintiffs Cu: 12 '11.: defendant had nppommd the plums; as a subconnncxox to carry out mspecnon ma cleaning work of plpas at scmumlmgu, xvua,-an Pezsckuman mum mes m mptd of the pxojcct. The Icmus ofzh: sand appoimmcnt were, rmm/m. (hm the defendant L‘ ... [my thz plznnnff rm “wk am1.- vnrhin so am of an Issuance of the pl.-unnfFs mvmccs and um nu dcrcnamx 1: M pi} I11: plmum zmplrhycu’ wngI::«/\\Im'\‘ (\|\1:Anpn\I/er) on 2 munlhly bmus The plrunllff mm: out my uid work and pmvnlud mnnpuucr fun a.. pzuynci from January 2015 [0 Dcoembu 2013 whcrnn the plalnnff ma mum invmo.-s amounting to 1um,13e,m9.w to an defendant for me wozk done (hctemafter mama to .s “the outstanding irlvaiccs"). The defendant acknowledgud recap! of (1.: oumnamg mmm Th: dzkndxm pm (J1: plaintiffs cznplayeef vmgns/snlxry on n monthlr bzsxs. nuumu 13 N Huwevcx. me defemlanl faded, rcfuzcd and/or negemd m mnkc payment an an ouB:2ndmg\nVo1us despxtc savers] temmdzn from {he plmnuff. By mun (ommumcauorns betwcen d1: plzlnuffnnd rh: defnndant, rhc ph...ncr a¢m....a:d pavmaxt for an outsrzndsng mvoxces h as nllcgtd (hm ch: drfendant gamma the am and merely .<on;r,ht um: from (he plmnuff m [my me oulsrandmg sum which i; dun and nvnng. Thu: plzmnff dumnndcd Mmn. in. am uuumndmg mmm-.< (mm m: .1=:.hu.m \- m lcucx daltd 2 Fcbruarv 2016 um! leucx am: 17 M 201.: issued by Lhe pmnurrs aolxazozx‘, M m Rahmnn Korma. The defcndanl xcspundcd via an [mu am: 30 May znm zcckmg a mp)‘ 01' all xel:\‘an( documcnts m prove the phmnzrs am. The plmuft m their so\|.IC\|(ots'Ie([t1 dared 17 August 2016, mfon-ncd um defendnm am 2 mp, om zamm document): wet: wnﬂun the aermaam poxsesixnn is the pla\|ntIfFs (opus hen: mg dciendanfs acknnwledgnent The plrunnff further demanded pajmtur rm rh: nursntudtng Invnlcem Hnxwvcr. rlw: defendant fnllld. mused and/or uegluted Ku mm any paymznr m r:sp:cl nf zh: nuuunding mvmncx no [he plamuff and me smn or RM1,I35,1o9.97 rernams due mu owing {mm me defendnnr w the plznnnff. pmnmsd Summary of me defence 15 rm dmnam ind (Iv; pIiA1\(I“]lid collahorswd on . projzcz which was Awarded 1:, Schlumbexgel to an defendant ("the main azonu-act"). Th: plmurr, hang a mllzhonuve puma, ms nun iomuuy appomrcd as . subtonlmctor for the pmyuti 'lh: pnmes also dxd not mm: mm my formal agreemzm to snpulztn me zemns of the sub-conrncl (“me suh—cnntmc("], as Ll-my «greed um um terms unda me mam comm would form the basis of the terms under an >ub—mnrr:(( Th: deploy,-rncnl of pmmmel m prrfnrrn wrvlces in. ma pvnycct m pmmm, 3. fulltvws. (n) llcxnlcnunl/full umc pl:<v.mcnz.« of pemznncl at 5<11]uml:erg=r's prumuex (“maamu iobn"). Undu this Scopc. Sdlumbergcr mum pm‘ 2 monthlv lump sum fur ﬂu; rrsxdmt permnnel summed it Schlulnbezgefs pnmxsex (“manpower charges [ox resident iahs"). (1,) Ad $4:hlurnbe:ger'< plvmxses on a ttlnpnnrr ham :0 perfnrrn (11: services as rcquucd by Schlurnbcrgtr (“ad hot; jobs") Dqvenvlmg on me personnel and uqunmx, Schlumhergex would ply‘ manpower an-I/or xzvm; elm-gm fox selccurc hnc dcplnymnnrt of pmmmx m services ‘mm pcrfnnned at mt. Including chun als. «mu and comumablu used (“manpowex andl ox mm: cluxges for ad hoc jobs"). ....m.m 1o. 17 The defendant zllcges um manpower charge: for mam pm would mclu/:1: an senvxccs rcndmzd by resladcnr personnel: hum: sernc: chugcs art not payablz so; rzsxdmt yobs. The plnnufi .5 not nummzncally uunded to bc paid in: all me mvoxccs issued The pzymzm of an plmuces xnvoices 15 mm m rh: aercnaanrs Venﬁcanon and appmval Th: defendant has made all an requisite pummu of lhc manpnwd chnrgm rm ncsldcnr ynbx and the manpowcr and/ or scrvlcc chaxgcs for ad hrx jobs In thc plamuff. The dlsputcd nu-om :1: warns no. 1 .0 17 putnn no man“: .01).‘, to wluch only nunpowex cluzges are payable by me 4:r=nd.m However. mg plmmrt ma dzlmcd fur arr‘/let charges m me outsmndnng mvours, m whnch mg plamnff .5 not znuded (0 M-mm. The ddmdznx has no knowledge or me Anvmcr at utm no. 18. Th: dzfzndant cnuld not but ndxnmtd mm um: Liable m pay me mltslmdxng Invoices. Which Immlvad sauce charges for Iesndnnt .01», when m: dcfcndam uselrw no: paid In} smm thavges nu, 5chl\\mh:rg<r fur an rcsldcnl ,0»; The defendant ma by mxuak: mud: dnublé paymznt zmuunung m v.M2s,772.¢n .1. cm 1-:\|axnnff. Tl-wreiorr, mu u..-€.~mJ.mz u unﬁlled m I mum: by [he plnnuff for nu ma Sum rm defendant mu alw Lw mmaluc pm! Lhe phmuffs mvcuoe: (vu a conuwpaylncnl) mvulvmg realdenx pm mmunung to RMl61,90Z 00 ‘1’hemim:, Rh: Llnicmhm scrvnte charges for E mum to a «fund I:_\ (hr. plzmnfffor me said sum vs]: 15 Ms: The witnesses 18. The wmuesse. who muﬁcd in as fulluws. Na. :4... wnamu... wm... s.......... : um..un..ma.n :. um...,rs..gx:;..m mm mm :n.m...;sa.. aha Mnhammadﬁm Bun Builnzswun -vwz W2/\ Md Vussaf (Iumr: a.m._ Devtinywmenl Mnmmrl vorumrmm : M.mr.m:sm.~mn cmm’, u.»«m..r rm ’ PWJA Hlml‘ ‘ an mm sm am 1VmmerG<n:rIl M.....,m.m.:..« ...m A x.u.=».x.....r ‘CmuKryChI:fEx:cmw: mm Dwu oﬂhcludtnllynnd ‘r. manwxslonnflh-e ‘ urmdununsxvupav, j »x.m. Ind am. Summary nf Eviduuc: 19 The Iollmmng 1! mg tndcnce of Lh: wimzssu Is summmzcd by Lhc parties. The Now: oflivldzute mu hc referred to as “NOE” \ na=..a.m.n.« S¢hmmherg:r(Anxwn wwm m nem... ,,.,.: ... ofm: l m.m..:n mvmtes ... ....,.=. nun: Wu, nfrumenunl Ivunpvwcrmd .a has um: grwu mam» AIUIAM am nun :n..a.. .. mcu . ...,.,.mmu {mm ... mike plymnn wwuds Ix uflhe Pmnuffs IH\'0lD<5 in vupuu nfh-Mk am (mm; lrnfauwe u M. u: yup: 2:-zus HF Bundk ‘ an [Answus x .m¢rwm) an oﬂhe H mm‘ luv 9.: van: ﬁwmlvdcd m ...: n.:¢.m..m .. ...a Mm: m wwvr ma ....1 Sumnml afl\::mmL( wmv fvrvIud2AInlh:Dcfe<1d:rKpend\cl mums: rwm Fun :7 am m nnmmv ma mu .....m... em:-ls m the um..n..... .. . .=.......:.. ....:/... .a....... .. ....k. ...y..........»...... .>.................. .......».....r....... .5 ....... .. pges 2.7.2.3, mm, M, 2.7.2.~..,2so, 2.3.2.», mesa .: a........ an 41...»... mawm ‘rm Dela-dam wvur .1“... .2». r;.«....:.... < .2». .4. .... n......n 1... me mu ....¢. \|5¢rvw:) ....1 ....L. .e........ r......... w mu. um... \|7‘\|.Vnm1\|(7ef:r:n:e ......u.... up: 271-27z.z7o.2m.154-255.251.215.214. 215,213,». ..rs.....ne an (A...w:.. I2 ...a I Pwm 1... n:ra.a..... 1...: .4... me n......m. ........ mg ulymenl rm... ............... ....: .........g wwk 01 W. .2 .n S<NmnI1crwv vvrmvsws. w.I.,.n rmkm. L........ 4s=.v.«. [mm .... paymenl I... .....,..y ..1......,,...... .. any ..... m. ...a wad. M... m: n.r....:.... um uked by s.m............ ... .......1 m... u-mmercvnl ..........x ...I....... .. .....a .. M. 252.25.: .1 3...... an 1...»... nwww. 1.. m. mr.....ea........... w.«....u....,...:.c.:.........»........,......... ....... rm... lxnuuy zms m Dwzmbu zms oz.-.....« .. .....2 ... 9.... zm-21. 295.299, 101-295, mm. mm, no ,u ..na....a:. an (Answer zn-Mm rm nu-....1.......... .:.......a..: (h: .e...... ofmc m .. u .......d. mvmea m. WDIK amt ue....;>r..... ...= n......« .. WITH: 1» \|>v\|1)\< n.....irr .. mum: .r... the ma .......=.s r... ...a.k done (s.....:» w... ,..... ., muukn(An§wel1S~PW\|A\|. cm...............s.. rw. .«.a»« .2. ran. ..... uflhe M... r... v>...p..... arr») ....¢....... 2...... us“... .1 w... up-gas zum 3...... an xnd em... 2. sa...:..\|. o!RIltsl\|:Ig::14‘7-)S2R sumo 1...... an (Pig: u NOE) m m.....mr .... .....o.....d .. ...m........... 1... me Sddumbcrger .a....e=. (Ir-gas .2 ....: u mu Mu: v... .. mm. .g.......... swyxed ......... ... .-.......n ....a mm mm... 1... .... n......:r. ...p............. .. s....<......u.... 1...... .5 how 1.... .. .........5 .. ......... .. ..n... ..... that var disauxwus haw“. m: .7. new ma .\.. n.u..a.... .. 0.. ....... ...a ............... Far 0.. m.......n-. ................. .. ..............c.... (Dig: no NOE) he w.....n..... .... Delandanl ... ...«m........g.... .. S<hlumb<rg=rpm;«I1ptge n Non. mm ........ .2. .3... ..r..... .....:.. .... ..............; .. mnknl ,....; ....a the MM! 1. .a h... 5...». (pug: 2. non; r... munpnwu .1... Var .4 ‘hi: jam m ........ n. 2.... 2. Sc>.ea..\: .1 R... ....... :0. ml am: 0.» lug: 3 J70 9...... an and .... ......p.=wc. ....:s lor .uaaa..m...... r....... .. 2.... \|2~S<heduk ..m.... am... .n W... :7» a........ an wins 23.2» was» llndu .... ...... .. Schhlmbtvgzfs m Exhvlml 2rs....a..n. nfkalzs (page 170 s....av. an, mu. .....m.. ...... .. .:....;. .... pm... 5... rcsvdcm ...... 4....a ms Nor». rw. .....r.......a........ alml an... .7 Nrrvrmbrr 20.» me :7; 3...... an 1mIhy\h:PV rr.......a¢..... M....... n:.. r......»......~...¢.......i........g.. mung. my .:.s......m...v...1.«.....na...... \7Nov:<nhsznH(P3ie173 5...... u.., .... P\|n\|rI\|lTha .5“... .. .n nu. Imus ...a .....a........ .. .... Rrr nu... 25.25 NOE) T... n:rc..a..... his ....a ....... ..r.:.. .>..:.....r. .......c=. except rm... u unvmmilpﬂgts 25.27 NOE) 1...: was .... urﬂcnahngby .... n.r....1..... .. ..., .s.. r\|......w. .......... ...a m. w=..a.... men, .......a .9... Ihcy WOIIM mass m. ,........ a... ...y....... ....u 5.... .. um. .: ...p...... .. .»........n .. ......- zm orsmx. an .,...... :2.» mm menus: m o¢....a.... x... m... .........a..... .. m: ......u mnrspondzvxncs m. [(5 2m and 25: .ra.....u= an .n.. III: w......«rs ....o.=....e ......«. m vrweu and appmul ...I.... .,.y....... am ..< mad: wag: ;A me). Now: aim: 5...... ......m.n .. mm a, on n ma PWM xlwws .n.. (h: Dcfcndlﬂ ......x.......:.. us am .0 the r.......1npases um NOE] 1...: .. .... a..<......... .......w .r... In: mr........ rm ulwd .... m.......n... ..p...... .... ...,....... {at .m..... 1...... me'u)vn:1uVornunpaweIlP’ShS37-3! may n.... .. 1... ......s ..... W... ........w¢.y,......... .................,,...,........... MI ....n......... W 1.5: ..a........ a. 4...... mnwos. v.4. lhrrmm .. V... 165 ....a.....¢ a., pamesagmed .. .....u up ............ nus n. 35% Ind .. ....a.... ,..v ..... by an-um ......g .49."... ...,..... r... W... ....... .......m. 1.. .............(.....» m.44NoE) Payment ......v... .5 ...y....... r... m............. .. ...., .... ... N... W... ,.,...... c... ......,m.. .. ,.... ....p., ..:..............,.. out woe. Thcarrnngcmau bdwu. .... n.r=...i.... ..... Schlumbclgcr ..... .... .=......- 1 .... n.......... .. dnlfeml nnunganems (pig: 4. NOE» 1.. ...m. V... .0 me muamx .. .... ......... ........cs .......... mslmclmns (mm m. Dzlunlﬂm by My afxhe Nona nl ............ ....... .. aw. .. .... 5...... of ...... .....m....... 0.. dank .. .... ..,. ......................¢..... a.......... .. ... UWDWK WNKI ............=a....g WV“! .... n... NEW‘ fm .... ............. M... ...a /............,....... M Rwmm .. .. .........a .,,. .... o..c........ (pug: .4 NOE). 1.. Mad... ...4 3.... its ................ .. ,.., .. .............g .......... nller .... .4... >........ u... ...., .......a... .. u... W... w........ ... n.¢...a... .....n..... m. m....m..... ....y ..... ...g........., ,..,....... form: xervwu ........ Wllh s..........g...,...,.. u. n NOE) r... r>ece...1.....1.......a ..s .1... m... may am .... chzllzugr any .. m. 5......“ ol .......... ..... UWDKCS mu .. mm: what 4. me. me ..,.......... ........... c.. ........w. ..a WWW“ ......... ............. .. .... ...a.. ﬂag: mm. ....r.».. ..... n. s........ .9... a... .....,......... M. neusury \ .. ... .....,...».. ........ WEI! ......... ..m... M... m. serum ......... 4......“ .. .. pwcczs .......p...... ......... ..,.g.u. nos. Mr x........ W85 ...... mm... .. .. ........ ....... .......... .... s............. .. pnms .. Schlumbcrger .......... m. 0... W... .......... 1.... .... :............. WEI! M. . ....., .., s............. ...... M....y.....4u ream . All mu w r z................ .. c.. m .>.......n-. .m.......... .. ..............<.... was sepanle fmm .... .......... x . ...../... .............. 5...»... .r.. Dcfevlxlnm ...... s...».....sm. ./........ w..4 rwm 1. was nevu wad ...,a.. by lhz rv......rr..a .... n.n........ ..... .r.. u.....a.... WV“ unly 9., (ur im/macs 5...... ., .... m......n rmpcu .. ..........wc. [Answer m. 7-Pvmn Th: r......w wls ma ... ......... .... .;.y....... lo! we. fmm ... pa;/men! r... .......,..... Whkn .... .>.......... M. . .....m s............... ......... ..............=..... .....w... A/\nxwzrN1 7, pwu. n. Defuxdzu n...a .. Iy mm. M. .... s............ nlr-Ymcnx lm wvwcr ...a ..........w.. ...a .. M. nnly ....... s.m...n.....>. ..r.... .. my .... mm... .2... .... Ddzndnnl refused .. .... [he P1.......1v-.. nspen mm.“ LWIM , '—F‘2M an. n .1 54 III: \|)¢\:mlm vequtsled Im nnnnnu [lam Ihe Plamlnﬂ nu sank unn muund g ylynwnl .. mu Dcinldanl was xlnll newlulwll wnm sumnnnnnuunuuu nu m c Plynxnl mm: DcF=v\|danI(An:v¢ers Na. 3 and re uwzn (Iﬁcmme ns nude nu ,n..u zns nVBImdl< n n Cm-cxlnlnlllu . fwlsemlhe m documenl [P553312-J62 Eundk annu AM PIQHIIIWVII nn. mnn dmnd A Nov¢mh¢r1ﬂM mu 1.53454 Blmdk an «pm 54 5 Not». Pwzzppmnched the P¥\|nnhD‘u>:o\\|:borln¢ unn lh: Sshinmberuu propel an ll: «nun: dﬂad 5 Na\:vnb¢r10Il Lhlbs 3554.54 Bundle an was: 55 Nos). nnm vﬁ M ronnnnnv nuu I-(man unnnu Phu n« n. snnnmunnnuunun (Flu ss NOE). Tim: is HD'Mll!lInIglU¢rlIrV1l!\yltd nun Ihz Plnmllfs lppui man .5 xuh-(MIIVKWV (pin: 55 NDEL nnm u . -¢p\|nl\nnhdv«w1'‘IH\d¢vI Ind “nu has" «mes 55.57 NOE). rwz is nnun ﬁlmlur wuh each nnnu m ; Izrm and umdllmu nnnnuun nnnu arr «um 51 Non n-wz xumal Kim M: num and wndilions m n. RFF vmuid unnvvmnwy wnslinm (I1: mns Ind mndllmnns btlvwvn me rnnnnnnnrr um mu Dgkudml (via: 5: No: >, mm nn mdncnmem In rzﬂacl Ihu nu. Plnnuﬂmnx mm m xpanlr mu paymcnl run svvlw rnunnn nu plymcm run mlllpﬂwq, my vwbal Insvucnofls (Jug: so NOE) Pwz .un«.n nnn.n nn 11 ml purl aﬂm mu vamp: In nmvmw Ihc mvmasw in he VIHI M m; D:f:nd.In\|(\|1IK< 59 NOE) Smc:P\\|l2 hnsvw lllhnmy, \|\| Is M71 run \|>w2 nu my uhclhw lhr Dcfulrlunl MIX nu u._n lhl: "wave: .5. ml mu: en mm Pwz wnﬂnuodlhnl Mr. Rlkesll (m\ n) wns my supcrwrllld DWl's=IumI (page zoo aunnunu an wmld mvenrde rwz-n unnnunn (pug: Ina mnnak rm (via: an ‘l0F\ lnsenmlnlln The Kequm run Fmvusa! rnunn. Schlumbelger unn we 232 u: Blmdlz an wls ..un furwlrdrd nu Ih: PlnmInVTI\|Mg:v am mm m Delendnnl Inlmdld In uuy Ihe Pl2mII"'x mvowcs run sarvwt chums hm snbseqnemly resented Annlnumnx ﬁam mnnlnnncnl rm! to My nun. rnunnnnnnr mn saw‘ r chlmzx bccwsot sanvunnnrmgsn mfuwd no mm Defemnnﬁnngeﬁz non n < rwzx nlutcnmmimg Ina: Ln: DefrnLlIn\| Inn nu ply uh: HI) rnnn nmnuu chug: ., w:\|\ wag: as NOE) VAME avg; Mono mun my Mom) Inn’ 2 lnnn In c . m Plmnmlf 1) nu. um nu My ngkemml unnnvun sanlrlcl I-mwun KM Ddmdlnl Ind S:Numh¢I1£V(AI\swa uwm Th: Defend-n: pam uu ofm: n-nnnnnnnnrrn mvmeen nn. mlyxcl uflh: iupply nVIr1\dnI\|mV nunpwcvnnnl Id hnc mnrkpcwerbnn Fzﬂed nu mak: uuynnnnnnn mwatdx nx aim: Human‘: mvnui nnn vdvwl ulwurk Jun: Lwmvew (Ans-«en x nnnnu 9—PWJAA All un um n-nmm-5 nnvmms mu fnrwnnltd nu me Dcfcndznl an .m Mm! nm were mud and snanmennn al'Au:ounu Wu: nunwumu In line wnnnuunnn permdlully (Answu uwwm 11»: vn..n.nnn had gem numtmm :m\|I\|s nu nu: nmunnuunnn u . mnmdzr Ind/or dervnmd nu nuke Illymenl mum Ih: mmzndxng nnnuunm lrefnence nn mud: nu mun 215.217, 255.257. zsvasz. 252. zvozw. zu mzux, 2u9-212 olﬂurmle anmnnmn n rwm Flu lmﬂsl in am...‘ Job: my the n-mm an n. cuﬂy u...n.n.a hwy ...n.u..a...v. ..:........» ofllﬂl mums. 1.. Exmhu 2 — Somme M an ..a Pncex a the REF. I71: Mlnpunzr Chlry: In mm mm mm he umkv Man «.7 at W .\s2 can rm 1» mg mgr. cu...“ ‘.. me imp: nlvmrk .; m<rmmu<d urllav Lhz Manpnwa cums fur Rmckm Jabs wauld :. W. man u xa1F,.nma_ mm urx...=..y.a mm m m. \|zu¢rnrA\-Md (Inge-wn cam Umkrlms map: uhmrk, me Manpower Chugs wnmd b: mm M! ., mm, m hump sum pm." winch mcludex ll: cbermulx‘ mus. zwwnm ma sunmmxbks used up perfum the saw :4; u §<hlumh<:g:r‘x ynnmcx In me. wads, ....»_v M. nwu (‘Mun m pynhle nu name-1 sum, wlmras Servizc cn..g.. m um pnynhle lot numnuow [nmphaus naval -:11. plmnuffs rlzlrn mm the defendant .5 fox mg Sum of nM1_1321,1s9 97 m rcsptu of oulstandmg Invoices for carrying out mspecnnn and ckanlng work of pipes (M/wng amﬁmlmn my war urzrirnnku @‘ /he nwmg an all .1.‘ pr;-n'u.«c< of 5(hlumb:Igcr m \v;1.,:h Pcnsckurunn L-Ahuzn The num mm: 1: wl-xc\|l1n.r 1\|-m dcékndanz Ii Imble to pay (ha sum of RMI.l3E.l6‘).‘}7 to Lhr. plnmuﬂ’ for um invoices .5.-um m zespccl of servlm chazgns fur rcsuknz ]u\|n: (Whm nymmpomr Marga a/mm,7.s5.97;. '11:: dcfunduu wk-:5 Ih: posmon um may :1: not hable m piy for scrvlce charges for rcsxdzm yobs, L... m mu, lmlzle for mvmces m respect of manpoxnu chngcs -rm -‘lcfzndznl does no! dzny am am (3) cu: of me as mvolces um form an subyrcl matter 0; the plamnifs claim 2:: m fact invoices ﬁn manpower zlnourmng m RM4&’65,97. ruesedso nu: Derembnl never rkmui mu D:1¢ndam'a MXFE. r... .>.¢ .. wvrk {sew-:2) .... only Iwluswd r........m gm: muzud plmem ..=:=..m umadempqgzszss-2rm,2\|6.M1270.257,254-25125:.2m2Ia.1vs,2\3, 2.» ..rn....d1c an (Anmu .2..>wm Tn. Defdndlm .... ma (M .=......rv ... yevlm: .2.= Dlymml 1... mg ....p=c..u.. .... .........g W... ..r p1p<s .. ... sm.....ae..=. p......... Vdluyuh v-gm-......... L........ ..m.... ...... .... n-y-..~..c.«s..w<y a.-.......w«.m..vy u... ... saldwmk WIEII ....n.¢...a.... ... naked by s.........r~..g=. .. lmwsd ...... ....m.. pmpmﬂ (Amwer u. vwm n.. v ....n.. ...: .... ...”... wwk 3 wzll .5 ....;.;v...a .........m.... any .... ...; said M ...... J-nuury zous ... Liucmbu 2015 (mm. .5. vwm n..n.r=........ ...: ugvml m ....u....,m... ...w..... mvouus Fnrvwrk dour Lszrvvu) up In scmmxx. Z0\|5(lEf:v:nu1s mid: ... my-‘ §1.w7 of a.....:.. 91;./...)“. ....-wm r...y..... .... n.... ...... ur...........m....., .... \|>.r....a.... rm ...... .1... may vm: .... .... ... ....:.= p-yum... ..m..:s.n.= ...»...m r... M... .. .... n.c......... were .... ...». .. Be. pnymnln ...... Schlumbc-rgev under . cnmplexely ......“ camncl .1... .1... .1 .... l'!nim\|ﬂ‘s .,po.......... .. sub-commclnli (mittens: .. ...... ... ...... an ...a zoo ... 3...... an {Answer nuwm. the na....:.... nrwv a=......a.a .... rclum ... .... .... pm ........... Invmcas r... ...... ...... [yen wt) ...»... ...: n......« ... uwlzhv ......» I>v......«.». .........>.. ......a ......“ Fntwuvtdnrleﬂnw-V164) ...“ ...... ... m\:Ill<:pm7rln m:c.:...u.c1n.... bang mu ..\..s.-... vwwn) c.m...... ......” vw; .... ...: ...... .14.... .1 N-Ivemher mu (page 37; n..:..n= ...; .. .... Delendam (Mg: 7. Nos; rws .....‘........ mat we ... the emuvl ...... .7 Nvv:mI1¢r20IAlDIE#I73 u....u¢ an mm; ... .... \|>\.....m Lung: 1. NOE) 1... RFP .. ... ...... an... :7 s...........zmo tpagt :7: am... an mm .. .m..<u...=...... pus: 332 Imus: as: a........ m mam. Nor.) 1». Mr ......... .. .. .... .-.........r. ...... .. ...... m .,r.z....... an Mvnrx .... n.r..a....~. ...... ...... .1 «ma. Wm... .... .>......:r.~ shop: ...... .5 .... ...“... .. .......».s..... ......,m....»u (mm 71...... 73 not-:v mm: mw: nukes): Kurfu RA-uanum .... 2.... via. cm: mm .5 ... Counlry ChI:fEx:cu\|w: md .... ...“... .... Schlumhugel p....e.. (Anmvr Mnww m .>.r.........'......=..y==. W... wmn....¢umg-nu nu-mu, ...... -... vwz. -...: .ep....... ... mu (Answa wwm Snhlumhergs .... .... .... .... mrwu.. .. ....«...p... ... Imdnrxenue for ...‘ mi... ...... .... I.......: s Nuvcmbev zou (raga 36J—3.S4 a........ an The Rtquesl ... mm... mm «M s Nm/ember nu (ma saw: Human: an ...; .....v..a .. the cmlﬂ Fmm S:Numhugt1{Amw=rLD\\\|/\) 1... Ddendam 9.-.1 .w.ua.=.4 me n......n ... m¥\|nhnrrnI: .... .... pmpcl. s.....\|a .... urmacl bu lwuldad ...... mrem... IM n......m......a ... eﬂoﬂ r.up.».ma » V1: ...». orm\|rﬂADr AAnsn:rLDW!A7 v.. ... ...... am s~<.m....mz.m We 35: n. 1: an, .... u.r....:.....n...1 ...-...aw ...: kw ... .... rm. .rr./...»... .. nwv A» ....u...s- mg Pimnulfmd mfclnved mg ugmag... ..: m ngeemcvu \o mg Itnm um wuduivms m mg arr gs. mg :nuxVd114d n Nmmnber zrm «mg 37: mun): nu Wm: sgnwm. mg in mg muabnmwe mg... of me .gm.g..gs.g,, x bwtwan ,g..m,mg Phmuvﬂvuxntvtr romgm apyvlnwdze ...r.g.......gm ﬁvr mg pmjem mm wlsnu fomnl ngaemweru Io. puluumz Itvmsmdmruduwns tor mg suh—uvmn:x gs u ggg \md:mnnd mm mg um ma nandmuru gr mg Mum cmwm m.gm...g mg KFP) would rm mg um ormg mvnx Ind mmlnlum undar mg mb-mm!-.1. AI mg Inn, mg rluumﬂ ma spun! in mg lam: ma candilmns -mu mg arr (An5w:r sown) mug ..g 2 was cl ympeofwnlk, nam:L\ Re;-uawubsana An mg mm (Answer mwm Fur AA mg mm, Mnnpowa cmggg; gm sgmgg cngggg. ..g pagable For ma.“ ms, only Muwpawu Chmgs 2:2 pﬂahk v/nun: sgmg Charges ug ...« pmmg mggggg 7-mum rm Dcfendnm wnuld mm mu m In , urangemun wlue Schlumbezgev Mwuhi gm,» pm Munpvwgr Chlrgcs rm ngmtgm J»; .g mg nergvmnm g... mg Delcnmm unmd um» um. Mnnwweu angry: and sgmgg cm-gs fur Reswdcm Jobs to we rnumgnumsuu oww mg .g ; um cundllmm m mg xrr mung mg: mg Mnnp-vwu Change: m R nllnI1s\\w\d ug huge on . mnnlhly a lump sum pagmcru mm mgmags mg cmznnuls, malx eq mrnl ma wnsumlbin used ug wrgm. mg seniux 1: sgmumbg-ugrg pggmvm nmrug. mg P1:-mnvru ruvl amnad gg clmm for sap:-:1: Sen/me Clurgu in Input: .4 xgmg... mg; (mug, x-Dww mg l'Inmi4T nu. cllmwd an Strvlcc Chnrnﬁ VII mg dﬂpmtd macs Hwwu, mg Delawdnn um mg to pa» sgwagg Cmstx mg Rmdcnl mg mg Dclcndm a, w-ﬂy u..mg \o M Mmpmcr (huge: Ihr R:ex\dmHvl1s.\Ah\|r.hme Defelrdzm nu ulvudy we (Anwvr Iwwm mg mg..." ls ml ...zgg...muy anuxlcd m xgg mud fur u mg invuxes usned rug pzymrnl gnmg mvaitﬁ is mug-gx mug D:1'rnd.vm'x verrﬁclhm Ind gmm (Answer umwm mg Delwdxm rm mguaggma nsdzm ug mg Plunhil (Anxvmr Ugnwlm mg Dtfwudlnlhad a?wI:«ih::1\| dcirwnh lh:Pl\|mnI1nn mg dcvnuvauon bemeen Mm was pzyahlu rm rksrncm Mg; and Will nus o-mug {M An ngg J<tbsll\uiv«m 1J.Dw\|/\).11w ncrgm... cauYd “mum gamma mu u mg mg in pay sgmgg Cinlges fur Rcsukm huh: m mg Plmmm mg. mg \|kr:u-inn: um: mg mu .-« nu) sgmgg Chnrgn :1; SchlumbclsrVnrR:ndrmJob5lAnsw:1ILDV/IA) mg n.. ma rml agm mu mm: Mu mm: p-mm mg by mg Dgnenmun [Mme 1 mvaw<S gg pd mg mm .1 mg 135 aiﬁlmdln: an umgwggg 14 gm: wsgpwm Pun-unnl Io . mnrpgnymenv. mg Delamam Ivy mistake mg plymuﬂ 0! mg Plmnm'J‘s unvmnu mxalvmz Sarvxca Ch-tits (I-r Rzsndzvn Jobs Av-hes 1-21 or a..g.mg an mg Dzlemnm ...g.m..g.g mm It 15 ml lublz 1» pl) sgmgg cm;-s nu Rendzvu mg and nugdm ggggg .. ggma hum mg P\uinl'\lH/\nmL1! 16 ms 17—Dw\|Al Cm»-=x . ow: w.m.\y Mvgmga uurgg M20‘ Ho-us/dmllngtbameen mu m. mum mg Defcrvd-M [mm 1-m-uy zou (mg. 7x-so Nae). own kmgwxgagg VI gggmg gg mg ngg-m.u..;rag.\|.ng. btlvnmw mg w..m.cr.m mg ugsgnagm ggg gm: an .agg.....gm...g.. nm In an mg: knnukdwr m rclunu u. mg mgggm gmggn mg PI: mum: mg Drfuldml ynot xo mg ngngmm-5 umlrnunndln grggmngwwgnsgxguumagggg Egnlﬂ \|uIvdgn§5‘JlN0k) ngmgosa aw: mu klmwledgc alum Ierms and m..n.m..; agueed upon by me sjxun ma mama.“ mg the am an we ms nu! Bundle av m an m mu: any mu: m vapcxaflhc gm emml [pays am NEE) nwx Iyad mu vvduhe mm .... pm §ss arswuuk in, warm: um um: um.-u.:=m ....m==\ Ulla nunwwzr numm saviurchangl wage xa Noe) mm was ml Mme m we mvsnumnx .. m haw much m cm, s.~n:..y..a=..-,=: 4.,.,;;, Ins Non When .3 lm mam: mu m m. Lam nl Award and mm ummmcms usued hy Sthhuvlhcrgu .u nmnd m ... Mn.” and miner bu! nwu WM iwwardnd w the rnmamu-ge ca Nos) 1»: o=m..a.m n\T::r MI in: ma ...p.ma III: Noun: al lrupeumnx bemg the Wm dmc 5; KM wzmmr ‘..;¢u.c. wxh (In ﬁgurdt/win «mm vs»: Nos» rm. Ildrvldlnl has «my mum nr mind that Ilmy «mgr:-e nu ma Smcvnuu afA:smm\|s ma mwme: lml 5. [he um. um: ... ll“: hm mm M... u.= MN m. VIN 100-ml. ma 5 lug: ms. was m.ns NOE) m n ywvmusly mm )D( m Invmccs ..~m...g m nu-V19: thnqu {plges mum NOE) ow: wt: nnl mum durmg um rvmrmzon vsovzms wimrm mm; .9»: m umln puymuvl (pug: ms Nut) ‘mm u no cvtds-us: um lh: com «um Schlumbelvtr Icluvxd u- my I51: Drlcndnm [Of wrvisc mm Wises we ...a Ill NOE). mg Dglendlm nu nrvel quesliunad the Invowe on me zal nl'Bund¥e an In: mnnmwrr Wm. the Dekvxdnnlnlklrs lhey ma ml xx...-g.a..u.... Analysis and conclusion 20 1: ,5 obwous enough Lhat ch: plamurr and defendant cullaboxaned wuh end: mm for purposes of ensuring am the drfendnnt secuxcd rm pmycn rmm Szhlumbexgu. The plzinnffgnve mm input for 111: cnmmcxclal mm my am Rcqucal rm Pmpnsa] mu-'17") and had mu mumnlcd um lh:y had ngyvcd us me RFP (sac: dcfcndnnfs cmuls 1\| ,2 23* la :52, p.252 Io Z33,p.363,p.365 mu p.373 nu), Clearly, zh: platnriff :(.~1sI(rJ Lh: dnfendaul m ptepnnng the commcruzl proposal far purpmts of an RH’. "111: quesuon .5 whemex Lhe RFP (ezrm and condmmu mam am pm of dag x-nun contract consnmte me mums and (oudxunns u‘; m the sulrennuazt berwten um plmm and me defzndznt. men as: 21 Havmg lnokzd at me cum: factual mztnx md me contcinpomncous dncnrnenls and me cndence of me wxmesses. 1 Ira eexueme .0 mke me conclusion as 1 hm’: nnz :ten the puns: ten-n5 and cond.\|uons of me mim contract bnwenn me defendant and Sthlumbcnzu to draw th: infcvcncc In em. rtspcir No one came fmm Schlumbuger m I:stIfy as regards me emuem of (hut mam cnntmcl with me derendsmr. 1: \\-1: xuggcslrd Ln; me ueremsmn um Schlumbctgu disputed Lh: uulsumhng Invulcus for " -rvxcca" (Rcndcnr job») but 1 End um meee 15 no enaenee of Schlumbergu ncluzlly dlspunng me oummimg mvouzs. 1: was only me deicndnm who mseeung mm Sdulurnlmtgu \us dlspuung me outstanding mvoios. 1“ incl. mm agreed mm Sdvlumberger was mule of aee p\|2Lnuﬂ’s rlermnd for payrnenr for me wk don: and rh: servlcc exmges and me even prcpzmd .0 help "push" me defendant :0 makc paymcnn Thu.» .5 ttlf mam Frnm the (mall cmm Schlumbugex dated 25 Nnwmbex 20:5 to me plnmuif (pzm Ti1)\vh:xv dlry md am am, Mn help to push me defendant to make plymtnt rm me» Invmces. Qnntc ubxluusly, Lhc meme taken by scluumuxgu um. um m wall wuh zhe suggesuon am Schlurnbugcx wax dhpuung me uuumndxng mvolces. v...z-em 24. Indbed, mg stance mm 121‘ Sclxlumbexggr unphnrly n:pud.Iz!:S (he suggesnun um um plmnuff 15 bound by me IIFP mm: and condmons because man an xu-‘P, sen-me chmgts m not ,.a)=b1: for resident ‘am 1. ,5 also stgmﬁcznr m mm mm Tahnr (PW/2) (0 pm" mpng,» ,5/:5; tit/rndnnﬂ had ma. me dcfzndznr had almyx Inlvndcd m make payment on ma omswnrhng mvmces. am me defendant am not mzkc pmagm brcauw (her: wcrc dhputex bzlwezu the dermaam ma Schlumbcrger and the defendant was Irving Iu nqguualc mm Schlurnbcrgcr rm pumcnl. In my \'m\I:, \vha(evez pounon or any) may have been between [ha dcfmdznt and Sdxlulnbttgex, is nine conccm m Lhe plunuffns Lhe plalnuff had done Lhc woxk and ma sent the ouLs\|:nd.mg invoices fox m1,13s.1e9 97, whm. Indnspuublxj Iemzlns unpud Th: contempt:-mucous smalls, sugzst out the defendant vnns Ioohng mto me mxllu ma was Amending [0 pay on thus: mom. The d=rmd...r.: mam concern all along vms (hm zh: plamuff should not mp mark. And (hr dcfcndznr up.-ma am {hr paymcnrs would be mac. 1: .5 not m dispute mu me plunu“ dxd uh: wnrk rmm Jnnuzq 2015 to Dcccmhu 2015. The defendani purl on I-wuim Nu. 1 xu Nu.17. Eu: nut for lnroloc No. 1! onwuds. Al 74 mcunng on 15 Stplunbcr mus, pnucs mm md v.L\scuss¢d and u was zgccd mm me defendant would make payment m . comm arnnguncx-AL ruezsmsl 25 26 A: am mewng n um aycud am the plzmuffs \|nvo\|c:s would be pm m . comxa from an amounts um wtr: due and payable by the plrnnnff I0 ch: dzfzudanz for olhzr work that w1< dxvne by due defmdznt. DW1 (Rzkesh) was not present It me meeting. am he clan-ned um 11: kntw what W dxscusscd an an meeting He ma mu he was updacea nbnur (hr mccnng. 1.. my mu. m: mm! appmpnme and vrlzvanl pemm m resnfy on :11: mmm mm Wu: an cusscd m ch: manna 15 H. Sunaru jnsman (“SIIﬁnn2") who was the defendant’: lmlusm, Managcl (Industry an Fzcxhncs Dlvmun). Surnru was but of [he &¢!IlUY >znAT ui the ddundznz whu \\|-:5 hamllmg eh: pm]c(L He was present at the mceung on IS Scplembu 2915, Thu: .. no cxplmnuon rm his absence rmm me witness box -mu: (PWZ) was mo pr:$:n( at Lhc mceung Hut, Suxiim am not (esuﬁ dunng me mzl. I: was wgglstcd 5, mm um mg pnymnm of mvm.1.9uz.oo (service charge [0 Remdznt jobs) as a “mAsmke". Eur ll’ mi esrabllshzd dunng :11: end that these pswmcms Wu: all duly veriﬁed by the defendant thlmngh mu Slngupﬂte nfﬁce and am. uI1]yp:)mtntwns mu: :0 Lht: plnmuff. /mu r)\v1 .4“: ﬂu: xu ulvmucs and ummam of account mm duly received by me deicndanz and am .5 no mam: dun me dtizndznr contempoxaneously raised my oh}:cuon to me uwmoes 02 me smanent or account Sunam ms nu: ullcd .5 . wlmess [D cxplzm about any purparmd “mmake". Fun 2: cl 5: 27. 23. 29. 30. And quit: sxgmﬁcandy, .. ms not put .0 Tzhu (PW2) .1... KM161.902.U0 wxs paid because of a “rn\|su.k:” on due deftndmfs pan. Dunng :m.<Hxam...anan, DWI m:d to 5.. mm vhc cm-m1 p.,...c... was and on mvmccs .1... uexc nmlomlj. picked Bu: cnunwl rn. me plamnff ,.m..m1 nut mm m.» (unit: “as z....r....a .0 6 \n\'(-\::< winch wm .m.m1 111 July 2015. 1.. .1... tcg1\tvJ,D\‘('l ma lumsclf idmmenl \|n his \I.1mcsx suuanem lhll P\WZ W1: on: u[ the gxccuuvts m .11: defendant who was m....1\|...g.1..» pm\|v:cL P\3:’2 m u. fact (he dzrenaana. 3...“... Devdopnlznt M.anzgu— Industry. 1.. 5:. 5.. :5‘ vwzx ml: .5 concemcd. u my be sezn from question 4 of D\X'1.\ (ha. he was “h:ndl1ng" um pmyen fox the deftndant In 4.2: mgard, Dwl said, ‘The Dcrma-..n cmpldyra wlo Wu: n....w... ﬁe Vroictl Mr Suli: Amm-1 u..¢..s.., Mmngu industry As. rm Iu: Drvmm), I»... M..u........a Tn... v.....z .n.u....- n...u........ .vv.....w I \|...:....y; ...a M. Kumml Fuis s..m...... (lndusm-W :..w.... d..I\dmm}.vmre Mpomr\;lo\MnAlhn\|hmu” [emphasis added] 1. .5 also relevant m .m....... .1... d1c“m\|5\nk:" mm unlv surfactd wl-Am .J.e defence and 21 Novembcx 2016, was sum ... dus proceedings. And (hue ‘am no suggestion am PW2 ma my m .0 gm) or had any ..1...io. mauve ... pvmg advent :\'1du\c= nmmst m. fnrmcx .-...,.1..,m, an dcfendam m! :7 us: pwz And that n was zl\Imys the Anlenuml of me defendant am the 3<n'Ic¢ chnxgu be pm. Hoxmzx, mu: ms I mxnzgnmcm dtcmon not In W, appuernly ‘um. Sclaluzmhagzr mam not .0 pzy On the Issu: of payment by “m1smkz", u .5 relzvam [0 not: me fnllmu/mg tku-rmsh between DWI and counsel for an plainnfﬁ “o mm m: pv.mmn..mmmnn—rm.a4»...m.m MyI>II.¢orr:vl mum“ Hnvc you" good vlﬁw rzfmz 3. dxlmz , nvrglvcu . mmcz m m: Pmmrrm sly nu: Man an mi for any «r Ike»: A Yuu mm mm: ye; M no ul mu warn I»: m nplnin’ Q V31 cum" A. Na‘ lhauus HDEmIII.DVIlY\1'V'1l\|¢VH\'¢rHlWH§ . 0 N.» m: in mm. I am askml yw (army rmkv-c:h:vc7 A. M» Q And dv yrru mm mm n mt am you lav: mmy Ippmved uni mum six 4.; Invmus m an: an 1., mm chnzgcslnd M hnvemmdepnvmznualhc n. cw A YI1:lW‘uvIlv.p>Kw:v:. Q Va, um .su...g Wu. dc gvu Ipcz an M71 btculse Ilme watt: 3.x 161lll)/mnllnhllwumade mm: m....mr. =.mm.»..ow A ]'hexAx(&1\|!:yn>enuhav:b¢nlgJwd.y:s.\|lh:: mac <2 Andlhzt x: a.. Mumn . A wmuy mule Q Solvylgum? A wror-(U made a N.” yvu Vllc ..,.n,, wvwmly ...m. Mm when w my wmrrﬂy msdmlwnllukzyouluthc cmzuls n mfel ,m m pg: 271 nl emu nu. m mm... In u.. mm mvmocs men vulpumdly mum mad: Have you sun lhlsmllﬂ kxfove" A m Q Wzrcynu wpird m II-:5 :mIi\’ A No vaunmn o - I am Inﬂmang up WVIM on: or.» wson um mm M m igrend 6\|: 3 W. Ilsl m.¢....., am vs se...=.-.1... ms ma .... av‘: olliu, my. Lumnur. Bnsed on o... dnsnussmn, we um mm on ma». aznan nuns" v Pmutd ....a we wnln pzymem M-...g=...=....s ayeed by my. my ‘ w.; ... ....g.m A v.-.. « wunmmzk: Q» 1;... mm: afywrnmmrl vvluled .. am». .1 ma. rm-H? Cm ynu mu. mm was mm] .x mu ..m, ,u.. have made m. six .57 p-yma... mmcl .. not‘ A. am“. 0 Whrn Am you nub: .1. :11: in my Plkmems” A n. ..k wshwulllht somewhere nnﬂcmberwmnnhing 1. shmlld mnmm. Nnvrlnlvu . M M, Lnvd,\|h¢)Ix(5)Immae1nI¢\|n\MYkIlIn n.n.g..nm Ham (2; ... .77 My 1»... (sum an These ..c M... r... xervme u...g., Cum Fmm where“ we Bahngunﬂ}, .mnLZ)tn(1)MyLmd ﬁns is ... ralanan .. savice C'1lljCS.DVl'Wﬂ or ml M. mm. cm... >o .=c .4. W. .. ..... om Nu. .9... .. \|lv:I.y23. .. .. a.. ..«....,n....w... cnxrgu Pc us Q And do yam W ..,.. ..... .u mes: mm .. .......... .. ....... ........n ... ma .. My «ﬂy. :urrs<l .9 ,... ..... ......., ....... puymauts «.5. (Jury forth: aIl1crb:\ls" A lmnsnndumly wk... .m....... p.,m....n .5 Q n m....... b: mudamly Izud bums: .u the mu; “ma WEN me... far h-I_~ ...,v..¢...~ So .7.» my mnnlh, ;. us mmlaml) pmlmd and plid um. Va ruluuvd vuulsulsn 32. Q Sony my Rnknh. n W slid nndomly, IlIrr:niH in Am mm v~uHh:Ma) n;mmcAvnmx7 11m:wnunV)oM(\|}munIh(nnM mm of July any um mug payment m made rm mm randued’ A rm Mn, n xsnndom Q vim: du ym mun by lIndrm\|7 Vrru hn picked up Okurhzr MU: m um M mnmlaes, u .5 ml rnmam. mg numsemrnx ha ducldnd . M 5. mm W um; (nrlhn: rmmh ofluly mm mm 2nl6.wlr:1x or nail’ A (kn ulswzrl -2 And mm ,....m.. M .n r.-1 was mi um Stﬂclnlrr mu m hmc\|\\|yu:vnNoAX)vnm: mm a....m¢m mined yrs mm m. mhennvmmnw .. ,w.:m.m,.., \nu:hv:Lu\d us" A. om. okay. I kvww Q. Tllrn m mmarn my mmwcs um. wzrc wswzd vnur m II-< meem.,_m..w A may. ,5. Q Van um ....v, deemed m mukr m m pnymunls w Iuoﬂ my av-Mr: Far alhrx 4.: plymznlx mnen” A can Q But hnm an Hm: .1 n W mvl . rmnnke, an W. we Wllh A Yns, mm laguu Q: N». no. um wuhis :vn\|\I. .1 WIS nm:msI:akL .1 M wlucnlai. nwm gmsdhybulh pIm:s.uvnvclMnm'.' A. N.» Idxsqlw wﬂh you mg p.lﬂl-ml NOE! Basal on the cudaxc: as abov: I doubt vzr} much that the comm pmvlncnr mud on .s invoices ma. Inrludcd scmcz chzrgts an xesxdcnt wbs was done randomly There .5 ‘us! no mam]: erldence :0 Show am at was 2 nndom pnyxnent. Indeed. 1 End I! too as [etched mm [vayrnenn mad he made by randomlv plckmg mvmcex In my :\'enr. D\V1 is nnl zh: nghr person an say whelhex u was pm: mndon1l_\ or whuhrr u \n. a pnylntnt by mmake memm The defendant ms not pm nu pmmrrs dmm rm me sum of m1,13s.u.9.97 m new of (11:11 munmrdztm The dzfendnnfs munmmm .5 based on mm contsnuon am me; :1: mam m a vtfund nf mg sum of mzzmz 40, bang uh: sccond or double paymcnl of due: (3) Invoxces \vl-uch had been pm by th: defmdam m rh: plamnff. The defrndam also clmms um rhty arr cnmled In a refund 5,» Ihc plmnnff for the tum of n.vnm,9o2.oo, hung a payrncnl of scwxce clnrgcs m an plmnn which wzx pm by "mm.akc" Th: dI:A':udanK‘s posiuon .5 am beam of xh: zullabonzw: nuur: of I11: relationship between Lh: pmm, Lhe plmnuif was never fonnaﬂy appointed a: a sub<onu'acmr fm me plmccl. Accozdmg (0 dm dkfendnnl. um pxmnucs and the defendant also 4.4 no! mm mm any fornul .,;mm. m supulale the (cans ma comlmons of Llus w—ralled mbcnntncr fur um pmycn. Mr R11:-sh Kumu (DW1) who W me so]: wunnss for m: defzndanr. me am rhz [Iam:s am nu: Ihmk ma: . ﬂmnzﬂ cnnmcz was n:(cs.~zr_v as u um ..naus.....4 that the tcnns and wndititvns of the mun cununcl (bnzwzcn the defcndanz and Schlumhergcr) would form we hm nf Lhc Iurnx znd cond.\|L\ous under me sulmonum val: a M u 55 34 A: I said, Surlam would hzv: been ab]: In shed hghl on lh: xnzner But h: was not cnllnd z. 1 xwmess dnm-Ag the mzl. On mg contrary. gvm dug defendant's pncuce of msunng mu all paymznls 21¢ duly vmma, I xmuld dunk an: n .5 man likely than not that me paymenvs wue pnyn-1cm. mm. m . comm, zfkrr Ihz dzfcndznt was sausﬁzd (hm mm payments wm due and pzyable to me plamciff n was not A nusukc. Indzrd. the «mm matnx dun nnr mppnvt me d:f:nd:n{\ «uggcmon am the payment was made by -‘mmawx 1.1 Lhu Kguld, ... cununuc mu :1‘. nnzr.m\'u ml’ we-ntx, .. ,3 quiz: zppcuilc w nous um snnoe no P ‘Inuit um funhcunung on gm oumwmdmg me Invmcn, me plmnuffs beam: Iruszmcd ma gav: nodce am any would be stopping wk The/v stnt m mnim:-us (null daud 20 November 1ﬂl5 1! 43lprn to Kzmamlfnx 15 Sulzlrnzn (mm DWI mpiari pg mm uuu, Ab mm. Ummn 0/ L‘/vlkmbcrgsr). and n ma; as" -~M.. Fmx. A. an dnrmnun mn by Lkh Hoard oVDnrv<wr,1IImngxn-unrmrw 1\|" Nuvemher zn\|s.n1E a. uniblr ho cnnlinur uirscrviu In uvsu nah: H’_mu mm l'un1hacxp\|a\|\aL1on.kn\|d\|)uelerlo ma Dwc:mr,Mr mm /mmm r n. n..,.u ynu llcsx kzpms. DzULK5ruuAI<.<n HI /\\|)—0(‘Vﬁ mspemouu m-cmms mvusmu u.«au».N ms: mmaax; (I-.271. B 1) me u M n 35. The xcsponse [mm Schlurnbtzgtr was mt. A1 4.53 9...... Ab .1.1....... 05...... DfSchlumhn'ga1 \\/I0w'— -‘mus ....1av...... Was: ............ ymuxicuoh .. nnmul Ind I rxum u... ..... pmlnssmnal WI). wk: yw ..ma...c my work efkmng Schlumlxvxrv ..p......7.. v be vew are um g v... lung lam .........s;,.......m.... I1:-vr. Lel mm diwusunu an .... rapids Ab Ilahmnn o....... Pm<uvrm:n\| mm... Shhlumhcrgel w u (Mm... a...r (p.271, B1) 35 On 23 Novunbrx 2015 Q1268 B1) mu sm. . length tmml (a. 11.41 am) .0 Surnm (coplnd ... mu: aha, mm, vwz ....a PW3) mung rhc phinnffs pos\|Iim\ 0.. 23 Nmmnm 2015 Ab, n.......... 05...... of Schlumbzrgu wrote the followmg emnl ... mm (2. 2.12 pm)» W... ﬂunk: .... ,.... ....... ..... .....n....... houevu .. v.. ....u..»........ ..... rm, v... ....u.... ,... ..... .......... m: M .. .5... W... q... ..... Ihvsigmwuh av ..... ,.........., P»... u.. ... Iuww ..». unhuvtzn W... ...¢..... ......¢... ..... .5... ....a... W... .~.. will: the M. \|‘nm.ud ax. mm F-1r ynur 3...»... W... Ab .<......... om... Vrwuwmrwvv M.....c. sa........«g:. wu (M7 54.. am" (pZ6B_El) m. :2 .4 so 1.. an cm:L\| dated 21 Nz.\\'Lmber 2015. Dzu.lkeﬂ.I 1-mm (H..:4rv(.' c, 1..pm..».. ¢~ Operamm: 0../....»., £49 Rzgmn E»1gn::rI»1g 5.1» Iw ) mote d-It follownng :ma\|l no Ab Rzhn-Inn Osmm af Schlumbuger The mpnnn I... .I.¢ zrnml wax “La... o.:m..1...g Pgmem‘ Im4:JrI1p Ir/.mt an 21 Nwmtbtr ?0Y5ﬁ7rItblI1mI9¢rg9r',I-NDT Crmmzz "Mr. IuI........ SIM: M. Avhm =.....I I... .m.....=. - Drubizm In San oul any :.....I. I'm furwudmLhIx nvly ... yam emml mm Den Ix-I........, I Iuny wrry mu I m..u..-. luv: .....= ycslzmuy .9 mm your cm; I busy chard ..._v cm... fmr p.y....~... a; I need In pay man: I. av ...Ir : manlh and V... mly ml Imdusund hvw‘: I I«I ... Hung are of run...» mm A.-......r-1: ... mull wmplny x..,..I.... yum mqual, fur an In ......... I... workx ... SLH ...=.....=., I nud av m gm ... w -..u. em] mu. wnlinnniovn Ia. wmmrlmrnl m. m: paymenl Onl} 1«uIIlS\|.\|\|)cI:II slvtpvcswys .. av I... iuvIng1I4L:In1’I:: mminlbnwmw II. 5uv1Inz.Vou& m II..Im Iljmu (sun... Dill! am Wmt cum I... Ell’. I.» eontnuue 171: »..,.I.., I wIH umlrz my mm mu mu.» .. son as my Ba: Mznlger .m..¢.I.I.. M: Alterzlhbclwcmw SL5-EV-I:llI:.w: 4.4"‘. howka WWI’! my Convnm-I Docwvwwl .=g..a. m wo rm... SLE dim: In an .5 Iegulemd v.........c............ mu. SL3 We ..= bung pmhlem .1... .. .......... mu M.II..... ....p...I p.y...a.. mm. av A s<I.m..I. owvwlfvr lo we um Wm.» our mm m m........ m: marks. wan II Iuidtnl cqrws md 3 sundby Nu; z....pM. .4. may c.m.......I.I=. ... much mm: I.........I.... I not mw ...m.a.. m....a. ....II I cmmdald w... -up-.x....o.. In ER:-: u. ..~.....n... me wnrks mm pm: my me ... push. av (mm: I:-.~me.....m..n .3 pmdblt lhmk ya... Imzam Am... Tnhh mesa (p.Z67—253, B1) Plnﬂusl 38. 'lhen. on 25 November 2015 ' '0 p m.), Ab. Rzhmzn Osman of Schlumbergzr mom the following emml to Pwl where he md he xwzuld “help push" [or pmmm 1: kzzds . . - Dar Amum. Inn mu, umlerilmd yaur cmbctm. and W!“ htlg .. E. nv u. ....u. mm.n.num:m_w.m=. ma .1 lhr SIN}: um: : will h:lp alsm any pendmg pzymcm mm av fmrn Uur m is MM FM W. mfmmnmnk uhuzdy W. In my <....w and Txhwrmgaminn mix ".1 WII Mlww up an «us by Ionmrmw ﬂunk ‘mu fur W m\.....« Wppnn m as w: (In appwunle .. Rpm: Ab Klhmun mm Pmrurtn:n\|WTAlM)SduHI1d‘ @267, I31) av "rm rnzcung whxch Wis had an 15 Seplenﬂler zms plays m important role m the factual mamx Aim me meumg mg cuntm paymml was put m plm but mm 2:: sull mvotccs (m auutanrﬂng mwimr) ma. had not benn pm by rhz defendant Thus, m an mull daud 30 ocmbu 2015 from N 3 m Sunam and copied [0 mm :1/in, PW2 and P\V’1. u was srzlcd mm ~1.... In-Howmg up on an: «rm: -clwu um that we um ngrud dIr'-Q our Inn mslmg am: Is Stpumhzr zms mu m IV um; Km. L-numr and m. W .:,,=..m.».. we nu .g.=.¢ an bclnw ....m. Hams. \| mm mm. lb: ....... ... rm .m..m.m .. ,...m by um. pm, 7 mm: 2 Re-wumtnu .mm.n«m. FRF mvmc: law we wqwk m=..a..: m the mmnamm zms Wm he pm 3. mg tnd oISupIAmber2DlS— mu. onsnmnmc. w. sAuvs4 :. lnscmll vcnﬂulmn And xppmml pmw {or pt;/mcnl wiH mu Hm mm: mm 3 vmeks uwv: vwﬁved was mvains mm m com-r.m4c:..=:= Inmnmllbove A: Whﬂl we had tmphnsnw-1 a......,, III: ... ,. Wt nzui w dosely rnlniﬂr our C1»)! aw in mda m sMN‘Wl Sxhvumbergcn nw..m.. .,.s mm mqmrzlnclns '\|‘1:v!VuI< iI mmaax In H. In mm an \im: plvmenl Flam av .. pa mnrkrvn one days unnn \|nvmcIng- Al L71: um: mm W: am um; mm m <:mImumu\y Imprwenulsarwcu um mm gum ;.....m {mm nv, M dn rm mink WG can \|><r\'amxiv:r:hem‘)cxpslumn PIS ﬂnd .u.=r.«a me dcnuls of on-lxurrdin: ixnoicci 150/» an your vmrlvui . m 7:. mm m mmmdvng .....mm. m haw: mvchmc: mm m mu, ...\.... aw mm... my nmnl 0”’-anon.-nus. u’ Nmrmwba zms r.u...g us Izvuvr-1y Wm: from av pnorwlhisdlk um rm us In mp We Wm .. we will be xlmggh m mama: on .m..:.4 rxvmxzs Maud m mi; wnuusl \-sun:-mama»: undeliandmgand mu: um». fmwlrd w rcwxvrm mynl mply and nmnn fmm yam 5.4. Th-vwks Eu! nu!-ls, Mona mun MDHD mm: cmm mum-~ [cmphasxs added] (p 277. El) 40 In In cmnll dn-td 15 jun: 2015 .0 Sunam Jm..n and cupmd m vwz ma P\\'3, PM scmd ma fn1ln\I1ng‘- mm m Sunuu. W:wmM \i\|<e m an rm mung mum an av .s am»: belvw : we 22" Jun:2l)VS 2 Tim: mm 3 Venue. av cm»: A Aumdn Nut Wnrk) fur sa.:..,..m=. .u mm. m mm the SI-bmlulnn Fnzrs ... \|Iv Jusuﬁahum mu be gm. vuusmu up r........=s...a......n....mr........uv 5 Ext»; Aucmees Mr .....1.w u...\|mu. a war w. m imngly hope mu y.... ... ablemxwcpl my rcanen rm. .. K ... uucau .1 nwonuw .........g ... 5...... .. 1.. .. w: bn1\vIyeedm\|\|ER.E A2 av . ...u.m.. .... no. ...... mm. am any i.. a rueczollmzr Bmh .»...p....=...= ...». bmmd ...... am <.........»....: mm ugnnmnn, ...... ro ...... av .. high!) v=:\|>v<I ....m.........x wmviny mm F.REvu\«-uisw-\IN\|1Tu;mvIn¥ Hucd .... c..n.:...u../“...... .9... me ....a .. .m........ u. Wurku for ma L........ \| farms: .5... an .5 . Im:.!.l mu NM WIIWIIW mu ...». he we ... .......a.. .. .... .... ....:_. .... sua 1...».../:<.........m rxrz .. M... 1.... 2\|» .. ERE .....u.. Clxznu ...» we zxeclllad .1» Work: 1... SLB,ow um... on-.x »..................:, ...‘... Whyﬁ v". am’. as . mu .....n um rovnvuly his r.......a nvvurvw I. mun mm». Lahnzn Opevnmu: 1...... In: Mulugemml .1 r......=..I ma .»....s 2". Exoculmg ...: Wmlw Var sv.a uh...” Mew. gzvmg 5. many mmilzs ...... ....r...»... ..............m A ....mo=. my ..."... in am. .... .... pzvfvrrvuncz. muvﬂe. drhvtnhlu a qunlny Servim .. .... ....-.=... cm... s......... mamlz .....m am \|.:Iwan‘7I>n1nons. w: m ........:¢..m.¢= ...... .... .eq....a...... & ......“ «...... SLB «in. .1... uﬂssu-as mm .,=...,; bmnnhx up 1.. .... whiz. c.....,......... ...... ...». ...“... ma ...... .... mrvwoux 1. wurnl cu"... — Vwuvvrmrm :. mum W: mu chbom: ...... am... .... «... mater mnnlour ...«....g a .. mm in Mac far .11. V stun mu!) ism-Hy In RV my nu] couwe Iv,» wnzk and 1-121""!-unr enher yuu mum: fnrusm mma. ms: Thank ,w.. ms. Funds. A/.r.w,<nmu.m; mm mxacvox -- (P 2247.223, 31) Pm as nY§A 4: Evmzuzlly, me slrumon was such out me plzmnff ma wmpleud men work ma \:( mg mvoxus rtmznned unpaid. And me plaintiff mm . sol.\|cA(ox‘s lane: of dcmsnd daud :7 Ma} 2015 m the dcfcndznt Khzough Messls mm... Rohandn whmh reads as 7 W( .n Infomsd >4 nurclxzrll Ihu ,0. 1!! ....mm m M chem .. a. sum urk.w,Isx.n52 27 m .1 am ms mg (12 my... rum due and Owing mew chem rm umrkdone .. 5.: nm Labuun Fedenl 1mm. Mnlnymn W: In r-ma mfouned :7, M mu mu «sax. Icpulnd demanwm.)/A21. haw failed. «rm mm mlfnll) n¢E\e»:I:I.I m my me ...u sum ..v Rmmswsz 27 Vn um: ....mm M! m mstvuual Ivy mar chem m demand ﬁnm ym. whxh w. hcrwy in. mg g.,....m ..x 0.. sum due and mung .. W chem ,.m.....n... ln mus:,mz7 V-nlhm rwnenn an am frum um am Imwﬂ nu; NOTICE max Afpaymml ofm: .1...“ sum ‘S no! nude In W chzvu urlo Mi .. um solmlmrs mnmn me mm: penud mp..v.x.a mm W! M»: NH chem‘: swiu Insuuclmns m wmmmcr Iv;-1 vromcdvngs .g ..,\| ,... for recover; um... 3...... m W 0: mm! )ml in be um: nyrnddunmnl mines! and mm: ...=ma nurdvtrl" (p.323, B1) 42. Th: dcfcndnnt re-plicd v lure! dmd 30 Ma} 2011. “Incl: mad .5 "W. NIH 1. your lelm ma :7 M.» zone on (‘K Ibovcmsvllmmsd ..n,m.m... 1. r.. .-.1. am mmmemlwn .4 ywr Chan‘; -1. m In 5....) at kM1,1sI.nsz17 an my am n EN V... um." Faded Yurllrrn. Mnlnysm hkssc pmvnde us wnh the brukduun .1-mg mo... mm am. a: run chnrgud, due [mun Ind am. .: 1-rvmu «mm. mm“... of ...m..n.2.x.... mucus rm... us (Ind smuubcrzm Iv yo... mu um nmvuknowhsdgemcntoflhz xx-rvwex “mm (.. nmrshvus snow by In and Scmumhelgzﬁ In .:aav , plus: mm. .. wnh evident ulna:-‘nun umn-nu ...nmy..-nu. mid Jervlua mama. m.:w.- Hm: n: mlmvmd mu upon map: ol\|l1: um: d0cnlv1¢nL\ M-mwa fnnvr: MII rnngtdlleelly mm wurchcm Iw lvwlunou in m mm W. ;n...u.m Ilmhw mm. bﬂmv pmv\dmg\|h< rwuukd mania‘; we pmdusuhls \eIwrmlh< uvmmcm an IM qusshmu aim nwnm orsmu -> [trnphasn mm] (P329, B1) 43. Aftu me pIa\|nuf\|'s lqznl demand noncz had rm. scm, Pwz (rm) wnm m vxm an 17 June mm m 1.20 p.m (copied to m.mD\w1 and Fmdmc Pmum) and «med the €nI1nwm,;. ’M¢:m\gw\|I.h Mr rum ymlcldly refund nu bcru Ipwd I71: av will my: Mmmy paymnm mined m 3]‘ "rnlnpmaer farr:mI:nI"1nd 'M\|up1vw:1pIuxstrvn.§ Imml—hnc",.u.1p Mr Frederic ind Mr x.m...nr...; luv: am. mmuched In mkn, canﬁrm and mm: all ma mm «mm Lu ma mm: m meter far pnymx-rm. m 5; mum anal-rdm[\y‘ We m um our wry hm n. Expane paymenuln me. n kuzp wu pnsnd Irtomungly hupencan a warm! nmm ya: rm ynurpmenl and Sdmul eapm Em Reymx Mmammad mu Yussof Business Dcvzlopmkm Nlnlgcr — Indusuy ﬂuunu VcnI.In(MlSdnBhd' (pzu. B1) 44 Thurmfmz, m an small mu.-4 17 June 2m to N2 and ma, Fwdcn: wnxm (.1 2.21 p.m)— “\|)arTnlnn ma. r..«.y.a : are wnrkmgnvl (hm vuutum Fun: mu mm: mm m mm mm M .nmm: and refmh on hi) muvmr) on \he;ohsd:vnrmd om mvmced Ind was by SH1:loomIr-y yo no! mcsm-d ya. Then or splll mmpnwa/saenwex dung: nods Iv he uvi:\~:d hxv All um ma lune rm may ma... W. M sun-udnyinsxlweelx. (mu with up wuh r.mum.1..m., nllcmmn on Am“: mml mm dxscussed WIWI hvm mus mormng but We need pmbamy mu uwd nﬂhc mun pm, ug Wm; ucunl: vmmbas m n. ma am.» to must my my-Mr-n rm week H? ....r..vm.c m..k )w and huvrn mg mekem‘ am “pm mam: mmm Tcrhmul ma ovemmn. Mn:-nu Buluu vmm «M.\|mw" (p:1;,m; And In an en-ml dam! 17 June zmz. (sun-1\| at 2.53 p.m) mm mm m Fmsl/em: Pzlulrk (of the dn-fcndnnt) and copied In PV/L P\V2 znd rm. ltwns mud Lh: — "Fudznc AH um mm... mlnpawnrm be wd am, .1: mm me: mm M baen ..,»,.ma.mu..r hlvr nndnpuks Imm s: a, In hep-xd orﬂm Rcplﬁs mm.- 3,213.31) Eventually, mg plunliff» solmmxs «pun: vu mm dated 17 Auguxt 20m and mm \'}m(:— «mm 47 ~w: rzfam an abm: lmllcundm youvlmlu am 3a.ns zom, w: m mnnmtd by Mr mu m me man the ducumznls Iequtiad hy yuu m my mwme ad mm ... wt!‘ wlhln my k....wx=a.. whaetn 2 cup! nflhe um: In: bczn vrceiwd n, yvu Ind W mm :np-cs nu: ,.,.. ...:.n.w::ag=...m w. m also ...mm in nu: Inn 01: drum ol W um-. u...... xguinn ,w are mll wﬂhm your l<mwVe-13: ma ma Sam: shall it: plerldtd W\\|hIe'H!1\CE.SID\|\|RlC\|¢VIlIld0C\|lm¢lIKW m: m rum agpum you Kwﬂy vak: mx: mu wz have mu c\|1zn\'§ slmz milmums Iocommuxce legal pmxedlngx .g M you mama M full lﬁd/El mm m mnkc puymuﬂ .4 n. M M kMLI5\|ns2z7 due and mung 1.» 9... than wlllun Vuny mm m) N...“ (mm M .1... h=mIf" (p.330, :31) 1. Is splﬂ-tun: um Schlnmbergu was not in me loop of ms: amuls 5; ea. dcfcndam which seem m suggest um Lhtte was 2 dxxpute .5 to me plmnuffs enntlzment to be pnd me service rhargtt fox mam pm Bu! the fan remains am am plamnffcamzd out me sud work (same) us win as supplied mmpmm m carry out me said work from Ihc month nf_]:mun ZUIS [0 December ZOIS Th: plmnuffdso mucd mmm m Lhc dzfundnm rm “wk mm: nut baxnl on uh. notices of mxpctuun vcnﬁud and npprovcd by an deicmlanfs own cum (:‘un'eyor) on silt whcncln Lhe ma ...mm wm ncknowlnigul as ncuvcd by me zleiuudnm 1.: my result. the plmun had am the work (suvlccs rm resxdcnt jobs) and .5.-“ed Lhc mvcnces, wmzour in) qutry by m: dcfendm-AL 1r .5 unpomnx to um um me defzndanl nzvu dzmed mmvmg ch: Uumtzndlng Invrntts ma sulunem gr accounts, Including an 18 invonocx am form the sub}:cr mam omus sum -runs! Accordmg .0 11.. 11:11:51. 1<...m., .1; turns and wndnwns or me mu. contract m snpulnted .n .11. requzst £0. pmposil ("REP"), me mm nfA\u.1xd ama 291a.-......- 2015 1.1.3311 400 131) 1.-.11 pcnodic Ansmxcnons Issued by sc1.1..m1mgu m .01) ordzrs or Phlxdlase Ordui (“F0”) rm .1: dummn of Khc pmytn 1. \~‘.\: c...p1..m.1 by 11.: .1.1....1..... :1... .1.‘ p1......r1 had already ayrcd m .11. mu-.5 and condnlons umkr aw RFP. In mu tcgud, mzmm u/2» 11.1.11 m .11. p1a.nurr.. .-mm 4.1.11 11. June 2015 (p.221 (0 233 131) whmh sulcs ‘Yn gum:/, 1.. jurm :1. ms agrrtx/Ma! 12111: er 111/ are mlbzbnranng me my 1.11» .mm// 014. 1.. apart .y‘mm" Ind me email dalsd 11 D:cemb¢x 2015 2: 1.. 252 1.» 253 131), wheztby me plaintiff hm med "allow me :1 m) that 5112 1.: av .1.-..1:g.;p4nm Jpmﬂmlf) m mm"; ﬂu Ir/mg. M 1». .\‘LB prtnlmv. Rzhantc was .150 placed an an en-ml dazcd 17 Novcrnber zma am M15 sm. by Mohd 1-‘m1 13... Mnhd 1-1.....1 (17%) m Mohammad Talnr 13... 11.1. Yussof (P\Y'2)wh1:h mad. . . --mu. Niel .. .....n...m. .1. .......1 ma... .1 121:: 1. .-e. M requ1muznu {mm ma. 11..1.,....m1y. w; ..z ,1. .0 3:. W... (mm 11“ pun. .. 1.1.. ...1........... ...4 Hem E w. WIN .1.....». .. M. 1... u. .. 1...... .1... wm. wn pmu-.1.w. mm! .111. .11.1......... ....1 .....1..a... .....:..= 1.. n. my ' 1......» ..1¢..11 (p 373, 111) mesons: :3. 49. so. 1: is also mlcvmt mm DWI (p.105 NOE. lines M25) had conﬁnned he received the cum! enclosing me p\|:AnnfFs smtelnau of accounts for am can mm mm forrns the sulnecl mug: of me plmnuff’< clan-n. And D\\'1 also xnsuﬁed (p. my of Lhe NOE, hncs 45) that the on: xnxhxce Rt p 201 B1 am the dcfmdanr dzlmcd me, had not rccrwed, w..: acnmI1g'r¢:e\|v:d but at a lalu um: DW'l conﬁrmed that cvcn the mrmcc I! [L 201 El wzx rcﬂunud in am xmrcxncnl of nctuunb winch w.. mm .0 the dufcnnhnx. mm muﬁn-ncd Q1117 NOE, mm 19,20 p.93 NOE, um» 29,34 and p.94 of an NOE, hnrs H4) am me Nonccs oflnspccnon, \-mrk done by me plmnnff and :11: ﬁgures/sum [ox ch: work done wcze all appzovad b) m; dzfcndznﬂs own omm (survcyox) on sue. And despite receiving all of [he pmnufcs mvmccs_ the defzndznt am not make piymznr towards me 12 ausundmg invoices and had nun .,b.¢cm.a In and/m adduced my mmylamt mm “gm [0 (hr xnmc. own «mm...» conﬁrms ma. mm was no omemm and/or mmplzlnr with mgnnls m the nulstandlng mvulcct .(.«.m1 by Ihc ,,1.mumm mm charges. Fun, nxw conﬁrmed mm m dcfendnnz rm Imvrr um;-M1 zu pay dag plannuffs invoices for wrvxct chugts despite (er/.-wing (he smtemenrs of izcounls ma cutsmndmg mvmces from the phmurr m-ml me lasr mu b:fo(e an plnuuuff Amuzmd (hvs an: (F. mu NOE, blues 29:33 and p H71 NOE, bans L20}. ruuluosa 51 52. Sr.condl\'. it p.108 of the NOE, I.u-ms 1-6, DW-l conﬁrmrd that (ha dcftndam did not obyect to or quan about uh: phlnuffs smtemtnt of nccountx auashsa to p.273 B1 , which mcluded service charges Thinily, D\\'1 muﬁn-ma 2: p114 NOE. hues 1733 ll“: use defzndnnr nzver stated 11: its zmzll arm the plaxnuffls nnr :nurl¢d to claim for ~':rv\:r cl-mr§=s but mcruly stared Ihat they m m (11: midst nfpxncrulng ah. payment to by made In rhc plmnuff Bum! on me d::A'¢nJ:nr‘s conduct as xlzlzd abuvc and the documentary evidence \rh\|:.h wav adduccd dunng ms (ml and (h: rm aha. um: urns no obyecuon to the mvo\|cr.s whzch Wu: issued and no less than c uuvuucus [ox resxdaent gobs which Included szrvlzz chazgss watt paid by an; dzfcndmt vn Cantu pamaau. as .s clear am an tsmppel operaus and mud. precludes lh: aareuduu: {mm bclalrdly nbiccung .u use arnounls same Ln the mvoxcc I ﬁnd am bascd un the and and dnnxmcnrary mdcuac. me xs<uL: Hf “uumk.~" lus um Iw. pxnrcn by [he dcfmdnnt on u tsalansa ur pru\|:ab1.I.\u:.<. In my mu mum Lam, um Lh( “nnsukc"t\|1:ury .s an arumuouglu on me d:f¢nLlznl's pan so as In avoid paying me amounts am an due to me plnmnﬂ as pct ma ontsnnmng mvonoes. I ﬁnd u radix! cunnus um the dzfcndanl ncvzr took an: poﬂuan An any of ma tmmls m (h: plmnnff, um duty had made paymznls \r\a cox-nu, by “mnsu.kc" rprllntsl 55 56. Fuxlhcr, on the undcnu, 1 am unzblg m cundud: nu. ma mam mum buweau the ddendanr and Scldmubugcx m mm govu-us th: mnrncmal ztlanumhxp bezwtcn rm plmnuff ma mg defendant mm me sIIb—conInc(. Indecd. an deicndmt had not clcaxlv or unambiguously ukm .11. posmon m znv or [ht contempouneous (mails um ccrvite charges co. tesxdcnl yobs .< not pnmble bccaus: u Ix xubxumzd Imd-:r rnznpnwcr (hnrgcs n< pm’ me RFP Inacca, if m RFP gnvamzd (hr: rclannmhlp lxrwccn an plalnuff ind lht: dcfzndzm wrnm‘ Lhz ...1m.mm men n xs cun0u.~ why -he dufzndnnz ruxpundud u. [he plzmuffx legp] lcuu or durund by m\uv\g— « . nu.“ pvnvivk ... mm a. »....m.,.... nHIl- ........... with am. ..z...¢,.....:«m durrmuun ....a .4... .,:..n... .........:...:..m; Mmnbnlxmlhn mm {mm ., <...a Schlunvr-<rg=1) m Muulwnl and our uknov-«\rdgrm¢n\ M m: 9:l\Ic=s mam r: K “meshes: swywed 5, u: ...4 Sdvlumbcrgerj. In .m.m., .m. 9...»: .. wan .u..... .r. wrilten mun-ac! ulderivinnhe mid saving rnderd ’ Th: pom am 1 mg»: m amphnsuz here ,5 am me defendzm knew exactly what work um done and the szrvlces (hm-gas um V/{XE bung claimed and y:( me aermam was askmg for documznts and demls. Clurly, mm was a lack ofgwod (am. on me dzftndnnfs part mums- Nm, 1\|’ me RF!’ was me govmung docummr and xrvxcc charges for resxdtnt .9». 2:: not clasmahk, mm whr ms mu posluon not mm. by me defcndmt whcn um 21-spundtd to the legxl letter of demand In making my mndusxan on ms pmnr, I have taken mm account N2’: endcnc: m duefwhcxr ht sand (in PWZA) mm ~o4- mum. milr pan onhemnlrul nntl/avnnvzmun bdmm n. n=t=.u..n anl §lIlIuIb¢rg¢r7 M N«, we rm .5 not n.= P an .,.,mm.m :5 mm- mvnrmor ms scpanlc {mm Ihc mm: mm ayeaueru bvtlwnuw lhc u=r=..u. Ind Snhhnmbcvjcr nmrcin m. muinmn urpmnlmem waxmx mrnlwnzd m Ihe mmnm um/ar lgltrmerl bu -an \|hz Defcndnm and Sshlumhugzx The Nmmlrhm unh named mu n=c...1m m vwvlrmg Ih: nu. an and mmnwmll gum: m am far nu scmmma pmpscl ma the unmdad snmmwtul pnupoul ' Bur. 1 hm also not oveyluokrd mx/2'5 evidence dunng utm- exnrmmnon wl-Acre he tesnﬁzd as m the zpplicnhllxly of me RF? nu ma .<ub<umr2cr bcrwcen me plamnff and the defendant In mm regard he nud during cm.<.<—:xnmIn2u-1n (P5159 NOE) as io\|1o\v<:— -o F:mkn\ur 1 wxllnuw ml;-r ;mulnpa;:]7JnfImsRurml: Rm \n1'l\ref=rymmIhernIm\| {mm Encik and 141 ,v.., ... pomculu : wunl yuu u. M m M srcund lune cm him I wxll mu m ynu Ihr mm um ma Mn’ pmyvrnnl ... mzvwd I-1/Iv all rhr town and ummlrom amlmc m m arr ' Sn pluslnnl to ﬂux mu, m: n. hlx mm Lu zll the (emu -xd ...m.:m 11: [he RFP.dn )wu mu A I wma Ihs .; mm. 0 Yr: IV! nu. av yin ngvm ordnsaytv A 140 um kmvw heznun mm 5.,» hr undrnlmvd ml Juppmsbd he ..mmma live mm ..a Igncmtnl noun-sun cm... Now x .... .. ... .... .1... ...: mman why rlxumffnyced ... .... (mm ...: .....a....,..; ... 0-: m. .. bums: lhei: mm: ...: wndmons ......xa w...........r.= ...........1 mndmocv: buwan .... m......vr...a.r.e \>.r....1.....an ....-an ......" mm lfnm lime a. .... ...»... rumn why you ...... ... ayad m .g do you name” Aunt" Lam... htqneIu-uv¢W¢:n:ﬁ1\|Y:/ r......r.u.. ;......I 1...... Fund. 5 a has said, we agreed. no... .. .... -us. easv amen .:...>.. Whu .. ,................. ...... ... ...... u ...a..-. ... ...e.u.....m n.=.....s...... .;..... Emk Tm... hyvmue ..m..:¢.... I .... i. .. ,... .... .n.e.(....; ...m...a.......s ... .... m Wm... m..,.x....¢ .... ......;.a m..:.....u= hﬂwem .... w. ....m.. wcm... .. Mn. an you we Vex : mum .. Smu ...:.¢. .... “...”... mw gm. 1...... .... 3...: m... ,.-... we ...: ma. twin... ...... me ...... ...: crmdmnns ... ...: kw. I run .. .. .... mm .... ... ..... ... my .m.r..... .3 ...y MMI ... .... ...... ma o...a....m buwem vn......:r in-1 .... n.r...a..... .... ym me.» Vns, .. : m.........: to yau urlm. I .... ...: Business Drwlwvﬂ ....:m.m......r....-...r2» lwivcx Mu» ... ....k..... .... n : «...... m, may .....s.......a .... r..1Iu...a=.s..:...1...g.m4.um..s Ind c.....1......., He .. .... :............ Vlnmnr ...a .... mm...: am... far mxkling. sq .... ......-m. ...a=.m..a «mm... ...: mndmnm uuuld ... .... lMumulM:rugeundRrainn\|\ 2 W: I WVFIVS: 5... Imhmnal Manna ......» ... sigma ...: c.......« ya: m. a... .....w.. 5. ma .... mu Emlk TAM, up... .. Lu .... Ilm ym . ... posI\|\nnIn\|c;l\f) ... ...m..... .... o.r=.....-‘...... ..., rnanwwu charges .... .=;.a=....'» ...... ... ............v=. yhls sen/me gr.-ya do .... ..,,e:~ Na hmauselhal .. ..a...c.\|. 11... .5 .... lzrms um: mm: hm. u... ., merely m......: reglldml mII\|P0\n<r u. ma... u... .. Iachmal 59 50 mm Let me gm your .mw¢.. I am not mm r wm. mm. Ind m.:...u..‘ aingm hm : .n. um, nuns." VS mm: A.. W r... vumml mmpnwu am rzvtms, .3 .9 mm .s Mm M m uymsﬂ You. run. wliu yw md, : urn only using» mud: ..;u.u,u....my...g.»..x,.=....e.,..,,.m..mm..yu..x Dckndlm is me. mmu VERTTAS vs ml: w W fur mum mmpmurnlm 3emu::1.ulhuymAlumweﬂ run Va 1: .5 xmponnnl m emphasue um although vwz (bang :1 ﬁznwer mp/aja W. ac/5.4.1.9 pvt cud:-nc: to tuppon um plaxmiff ﬂg1Iﬂ5l ms former employu, them win: no suggesuon that h: had mlored ms mam“ btcause ofan)‘ ulterior rnouve or 2 grudg: amumt 1h: dcfrcndnm. H: m . Mm“. undu subpoena. H: wu quue frank m adrruzung am xh: terms gr my RFP are qultc m..m1 mm mm mm others m ﬂu: dcfcrudnnk, wlm would be more farnllux xmh mg u.-ml: and :und\|nL>n: uflhc RFP. But 11: was clear In l-xi: rmnd that 41: dam-mm: (/14.-/omerw/piyr) was luble Io pa)‘ for mznpowcx and mm: army. («:2 mam. labs. in .5 deal um um dtfendnm ncvu disputed mg mvolces as and whm dlty were ..-ma. The lcgzl Amphcauons ansmg from such condum on me defmdanﬂs pm L< am ... account smed comes mm bung ma/m the dcfendant .~ ctmprptd ﬁom deny»-xng my linbxhty m my on an outstanding mvnlces In am tqzmd‘ n n relevant to refer m me decmnn of King Hm Gr: J "1 mt Claim/Jinan: M. ..w my lam/W 5;»; M BM [2011] -2 ML] 572 HC where 11: :1 . nuumsa ~[2n .. .. clur ....... M: .m....... 0! Lb: pzmu .p... ..u. hzvlng vwnvcd lbw: ......m .... Kim: lwn .. .. vontnsls we ...r....:.... .1... .... 5.. .. r..... ledge an} .......,...... nrdnnyvelnenl .... .r.=........ .5. .......=.<......\| lhe s... .... mad mu m .... «cu... w..... .. puny r............ .... ......¢.............. mvmcz oluhch mzy um um... xrved ..\|.....g u. -n) u....m. .. ..... m..m.... {mm nknymg ..... ........¢... .. .3... hum ....... s... 5,: ma. 1...... A Pudngarrgwv Sah pr... v ,m,m 5.». ma um. . cu 595. Mr Fkmrv :4. W .........m.. rm/.... :4». ma. Or; noun 4 AMR 327 m] s........, WI“! nspecl m mg ......a .n......:. ma. .. am .. ....u... in .. m. .1... .« me a.r=...u... ... ohjcsl ... me mvmoes ..... mm been ......¢ ...a .....v... r... ...=... ....a hung mm: m an ... .... smz ....m..x. ...e......,;¢\| mu Ivuly. I. .. :\u.rI)1I\| ... rﬁvectol .n.. .-... ...».....s pzﬂa ngln .... ....... .......... .... ...... uhjeu .. mm mm ...ag.4 Wilh me .13....” ....... .2. 3.... .. med. ».. .5 mm ..w .p... «hue . puny r....a .. mg my ..n.«..u... .... .3 ..... and hour. sawed ......... m ...,. m.....=. .. was eaoppm ....... den;/\|Ivgl\v:x p-ymznl WE! .1... 1...... ..-. (.1. In me pruiznr ......¢.... .. .. .1... nlevznr .. rcfcr .0 Cu/Irx o./ .\m,.... L... . C/.....'. Be.-/AW/1 BM .> 0.. [mm] 4 ML] 77:; [2007] 7 ML] IIHHC whuv; Suu}'m.\|\| I-hhm Omar ] am. wuh 21.: mm: of .....1..,;...¢.1 ........m ... the followung ...;......» -my 1.. umnmg .. . dznsmn .. axe: invalvmg gun-15 sold md .a.n......1 ﬁnch .. .. .n... cur‘ . w....... P...‘ an: =.....n.... an IM ......... ....¢.....¢..u. mm... m. .u....:.. .1 »=....;., Vrvvmos. Aclwery omen delivery ......s ..... .>.¢ ad... mm: ‘mu: ..m........ wmﬂd calltsuwly .v.......... . can :\ .=....m.. M... .......g 1-»... p......,... ma bx“ ..... down in m: use of rm... r».../1......-m.. IZhdv'f:'rm1uarv Peludarlg Balm .umn.. [M1911 ML] .14 mm 5...... Ana: .1 as he um. my. .s¢........g m: ...ag...=... on... row... (nun ....., W: 1... ...... ..... mu... ..r .¢...m .. m. npm m the Iapnmlcms. u .. .3 av... n... .....:.. 5 u: on... kvxdawe Au I9sa,.mIm.mu.om....-.1 L .... ...a .. .. mh1m:H'mm.Ihe mm olany c......... m... .. a..p..s...a.. ..r pmpmy w...... rm hmn ............. ... ...i....g .. .......:....s.u>:¢, lhe ...e .x 2...: ...=u\|.my we brmglhc .......<. «mm: .. ........g bsmnen Ike ...p.\|....u ..... lII< .es.....a=...: . 92 lhcwfmz ...p...« 5.. ..n... nc Fmu .v«..,..... .v.. m../ . uma Ymh km. Hmn[l91‘1] 3 Mu can when .... Hugh c.........: a...a..a .n... ‘he W. ................. ......a.».a Whh .... mum... m........, nun us: u.m.mm ofacaomu: m man he um um obpzcnmm. pnlan .., warms’ u u Further ‘.. we cut: M.Yyuv1Imr Paﬁxv rm. M Pevdaxmvgan w. w .» Un2-yA Sm: am mm s cu >95. Ilsa . c.Is< omkenung mm WM Ind delvvnld me Hwxh (mm mm an DVImnﬂ‘i applltxian in: m....., mdgnem an 131: grmmd um um d<1er-dam M nnl raised my m.,m..m nv qmu rvru Ihnuyx dcmled plmculux M -5.: naruaﬂluns WW! yrvmdecl w.,..,,:. llwc munllvlv mlunenu ufncwunlx my am an In mm nulhurmrx mm by mm ..x , oz of the Endcme Act mm the dekndant m m cm cannm wife! on! nvdcmc lo ...m.1.u M. mu m Q! in Incl (mm. Ihe Lenm m m) mmlm us] In the pvrxull case. lh: pv.mx.«m sum sulzmcm «.«......n ...a uwmcts m the rm d<I:ndln\|. Th: an n undlspmul mm M dvmnnd WSW mu », ﬂu: pll wt in M a:r=«..:.... And .5. «(um-m ma vmlhu pmlmud narqnnIwn:dIh:p\|Ii-I\|l\|'nn lie II-ulnuu u4.m....:. ...»..a.... delnrry lulu. -sum ..m.. and me my 0! demand rummm, mg nm kfrnd.In\| ma mp,“ p..,m.-m n: u. mu -.hL~4-ms mum .. we p\nm\\|lTu\|\\»-II gnvmgmyynxonx M In an us: 0! Evuperve :,u.m.: mm mm umxu :4” and mm : cu m. Ibo ., mg: 0.. guudﬁ um Ind rk\|1\cwd,\|he Hm): Com! .um¢ the vnmrn nppln for xummry Judgment Smce IIK dzllvm mdtn ma dmwn mum aemm..u ma .;kma.¢;.a mxrwpk :1) am dclwrry and the plmmm wxwad mma vnvmass lomywad u, mlzmenvs ar a1:umn\|s m .s.r....a.... .: .1. .........«.: 1.. axplnln my uv «mm... ..n ma ..mm.. m mu. nu ban abk In mo». why u. :...x ...u rtmmul Iflmleul he had hmn Invmnxl m ..m.... eh: .....\|,. us] In the use u(.s..mm Tan Ihram Swag Sdn mm [ml] 1 cu 150. Ilw . us: an gunk!) mm mm .;¢m.e.a me my. (mm. yummy ». p:....mn nprplwclmvn far xumnvan Judgmcm. um um ‘“1:\|Iw mmm. .u.m..m..u..ury ... .m...x—u.m: ...... ...u.. . m-nr.-r mm. mm: u. niupw.-I . u m. .:.v¢...a.... lrun querying me Iwunnh munllrr “me an ..mm...« Ia! rxllrlplc nmm Veil! rm whrn .. W, may ht .m.m mm In: n..u;.mn==.s=..m such Slllllhvn rm§:d' us] Aypbmg me abcv: pnmlplu m the mm: nun, .. ,»- M umli>\|-um] in: mm W p:.....mm xm\1ml:mm\|I ofuccaznmun mz mu amam .n.: ma ﬁm dclcndam ma non qucslvoned mg p\.nn\|1lY an the mo npcmmu This y..=...; m. . ;m...m M 'x<cnum-sulrd‘ ma Inscn ma me defend-nu an lhrvrhy zsuwqxd imm now qlxsliuning KN: mlmml afammnlx » .u.m Lm Yhe .ur=..a.... M ..... ..nuea rm ...a ma zvcn me puymmn Maud .7. ..........s 3 ma hy -2.: IIIIMMV 1... am defrnd.II\| .1 _ae ...y...e... .. . Ina Bank Llumxrheqllzs nfwhvdn ......1 svvr'r'<'5 mm. 15. a.r...a..... mu ...- u-.uea.....a an. m ..g .e... ., the ..u......n un..a.a (hr;/luv: ..... .m..a me gunm m... may mm. .. u... they WEN mvnmad c... .........¢ ds<’s ovdrvs. .. is mm,» .......:I mm In: Imn Shmﬂd hive rm. mscd .r..-.. ...a Ihen ....: ..... .n...m......... .. nved, [unphm added] 1.. 5.. far .. Schlumhcrgeft posmon .3 couccmed. I (ma .1... mm .s .... cogent mam: ma. Schlumbexgu aznmlly disputcd thc ,.1.......m. .<..-use chargvcs for xzsxdent ...1.< and {hue .. .1... .... cvldnnct am 1.11: d=r.~..d.... 1115 .1... bccn pmd bySch.Iumbc1-gm. The .m¢...1....n. ma: SI‘/'—S/J .1... my have not b .. paid by Schllnrnbugur ._\ self-saving ma ....-..mc.m.. Dunng cmss exmunauon, mm sand um ch: ddendant was “nq;oLm:ng" \VIIh Schlumbctgzr m unsure ma. me plainuffs mvmces wue pm. 1.. Lhix regard. mm ms xcfuxed .0 W2’. e.....1 dated Z3 Augmt mm .0 PW} when Pwz had ma, 0/: tbs row: of Ms .mw‘c: rbarggr paylu/.r. we m m7] nrgmizling :12}: Lib/ymbergev azzmvinyﬂ. Plum band (nr) mm ur/ﬁrth: /Ian /mag." DW1 said that .1... was done .5 . matmr of “goodwill" and he cxplamzd .. r..n......., ‘n. 2.. yrm ...c 5...... ,.... wnmal W n.«...... scmuumzcnx 4.. ..... ...... ... pm) yen. arc yw slymg than. 4... .5 whm _..... an ' hr’ A 9 ma. why ma m... .=....u,. was negbﬂaling um sc.-.umaanc.:n 1...»... p.,.......~ /. N....:..........7 0 Vesavhnn u-umu A A; M .m,; .,m.n....e.: mmnlx me m..m..w.- umngcmesu, w! an: a fnmnr .7. we mnk as . goM\w\|Y oﬂer m mam mu we Mgoualz on the bch.1IIs.I_\mg Ilm akay. IN: Amman xx ,e.m....; Q You nrgnlulc nu “hunt hzhnlf“ A u.. ....n.er..:m. ms buuuxl Iellschllmlxrgervhnl mu pm» In an». um Ire nklil rm um mm--1‘ I wall m nu ma- lwnq cm. yuu In my HILL rm-5 so u hnvednntn mun: fnvaur an Inxix of guullw . . zulhlrunﬂvr npprowhnd me they Ioeepnlungu. w. ulll olny‘ we mu :0 m ‘chlumbcrgcr ind 1>k in! mm Sthllulbelger r... ....a» in nu} clur, 1 mu um .., m. we «III 31: ..m “L me me mud: n. n. yum, .... ,.... ,,., Ah’. my sly nu. rm xx w an we Ir: mm; m cxphml m M. mm mm! Mm\yh.1m mm mm. {mm we uhnmer Monty : mewea Imm Ihvs. whn ynu ulkd scvvwcc chngcs, u Snmumbarger ages 1.» pa) : ml! dtﬁwvlmy e...e wwlh IN n will «-11 you mu mmcy ha: hen pmd by Scmumhrrgzr um] 1 MH lei you lmov. me ammurl and we wm en am ...a mix aw W5 \|1«u« pcl me wmrnsl and nguwmznl, -me vs m. 'I:ymrv1\|ﬂne\|a them Nulher ue av Dwﬁ m nu». or S<MumM:\ gu we u, Ixv lempiuxn Iddrd] . n ,. mv NOB (sew Imz (.3 nxm zdrnmcd (ha! he had no cvvdzncc to cszzbhsh um Schlunlbcxgcr dud not xwnr ... pa, [hr servxc: charges And nus sun from he ;«n.~wer dunng cro.<—c:<am\|nannn (see me 1‘ 19 p m .\1()l'.) when he sm\d:— -‘L: So Mr wash. in y-.. um any eme...e balm: II: mu ... xhmn um scnulmnl-:m;u1 do um um u. put M an e... ,., fouhhunkczh: :1” A mmmm.....n...e. [cmphm nddnl] rz-sums: Thm, r:ly1ng upon .h: (exms of the 11:9 (wmch had been gym: to by the phannrg, me deftndant Zllegtd that my me lubl: :0 pay for mhpowu charges ma <(n1t¢ dnxgns mu 5 cm Id ho: yobs, And rm xcsxdcnt iubs. mg dermaahes posmon .5 am Khev m only hme Io pny fox mnnpawu charges. is .11 stnnc: chugns m subsumed m .h= mﬂnpnwtr chzrgtx However. the plamuff docs hm amp: ch: dI:fcndlnt') n$$4:(ri0n mm Lht’ plunuff had hgmd Ind/or ncccplcd um um mm min the mm conmcz w<m.Ir.\| form the. In or me {cm-As undu ch: sub— whhau, As such, we plamnif am an poslnon am an dtfendznk .5 Liable to pny zcgnzdless ofvhz Iums of :11: M? Thus. accoxdmg w the plamuff am: ,5 a sum of RM 1,133,249 97 winch .5 due ma owing and «he xdevant mvoxcts wh zcgzrd to these In1D\.\nL< at: us follows . Nu lnvnnuﬁo. um row». mom.» 5... mm 1 Ekyav/mww mnvzovs mom av— um I5/zine um SL3/Mix/vsmeaz z eamavmuvmw mmzms mum. u-mm usaszu nzn ; En:/uwmww mnvznls mm: yzsmvoo vsaszs um SL5/W6/Istnss uuus» 4 .ER2mv/INV/ow nuwmls mnu. av. v«e,s<s:»o man will smmuynzs uuuzy s ‘Ex!/awmv/W vlmzavsqbuu av, mama V mm ‘nzu summnyms ‘ uum muuu 64. 1.. the rcsull. 1 ﬁnd mm is my no endmce by way of a paper mu to suppnn aw a¢€ma.mx allegznon am nu/1m,9o2.oo was pmd Ixczuxe an “m1s(akc". Thu: 1s 5.150 no cvidmce um Schlumbcxgu had not pm or ad nor mm to pay or refusal to pay the defmdznt rm me snrvxct chsrgns for «gem: mm No do-nbr rh: nnnls ma: wcrv mu br mg defendant so me plaintiff m around Jun: zom [p2I3r2I(: Bundle B1) scum m xuggcst mm mm unvanm were pundmg vulﬂcznnn and/or 111:: mm um): rm mun: with survxcc chnrgcx but mm cmmlx were um conlunpurinwus wuh me Issuance of ma invoices 02 the exccunon of me work by me plamuif and were m iscuent mu an pmnntrs lcgallnlmx ofdemzml. 1. .5 also curious um these mans “:1: not copied to Schlumbzrgzr, whxch seams quite odd gwcn am Schlumbagu was aware of the pmnum dam rm pnyrntnl md W .11: emails um um mu shnnly before the sun was flzd nu: nu pissing bmmzn Iht pcrsrmx wxrhm me defendant and tripled m an plzmnff Thu: b=1=..a cmallx mny wen have bun (rmmvzd by me dcfcndant In gjvc me \|lnpI~c.~'>Inn um um defendant was dupunng mm Invmcex. whul m mu d1cynm'cr dnzpukcd [ht .m~o.m .2 the nmc whcn the invovus were hsued, not when due I-neeung um hcld on 15 Scpzumbu 2015 or when m. mu. pmfmcn! was made 111 respect of 5 Invumcs mm. .m1..u¢a servnm charges to. resxdcm gobs. vnpeualn In mg (unit, to. me rensnns ax mm; above. 1 am of me vmv am an defuwlml has not pmven am (1) an 111-‘! ten-ns ma comhumls we tmmng on an plzmufi ulnhtu the subcontract bczwcm the plzlnuffnnd me defendant and/or am (5) am canuwpayrntnl for 6 mvmtes wmd. Inrlud/cd <cn1c< charges for resxdmt )nbs (wmd. ha been agvcmi upnn n .1“ I-mating on us Srprembcx 2015) was a paymem made undu ;. “mIstnkc" ma/M rhm Schlumbuger had refused .0 [.\I\ am 4=rmd.m. on thc mmm, I .m n{ rho vxzw um um plmnuﬂhns pn.-\'r.‘n on 2 balancc oipmlubmziu. an: n sum of KMLl3S,l5‘J 97 cumpmmg uf mmces chuges for resident pm (and RM4s,75s 97 mm. ofnuznpowu chargrs) 5 due ma owing by me dciuldanl no um plzmuff. The ordu 66 ‘rm plzxnuffs claim xx rhextfnrz allowgd and mdgum :5 cntemd ngmnsx me dnfcndnm m the sum of RM1.l3R,1(:‘J 97 wuh mlzresr xx: 5% per znnum mm 29 jnrmarv 2015 mm! the am of sun paymcnr or Mnliunitnn The dcfrndnnl .: In M cuxu of m43o,n<m.on (mbyecz m 4% Il\uc2mx).'\|'hr d\:fcnd.In['s cnumuclalxn .5 d1sm\|ssn:d w\|Lh no order as :0 mm Th: puues are to wk: out 2 single order. mmm 67. Almough 1 allowed the plmnum am. rm kJs.u,11x,1e997, 1 subsaequtnlly mum when pmpanng mm grounds Of yudgrncnl. mu mm .~hru.LId hm been 1 deducuon for me orerpnymcnt of I1M23,712,40 In dm rtgnd, the p1mnuf\|'d.\|d not deny ma: (here was doubl: paynuent am vas mad: by am dcfcndam. The plmnuffs position .5 mm um vmuld not «sum: mg excess payment nf m:x,7:.4n mm mg defendant ..m1c.< :1“ .mm;...mn,; invoices. (KCIJZ paxagralphx 2 m In of dcfuncc m cnuntttclzlm 2\|! p.72 73 Eundh: .\) As such, an yudg)-ncnt sum ml! nvtutunlly hm u. b: nzduud on account u[ m: uwrpnylncnl by me Llrfcmlant. I mu leave u no me punts Io zpplr to thss Court fux (he nzcussary zd}usLm:n( m 1» dune (pummnt m the Can/1': m»mm,>om.o so that :11: mdgmtnt sum .5 reduced actuxd.\ngl\' But dus should be done mu m: conduslnn ofLh: appeal m the Com of \ppml. Ufconrsc, whevhu such an nppllcallon .5 ntctssary mu d:p:nd vtn much on me ulmmtc outcome of the aecmamrs appcal m rh: Cunt: of \ppc:\L Order accordingly Date- 5. Nanlha Bnlan jmlgn Hngh Kunla ; Uaubcx zon / Mmy Court Lumpur nrsamsa cuunul; Enclk Hnbizm Rzhman together w\|d1 Ms Therm: Naragun (Mmry mm. mm) cm .11: plmnuli. M: Jason Lax wgeduer mm Ms, Esther Coll (M;m.wu.m z>Mu/) for an deA':ndmL ca-e-: HTC r.1mz:mu ma‘ 54» BM u Kmnpalmr em: 54» am [201 1\| 9 ML] 572 HC cam 0tlMu@na Ltd 1/ Chm‘: Em 5/1'71 B/ni yr 07: \|2o07] 4 ML] 772. [2m7717 ML] I31 HC vm n .v sa u Enauv/luv/w Ilmmlsunnnt av. \|s4.197.oo ws/zssz mu suumnszazs : uum 7 Ekuav/mv/w vlwamsllnnl-z« av. mmm is/:.ssA ozu s.aum/mm uum : Exmv/luv/m unzms mu» av. zunm wsnasso mu SL9/Jm/xsmzs uueusr» smnvnuvnu u.v\|wvs[IDDIA. av. mnwo ts/1659 om saamwwoas uuausr) m. Exaav/mv/m \|xn2ms\|IDmL av. m.ms.«z Is/mast x on: $1.:/Jan/wuss «aueusn 1\|. m/av/mv/m Isvlzms noun. av. sumo ls/2:667 [mu s.m:m/umss . tszmmaiﬂ) ‘Y2 ER!/av/mv/m Ixuzms lama. av. 21.04600 was: run s:.a/rm/xsmzs (szmmazl vs. awavmw/m muzms umm. av. xmma mm mu s.n/Am/muss lszrrimaex u. intmv/luv/nu zuums mm» av. mum mm mu suzmmmms movmssx vs akmzwmvnzx 2: 111715 mum av. zmm umvo mu SL3/mu/Uiuzs , «ocmaam m. uwawmwm mums mu av. nuam IS/2115 mu sua/mu/151035 u>c1oaen :7. Ekyav/luv/m znnms mun. av. uuma mm 02:: SL3/J/in/15/035 tocmeﬁm is smav/mvm annszms mms. av. unma- mm: mm Sm/mu/vwss mrru. \|,ua,Is m meum mrence and counter-claim 10. In Elm defunct and cnumerclnm Jam! 21 Novcmbcx zmn, me background .» gvzn .. z..\|1.m~. vz.. Du .. abam s...zm S-:Mumba1-:v Wm (My Sun am .-s.............g..-. ..... vmled .... mrmn. m p... P... m . Imdcr exnvclxu Val . vmjxl knuwv .. :...,..=.... mul c...m<»..a.. — s¢m.....o..w mam ' .<.>.oi-«'0 wmch mm .........y...y............m ..,.¢..............:c..-..r. .w...n........ Ind dnilmgcwmvmzm .. S<Mumb¢rEzT‘5 g»-mm (or . vmvoaed dur-nonarm:Kl))uln\u:oM\\|J&uvnI:nm:n. 2 : On unbom 5 1 129.4, m n.»:.........m zppmnnzhad Ihe n......n ... =.....a...m an uh: vmm. wkamn should Schhlmberitr awud mg mama ... lb: D:f:nlam. me Defendant mud mpg: the Plamuﬂ Ix . nub-cnmnclau In! the rm:-u m Ddznd-M ma ﬁnlha hvrv.-nrdad the ....ag. .m.....e...; m In: Pmjm m II»: .-:......n which In/er .1... s.....:..u INK mm; at m pmpuszd mm um mm mm. 2.3 In vuviunnw a(.m..::.b......mrro.. mm. me Drfcmtam ma ma m.....m ... nbtlm mg mum 1... m Pm,er.1£h< w. my mm mm ...... .N....: 0»: mm... .n drauma W ...= :mmn:maV plvposll for M Imdcrof Ih: Pm'ecL 2 o 01 .....m. n n mu. m. .m¢...1..... ...m.....a .5 ....a~r...:.= mm .3 s......m..= ... hvclndlng .... cammnmnl ,,..p..;.. tmnrpurzlmg llvzmpuﬂvy .2» vu.....n 2 s um sewn] requuls by Sshlumbuycr rm» Dckndlmw rcvlsz vu nomn-maul pmpual r... the \|Fm}mx,1J\|c mum... run an ... ....mnmum..z..nuu....a.n2.2nmmm....a....w.«a wmnxrcxll Prlvflsalx Lu Schlnmbager ... pumuw: al (N mllnburnlureﬂan helwcrn mg u=.....:.... m .1. vim." 1... lb: Pmjro. CM r\|......m-4 -gm pmvnkd ils ..p... a.. laps! nllhe W»... =...m.c..\ uupunu zs On urnboul 29m ms, ym.......¢.,.. .n..a.a Ilwr m...m Fm .... Pmym In mg .m...:.... 1... . a......... olvwo .2» ms lllus an. n. yur m..;..... V... . Lena! ..m»....: we zeal zms (‘M c....mv.. P-cumsd 13 1:: 2m 1»: my nflhn Mum mm mm. Schlumbzvgﬂ ma Ihe Defendanl .m ..m aha s.;..u...a m me man dmumtnls. 01: Letter M mm max at pmm ummmon: mm ny s.o.mmm.u W. m ow“ IVI mum Omen wow) lav uh: mnhou om: Pmjzu Tkr: ms nu rum.» xplnvmlnnent cf mg Phmuﬂ as 2 sir wm.=m far m: ymm . Ilm Plum." mm .x .n y....m.u nmcs am. we as a can.c.mn.ve ylflna nfxhe mm...‘ [arr nu m,.<x.1v.= w....mr....1 me Defmdml Aim and nut mlzr Inla .n, ﬁwmul Jirocmsnl m main: (hr Ienm «rm: subcmlmcl [or me Pmjwt A-s.r»c..mm. as m: Pkunulhnd Ihe mamm ma ....=a ...a/ m wma mu ﬂw lawns under an. Conlml vmuld (ormlhz bmsahhtlrnm nnduxheiub-CnnIn::‘l The way-um urpemmx lo Ixrloun swius a.. rrlznnn m the mjm .r= Imrnhﬂy us «mm m Remkuunl ar mu um: pmmzmcnu uf pclsmmcl an Schlumblwrff nmm my me mmsun at (h: Pnuecl ;~n.s..:m .1.»-"u. wma. arc wdzmﬁed by .m reference no mu u/mu L‘nd:1Ih\5 unpe :.r.m..am.mw my - monthly hmw Sum fur m: \|msAx\|n:\ sunmad n Schvnmbrvdkm l>r:mIx:: an . um um: him; mad an we schmmz of Ram: Ind mm undcv the Law a Avurd ["Mnn\|\mvuChn‘u Eur name»: u.-; an Ad hoc depmymaus at pummel m sa.n..mx.=.,,ux hr: 1:: an a tempo! y mas uv wrfnm me xm-\n:=t as mq-mrd by Schlumbuger for 0»: mm: ma ﬂu: lnl-'F Drnrndung an we vrnarmel ...a xervux m....m rm ma Pmjm, Sdﬂumbergf vmuhl nu) mmwm cmrxu ...w or 1:rvw< chllun Mr sﬂeuive wmtx pufvmned .x mm .m..m,; the chcmmk. mm; and! ur umsumnhlex mm! m arr; uullhg ma \~mk;{"M pllwtr nndl ur Servite Chugu m an Ilur Jain“) mm rrznrd lo (71: Rrsidznl Jnivs u wns xhc Miilum of Schlumbevgcr m Ihe mcnmly lump sum .7: Manpmvter Changes ImR:sIdcnIInbi ' hyS¢Mumh:1uvv.nru\d'I-cludclhriarviu-5 mwduvd 5; Msndem persnnncl, heme s Chnrgcs 21: M v-ynbk :4» ltsixknl mu no-5.154 20 2:. 22 on mnhum 15 mm .m zn Iums, mg Delemam MA mud: ul ma Mlvwml iwm 1“;-Ia unvnkn"] .4. Ike M... ‘In .... su-AIM) ‘ luau 1 mumm nzus me wsvnuuvx xuzzwm 1 uwnv/ruvnms/m7 wnznu Rruwrnm ; m;u»m mm 2v mm: xwzmm Ind ‘ nmnvuu Hvvwvcr, nu orabom :5 07 zone. Ilw Dvfmduu u», vwrulw ma nu... ma: Dumenl m llk sum of RM21,77Z.4n my me pm mow: lo we Plnmmr By . mm am mmm. Ihc Defendant ma mqualtd m: Plumnﬂ to rdmxd (hr xlnn an(M2a7714o, hem; 0.: stand rllymem nr-Inuhl: .-mm. mum [um muxucci. nuw.m,nu I‘!-m\|irM-swduc , Ivfuwﬂ and/ .1. nqloclzd In rvfund (he sum ofkMzu72u> 1.. (he Dci¢nhnL at my mm 1\| MI 9.» ram arm; Ifmalnﬂ. um Dela-dim .; mulled In . mfund hy nu: w.m.rrm Ih: M. MKMXL7 .447, being many pm by m: Dcfaxduvn m we P\nnuﬂ‘xmder a mmzke n! in Funhcmmt, Ihe Dcﬂlmam ha-1 penndmally pmvidgd .4 hx mam ... m: n.‘..un, clxhu m ..x........ m m rum. .4 mew». hnsuzm u. an srmus rzndcrtd ivy Ih: Defzndnm m um Flam nu Dﬂmdanl wuuld pcrwndvully mm: .mm m m: Plamuﬂ fa! mnmu m an .1 5 mama rn.r:..x...v. Invnn2:") AL um mxluznnz “mm m «er me Defrndzm mm .g.=.1 m m on" me vmmur: mmm ..: Appm-umnﬂy as ..: Ihe mm."-3 mvmcns .,...n (he \|>.rma..n ...mm of Ipprmmulcly 17 at m. Plunuﬁs .m.m («ma ........ IrIyIum") nu-zousa	82,118	Pytesseract-0.3.10
28NCC-388-06/2017	PLAINTIF Rugayah binti Abd. Malik DEFENDAN Dream Wood Design Sdn Bhd	null	04/10/2017	YA DATUK LAU BEE LAN	https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=8a096eeb-78ed-419a-b7b1-ae86749907e4&Inline=true	DALAM MAHKAMAH TINGGI MALAYA DI KUALA LUMPUR DALAM MAHKAMAH TINGGI MALAYA DI KUALA LUMPUR DALAM WILAYAH PERSEKUTUAN, MALAYSIA PENGGULUNGAN SYARIKAT NO.WA-28NCC-388-06/2017 Dalam Perkara Di Bawah Seksyen 464(1)(b), 465(1)(e) dan 469 Akta Syarikat 2016; dan Dalam Perkara Dream Wood Design Sdn Bhd (No. Syarikat: 818727-D) Antara RUGAYAH BINTI ABD. MALIK … PEMPETISYEN (No. K/P: 560105-02-5390) Dan DREAM WOOD DESIGN SDN BHD … RESPONDEN (No. Syarikat: 818727-D) DECISION [1] Vide a Winding Up Petition dated 29/6/2017 (encl.1) (‘the Winding Up Petition’) made pursuant to s.465(1)(e) of the Companies Act, 2016 (‘CA 2016’) the Petitioner seeks for substantially the following relief: (i) that Dream Wood Design Sdn Bhd be wound up by Court under the provisions of CA 2016; (ii) that the Official Receiver be appointed as the Liquidator of the Company; and (iii) that the costs and incidental to the winding-up be paid out of the assets of the Company. [2] The Court has considered the Written cum oral submission of the parties. The Court’s findings include the following: [3] The Statutory Notice issued by the Petitioner pursuant to s.465(1)(e) of the Companies Act 2015 is based on a judgment obtained after full trial against the Respondent and one Gagasan Eksklusif Sdn Bhd in KLHC Suit No:22NCC-361-11/2015 dated 13/2/2017 for the sum of - (i) RM1,969,229.17 together with 5% interest calculated annually from 16/12/2015 until the date of full and final settlement, to be paid to the Petitioner; (ii) Cost of RM15,000.00 together with allocator fees (RM600.00) to be paid to the Petitioner. (‘the Judgment’) [4] The Respondent had filed an appeal to the Court of Appeal vide Civil Appeal No.W-02(NCC)-468-03/2017 and the said appeal is currently pending. [5] On 17/5/2017, pursuant to s.465(1)(e) of the CA 2016, the Petitioner through her solicitors, Messrs Guok Partnership, served a statutory demand dated 16/5/2017 on the Respondent at its registered address, calling upon the Respondent to make payment of RM2,124,563.51 (‘the Debt’) being the amount due and owing to the Petitioner as at 16/5/2017 pursuant to the Judgment. [6] A period of 21 days has lapsed since the said statutory demand was served on the Respondent but the Respondent has failed and/or neglected to satisfy the said sum or any part thereof or to make any offer to the Petitioner to secure or to compound thereto. [7] Essentially the Respondent opposes the Petition alleging that there are still arrears of payment to be paid by the Government of Malaysia in relation to the subject matter of the Judgment. I agree with the learned Counsel for the Petitioner that the aforesaid issue is irrelevant in this winding up proceeding and it should have been raised and contested during the trial. The winding up Court is not the proper forum to decide on the validity of the Respondent’s claim when final judgment has been procured by the Petitioner. I am of the view the Respondent has not established that the debt is bona fide disputed. I agree with the view expressed by the learned Judge in Bank Utama (M) Bhd v GKM Amal Bhd [2000] 5 MLJ 657 at Held (2) - “A disputed debt in the context of a winding-up petition is a debt in respect of which it is shown, with grounds supported by evidence, that there is a bona fide dispute … The judgment is good until it is set aside on appeal, and it is enforceable unless a stay has been granted. The fact that the debtor has lodged an appeal against the judgment merely means that he still disputes the debt but does not establish that the debt is bona fide disputed”. [8] Since I find that the service of the Statutory Notice is proper and good service, the failure of the Respondent to pay its debt within 21 days from the date of receipt of the said Notice means the presumption under s.466(1) CA 2016 is invoked in that the Respondent is unable to pay its debt. Following the Court of Appeal case of Gulf Business Construction (M) Sdn Bhd v. Israq Holding Sdn Bhd [2010] 5 MLJ 34 at 41[11] “This presumption is, however, rebuttable. The onus shifts onto the company to show that it is able to pay the debt.” [9] I find the Respondent did not canvas the issue of commercial solvency or inability to pay its debt in its Affidavit in Opposition. The Respondent is precluded from raising it now. Since there is no evidence of solvency adduced by the Respondent, in my judgment the Respondent has failed to rebut the presumption that it unable to pay its debts. [10] In the circumstances I accordingly allow in respect of the Petitioner’s Winding-Up Petition, O.I.T of prayers (i), (ii) and (iii), costs of RM5,000.00 (subject to allocatur) to be paid by the Liquidator out of the assets of Dream Wood Design Sdn. Bhd. to the Petitioner. Dated: 4/10/2017 SGD. (LAU BEE LAN) Judge Counsel for the Petitioner: Encik Foo Wen Cong Messrs Guok Partnership Advocates & Solicitors B-3A-3A, Gateway Kiaramas Corporate Suites No. 1, Jalan Desa Kiara Mont Kiara 50480 Kuala Lumpur Counsel for the Respondent: Encik Muhammad Zaim Azfar bin Jalaludin Messrs Zaim & Co. Advocates & Solicitors 41-1A, Tingkat 1, Jalan 2 Batu Caves Centre Point 68100 Batu Caves Selangor Darul Ehsan 1 4	5,437	Tika 2.6.0
28NCC-388-06/2017	PLAINTIF Rugayah binti Abd. Malik DEFENDAN Dream Wood Design Sdn Bhd	null	04/10/2017	YA DATUK LAU BEE LAN	https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=8a096eeb-78ed-419a-b7b1-ae86749907e4&Inline=true	DALAM MAHKAMAH TINGGI MALAYA DI KUALA LUMPUR DALAM MAHKAMAH TINGGI MALAYA DI KUALA LUMPUR DALAM WILAYAH PERSEKUTUAN, MALAYSIA PENGGULUNGAN SYARIKAT NO.WA-28NCC-388-06/2017 Dalam Perkara Di Bawah Seksyen 464(1)(b), 465(1)(e) dan 469 Akta Syarikat 2016; dan Dalam Perkara Dream Wood Design Sdn Bhd (No. Syarikat: 818727-D) Antara RUGAYAH BINTI ABD. MALIK … PEMPETISYEN (No. K/P: 560105-02-5390) Dan DREAM WOOD DESIGN SDN BHD … RESPONDEN (No. Syarikat: 818727-D) DECISION [1] Vide a Winding Up Petition dated 29/6/2017 (encl.1) (‘the Winding Up Petition’) made pursuant to s.465(1)(e) of the Companies Act, 2016 (‘CA 2016’) the Petitioner seeks for substantially the following relief: (i) that Dream Wood Design Sdn Bhd be wound up by Court under the provisions of CA 2016; (ii) that the Official Receiver be appointed as the Liquidator of the Company; and (iii) that the costs and incidental to the winding-up be paid out of the assets of the Company. [2] The Court has considered the Written cum oral submission of the parties. The Court’s findings include the following: [3] The Statutory Notice issued by the Petitioner pursuant to s.465(1)(e) of the Companies Act 2015 is based on a judgment obtained after full trial against the Respondent and one Gagasan Eksklusif Sdn Bhd in KLHC Suit No:22NCC-361-11/2015 dated 13/2/2017 for the sum of - (i) RM1,969,229.17 together with 5% interest calculated annually from 16/12/2015 until the date of full and final settlement, to be paid to the Petitioner; (ii) Cost of RM15,000.00 together with allocator fees (RM600.00) to be paid to the Petitioner. (‘the Judgment’) [4] The Respondent had filed an appeal to the Court of Appeal vide Civil Appeal No.W-02(NCC)-468-03/2017 and the said appeal is currently pending. [5] On 17/5/2017, pursuant to s.465(1)(e) of the CA 2016, the Petitioner through her solicitors, Messrs Guok Partnership, served a statutory demand dated 16/5/2017 on the Respondent at its registered address, calling upon the Respondent to make payment of RM2,124,563.51 (‘the Debt’) being the amount due and owing to the Petitioner as at 16/5/2017 pursuant to the Judgment. [6] A period of 21 days has lapsed since the said statutory demand was served on the Respondent but the Respondent has failed and/or neglected to satisfy the said sum or any part thereof or to make any offer to the Petitioner to secure or to compound thereto. [7] Essentially the Respondent opposes the Petition alleging that there are still arrears of payment to be paid by the Government of Malaysia in relation to the subject matter of the Judgment. I agree with the learned Counsel for the Petitioner that the aforesaid issue is irrelevant in this winding up proceeding and it should have been raised and contested during the trial. The winding up Court is not the proper forum to decide on the validity of the Respondent’s claim when final judgment has been procured by the Petitioner. I am of the view the Respondent has not established that the debt is bona fide disputed. I agree with the view expressed by the learned Judge in Bank Utama (M) Bhd v GKM Amal Bhd [2000] 5 MLJ 657 at Held (2) - “A disputed debt in the context of a winding-up petition is a debt in respect of which it is shown, with grounds supported by evidence, that there is a bona fide dispute … The judgment is good until it is set aside on appeal, and it is enforceable unless a stay has been granted. The fact that the debtor has lodged an appeal against the judgment merely means that he still disputes the debt but does not establish that the debt is bona fide disputed”. [8] Since I find that the service of the Statutory Notice is proper and good service, the failure of the Respondent to pay its debt within 21 days from the date of receipt of the said Notice means the presumption under s.466(1) CA 2016 is invoked in that the Respondent is unable to pay its debt. Following the Court of Appeal case of Gulf Business Construction (M) Sdn Bhd v. Israq Holding Sdn Bhd [2010] 5 MLJ 34 at 41[11] “This presumption is, however, rebuttable. The onus shifts onto the company to show that it is able to pay the debt.” [9] I find the Respondent did not canvas the issue of commercial solvency or inability to pay its debt in its Affidavit in Opposition. The Respondent is precluded from raising it now. Since there is no evidence of solvency adduced by the Respondent, in my judgment the Respondent has failed to rebut the presumption that it unable to pay its debts. [10] In the circumstances I accordingly allow in respect of the Petitioner’s Winding-Up Petition, O.I.T of prayers (i), (ii) and (iii), costs of RM5,000.00 (subject to allocatur) to be paid by the Liquidator out of the assets of Dream Wood Design Sdn. Bhd. to the Petitioner. Dated: 4/10/2017 SGD. (LAU BEE LAN) Judge Counsel for the Petitioner: Encik Foo Wen Cong Messrs Guok Partnership Advocates & Solicitors B-3A-3A, Gateway Kiaramas Corporate Suites No. 1, Jalan Desa Kiara Mont Kiara 50480 Kuala Lumpur Counsel for the Respondent: Encik Muhammad Zaim Azfar bin Jalaludin Messrs Zaim & Co. Advocates & Solicitors 41-1A, Tingkat 1, Jalan 2 Batu Caves Centre Point 68100 Batu Caves Selangor Darul Ehsan 1 4	5,437	Tika 2.6.0
K-05(M)-218-06/2016(ZAF)	PENDAKWARAYATPR Pn. Tengku Intan Suraya binti Tengku Ismail PERAYU BENJAMIN WILLIAM HAWKES	Dangerous drugs — Trafficking — Appeal against conviction and sentence — Trafficking in 1,598.3 grammes methamphetamine — Appellant caught having physical possession of the document bag in which the impugned drugs were found — Statutory presumption invoked — Whether all the elements of the offence had been successfully proven by the prosecution — Whether evidence of conducts of the accused is relevant and admissible — Whether evidence by the prosecution's witnesses justified learned judge’s conclusion — Whether evidence of conducts of the accused sufficient to draw the inference of mens rea possession — Whether defence prejudiced and disadvantaged by non-production of CCTV footage — Whether non-production of CCTV footage invoked adverse inference against prosecution — Whether production of CCTV recording at arrival hall could have verified the accused's narratives — Criminal Procedure Code [Act 593], s 51A; Dangerous Drugs Act 1952 [Act 234], s 2, s37(da), s 39B(1); Evidence Act 1950 [Act 56], s 8(2), s114(g); Federal Constitution, A 5(1) and A 8(1)	04/10/2017	YA TAN SRI IDRUS BIN HARUNKorumYA DATUK SERI HAJI MOHD ZAWAWI BIN SALLEHYA TAN SRI IDRUS BIN HARUNYA DATUK KAMARDIN BIN HASHIM	https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=0d3e2a54-e62e-44a6-bfb8-7eaec0dba918&Inline=true	Microsoft Word - AP - (60) BENJAMIN WILLIAM HAWKES IN THE COURT OF APPEAL MALAYSIA AT PUTRAJAYA (APPELATE JURISDICTION) CRIMINAL APPEAL NO : K-05(M)-218-06/2016(ZAF) BETWEEN BENJAMIN WILLIAM HAWKES … APPELLANT AND PUBLIC PROSECUTOR … RESPONDENT [In The Matter Of High Court Of Malaya At Alor Setar Criminal Trial No: 45A-15-11-2014 Between Public Prosecutor And Benjamin William Hawkes] CORAM MOHD. ZAWAWI BIN SALLEH, JCA IDRUS BIN HARUN, JCA KAMARDIN BIN HASHIM, JCA 2 GROUNDS OF JUDGMENT [1] Benjamin William Hawkes, the accused, qua the appellant in this appeal, is a South African national. On 21.7.2013, around 8.00 p.m., the accused arrived at the Langkawi International Airport via flight SILKAIR MI368 from Singapore, in transit from Johannesburg. After the accused had been through immigration control, he proceeded to claim his trolley luggage bag (Exhibit P38) (the bag for short) at the baggage carousel at the airport. PW4, a customs officer who was in charge of inspecting incoming passengers’ baggage at the airport was stationed at an x-ray baggage scanner machine at the material time. He saw the accused holding the bag walking towards him. The bag was wrapped with a blue luggage-wrapper plastic. PW4 requested the accused to place the bag into the scanner machine for scanning purposes. A bright object in orange colour was seen inside the bag from the x-ray monitor screen. The object was unusually bright compared to other items inside the bag. This bright object aroused the suspicion of PW4. [2] PW4 then instructed the accused to place the bag at the inspection counter after which he gave the accused a pair of scissors to remove the plastic wrapper. The accused, using the scissors, cut and removed the plastic wrapper wrapping around the bag. At the same time, PW4 requested for the accused’s passport (Exhibit P23) and boarding pass (Exhibit P29) for identification purposes. The particulars printed on the boarding pass matched the information from the baggage tag which was wrapped around the handle of the bag and PW4 was satisfied that the accused was the holder of the passport. PW4 thereafter asked the accused, “This is your baggage?” and the accused replied “Yes”. He also asked the accused to open the bag which had a combination key-lock 3 and the accused himself opened it. PW4 saw some clothes inside the bag. Underneath the clothes, he found a small black document bag (Exhibit P22) (the document bag for short) placed in the middle of the bag. PW4 thereupon asked the accused to open the document bag. When the document bag was opened, it was empty. PW4 held up the document bag and it felt heavy despite being empty. He asked the accused, “What item you bring?” The accused replied, “Don’t know”. [3] PW4 directed the accused to bring the document bag to the scanner machine for scanning which the accused did. The scanning of the document bag showed an image unusually bright in orange colour. As event soon transpired, while the document bag was in the process of being scanned, the accused walked away leaving behind his passport, boarding pass and 2 mobile telephones left on the table and headed to the direction of exit and left the arrival hall without saying anything. PW4 immediately alerted PW5, an airport security personnel who was on duty about 10 feet from PW4. PW5 went after the accused. The accused ran towards the parking area after exiting the arrival hall. PW5 called out to the accused and ordered him to stop. When the accused reached the edge of the parking area, he stopped and surrendered himself. PW5 brought the accused back into the airport terminal. In the meanwhile, PW4, amid the commotion, contacted his superior, PW6, and related the incident to him. [4] PW6, accompanied by several officers, arrived at PW4’s post and upon being briefed by PW4 what had transpired earlier at his post, PW6 inspected the x-ray imaging pictures on the monitor screen. He confirmed that there was suspicious-looking image inside the bag that was scanned. PW6 inspected the bag and found nothing suspicious. He held up the 4 document bag and found that it was heavy despite being empty. PW7, who was PW6’s immediate superior arrived at the airport around 9.00 p.m. after being informed by PW6 earlier. PW6 then handed the accused to PW7, together with Exhibits P8, P22, P23, P29, a boarding pass from Johannesburg to Singapore (Exhibit P28), itinerary sheet (Exhibit P27), e- ticket receipt (Exhibit P26) and 2 mobile telephones (Exhibits P24 and P25) recovered from the accused. PW7 saw the x-ray imaging pictures on the monitor screen. Next, he inspected the bag and found the blue plastic wrapper in the side compartment thereof. PW7 also found some clothes and the document bag inside the bag. When PW7 inspected the document bag, there was nothing inside, but it was heavy. He therefore inspected the two side-walls of the document bag and felt there could be something inside it. PW7 placed the document back into the bag and instructed his officers to escort the accused and bring the bag to the head office for further investigation. [5] At the head office, PW7 carried out a thorough search on the bag and the document bag in the presence of the accused. The search led to the discovery by PW7 of a black rectangle packet concealed in each side of the walls of the document bag. He pierced a small hole on each of the black rectangle packets (Exhibit P58 (A and B)) and found crystal substances which upon being tested with a test-kid were found to be positive for methamphetamine. The accused denied knowing what those substances were when asked by PW7 and he was nervous when PW7 was inspecting the document bag. In fact, the accused cried when the 2 rectangle packets were found concealed in the document bag. PW7 sealed the holes in the 2 rectangle packets (Exhibits P58 (A and B)) back with cellophane tape which he marked as ‘C1’ and ‘C2’ respectively. PW7 also marked all the other items seized from the accused and prepared a 5 search list (Exhibit P26). All the seized items were kept by PW7 in a metal cabinet in his office. He subsequently lodged a police report (Exhibit P63). A handing over exhibits list (Exhibit P64) was also prepared by PW7 and on 22.7.2013 he handed over all the exhibits to the investigating officer, PW9. [6] On 23.7.2013, PW9 handed Exhibit P58 (A and B) which contained the crystal substances placed in a box marked ‘F’ over to the government chemist, PW3, for a detailed analysis of the crystal substances. On 17.9.2013, PW3 returned the exhibits to PW9 together with her chemist report (Exhibit P57). In the report, PW3 confirmed the crystal substances (Exhibits P59 and P60) marked by the chemist as ‘C1-F and ‘C2-F found inside Exhibits P58 (A and B) contained 804.6 and 793.7 grammes of methamphetamine respectively. The combined weight of the incriminating substances was 1,598.3 grammes and methamphetamine is comprised in the First Schedule of the Dangerous Drugs Act 1952 (Act 234) ergo is dangerous drug as defined in section 2 thereof. [7] In the face of the above overwhelming background facts, the accused was accordingly charged and tried in the High Court at Alor Setar under section 39B(1)(a) of Act 234 for an offence of trafficking in dangerous drug, that is methamphetamine, involving 1,598.3 grammes which is punishable under section 39B(2) of the same Act. For completeness we set out the charge against the accused below – “Bahawa kamu pada 21 Julai 2013, jam lebih kurang 9.00 malam di Balai Ketibaan, Lapangan Terbang Antarabangsa Langkawi, dalam Negeri Kedah Darul Aman telah didapati mengedar dadah berbahaya iaitu Methamphetamine seberat 1,598.3 gram dan dengan itu kamu telah melakukan suatu kesalahan 6 di bawah seksyen 39B(1)(a) Akta Dadah Berbahaya 1952 yang boleh dihukum di bawah seksyen 39B(2) Akta yang sama.” [8] The accused was convicted of the offence and sentenced to death by the High Court. This appeal is against the said decision in which the accused was convicted and sentenced for the above offence. On 25.8.2017, we dismissed the appeal. At that instant, we did state that reasons in writing would be given for that dismissal in our detailed judgement which would follow in due course and this we now do. The learned judge in his grounds of judgment stated the well-established law that in order to prove an offence under section 39B(1)(a) of Act 234, the prosecution had to prove the following ingredients of the offence: a. the accused was in possession of the incriminating drug at that material time; and b. the accused was in the act of trafficking the incriminating drug at that material time. [9] Now, based on the above material facts upon which the prosecution’s case was found, the learned judge, at the close of case for the prosecution made the factual findings which can be neatly summarized as follows: (i) from the evidence adduced by the prosecution through PW4, PW5, PW6 and PW7, the incriminating drug was found inside Exhibits P58 (A and B) which were concealed in the document bag found inside the bag. PW4 saw the accused coming towards the scanner machine whilst holding the bag. When PW4 requested the accused to place the bag on to the 7 scanning machine’s conveyor belt, the scanning of the said exhibit revealed inside it an image of an object which was unusually bright in orange colour. This unusual bright orange object was later identified as the document bag. When PW4 saw the bright image inside the bag, the condition of the bag was still wrapped with a blue plastic wrapper. The plastic wrapper was not removed yet, which meant that the document back was at all material times inside the bag. It also meant that the accused had with him the document bag at all material times after he had retrieved the bag from the airport baggage carousel. It was the accused who removed the plastic wrapper and opened the bag for PW4 to carry out an inspection. PW4 inspected the bag and found the document bag was inside it. PW7 inspected the document bag and found the two rectangle packets which contained the incriminating drug; (ii) the accused was so situated in regard to the two rectangle packets containing the incriminating drug concealed inside the document bag that the accused had the power to deal with them as owner to the exclusion of all other persons, and that the incriminating drug was within his means the power of disposal if circumstances required him to do so. Hence, the learned judge was satisfied that the accused was in possession of the rectangle packets which contained the incriminating drug which was concealed inside the document bag; (iii) having found that the accused was in possession of the rectangle packets in which the incriminating drug was found, the learned judge stated that the accused must be shown to 8 have known the nature of the substances, that is the incriminating drug he possessed; (iv) it was in evidence that the accused walked away when PW4 was in the process of scanning the document bag and the accused’s action of walking away was a relevant fact. When PW7 was inspecting the document bag, the accused looked nervous and he cried when PW7 found the rectangle packets which were concealed in the document bag; (v) the facts which showed that the accused walked away from the inspection counter, the accused ran away at the parking area, the accused looked nervous and cried when the rectangle packets were found, were relevant which could infer the state of mind of the accused, whether the accused knew the nature of the drug he possessed and the learned judge was satisfied that the accused indeed had knowledge of the said drug; (vi) the total nett weight of the methamphetamine as stated in the charge was 1,593.3 grammes and since the accused was found to be in actual possession of the impugned drug, the accused was presumed, until the contrary is proved, to be trafficking in the said drug; and (vii) the prosecution had made out a prima facie case on the offence charged and pursuant to section 180(3) of the Criminal Procedure Code, the accused was called upon to enter on his defence. [10] The accused elected to give an unsworn statement from the dock. In his prepared written statement, the accused told the court he had visited Langkawi before and planned to visit Langkawi in July 2013 as a holiday 9 trip. He contacted his friend whom he had met during his earlier visit by the name of Jimmy to receive him at the Langkawi Airport on that fateful evening. The accused stated that he had a document bag kept inside his bag. He had checked in his bag at Johannesburg Airport and only retrieved it at the Langkawi Airport. At the Langkawi Airport, he went to the airport carousel to collect his bag after he had cleared the immigration. He proceeded to the scanning machine. In the event which happened, the accused was instructed to open his bag for inspection. However the officer on duty could not communicate with him in English language and used sign language to instruct him to open his bag. The accused also stated that he told the officer he wanted to go out to get his friend Jimmy who was supposedly waiting for him outside and the officer nodded his head. He also asserted that while he went to look for Jimmy, the bag was not closed adding that he was unable to locate Jimmy outside. He was brought back into the building by PW5. The accused saw the bag was partly opened he when he came back. The accused denied that the bag was wrapped in a blue plastic bag. When he was brought back to the inspection counter, he was handcuffed and directed to sit in a separate room, the accused said. He claimed that it was only later that the bag together with the contents were brought into the room by a customs officer. [11] As regards the document bag, the accused stated that it looked similar to his document bag, and he also claimed that his documents inside the document bag were missing. The accused stated that he did not lock the bag when he left Johannesburg explaining that the zipper in the bag was “sufficient to secure” his belongings. There was no padlock on the bag. He denied the incriminating drug found inside the rectangle packets which were concealed in the document bag was his, and he also denied having any knowledge of them. The accused further denied that the 10 document bag was his. The accused also denied that the bag was scanned twice as established in the prosecution’s case. The accused asserted that his story, the number of times the scanning took place, and what had transpired at the counter could be confirmed by the CCTV recording. Unfortunately, it was never produced by the prosecution. The accused urged the court to re-evaluate the prosecution’s evidence in light of his narrative. No witnesses were called by the defence to testify. [12] The learned judge found that the accused’s denial that the document bag from which the incriminating drug was found was not his was insufficient to raise a doubt in the prosecution’s case. The prosecution’s evidence was that the document bag was found inside the bag and the incriminating drug contained in the rectangle packets was found concealed in the document bag. A mere denial was a bare denial of fact. The learned judge considered the accused’s explanation that he walked away from the inspection counter and headed to the exit of the arrival hall because he wanted to look for his friend Jimmy. His narrative according to the learned judge could not explain as to why he started running away from the exit of the building until the edge of the parking area. [13] The learned judge also rejected the accused’s statement that he told PW4 that he was going out to look for his friend, and that PW4 nodded his head holding that PW4’s narrative was not so. PW4 communicated with the accused in the English language. Although it was in broken English, that could not support the accused’s statement that PW4 could not understand him entirely. The accused claimed that he could not comprehend what PW4 was saying to him, therefore, he wanted to go out to look for his friend. This statement was not accepted by the learned trial judge as firstly, there was no evidence to support that the accused’s 11 purported friend, Jimmy, was a real person. If he was a real person, Jimmy was not called as a witness to support the accused’s story. Secondly, the accused claimed that he had travelled to Langkawi before, therefore, he should know the security procedure in the airport. He could not just walk away like that. Even if the accused was so naive, why did he run when he exited the airport building? Based on these findings, the learned judge was not satisfied that the accused had explained the fact as to why he walked away from the inspection counter and was running away at the parking area. He also did not explain as to why he was nervous and cried when PW7 found the concealed incriminating drug in the document bag. With respect to the accused’s denial that he was brought back to PW4 at the airport building and instead he was brought into a separate room and that the bag was only brought into the room later, the learned judge held that the version of the narrative could not be challenged or cross-examined by the prosecution. The veracity of the truth or probability of its existence could not be tested and therefore the court could not attach much weight to it. Contrary to the accused’s narrative, the learned judge held, the evidence of PW4, PW5, PW6 and PW7 was consistent in that the accused was handcuffed and seated near the inspection counter after he was brought back into the building. [14] In fact, from the prosecution’s evidence, PW6 testified that when he arrived at PW4’s post, he saw that the accused was in handcuffs and sitting there. Likewise, PW7 also gave a similar account when he arrived at the scene. This version of the story was not shaken and their evidence was not discredited. Hence, His Lordship was not satisfied that the accused’s version had in any way created a doubt in the prosecution’s case. The accused’s assertion that the bag was only scanned once in his presence was rejected by the learned judge. His Lordship considered the 12 submission for the accused that the picture in Exhibit P61‘A’ could be the accused’s bag, but not the bags in the other x-ray imaging pictures. The picture in Exhibit P61‘C’ could not be the accused’s bag, because the two pictures that is, Exhibits P61‘A’ and P61‘C’ were different, and they could be referring to two different bags. The learned judge on this point accepted the explanation of PW4 when he was recalled to explain the x-ray imaging pictures that the picture in Exhibit P61‘A’ was first scanned whilst the plastic wrapper was still intact, not removed yet. As regards the picture in Exhibit P61‘C’, the plastic wrapper was already removed and that the document bag was placed back into the bag for the second occasion of the scanning. It was because of that, the positioning of the document bag and the shape of the bag between the two pictures were different, but they were the same. [15] After having meticulously scrutinized the two pictures and also having examined the shapes and sizes of the bag and the document bag physically, the learned judge found that the two x-ray imaging pictures in fact referred to the bag and the document bag. The learned judge had also examined the document bag thoroughly and compared it with the pictures in Exhibits P61‘B’ and P61‘D’ and found that the two pictures showed the same document bag. The other 2 pictures that is, Exhibits P61‘B’ and P61‘D’ which according to learned counsel as referring to two different bags, because the bag in the picture in Exhibit P61‘D’ did not show it had a handle, whereas the picture in Exhibit P61‘B’ showed that there was a handle, were also found by the learned judge to be the pictures of the same document bag. The learned judge explained that the picture in Exhibit P61‘D’ did not show the handle because the scanning image could not capture the entire width of the document bag when it was opened flat. Upon close examination of the picture in Exhibit P61‘D’, His Lordship 13 found that one could still see a small part of the handle at both sides of the image of the document bag. [16] The accused stated that when he walked away from the inspection counter to look for his friend Jimmy, the bag was left opened. The accused implied that anything could have had happened to the bag. The learned judge was not convinced to make any inference favourable to the accused on this alleged fact. If the accused was trying to suggest that someone could have switched his purported document bag with Exhibit P22, and placed it into his bag, His Lordship opined, this meant that he was asserting someone had framed him. However, there was no supporting evidence from the accused’s defence to suggest the possibility that he was being framed. Further, the document bag was found inside the bag in the presence of the accused. If the document bag was not his, he could have informed PW4 at the first available opportunity. He could have told PW4 or other officers that all his documents were missing. But, the accused did not do so. [17] The last part of the accused’s defence alluded to the issue which concerned the CCTV footage which was not produced in court. Learned counsel contended strenuously that if it was produced in court as evidence it would confirm the accused’s version of the story as the truth. It could explain his bag was not wrapped with a blue plastic wrapper, the bag was scanned once, and that he was not brought back to the inspection counter after he returned from the parking area. The learned judge, on the defence argument on this aspect was of the opinion that the evidence of the CCTV footage was merely evidence in support of the prosecution’s case. The failure to tender the CCTV footage could not affect the prosecution’s case in establishing the accused was in possession of the incriminating drug 14 which was found concealed in the document bag which was retrieved from the bag. The evidence of PW4 and PW5 that the document bag was found in the bag was not discredited. PW7’s testimony in regard to having found the incriminating drug contained in the 2 rectangle packets which were concealed in the document bag was not shaken or seriously challenged. Based on the totality of the prosecution’s evidence the learned trial judge found that the prosecution had established the ingredients of the offence charged premising on the existing evidence that the accused was in actual possession of the incriminating drug which was found in the document bag and that the accused had, invoking the statutory presumption under section 37(da) of Act 234, committed the offence of trafficking. The learned judge in the final analysis, concluded that the defence raised a defence of denial which in law was insufficient to cast a reasonable doubt in the prosecution’s case and that on the balance of probabilities failed to rebut the presumption under section 37(da) of Act 234. Accordingly, the accused was found guilty as charged and sentenced to death. [18] Now we turn to consider the appeal. To start off, it ought to be highlighted that there was only one issue raised in the written submission of learned defence counsel which was also the only point taken in the contention of learned counsel in his oral submission before this Court. The argument at the core of the appeal as clearly described in the defence written submission concerns with the issue of the non-production before the trial court of, or the alleged failure to disclose to the defence, relevant evidence relating to CCTV footage from the airport. We will allude briefly to the points taken by learned counsel in his submission. The defence contention in essence was that the prosecution’s failure in this regard had the effect of denying the accused his right to make full answer and defence to the charge against him compromising in the result, the accused’s right to 15 a fair trial and rendering his conviction unsafe. Section 114(g) of the Evidence Act 1950 ought consequently to be invoked. [19] That brings us to the argument that the drug was not in the accused’s black document bag when he came through customs inspection as the document bag (Exhibit P22) produced in court was not his. The CCTV footage at the airport could have conclusively proved whether or not the document bag containing the impugned drug was in the accused’s bag all along when he retrieved it from the luggage carousel or whether the accused’s black document bag was switched with the document bag (Exhibit P22) seized in this case during the period when the accused had walked out of the airport leaving his bag open. We were told that there was a mound of material that would have enabled the learned judge to conclude that there was a reasonable possibility that the lines of cross-examination with the witnesses would have been different had the CCTV footage been made available by the prosecution to the defence. [20] We had considered the evidence on this aspect of the defence case very carefully. It is apparent on our careful perusal of the evidence that the first time the question in connection with the CCTV footage was raised was during the cross-examination of PW4 when he agreed with the suggestion by the defence that there was a CCTV at the arrival hall of the airport which could have recorded everything that had transpired at the relevant time. Similar answer was also given by PW6 when he was cross-examined by learned counsel on this issue. However, we think that this argument is wholly unmeritorious for it is patent from PW9’s evidence that on 25.7.2013 when he went to the office of Malaysia Airport Berhad (MAB) to view the CCTV, the images were not clear. From the CCTV recording, PW9 told the court that this ‘white guy’ was detained by a male person but he could not 16 recognize the person as the recording was not clear. Cross-examined by learned counsel on the reason the CCTV recording was not produced in court, PW9 reiterated that the images were not clear, it only showed movement but it was difficult to identify the persons who were moving as their faces could not be seen. [21] Based on the above evidence, it is extremely clear that the CCTV footage would not be of any evidential value to the prosecution in proving the offence against the accused. The evidence of PW9 that the CCTV recording was not clear remained unshaken during his cross-examination. We accept the decision of the learned judge as correct that the evidence of the CCTV footage was merely evidence in support of the prosecution’s case. In our judgment, such evidence, if adduced, will only help to strengthen the prosecution’s case which without doubt whatsoever has already been proven with overwhelming evidence. The learned judge held that based on the totality of the prosecution’s evidence, all the essential ingredients of the offence charged had been proved. The accused had actual possession of the impugned drug the amount of which far exceeded the statuary weight prescribed under section 37(da) of Act 234 and therefore, invoking the presumption under the said section 37(da) thereof, he committed the offence of trafficking in dangerous drug as specified in the charge. [22] The prosecution’s evidence considered in its entirety, would amply support the finding of a prima facie case against the accused at the close of case for the prosecution since all the elements of the offence had been successfully proven by the prosecution. The learned judge’s finding that the element of possession had been proved by the prosecution was adequately supported by the evidence of PW4 which showed that the 17 accused was seen carrying the bag which contained clothes and the document bag wherein the drug was found concealed. The particulars printed on the boarding pass (Exhibit P29) matched the information from the baggage tag which was wrapped around the handle of the bag. The accused, without any doubt, was having control and thus possession of the document bag at the material time. There was additionally the evidence that when the document bag was in the process of being scanned, the accused walked away towards the airport terminal’s exit and left the arrival hall without saying anything, running away until he reached the edge of the parking area when he surrendered himself to PW5, and that the accused looked nervous and cried when the drug was found. We accept that this evidence justified the learned judge’s conclusion that the accused had knowledge of the impugned drug. [23] The evidence of conduct is certainly relevant and in particular the evidence of the flight of the accused from the inspection counter of the airport when the document bag was in the process of being scanned and that he cried when the drug was found in itself was sufficient to draw the inference of mens rea possession. There is without question that this evidence is relevant and admissible under section 8(2) of the Evidence Act 1950 as it has direct relevance on the issue being considered, that is, the discovery of the impugned drug in the document bag found in possession of the accused. It would be useful to quote from the Evidence Act 1950 section 8(2) – “The conduct of any party, or of any agent to any party, to any suit or proceeding in reference to that suit or proceeding, or in reference to any fact in issue therein or relevant thereto, and the conduct of any person an offence against whom is the subject of any proceeding, is relevant if the conduct influences or is influenced 18 by any fact in issue or relevant fact, and whether it was previous or subsequent thereto.” [24] It is apparent on reading the above provisions that the conduct of the accused in this case is relevant as it was influenced by the fact in issue or the relevant fact, that is, firstly, when the document bag was being scanned and secondly, when the impugned drug was subsequently found concealed therein. The flight of the accused and the fact that he cried are two positive acts from which the learned judge was correct to draw an inference of knowledge and thus possession of the impugned drug. His Lordship certainly could not resort to any other explanation for the conduct of the accused or draw any other inferences therefrom to render it inadmissible [see Parlan Dadeh v PP [2009] 1 CLJ 717 at page 719 and page 746 paragraph 36]. [25] But, as with other inferences which may be drawn from relevant circumstances, evidence of conduct may also be explained away by the defence. Under section 9 of the Evidence Act 1950, the onus is on the accused to explain his conduct and may be discharged even in the course of the case for the prosecution, for example, by way of cross-examination of relevant witnesses [Parlan Dadeh v PP at page 747 paragraph 36, supra]. Unfortunately for the defence, on the facts of the present case, we have no difficulty to say that the accused’s narrative could not explain as to why he started running away from the exit of the airport terminal until the edge of the parking area and, there was no evidence that Jimmy was a real person and if he was, Jimmy was not called as a witness to support the accused’s story. It was against this factual scenario that the learned judge quite clearly said that His Lordship was not satisfied that the accused had 19 explained his conduct and we would not hesitate to hold that the learned judge was justified in arriving at this conclusion. [26] The accused’s defence that we could glean from his unsworn written statement revealed that the document bag was not his. He had a bag similar to the document bag (Exhibit P22) that was seized on the night in question but his bag contained his personal documents when he left Johannesburg. He also said that the bag was never locked. Clearly, the accused was trying to suggest that someone could have switched this purported document bag with Exhibit P22 and placed it into his bag. In other words, the accused did not commit the offence with which he was charged, the case was a set up. However, as the learned judge correctly said, there was no evidence which could support the accused’s defence to suggest the reasons and the possibility that the accused was set up by someone. The document bag was found in his presence and if it was true that it was not his, the accused could have informed PW4 about it at the first available opportunity. He could have informed PW4 and other customs officers that all his documents were missing but he did not do so. In any event, we could not apprehend why would anyone, for no reasons whatsoever, set him up. We find the accused’s story to be highly fictitious and a mere fabrication to which no degree of credence ought to be attached. [27] It is interesting to note that learned counsel in his written submission argued that the CCTV evidence “could have conclusively proven whether or not P22, the document bag containing the drugs was in the appellant’s bag all along when he retrieved it from the luggage carousel (as contended by the prosecution) or whether the appellant’s document bag was switched with the document bag seized in this case, P22, in the period when the 20 appellant had walked out of the airport leaving his trolley bag open (as raised as a possibility by the defence)”. So far as the evidence showed, from the time the accused fled when the document bag was in the process of being scanned until he was brought back by PW5 to the same place, the bag was with PW4. We would observe that PW4 was never cross- examined by the defence on this line of defence and at no time was it suggested to him that he or any person switched the accused’s so-called document bag with Exhibit P22. Such failure would, in our opinion, have a serious implication on the accused’s credibility and the weight to be attached to his evidence [Siew Yoke Keong v PP [2013] 4 CLJ 149 at paragraph 46]. [28] The learned judge did consider the unsworn statement of the accused very carefully and undertake a maximum evaluation of his defence. The accused attempted to explain on his flight from the place where the document bag was in the process of being scanned by PW4 saying that he wanted to look for Jimmy who was waiting outside but he was not able to locate Jimmy. A pertinent question which immediately arose from this statement was why would he look for Jimmy when the document bag was being scanned or before the end of the scanning process and not when his bag was being scanned earlier. One thing seems very clear to us, that is that, the logical reason why he walked away and shortly thereafter ran away at that point of time was because he knew about the drug concealed in the document bag and he did so because of the impending discovery of the same. He did not, in truth, walk away to look for Jimmy. It is small wonder that the learned judge found that there was no evidence that the accused’s purported friend, Jimmy was a real person and if he was a real person, Jimmy was not called as a witness to support the accused’s story. We would in addition say that the accused 21 did not deny that he cried when the impugned drug was discovered. His unsworn statement was read out in court on 21.3.2016, whereas the evidence that he cried when the drug was discovered was given by PW7 on 28.7.2015. He was therefore fully aware of such evidence yet he did not deny it. The explanation given by the accused on the reason why he walked away was therefore wholly unreasonable and did not prove that he had no knowledge about the drug found concealed in the document bag. [29] The remaining question for our determination is whether the prosecution had contravened section 51A of the Criminal Procedure Code. It was urged by learned counsel on behalf of the accused that the prosecution did not comply with section 51A as it did not deliver or disclose the CCTV recording to the defence. Quite apart from section 51A, learned counsel submitted, the principle of fair disclosure is crucial to the fundamental rights of the accused under Articles 5(1) and 8(1) of the Federal Constitution. We now quote in full the provisions of section 51A of the Criminal Procedure Code – “Delivery of certain documents 51A. (1) The prosecution shall before the commencement of the trial deliver to the accused the following documents: (a) a copy of the information made under section 107 relating to the commission of the offence to which the accused is charged, if any; (b) a copy of any document which would be tendered as part of the evidence for the prosecution; and (c) a written statement of facts favourable to the defence of the accused signed under the hand of the Public Prosecutor or any person conducting the prosecution. (2) Notwithstanding paragraph (c), the prosecution may not supply any fact favourable to the accused if its supply would be contrary to public interest. 22 (3) A document shall not be inadmissible in evidence merely because of non-compliance with subsection (1). (4) The Court may exclude any document delivered after the commencement of the trial if it is shown that such delivery was so done deliberately and in bad faith. (5) Where a document is delivered to the accused after the commencement of the trial, the Court shall allow the accused – (a) a reasonable time to examine the document; and (b) to recall or re-summon and examine any witness in relation to the document.” [30] It is, we apprehend, a basic requirement of the law in section 51A that certain documents and information ought to be delivered by the prosecution to the defence and the fact that this is a mandatory stipulation significantly signifies a fundamental rule of a fair trial, a core principle in the administration of criminal justice. Section 51A in subsection (1) specifies 3 categories of information and documents in paragraphs (a) to (c) which must be delivered by the prosecution to the defence before a trial commences. Learned counsel in this regard failed to specify the specific provisions of subsection (1) pursuant to which the CCTV footage ought to be delivered when he strenuously argued that the prosecution had failed to disclose such document or information to the defence. Paragraph (a) of subsection (1) requires a copy of the information made under section 107 relating to the commission of the offence to which the accused is charged to be delivered to the defence. It is thus obvious that paragraph (a) does not apply to this case. Paragraph (b) of subsection (1) has no relevance as it deals with the delivery of a copy of any document which would be tendered as part of the evidence for the prosecution. The prosecution in this case, so far as the evidence showed, did not intend to tender the CCTV footage as it was not clear and would not be of any value 23 to support their case against the accused. By virtue of paragraph (b) thereof, it would not be necessary under the circumstances for the prosecution to deliver or disclose the CCTV footage to the defence. That leaves the defence with the third category of document or information which the prosecution is required to provide. This is found in paragraph (c) of subsection (1) which provides for a written statement of facts favourable to the defence of the accused to be delivered by the prosecution to the defence. Paragraph (c) of subsection (1) patently speaks of a written statement of facts favourable to the defence of the accused. It cannot, by any stretch of imagination, be construed to mean that the prosecution is required to deliver a document and to be specific in this case, the CCTV recording, to the defence. Even so, may it be remembered that the CCTV recording is not clear and on that score it did not have any evidential value to the prosecution, and we would say by extension, that it would not have any value to the defence either since it could not be treated as facts favourable to the defence of the accused that could help prove the accused’s version of the case as probable. [31] Learned counsel criticised the learned trial judge on this point asserting that His Lordship focused upon whether the evidence of CCTV footage would assist the prosecution and that such reasoning violated the procedural fairness enshrined under Articles 5(1) and 8(1) of the Federal Constitution. The learned judge in his comprehensive judgment decided that there was no necessity for the prosecution to produce the CCTV footage as an additional corroborative evidence in the prosecution’s case. His Lordship found that PW9 had explained to the court that the CCTV footage was not helpful in this investigation of the case, as such, he need not adduce the CCTV footage as evidence. Having considered PW9’s evidence during cross-examination, we are 24 satisfied that his explanation was not seriously challenged by the defence. We do not detect any error in the finding of fact made by the learned judge on the issue of the CCTV footage as it was manifestly supported by evidence. Neither do we disagree with His Lordship’s reasoning that the CCTV footage was merely a supporting evidence in support of the prosecution’s evidence of the commissions of the offence specified in the charge by the accused and the failure to tender the CCTV footage would not affect the prosecution’s case. In the face of the overwhelming evidence against the accused as earlier discussed, we would say that the CCTV footage, if it is clear, would only help to serve as additional corroborative evidence in the prosecution’s case. The learned judge’s decision that the CCTV footage was not a material evidence in the prosecution’s case was impeccable as it was in accordance with the evidence and His Lordship’s ruling that an adverse inference under section 114(g) of the Evidence Act 1950 could not be invoked was faultless. [32] We subject the entire evidence to our anxious scrutiny and we find no difficulty whatsoever in holding on the strength of the prosecution’s evidence that the learned judge was perfectly entitled to conclude, after undertaking a maximum evaluation on the entire evidence including the accused’s unsworn statement which we highlighted above, that the accused failed to rebut on the balance of probabilities the presumption of trafficking in the dangerous drug specified in the charge under section 37(da) of Act 234. For the reasons that we have indicated, we are satisfied in the end that nothing material turns upon learned counsel’s argument that the failure on the part of the prosecution to disclose and deliver the CCTV footage was fatal in that it violated section 51A of the Criminal Procedure Code, Article 5(1) and Article 8(1) of the Federal 25 Constitution. In the upshot, we dismiss the appeal by the accused against the conviction and sentence. The order of conviction and sentence by the High Court was accordingly affirmed. Signed ( IDRUS BIN HARUN ) Judge Court of Appeal, Malaysia Putrajaya Dated: 4 October 2017 1. Solicitor For The Appellant - Encik Abdul Rashid Bin Ismail (En. Ooi Zen Jie bersamanya) Tetuan Rashid Zulkifil D2-5-5, Blok D, Solaris Dutamas No. 1, Jalan Dutamas 1 50480 Kuala Lumpur 2. Solicitor For The Respondent - YM Tengku Intan Suraya Binti Tengku Ismail Timbalan Pendakwa Raya Unit Perbicaraan Jabatan Peguam Negara No. 45, Persiaran Perdana Presint 4 62100 Putrajaya	45,517	Tika 2.6.0
WA-22NCC-49-02/2017	PLAINTIF CREDIT GUARANTEE CORPORATION BHD (No. Syarikat: 12441-M) DEFENDAN 1. PWY BUILDERS SDN BHD (No. Syarikat: 727707-T) 2. CHONG WAN YONG (No. K/P: 6300108-10-8045	null	04/10/2017	YA TUAN MOHD NAZLAN BIN MOHD GHAZALI	https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=630293b4-ccbd-48cd-aec8-dee00cf331d2&Inline=true	DALAM PERKARA MAHKAMAH TINGGI MALAYA DI KUALA LUMPUR (BAHAGIAN DAGANG) GUAMAN NO.: WA-22NCC-49-02/2017 ANTARA CREDIT GUARANTEE CORPORATION BHD (No. Syarikat: 12441-M) ...PLAINTIFF DAN 1. PWY BUILDERS SDN BHD (No. Syarikat: 727707-T) 2. CHONG WAN YONG (No. K/P: 6300108-10-8045/7063838) ...DEFENDAN BEFORE YANG ARIF TUAN MOHD NAZLAN MOHD GHAZALI JUDGE JUDGMENT Introduction [1] This case concerns an application by the plaintiff for summary judgment against the third, fourth and fifth defendants, as documented in enclosure 9. I allowed the same at the conclusion of the hearing. This judgment contains the full reasons for my decision. Key Background Facts [2] The plaintiff is Credit Guarantee Corporation Malaysia Berhad. The plaintiff primarily facilitates small and medium enterprises access to financing by providing guarantee schemes. [3] In pursuance of a letter of offer dated 18 July 2007 issued by Malayan Banking Berhad (“Maybank”) and duly accepted by PWY Builders Sdn Bhd (“the first defendant”), Maybank agreed to extend to the first defendant, as the borrower, banking facilities for RM1,000,000.00 (RM500,000.00 for overdraft facilities, and the other RM500,00.00 for letters of credit/trust receipts, and bank guarantee facilities) (“the Facilities”) under the Direct Access Guarantee Scheme (“DAG Scheme”). [4] The DAG Scheme essentially involved the plaintiff guaranteeing to Maybank the obligations of the first defendant borrower under the Facilities. It was specifically stipulated that the terms of the Facilities were expressly subject to the rights of the plaintiff under the DAG Scheme. [5] As envisaged under the said letter of offer, Maybank and the first defendant then executed a Facility Agreement for the said amount on 2 October 2007. The security arrangement for the Facilities included the 100% guarantee coverage by the plaintiff under the DAG Scheme, pledge of upfront fixed deposit receipt of RM200,000.00, debenture over the entire assets of the first defendant for RM1,000,000.00, security trust deed, letter of set off, and general letter of indemnity for banker’s guarantee, all dated 2 October 2007. In addition, significantly for present purposes, the arrangement also included the joint and several personal guarantee of even date executed by each of the second, third, fourth and sixth defendants, who were directors of the first defendant at the material time (“the Guarantee”). [6] No less crucially, the Facility Agreement also contains an express provision on subrogation in Clause 19.24 which stated in plain terms, that the plaintiff “shall be allowed for subrogation of all rights of the Lender against the Borrower in respect of any amount paid by CGC in accordance with the DAGS Scheme”. [7] The first defendant defaulted. It failed to adhere to its repayment obligations under the Facility Agreement. This the first defendant did not dispute, for it sent a letter dated 3 January 2011 agreeing that Maybank freeze the utilisation of the Facilities, and for the fixed deposit receipt be uplifted and set-off as appropriate. [8] By a letter dated 18 October 2011 to all defendants, Maybank confirmed that the Facility Agreement had been subrogated to the plaintiff. The outstanding amount was RM807,562.57. [9] The first defendant, in a letter signed by the third defendant and received by the plaintiff on 14 September 2012 proposed a repayment of the Facilities, by making a monthly payment of RM3,000.00. Following therefrom, payments were then made by the first defendant to the plaintiff on monthly basis from October 2012 to September 2013, totalling RM36,000.00. [10] However, no further payments were forthcoming from the first defendant thereafter. The plaintiff had, through its solicitors, issued two letters to all of the defendants, dated 30 November 2012 and 20 October 2016 demanding outstanding paymentof RM896,945.80 as at 30 September 2012 and RM1,256,396.02 as at 31 July 2016 respectively. [11] All went unheeded. This then resulted in the filing of a writ action by the plaintiff against the defendants, and this instant application for summary judgment against them. [12] On 27 March 2017, the plaintiff obtained a judgment in default of appearance against the second defendant. The plaintiff also subsequently discovered that the first defendant has since been wound up. As such, the summary judgment application is only pursued against the third, fourth and fifth defendants. Evaluation and Findings of this Court The Law [13] A brief mention of the law on summary judgment is not out of place. For this is an application for summary judgment under Order 14 of the Rules of Court 2012 (“the RC 2012”). It is already settled law that once an Order 14 application is demonstrated to have been correctly filed, the burden shifts and thus rests on the defendant who wishes to oppose the application to raise a defence which shows a “bona fide triable issue”, in the sense of being an issue which justifies and warrants the matter to be considered at the trial proper. [14] This is entirely in consonant with the requirements of Order 14 r 3 of the RC 2012 which provides that unless the defendant satisfies the Court with respect to the claim, or the part of a claim, to which the application relates that:- (a) there is an issue or question in dispute which ought to be tried; or (b) there ought for some other reason to be a trial of that claim or part, the Court may give such judgment for the Plaintiff against the Defendant on that claim or part as may be just having regard to the nature of the remedy or relied claimed. [15] As such, in the often quoted decision of the former Supreme Court in National Company For Foreign Trade vs. Kayu Raya Sdn Bhd [1984] 2 MLJ 300 it was authoritatively ruled as follows:- “We think it appropriate to remind ourselves once again that in every application under Order 14 the first considerations are (1) whether the case comes within the Order and (b) whether the plaintiff has satisfied the preliminary requirements for proceeding under Order 14. For the purposes of an application under Order 14 the preliminary requirements are:- (i) the defendant must have entered an appearance; (ii) the statement of claim must have been served on the defendant; and (iii) the affidavit in support of the application must comply with the requirements of Rule 2 of the Order 14. ... If the plaintiff fails to satisfy either of these considerations, the summons may be dismissed. If however, these considerations are satisfied, the plaintiff will have established a prima facie case and he becomes entitled to judgment. The burden then shifts to the defendant to satisfy the Court why judgment should not be given against him”. [16] As the plaintiff in the instant application before me has satisfied these preliminary requirements, and this is not disputed by the defendants, the burden is now firmly on the defendants to show that there is a triable issue that does not justify summary judgment to be entered against them. If the defendants can show even one triable issue, this Court will not grant summary judgment. But it has to be a genuinely triable issue. As made clear by the Federal Court in Voo Min En & Ors v Leong Chung Fatt [1982] 2 MLJ 241, it is not enough for a defendant to raise an issue or any issue. The defendant must instead raise such an issue as would require a trial in order to determine it. The Issues Raised by the Defendants [17] I shall next consider each of the issues raised by the defendants in their single affidavit affirmed by the third defendant on behalf of the first, third, fourth and fifth defendants, and as repeated in the written submissions and highlighted in the oral submissions at the hearing, in resisting the summary judgment application. First Issue – The defendants were not advised of the DAG Scheme [18] The defendants argued that they were not advised about the DAG Scheme. I find this averment unsubstantiated and contradicted by contemporaneous documents. All relevant contractual documents, particularly the letter of offer and the Facility Agreement as originally executed by the defendants with Maybank stated that the Facilities were approved by Maybank under the Direct Access Guarantee Scheme with the plaintiff, and that the Facilities were subject to the DAG Scheme. The documents also contained the subrogation clause, as mentioned earlier. The second and third defendants executed all contractual documents on behalf of the first defendant. [19] Thus, in respect of the third, fourth and fifth defendants, an examination of the Guarantee dated 2 October 2007 would readily reveal that first, the presence of a specially incorporated subrogation clause in respect of the DAG Scheme. Secondly, all three defendants signed on the same Guarantee. Thirdly, the signatures of the three were each witnessed by an advocate and solicitor. Fourth, there is also a clause on “Explanation to Signatories” where the same lawyer certified by again signing his name, that he had read and explained the contents of the Guarantee, and that the three defendant guarantors acknowledged to the lawyer that they understood the terms and implications of the Guarantee. Fifthly, there is also a box stating to be an important notice, which appeared just before the execution section of the Guarantee, where it is specifically stated that signatories to the document (namely, the Guarantee) may be liable instead of the customer borrower, and that signatories are advised to seek independent legal advice. [20] Furthermore, there were clear evidence of communication by way of letters between the plaintiff and the first defendant upon the exercise of the subrogation right. The defendants never denied receiving letters dated 23 June 2011, 8 September 2011, 14 September 2012 and 11 October 2012 from the plaintiff which contained repayment proposals for the Facilities to the plaintiff. In fact, the first defendant also wrote to the plaintiff on its repayment proposal as referred to earlier. [21] In any event, the defendants never contended that they did not sign any of the documents. The law is however settled on the effect of the execution of agreements. It binds the parties regardless of whether the parties have read or understood the contents. Thus it is immaterial even if the defendants had not read, let alone understood, any of the various documents, in the absence of any allegation of fraud or coercion. [22] As correctly highlighted by the plaintiff, in the case of Serangoon Garden Estate Ltd v. Marian Chye [1958] 1 MLRH 212 the High Court held that in the absence of fraud or misrepresentation, one is bound by the terms of the document which he had signed. Whether or not he read the documents is not important. [23] I also had the occasion to refer to this principle in the case of Hap Seng Credit Sdn Bhd v Mohamed bin A Ralim & Ors [2016] 10 MLJ 761, as follows:- “[46] I should, for completeness, add that the argument that the respondents had not been in the know of the transactions and that the first respondent having merely signed blank forms and did not understand English, and thus ought not to be responsible for the same is not only unsupported with evidence, but also not justified under the law. It is well-established in the law of contract that a person who is a party to a written contract is bound by the terms of the contract whether or not he understands the language in which it is documented, in the absence of fraud or misrepresentation (see Subramaniam v Retnam [1966] 1 MLJ 172). No allegation of fraud or misrepresentation had been raised, let alone evidenced in the instant case. In the case of UMW Industries (1985) Sdn Bhd v Kamaruddin Abdullah & Anor [1989] 2 CLJ Rep 619, the High Court observed pointedly that: As for the second defendant’s contention that he only signed blank guarantee forms, he has only himself to blame as the plea of non est factum does not work in favour of a person who has shown himself to be negligent. The law cannot thus permit the respondents to be excused from the performance of their expressly stated promise as contained in a valid written agreement on the basis of this contention. The following passage from the case of Imbangan Utama Sdn Bhd v Lotan Engineering Works Sdn Bhd [2002] 2 MLJ 313; [2002] 8 CLJ 497 is no less instructive: It really takes a litigant of unusual temerity or cheerful insouciance to register a plea of non est factum, for such plea rarely if ever succeeds. There is a whole pack of legal cards stacked against such plea. As a defence or a cause of action the onus rests heavily and onerously on the party who alleges non est factum. The signer must establish his lack of competence due to illness or innate incapacity or defective education and he was not negligent or had acted nonchalantly or with want of care (see Saunders v Anglia Building Society [1971] AC 1004 (HL). And, he must further establish that he had thought that he was signing a document which was so radically or fundamentally or basically or essentially different in substance or in kind from the document signed (see also Polygram Records Sdn Bhd v Hillary Ang & Ors [1994] 3 CLJ 806 and Goh Jong Cheng v MB Melwani Pte Ltd [1991] 1 MLJ 482; [1990] 1 LNS 160)”. [24] Neither could the defendants be entitled to rely on the defence or plea of non est factum because the defendants had failed to specifically plead such defence. In any event, not an iota of evidence was proffered to establish non est factum (see also Fui Lian Credit & Leasing Sdn Bhd v Kim Leong Timber Sdn Bhd & Ors [1991] 2 CLJ (Rep) 614). [25] As such, the assertion that they were not advised of the DAG Scheme is entirely without basis and wholly contrived. This argument does not raise any triable issue. Second Issue – The Action against the Second, Third, Fourth and Fifth Defendants is Pre-mature [26] The defendants contended in the affidavit and the written submissions that the claim against the second, third, fourth and fifth defendants is irregular. They argued that as guarantors under the Guarantee, the liability of the said defendants only arises after the plaintiff had proven its indebtedness against the first defendant borrower or had exhausted all avenues to recover the alleged indebtedness against the first defendant. Thus, the present action would be pre-mature as against the second, third, fourth and fifth defendants. [27] This contention is clearly misconceived. Firstly, the second, third, fourth and fifth defendants did not deny signing the Guarantee. Clause 30 plainly stated that each and every one of them agreed to indemnify the plaintiff (following subrogation) for all losses arising from the Facilities granted to the first defendant. It reads as follows:- 30. As a separate and additional obligation I/we hereby irrevocably and unconditionally undertake to indemnify and keep you fully indemnified against all losses, damages, liabilities costs and expenses whatsoever which you may sustain or incur as a result of or arising from your advances, credit or other banking facilities granted to the customer. [28] The question whether the indebtedness of the first defendant borrower had been proven is therefore irrelevant. The obligation of the guarantors is separate and independent from that of the borrower, in light of the above provision. This is made more unmistakably so in the other terms contained in the Guarantee, as follows:- 12. Until and unless determined as herein this Guarantee provided, my/our guarantee herein shall be a continuing guarantee notwithstanding that the Customer may at any time or times cease to be indebted to you for any period or periods and notwithstanding any settlement of account or accounts or otherwise. ………………………………. 17. As a separate and independent stipulation, I/we agree that any sum or sums of money which may not be recoverable from me/us on the footing of a guarantee whether by reason of any legal limitation disability or incapacity on or of the Customer or by any other fact or circumstances and whether known to you or not shall nevertheless be recoverable from me/us or each of us as sole or principal debtors and shall be paid by me/us on demand. [29] It is a basic rule in the law of contract that what have been agreed by contracting parties should be given effect to. The Federal Court in Michael C. Solle vs. United Malayan Banking Corporation [1986] 1 MLJ 45 (TAB 3 IOP) had ruled thus:- “The principles of construction to be applied to the undertaking are similar to those applied to an ordinary contract. The intentions of the parties are to be gathered from the language used. They are presumed to have intended what they said. The common and universal principle is that an agreement ought to receive that construction which its language will admit, which willbest effectuate the intention of the parties, to be collected from the whole agreement.” [30] The defendants cannot be allowed to raise objection against the plain language of the agreements which it had previously accepted in writing and benefitted from. In Malayan Banking Berhad vs. Chua Keng Leng t/a New Fortune Enterprise [1991] 3 CLJ 224 the High Court held that:- “Parties ought to admit facts as to which there is no controversy. A defendant should not deny plain and acknowledged facts which it is neither in his interest nor in his power to disprove. In an action for a debt a mere denial of the debt is wholly inadmissible”. [31] Secondly, that the plaintiff has the right to pursue its recovery against the second, third, fourth and fifth defendants as guarantors is plainly stated in the Guarantee itself. Each of the second, third, fourth and fifth defendants had jointly and severally agreed to comply with the terms of the Guarantee, which is stated in unambiguous terms, as not imposing on the plaintiff the need to enforce any of the remedies that could instead be exercised concurrently under clause 7A of the Guarantee. The clause reads:- 7A. You shall have the right to exercise all or any of the remedies available whether by this Guarantee or by statute or otherwise and shall be entitled to exercise such remedies concurrently, including pursuing all remedies pursuant to this Guarantee and civil suit against the Customer or other security party to recover all moneys due and owing to you, PROVIDED THAT nothing herein contained shall be construed as imposing any obligation (whether at law or in equity) upon you to exhaust your remedy to enforce any of the securities or against any other security party before commencing any action against us AND we hereby irrevocably and unconditionally agree and consent to you commencing separate proceedings, enforcing other remedies and exercising any other rights which you may have against us, the Customer or any other security party simultaneously or consecutively in any order as you deem fit. [32] This is also consistent with the rule that a creditor has the right to commence bankruptcy proceedings against the guarantors separately or simultaneously with its enforcement of other security arrangement. It is not for the defendants (borrower or guarantor), to dictate which remedy the creditor should pursue first. As established by the Supreme Court in Bank Bumiputra Malaysia Berhad v. Esah binti Abdul Ghani [1985] CLJ Rep 41, a guarantor (other than a social guarantor) has no special right to demand that the creditor go against the principal debtor first to pay off the debt before asking the guarantor to pay. [33] The said defendants, as guarantors had also agreed to make payments to the plaintiff any sum outstanding from the first defendant borrower, whenever demanded of them by the plaintiff. More pertinently, the guarantors had given an undertaking under Clauses 17 and 30 of the Guarantee, as referred to above, in their capacity as principal debtors, thus rendering the ability of the plaintiff to take action against the third, fourth and fifth defendant guarantors, as principal debtors themselves, to be even more manifest. [34] The effect of a "principal debtor clause" was explained by the Federal Court in the case of Andrew Lee Siew Ling v. United Overseas Bank (M) Bhd [2012] 3 CLJ 708 as follows:- "It is our considered view that in the present case the appellant, being a person who has given a guarantee and more importantly an indemnity, is primarily liable for losses which the principal borrower could not have been made liable. His liability is not dependent or secondary to the liability of the principal borrower. He is a principal debtor himself. The liability under a contract of indemnity does not depend on whether the principal debt is enforceable. It has no reference in law to the obligation of any third person. In essence, the liability of the person who has given an indemnity can be more extensive than that of the liability of the principal borrower (see the cases of (1) Yeoman Credit Ltd v. Latter & Anor [1961] 2 All ER 294 and (2) Chung Khiaw Bank Ltd v. Soi Huan & Ors [1985] 1 LNS 71; [1986] 1 MLJ 188)." [35] Accordingly, this contention of the defendants is clearly untenable and thus cannot validly constitute a triable issue. Third Issue – The Plaintiff did not deduct from the demand the sum already received from the first defendant earlier and whether the amount claimed is accurate [36] This allegation that the sum demanded from the defendants had failed to take into account the payments already made earlier by the first defendant to the plaintiff is of little substantive worth. It is true that as mentioned earlier, the first defendant had paid on monthly basis the aggregate amount of RM36,000.00 to the plaintiff. But there is a total absence of any substantiation by the defendants as to the basis of their allegation that the plaintiff had failed to deduct the payments already made. [37] In order to challenge the sum claimed by the plaintiff in a summary judgment application, the defendants must be able to condescend into the particulars and contend more meaningfully why the sum is argued to be wrong (see the High Court decision in Commerce International Merchant Bankers Berhad v Tan Hua Peng [2012[ 8 MLJ 442). This the defendants did not do at all. [38] Instead, on the contrary, the plaintiff’s statement of accounts dated 16 August 2016 as at 31 July 2016 clearly included the credit of the amount of RM3,000.00 on twelve occasions during the period that more than clearly demonstrated the plaintiff’s acceptance of the RM36,000.00 as part payment of the indebtedness. [39] The said statement of accounts even contained a clause at the end of the listing of transactions that “all balances shown above are considered correct unless CGC is notified of any discrepancies within 14 days.” But there is no evidence proffered by the defendants to show that they had expressed their disagreement on any details in the statement then. [40] In fact, Clause 11 of the Guarantee states this:- 11. Any admission acknowledgement in writing by the Customer or any person authorised by the Customer of the amount of indebtedness of the Customer to you and any judgment recovered by you against through Customer in respect of such indebtedness shall be binding and conclusive against me/us. A statement signed by your manager, secretary or any one of your officers as to the moneys and liabilities for the time being due or incurred to you from or by the Customer shall be final and conclusive evidence against me/us for all purposes including legal proceedings. [41] As such, Clause 11 renders any admission by the first defendant such as in respect of its letter on repayment proposal (referred to earlier) to be binding on the other defendants as guarantors. No less crucially, it also makes any written statement on the liabilities and indebtedness of the first defendant issued by the plaintiff to be conclusive evidence against the other defendants. [42] However, it is observed that the statement of accounts was not signed. If it had been, then the onus would be on the defendant who challenges the action to show manifest error. In Cempaka Finance Bhd v Ho Lai Yin (trading as KH Trading) & Anor [2006] 2 MLJ 685, the Federal Court reversed the Court of Appeal’s decision requiring the plaintiff to tender further proof of the defendant’s indebtedness and held that when a conclusive certificate of indebtedness is issued, such a certificate shifts the burden onto the defendant to disprove the claim. It was further held as follows:- “[11] The above dictum establishes firmly the conclusive nature and extent of a certificate of indebtedness. A certificate of indebtedness operates in the field of adjectival law. It excuses the plaintiff from adducing proof of debt. Such a certificate shifts the burden onto the defendant to disprove the amount claim. …………………………….. [13] The certificate of indebtedness, exh P3, issued in accordance with cll 27 and 7.03 aforesaid, are lucid enough. There is nothing to indicate or suggest any manifest error on the face of the said certificate nor is any fraud shown. In the circumstances and given the authorities cited, we take the firm view that the answer to the first question must be in the affirmative whereas the second question has to be answered in the negative. Having considered the questions in the context of the established facts, it is appropriate, we think, to allow this appeal with costs…” [43] I accept the fact that the statement is not signed by anyone from the plaintiff with authority meant that the Clause 11 cannot validly be invoked against the defendants. This however merely means that the statement cannot in this case operate as conclusive evidence of the indebtedness of the defendants. But at the same time, the defendants were not able to demonstrate any form of error in the statement of accounts in any event. Neither could they proffer any justifications that could disprove the conclusive nature of the same. In fact, no credible challenge has been made by the defendants against the statement. [44] More importantly, the first defendant did make such part payments. It even arose from the first defendant’s own repayment proposal to the plaintiff as evidenced in its letter received by the plaintiff on 14 September 2012, as mentioned above. The first defendant had clearly therefore admitted its indebtedness. The defendants cannot now be heard as challenging the same. Their opposition to the instant suit is thus a convenient but blatant afterthought. This the Court cannot and will not countenance. [45] In my view, the legal principle of estoppel should rightfully operate to prevent and disapprove of the inequitable conduct of the defendants in attempting to mount such a challenge at this juncture. Reference ought to be made to the decision of the Court of Appeal in KGN Jaya Sdn Bhd vs. Pan Reliance Sdn Bhd [1996] 1 MLJ 233, which held as follows:- “We are of the view that it would be a travesty of justice if we were to accede to the appellant’s arguments. We are left in no doubt that the undisputed facts of this case admit of the conclusion that the respondent was, by the conduct of the appellant, lulled into the belief that the appellant had no challenge to the accounts, leave alone the legal relationship between the parties. To put it another way, the appellant, by its silence coupled with other circumstances of the case, encouraged the respondent to believe that it intended to raise no challenge to the existence of a prior legal relation between the parties or to the figure which the account showed as owing by it. Having do so, it ought not to be permitted to now contend otherwise. It follows that it does not, therefore, lie in the mouth of the appellant to now deny the respondent’s claim. It would be plainly inequitable to do so. An examination of the facts leads us to this conclusion. The legal basis upon which such a conclusion may be sustained is well-settled and it is now beyond question. See Boustead Trading [1985] Sdn Bhd v Arab-Malaysian Merchant Bank Berhad [1995] 3 MLJ 331.” [46] Furthermore, neither did any of the defendants reply to the plaintiff’s letter of demand dated 20 October 2016 which had been sent to all defendants as mentioned earlier, to deny their liability. The Courts have held that in commercial and business relationships, the failure of one party to deny a solicitor’s demand by the opposing party would amount to an implied admission. [47] In David Wong Hon Leong v Noorazman bin Adnan [1995] 4 CLJ 155, Gopal Sri Ram JCA (as he then was) held instructively as follows:- “During argument, we registered our surprise at the learned Judge's reluctance to enter judgment for this sum of RM100,000. After all, the appellant had failed to respond to the letter of 17 December. If there had never been an agreement as alleged, it is reasonable to expect a prompt and vigorous denial. But, as we have pointed out, there was no response whatsoever from the appellant. In this context, we recall to mind the following passage in the judgment of Edgar Joseph Jr. J. in Tan Cheng Hock v. Chan Thean Soo [1986] 1 LNS 42 [1987] 2 MLJ 479-487: In Wiedemann v. Walpole [1891] 2 Q.B. 534, 537 an action for breach of promise of marriage, it was held, that the mere fact that the defendant did not answer letters written to him by the plaintiff in which she stated that he had promised to marry her, was no evidence corroborating the plaintiff's testimony in support of such promise. Lord Esher M.R., in his judgment, remarked, Here, we have only to see whether the mere fact of not answering the letters, with nothing else for us to consider is any evidence in corroboration of the promise. (Emphasis added). Earlier, in his judgment, he said, 'Now there are cases - business and mercantile cases in which the Courts have taken notice that, in the ordinary course of business, if one man of business states in a letter to another that he has agreed to do certain things, the person who receives that letter must answer it if he means to dispute the fact that he did so agree. (The emphasis is ours.)” [48] More recently, in the Court of Appeal case of Small and Medium Enterprise Development Bank Malaysia v Lim Woon Katt [2016] 9 CLJ 73, Hamid Sultan Abu Backer JCA stated thus:- “(a) In the instant case, it was not in dispute that the respondent did not respond to the demand notice of the plaintiff and the defence alleging that he was not liable was only raised in the statement of defence. Evidently, failing to respond to the plaintiff's letter of demand, that too when the defence case was related to forgery, as well as the fact that the respondent did not lodge a police report upon receiving the demand, weakened the probative force of the defence case. In David Wong Hon Leong v. Noorazman Adnan [1995] 4 CLJ 155, the Court of Appeal went to the extreme end to say that failure to respond on the facts of the case should lead to entering of judgment……. . (b) In abundance of caution we must say that failure to respond must not be equated to admission of the claim under s. 17 of the Evidence Act 1950 (EA 1950). Failure to respond will relate to conduct under s. 8 of the EA 1950. Conduct is a relevant fact for the court to take into account to give the relevant probative force to the version of the plaintiff and/or defendant's case. It is well-settled that not all demand notices must be responded. In Wiedmann v. Walpole [1891] 2 QB 534, in an action for breach of promise of marriage, it was held, that the mere fact that the defendant did not answer letters written to him by the plaintiff in which she stated that he had promised to marry her, was no evidence corroborating the plaintiff's testimony in support of such promise. (c) It must also be noted that in commercial cases (not civil), courts have taken notice that, in the ordinary course of business, if one man of business states in a letter to another that he has agreed to do certain things, the person who receives that letter must answer it if he means to dispute the fact that he did so agree. (See PECD Construction Sdn Bhd v. Freehold Point Sdn Bhd [2008] 3 CLJ 215). ………………………” [49] Accordingly, this argument of the defendants too is without substance and cannot thus succeed. This ground is entirely misconceived and not tenable. Again, there is manifestly no triable issue. Fourth Issue – The defendants did not receive the demand letters [50] This allegation was averred in the affidavit affirmed on behalf of the defendants, very simply as a denial of having received the demand letters issued by the plaintiff’s solicitors. This complaint was however not repeated in the written submissions of the third, fourth and fifth defendants. Nevertheless, I shall address this in summary fashion. [51] The relevant parts of Clause 22 of the Guarantee states as follows:- 22. Any demand for payment or service of any legal process may be made or effected by prepaid registered or ordinary post addressed to me/us or each of us at my/our address specified herein or at my/our last known place of business or registered address and such demand or legal process shall be deemed to have been duly served on the fifth (5th) day following that on which it is posted, notwithstanding that the said demand or legal process may subsequently be returned undelivered by the postal authorities….. [52] The third, fourth and fifth defendants now denied having been served with the letter of demand dated 20 October 2016 demanding payment of RM1,256,396.02 as at 31 July 2016. But it is in affidavit evidence that the demand letter was sent by registered post to each of the three defendants herein to their respective addresses as they appeared under their signatures on the execution page of the Guarantee. [53] The plaintiff has also exhibited evidence in the form of the Post Office document on Resit Pengeposan Pos Daftar Dalam Negeri in respect of each of the three defendants, which listed out the names and addresses of the three defendants, vis-à-vis the demand letter. [54] Thus, Clause 22 above would operate to deem that these letters had been duly served five days after their respective dates of evidence of postage. Further Clause 22 also meant that the proof of giving any notice is discharged by showing that the notice has been duly addressed and posted by registered post. [55] Case-law authorities have also settled this point in clear terms. In the case of Yap Ke Huat & Ors v Pembangunan Warisan Murni Sejahtera Sdn Bhd & Anor [2008] 4 CLJ 175, the Court of Appeal held that proof of sending prepaid AR registered is sufficient and said as follows in respect of service or writ of summons by AR registered post:- “[20] In this instance, the plaintiffs had elected to serve the writ and statement of claim on this defendant by way of sending it by prepaid A.R. registered post. This defendant did not challenge that such process was never undertaken. Once this process was carried out, it is our view that there is no provision in law to say that the plaintiffs must also prove that the person so named in the post had received it. This opinion is shared by Suriyadi Halim J (as he then was) when he said in Pengkalan Concrete Sdn Bhd v. Chow Mooi & Anor [2003] 6 CLJ 326: In fact under sub-r. 1(1) of O. 10, nothing is indicated that the plaintiff must evidentially prove that the named person in the writ must be the very person who had received it i.e, if it was sent by prepaid AR registered post. I therefore was satisfied that as in this case, if all the prerequisites were fulfilled, as the plaintiff had done so, the recipient being "Yanti" (not the name of the defendants) did not vitiate that service”. [56] The Federal Court has also earlier in Amanah Merchant Bank Bhd (formerly known as Amanah-Chase Merchant Bank Bhd) v Lim Tow Choon (through Official Assignee) [1994] 2 CLJ 1 held authoritatively as follows:- “Although the words “shall be deemed” in the above case was considered in the context of the statutory provisions, in our view, we can draw an analogy from this case that, in the present appeal, it is sufficient to prove the notice of demand by sending it through the post in an envelope addressed to the last known place of address of the defendant, and once this is established the deeming provision would apply as in the cases cited above.” [57] It has also been ruled by the High Court in MBF Finance Bhd v Tiong Kieng Seng [2001] 4 CLJ 38 that if delivery is by post, showing proof of posting is sufficient to rely on presumption of service. [58] Further, in any event, the defendants did not show evidence of non-delivery of the registered letters. In the case of HSBC Bank (M) Bhd v. Wui Ling Timber (Bintulu) Sdn Bhd and Anor [2000] 8 CLJ 197, the High Court stated thus:- “Letter of demand was sent by registered post to an agreed address of the 1st respondent and deemed under cl. 21 to have been received by the 1st respondent. It is not enough for the 1st respondent to merely say they have not received it but they must go further to procure a letter from the postal authority to state that such a registered letter was not posted or delivered to the said address”. [59] Accordingly, the defendants’ assertion on the non- receipt of the letters of demand is wholly unsustainable and devoid of merit. This is thus not a triable issue. Additional Observations [60] The observations I made in another summary judgment case of Affin Bank Bhd v Tes Steel Products Sdn Bhd & Ors [2017] 8 MLJ 733 are similarly applicable here. I said:- “[35] When viewed in totality, the averments and arguments raised by the first defendant are considerably inflicted by various shortcomings that do little, if at all, to advance its resistance to this summary judgment application. [36] Above all, the case of the defendants is also riddled with averments which are not substantiated. These are bare averments without real support. No documents were produced by the first defendant to corroborate its stance on virtually all the arguments to challenge this summary judgment application. It is trite that mere bare denials or assertions do not constitute evidence and they cannot give rise to triable issues (see the Court of Appeal decision in Chen Heng Ping & Ors v Intradagang Merchant Bankers (M) Bhd [1995] 2 MLJ 363)”. [61] In my view, denials of plain and non-controversial facts ought to be deprecated for they are often a clear sign of the absence of any valid issues of real dispute, more so when the defendants had, I repeat, undoubtedly benefitted from the disbursement of the Facilities. [62] I cannot but also refer to the leading judgment of the former Supreme Court on summary judgment in Bank Negara Malaysia v. Mohd Ismail & Ors [1992] 1 CLJ 627 which held as follows:- “Under an O. 14 application, the duty of a Judge does not end as soon as a fact is asserted by one party, and denied or disputed by the other on affidavit. Where such assertion, denial or dispute is equivocal, or lacking in precision or is inconsistent with undisputed contemporary documents or other statements by the same deponent or is inherently improbable in itself, then the Judge has a duty to reject such assertion or denial, thereby rendering the issue as not triable. In our opinion, unless this principle is adhered to, a Judge is in no position to exercise his discretion judicially under an O. 14 application. Thus, apart from identifying the issues of fact or law, the Court must go one step further and determine whether they are triable. This principle is sometimes expressed by the statement that a complete defence need not be shown. The defence set up need only show that there is a triable issue”. [63] Having evaluated the facts and considered the law applicable to this instant case, I have, in the foregoing, determined that the defendants have so clearly failed to raise any triable issue or reasonable defence. I additionally find that all the arguments raised by the defendant to be entirely at variance from and not consistent with either the clear position in law or the undisputed contemporaneous documents, being the various agreements governing the Facilities and the correspondences on subrogation and repayment proposals. The resistence of the third, fourth and fifth defendants is futile, cannot succeed and must therefore fail. Conclusion [64] For the reasons that I have discussed in the foregoing, I find that the defendants have fallen very considerably short, and not succeeded, on a balance of probablilities, in demonstrating that they had any triable issue to resist the plaintiff’s summary judgment application. [65] Accordingly, I allow enclosure 9 and grant the Order 14 summary judgment for the plaintiff, with costs. Dated: 4 October 2017 t.t (MOHD NAZLAN BIN MOHD GHAZALI) Judge High Court NCC1 Kuala Lumpur Counsel: Counsel for Plaintiff Melisa Chua Messrs N K Tan & Rahim Petaling Jaya Counsel for Defendants Kabina Levan Messrs Oh Teik Keng & Partners Kuala Lumpur Official Receiver - Subri Hashim Page 18 of 19	41,517	Tika 2.6.0
WA-22NCC-49-02/2017	PLAINTIF CREDIT GUARANTEE CORPORATION BHD (No. Syarikat: 12441-M) DEFENDAN 1. PWY BUILDERS SDN BHD (No. Syarikat: 727707-T) 2. CHONG WAN YONG (No. K/P: 6300108-10-8045	null	04/10/2017	YA TUAN MOHD NAZLAN BIN MOHD GHAZALI	https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=630293b4-ccbd-48cd-aec8-dee00cf331d2&Inline=true	DALAM PERKARA MAHKAMAH TINGGI MALAYA DI KUALA LUMPUR (BAHAGIAN DAGANG) GUAMAN NO.: WA-22NCC-49-02/2017 ANTARA CREDIT GUARANTEE CORPORATION BHD (No. Syarikat: 12441-M) ...PLAINTIFF DAN 1. PWY BUILDERS SDN BHD (No. Syarikat: 727707-T) 2. CHONG WAN YONG (No. K/P: 6300108-10-8045/7063838) ...DEFENDAN BEFORE YANG ARIF TUAN MOHD NAZLAN MOHD GHAZALI JUDGE JUDGMENT Introduction [1] This case concerns an application by the plaintiff for summary judgment against the third, fourth and fifth defendants, as documented in enclosure 9. I allowed the same at the conclusion of the hearing. This judgment contains the full reasons for my decision. Key Background Facts [2] The plaintiff is Credit Guarantee Corporation Malaysia Berhad. The plaintiff primarily facilitates small and medium enterprises access to financing by providing guarantee schemes. [3] In pursuance of a letter of offer dated 18 July 2007 issued by Malayan Banking Berhad (“Maybank”) and duly accepted by PWY Builders Sdn Bhd (“the first defendant”), Maybank agreed to extend to the first defendant, as the borrower, banking facilities for RM1,000,000.00 (RM500,000.00 for overdraft facilities, and the other RM500,00.00 for letters of credit/trust receipts, and bank guarantee facilities) (“the Facilities”) under the Direct Access Guarantee Scheme (“DAG Scheme”). [4] The DAG Scheme essentially involved the plaintiff guaranteeing to Maybank the obligations of the first defendant borrower under the Facilities. It was specifically stipulated that the terms of the Facilities were expressly subject to the rights of the plaintiff under the DAG Scheme. [5] As envisaged under the said letter of offer, Maybank and the first defendant then executed a Facility Agreement for the said amount on 2 October 2007. The security arrangement for the Facilities included the 100% guarantee coverage by the plaintiff under the DAG Scheme, pledge of upfront fixed deposit receipt of RM200,000.00, debenture over the entire assets of the first defendant for RM1,000,000.00, security trust deed, letter of set off, and general letter of indemnity for banker’s guarantee, all dated 2 October 2007. In addition, significantly for present purposes, the arrangement also included the joint and several personal guarantee of even date executed by each of the second, third, fourth and sixth defendants, who were directors of the first defendant at the material time (“the Guarantee”). [6] No less crucially, the Facility Agreement also contains an express provision on subrogation in Clause 19.24 which stated in plain terms, that the plaintiff “shall be allowed for subrogation of all rights of the Lender against the Borrower in respect of any amount paid by CGC in accordance with the DAGS Scheme”. [7] The first defendant defaulted. It failed to adhere to its repayment obligations under the Facility Agreement. This the first defendant did not dispute, for it sent a letter dated 3 January 2011 agreeing that Maybank freeze the utilisation of the Facilities, and for the fixed deposit receipt be uplifted and set-off as appropriate. [8] By a letter dated 18 October 2011 to all defendants, Maybank confirmed that the Facility Agreement had been subrogated to the plaintiff. The outstanding amount was RM807,562.57. [9] The first defendant, in a letter signed by the third defendant and received by the plaintiff on 14 September 2012 proposed a repayment of the Facilities, by making a monthly payment of RM3,000.00. Following therefrom, payments were then made by the first defendant to the plaintiff on monthly basis from October 2012 to September 2013, totalling RM36,000.00. [10] However, no further payments were forthcoming from the first defendant thereafter. The plaintiff had, through its solicitors, issued two letters to all of the defendants, dated 30 November 2012 and 20 October 2016 demanding outstanding paymentof RM896,945.80 as at 30 September 2012 and RM1,256,396.02 as at 31 July 2016 respectively. [11] All went unheeded. This then resulted in the filing of a writ action by the plaintiff against the defendants, and this instant application for summary judgment against them. [12] On 27 March 2017, the plaintiff obtained a judgment in default of appearance against the second defendant. The plaintiff also subsequently discovered that the first defendant has since been wound up. As such, the summary judgment application is only pursued against the third, fourth and fifth defendants. Evaluation and Findings of this Court The Law [13] A brief mention of the law on summary judgment is not out of place. For this is an application for summary judgment under Order 14 of the Rules of Court 2012 (“the RC 2012”). It is already settled law that once an Order 14 application is demonstrated to have been correctly filed, the burden shifts and thus rests on the defendant who wishes to oppose the application to raise a defence which shows a “bona fide triable issue”, in the sense of being an issue which justifies and warrants the matter to be considered at the trial proper. [14] This is entirely in consonant with the requirements of Order 14 r 3 of the RC 2012 which provides that unless the defendant satisfies the Court with respect to the claim, or the part of a claim, to which the application relates that:- (a) there is an issue or question in dispute which ought to be tried; or (b) there ought for some other reason to be a trial of that claim or part, the Court may give such judgment for the Plaintiff against the Defendant on that claim or part as may be just having regard to the nature of the remedy or relied claimed. [15] As such, in the often quoted decision of the former Supreme Court in National Company For Foreign Trade vs. Kayu Raya Sdn Bhd [1984] 2 MLJ 300 it was authoritatively ruled as follows:- “We think it appropriate to remind ourselves once again that in every application under Order 14 the first considerations are (1) whether the case comes within the Order and (b) whether the plaintiff has satisfied the preliminary requirements for proceeding under Order 14. For the purposes of an application under Order 14 the preliminary requirements are:- (i) the defendant must have entered an appearance; (ii) the statement of claim must have been served on the defendant; and (iii) the affidavit in support of the application must comply with the requirements of Rule 2 of the Order 14. ... If the plaintiff fails to satisfy either of these considerations, the summons may be dismissed. If however, these considerations are satisfied, the plaintiff will have established a prima facie case and he becomes entitled to judgment. The burden then shifts to the defendant to satisfy the Court why judgment should not be given against him”. [16] As the plaintiff in the instant application before me has satisfied these preliminary requirements, and this is not disputed by the defendants, the burden is now firmly on the defendants to show that there is a triable issue that does not justify summary judgment to be entered against them. If the defendants can show even one triable issue, this Court will not grant summary judgment. But it has to be a genuinely triable issue. As made clear by the Federal Court in Voo Min En & Ors v Leong Chung Fatt [1982] 2 MLJ 241, it is not enough for a defendant to raise an issue or any issue. The defendant must instead raise such an issue as would require a trial in order to determine it. The Issues Raised by the Defendants [17] I shall next consider each of the issues raised by the defendants in their single affidavit affirmed by the third defendant on behalf of the first, third, fourth and fifth defendants, and as repeated in the written submissions and highlighted in the oral submissions at the hearing, in resisting the summary judgment application. First Issue – The defendants were not advised of the DAG Scheme [18] The defendants argued that they were not advised about the DAG Scheme. I find this averment unsubstantiated and contradicted by contemporaneous documents. All relevant contractual documents, particularly the letter of offer and the Facility Agreement as originally executed by the defendants with Maybank stated that the Facilities were approved by Maybank under the Direct Access Guarantee Scheme with the plaintiff, and that the Facilities were subject to the DAG Scheme. The documents also contained the subrogation clause, as mentioned earlier. The second and third defendants executed all contractual documents on behalf of the first defendant. [19] Thus, in respect of the third, fourth and fifth defendants, an examination of the Guarantee dated 2 October 2007 would readily reveal that first, the presence of a specially incorporated subrogation clause in respect of the DAG Scheme. Secondly, all three defendants signed on the same Guarantee. Thirdly, the signatures of the three were each witnessed by an advocate and solicitor. Fourth, there is also a clause on “Explanation to Signatories” where the same lawyer certified by again signing his name, that he had read and explained the contents of the Guarantee, and that the three defendant guarantors acknowledged to the lawyer that they understood the terms and implications of the Guarantee. Fifthly, there is also a box stating to be an important notice, which appeared just before the execution section of the Guarantee, where it is specifically stated that signatories to the document (namely, the Guarantee) may be liable instead of the customer borrower, and that signatories are advised to seek independent legal advice. [20] Furthermore, there were clear evidence of communication by way of letters between the plaintiff and the first defendant upon the exercise of the subrogation right. The defendants never denied receiving letters dated 23 June 2011, 8 September 2011, 14 September 2012 and 11 October 2012 from the plaintiff which contained repayment proposals for the Facilities to the plaintiff. In fact, the first defendant also wrote to the plaintiff on its repayment proposal as referred to earlier. [21] In any event, the defendants never contended that they did not sign any of the documents. The law is however settled on the effect of the execution of agreements. It binds the parties regardless of whether the parties have read or understood the contents. Thus it is immaterial even if the defendants had not read, let alone understood, any of the various documents, in the absence of any allegation of fraud or coercion. [22] As correctly highlighted by the plaintiff, in the case of Serangoon Garden Estate Ltd v. Marian Chye [1958] 1 MLRH 212 the High Court held that in the absence of fraud or misrepresentation, one is bound by the terms of the document which he had signed. Whether or not he read the documents is not important. [23] I also had the occasion to refer to this principle in the case of Hap Seng Credit Sdn Bhd v Mohamed bin A Ralim & Ors [2016] 10 MLJ 761, as follows:- “[46] I should, for completeness, add that the argument that the respondents had not been in the know of the transactions and that the first respondent having merely signed blank forms and did not understand English, and thus ought not to be responsible for the same is not only unsupported with evidence, but also not justified under the law. It is well-established in the law of contract that a person who is a party to a written contract is bound by the terms of the contract whether or not he understands the language in which it is documented, in the absence of fraud or misrepresentation (see Subramaniam v Retnam [1966] 1 MLJ 172). No allegation of fraud or misrepresentation had been raised, let alone evidenced in the instant case. In the case of UMW Industries (1985) Sdn Bhd v Kamaruddin Abdullah & Anor [1989] 2 CLJ Rep 619, the High Court observed pointedly that: As for the second defendant’s contention that he only signed blank guarantee forms, he has only himself to blame as the plea of non est factum does not work in favour of a person who has shown himself to be negligent. The law cannot thus permit the respondents to be excused from the performance of their expressly stated promise as contained in a valid written agreement on the basis of this contention. The following passage from the case of Imbangan Utama Sdn Bhd v Lotan Engineering Works Sdn Bhd [2002] 2 MLJ 313; [2002] 8 CLJ 497 is no less instructive: It really takes a litigant of unusual temerity or cheerful insouciance to register a plea of non est factum, for such plea rarely if ever succeeds. There is a whole pack of legal cards stacked against such plea. As a defence or a cause of action the onus rests heavily and onerously on the party who alleges non est factum. The signer must establish his lack of competence due to illness or innate incapacity or defective education and he was not negligent or had acted nonchalantly or with want of care (see Saunders v Anglia Building Society [1971] AC 1004 (HL). And, he must further establish that he had thought that he was signing a document which was so radically or fundamentally or basically or essentially different in substance or in kind from the document signed (see also Polygram Records Sdn Bhd v Hillary Ang & Ors [1994] 3 CLJ 806 and Goh Jong Cheng v MB Melwani Pte Ltd [1991] 1 MLJ 482; [1990] 1 LNS 160)”. [24] Neither could the defendants be entitled to rely on the defence or plea of non est factum because the defendants had failed to specifically plead such defence. In any event, not an iota of evidence was proffered to establish non est factum (see also Fui Lian Credit & Leasing Sdn Bhd v Kim Leong Timber Sdn Bhd & Ors [1991] 2 CLJ (Rep) 614). [25] As such, the assertion that they were not advised of the DAG Scheme is entirely without basis and wholly contrived. This argument does not raise any triable issue. Second Issue – The Action against the Second, Third, Fourth and Fifth Defendants is Pre-mature [26] The defendants contended in the affidavit and the written submissions that the claim against the second, third, fourth and fifth defendants is irregular. They argued that as guarantors under the Guarantee, the liability of the said defendants only arises after the plaintiff had proven its indebtedness against the first defendant borrower or had exhausted all avenues to recover the alleged indebtedness against the first defendant. Thus, the present action would be pre-mature as against the second, third, fourth and fifth defendants. [27] This contention is clearly misconceived. Firstly, the second, third, fourth and fifth defendants did not deny signing the Guarantee. Clause 30 plainly stated that each and every one of them agreed to indemnify the plaintiff (following subrogation) for all losses arising from the Facilities granted to the first defendant. It reads as follows:- 30. As a separate and additional obligation I/we hereby irrevocably and unconditionally undertake to indemnify and keep you fully indemnified against all losses, damages, liabilities costs and expenses whatsoever which you may sustain or incur as a result of or arising from your advances, credit or other banking facilities granted to the customer. [28] The question whether the indebtedness of the first defendant borrower had been proven is therefore irrelevant. The obligation of the guarantors is separate and independent from that of the borrower, in light of the above provision. This is made more unmistakably so in the other terms contained in the Guarantee, as follows:- 12. Until and unless determined as herein this Guarantee provided, my/our guarantee herein shall be a continuing guarantee notwithstanding that the Customer may at any time or times cease to be indebted to you for any period or periods and notwithstanding any settlement of account or accounts or otherwise. ………………………………. 17. As a separate and independent stipulation, I/we agree that any sum or sums of money which may not be recoverable from me/us on the footing of a guarantee whether by reason of any legal limitation disability or incapacity on or of the Customer or by any other fact or circumstances and whether known to you or not shall nevertheless be recoverable from me/us or each of us as sole or principal debtors and shall be paid by me/us on demand. [29] It is a basic rule in the law of contract that what have been agreed by contracting parties should be given effect to. The Federal Court in Michael C. Solle vs. United Malayan Banking Corporation [1986] 1 MLJ 45 (TAB 3 IOP) had ruled thus:- “The principles of construction to be applied to the undertaking are similar to those applied to an ordinary contract. The intentions of the parties are to be gathered from the language used. They are presumed to have intended what they said. The common and universal principle is that an agreement ought to receive that construction which its language will admit, which willbest effectuate the intention of the parties, to be collected from the whole agreement.” [30] The defendants cannot be allowed to raise objection against the plain language of the agreements which it had previously accepted in writing and benefitted from. In Malayan Banking Berhad vs. Chua Keng Leng t/a New Fortune Enterprise [1991] 3 CLJ 224 the High Court held that:- “Parties ought to admit facts as to which there is no controversy. A defendant should not deny plain and acknowledged facts which it is neither in his interest nor in his power to disprove. In an action for a debt a mere denial of the debt is wholly inadmissible”. [31] Secondly, that the plaintiff has the right to pursue its recovery against the second, third, fourth and fifth defendants as guarantors is plainly stated in the Guarantee itself. Each of the second, third, fourth and fifth defendants had jointly and severally agreed to comply with the terms of the Guarantee, which is stated in unambiguous terms, as not imposing on the plaintiff the need to enforce any of the remedies that could instead be exercised concurrently under clause 7A of the Guarantee. The clause reads:- 7A. You shall have the right to exercise all or any of the remedies available whether by this Guarantee or by statute or otherwise and shall be entitled to exercise such remedies concurrently, including pursuing all remedies pursuant to this Guarantee and civil suit against the Customer or other security party to recover all moneys due and owing to you, PROVIDED THAT nothing herein contained shall be construed as imposing any obligation (whether at law or in equity) upon you to exhaust your remedy to enforce any of the securities or against any other security party before commencing any action against us AND we hereby irrevocably and unconditionally agree and consent to you commencing separate proceedings, enforcing other remedies and exercising any other rights which you may have against us, the Customer or any other security party simultaneously or consecutively in any order as you deem fit. [32] This is also consistent with the rule that a creditor has the right to commence bankruptcy proceedings against the guarantors separately or simultaneously with its enforcement of other security arrangement. It is not for the defendants (borrower or guarantor), to dictate which remedy the creditor should pursue first. As established by the Supreme Court in Bank Bumiputra Malaysia Berhad v. Esah binti Abdul Ghani [1985] CLJ Rep 41, a guarantor (other than a social guarantor) has no special right to demand that the creditor go against the principal debtor first to pay off the debt before asking the guarantor to pay. [33] The said defendants, as guarantors had also agreed to make payments to the plaintiff any sum outstanding from the first defendant borrower, whenever demanded of them by the plaintiff. More pertinently, the guarantors had given an undertaking under Clauses 17 and 30 of the Guarantee, as referred to above, in their capacity as principal debtors, thus rendering the ability of the plaintiff to take action against the third, fourth and fifth defendant guarantors, as principal debtors themselves, to be even more manifest. [34] The effect of a "principal debtor clause" was explained by the Federal Court in the case of Andrew Lee Siew Ling v. United Overseas Bank (M) Bhd [2012] 3 CLJ 708 as follows:- "It is our considered view that in the present case the appellant, being a person who has given a guarantee and more importantly an indemnity, is primarily liable for losses which the principal borrower could not have been made liable. His liability is not dependent or secondary to the liability of the principal borrower. He is a principal debtor himself. The liability under a contract of indemnity does not depend on whether the principal debt is enforceable. It has no reference in law to the obligation of any third person. In essence, the liability of the person who has given an indemnity can be more extensive than that of the liability of the principal borrower (see the cases of (1) Yeoman Credit Ltd v. Latter & Anor [1961] 2 All ER 294 and (2) Chung Khiaw Bank Ltd v. Soi Huan & Ors [1985] 1 LNS 71; [1986] 1 MLJ 188)." [35] Accordingly, this contention of the defendants is clearly untenable and thus cannot validly constitute a triable issue. Third Issue – The Plaintiff did not deduct from the demand the sum already received from the first defendant earlier and whether the amount claimed is accurate [36] This allegation that the sum demanded from the defendants had failed to take into account the payments already made earlier by the first defendant to the plaintiff is of little substantive worth. It is true that as mentioned earlier, the first defendant had paid on monthly basis the aggregate amount of RM36,000.00 to the plaintiff. But there is a total absence of any substantiation by the defendants as to the basis of their allegation that the plaintiff had failed to deduct the payments already made. [37] In order to challenge the sum claimed by the plaintiff in a summary judgment application, the defendants must be able to condescend into the particulars and contend more meaningfully why the sum is argued to be wrong (see the High Court decision in Commerce International Merchant Bankers Berhad v Tan Hua Peng [2012[ 8 MLJ 442). This the defendants did not do at all. [38] Instead, on the contrary, the plaintiff’s statement of accounts dated 16 August 2016 as at 31 July 2016 clearly included the credit of the amount of RM3,000.00 on twelve occasions during the period that more than clearly demonstrated the plaintiff’s acceptance of the RM36,000.00 as part payment of the indebtedness. [39] The said statement of accounts even contained a clause at the end of the listing of transactions that “all balances shown above are considered correct unless CGC is notified of any discrepancies within 14 days.” But there is no evidence proffered by the defendants to show that they had expressed their disagreement on any details in the statement then. [40] In fact, Clause 11 of the Guarantee states this:- 11. Any admission acknowledgement in writing by the Customer or any person authorised by the Customer of the amount of indebtedness of the Customer to you and any judgment recovered by you against through Customer in respect of such indebtedness shall be binding and conclusive against me/us. A statement signed by your manager, secretary or any one of your officers as to the moneys and liabilities for the time being due or incurred to you from or by the Customer shall be final and conclusive evidence against me/us for all purposes including legal proceedings. [41] As such, Clause 11 renders any admission by the first defendant such as in respect of its letter on repayment proposal (referred to earlier) to be binding on the other defendants as guarantors. No less crucially, it also makes any written statement on the liabilities and indebtedness of the first defendant issued by the plaintiff to be conclusive evidence against the other defendants. [42] However, it is observed that the statement of accounts was not signed. If it had been, then the onus would be on the defendant who challenges the action to show manifest error. In Cempaka Finance Bhd v Ho Lai Yin (trading as KH Trading) & Anor [2006] 2 MLJ 685, the Federal Court reversed the Court of Appeal’s decision requiring the plaintiff to tender further proof of the defendant’s indebtedness and held that when a conclusive certificate of indebtedness is issued, such a certificate shifts the burden onto the defendant to disprove the claim. It was further held as follows:- “[11] The above dictum establishes firmly the conclusive nature and extent of a certificate of indebtedness. A certificate of indebtedness operates in the field of adjectival law. It excuses the plaintiff from adducing proof of debt. Such a certificate shifts the burden onto the defendant to disprove the amount claim. …………………………….. [13] The certificate of indebtedness, exh P3, issued in accordance with cll 27 and 7.03 aforesaid, are lucid enough. There is nothing to indicate or suggest any manifest error on the face of the said certificate nor is any fraud shown. In the circumstances and given the authorities cited, we take the firm view that the answer to the first question must be in the affirmative whereas the second question has to be answered in the negative. Having considered the questions in the context of the established facts, it is appropriate, we think, to allow this appeal with costs…” [43] I accept the fact that the statement is not signed by anyone from the plaintiff with authority meant that the Clause 11 cannot validly be invoked against the defendants. This however merely means that the statement cannot in this case operate as conclusive evidence of the indebtedness of the defendants. But at the same time, the defendants were not able to demonstrate any form of error in the statement of accounts in any event. Neither could they proffer any justifications that could disprove the conclusive nature of the same. In fact, no credible challenge has been made by the defendants against the statement. [44] More importantly, the first defendant did make such part payments. It even arose from the first defendant’s own repayment proposal to the plaintiff as evidenced in its letter received by the plaintiff on 14 September 2012, as mentioned above. The first defendant had clearly therefore admitted its indebtedness. The defendants cannot now be heard as challenging the same. Their opposition to the instant suit is thus a convenient but blatant afterthought. This the Court cannot and will not countenance. [45] In my view, the legal principle of estoppel should rightfully operate to prevent and disapprove of the inequitable conduct of the defendants in attempting to mount such a challenge at this juncture. Reference ought to be made to the decision of the Court of Appeal in KGN Jaya Sdn Bhd vs. Pan Reliance Sdn Bhd [1996] 1 MLJ 233, which held as follows:- “We are of the view that it would be a travesty of justice if we were to accede to the appellant’s arguments. We are left in no doubt that the undisputed facts of this case admit of the conclusion that the respondent was, by the conduct of the appellant, lulled into the belief that the appellant had no challenge to the accounts, leave alone the legal relationship between the parties. To put it another way, the appellant, by its silence coupled with other circumstances of the case, encouraged the respondent to believe that it intended to raise no challenge to the existence of a prior legal relation between the parties or to the figure which the account showed as owing by it. Having do so, it ought not to be permitted to now contend otherwise. It follows that it does not, therefore, lie in the mouth of the appellant to now deny the respondent’s claim. It would be plainly inequitable to do so. An examination of the facts leads us to this conclusion. The legal basis upon which such a conclusion may be sustained is well-settled and it is now beyond question. See Boustead Trading [1985] Sdn Bhd v Arab-Malaysian Merchant Bank Berhad [1995] 3 MLJ 331.” [46] Furthermore, neither did any of the defendants reply to the plaintiff’s letter of demand dated 20 October 2016 which had been sent to all defendants as mentioned earlier, to deny their liability. The Courts have held that in commercial and business relationships, the failure of one party to deny a solicitor’s demand by the opposing party would amount to an implied admission. [47] In David Wong Hon Leong v Noorazman bin Adnan [1995] 4 CLJ 155, Gopal Sri Ram JCA (as he then was) held instructively as follows:- “During argument, we registered our surprise at the learned Judge's reluctance to enter judgment for this sum of RM100,000. After all, the appellant had failed to respond to the letter of 17 December. If there had never been an agreement as alleged, it is reasonable to expect a prompt and vigorous denial. But, as we have pointed out, there was no response whatsoever from the appellant. In this context, we recall to mind the following passage in the judgment of Edgar Joseph Jr. J. in Tan Cheng Hock v. Chan Thean Soo [1986] 1 LNS 42 [1987] 2 MLJ 479-487: In Wiedemann v. Walpole [1891] 2 Q.B. 534, 537 an action for breach of promise of marriage, it was held, that the mere fact that the defendant did not answer letters written to him by the plaintiff in which she stated that he had promised to marry her, was no evidence corroborating the plaintiff's testimony in support of such promise. Lord Esher M.R., in his judgment, remarked, Here, we have only to see whether the mere fact of not answering the letters, with nothing else for us to consider is any evidence in corroboration of the promise. (Emphasis added). Earlier, in his judgment, he said, 'Now there are cases - business and mercantile cases in which the Courts have taken notice that, in the ordinary course of business, if one man of business states in a letter to another that he has agreed to do certain things, the person who receives that letter must answer it if he means to dispute the fact that he did so agree. (The emphasis is ours.)” [48] More recently, in the Court of Appeal case of Small and Medium Enterprise Development Bank Malaysia v Lim Woon Katt [2016] 9 CLJ 73, Hamid Sultan Abu Backer JCA stated thus:- “(a) In the instant case, it was not in dispute that the respondent did not respond to the demand notice of the plaintiff and the defence alleging that he was not liable was only raised in the statement of defence. Evidently, failing to respond to the plaintiff's letter of demand, that too when the defence case was related to forgery, as well as the fact that the respondent did not lodge a police report upon receiving the demand, weakened the probative force of the defence case. In David Wong Hon Leong v. Noorazman Adnan [1995] 4 CLJ 155, the Court of Appeal went to the extreme end to say that failure to respond on the facts of the case should lead to entering of judgment……. . (b) In abundance of caution we must say that failure to respond must not be equated to admission of the claim under s. 17 of the Evidence Act 1950 (EA 1950). Failure to respond will relate to conduct under s. 8 of the EA 1950. Conduct is a relevant fact for the court to take into account to give the relevant probative force to the version of the plaintiff and/or defendant's case. It is well-settled that not all demand notices must be responded. In Wiedmann v. Walpole [1891] 2 QB 534, in an action for breach of promise of marriage, it was held, that the mere fact that the defendant did not answer letters written to him by the plaintiff in which she stated that he had promised to marry her, was no evidence corroborating the plaintiff's testimony in support of such promise. (c) It must also be noted that in commercial cases (not civil), courts have taken notice that, in the ordinary course of business, if one man of business states in a letter to another that he has agreed to do certain things, the person who receives that letter must answer it if he means to dispute the fact that he did so agree. (See PECD Construction Sdn Bhd v. Freehold Point Sdn Bhd [2008] 3 CLJ 215). ………………………” [49] Accordingly, this argument of the defendants too is without substance and cannot thus succeed. This ground is entirely misconceived and not tenable. Again, there is manifestly no triable issue. Fourth Issue – The defendants did not receive the demand letters [50] This allegation was averred in the affidavit affirmed on behalf of the defendants, very simply as a denial of having received the demand letters issued by the plaintiff’s solicitors. This complaint was however not repeated in the written submissions of the third, fourth and fifth defendants. Nevertheless, I shall address this in summary fashion. [51] The relevant parts of Clause 22 of the Guarantee states as follows:- 22. Any demand for payment or service of any legal process may be made or effected by prepaid registered or ordinary post addressed to me/us or each of us at my/our address specified herein or at my/our last known place of business or registered address and such demand or legal process shall be deemed to have been duly served on the fifth (5th) day following that on which it is posted, notwithstanding that the said demand or legal process may subsequently be returned undelivered by the postal authorities….. [52] The third, fourth and fifth defendants now denied having been served with the letter of demand dated 20 October 2016 demanding payment of RM1,256,396.02 as at 31 July 2016. But it is in affidavit evidence that the demand letter was sent by registered post to each of the three defendants herein to their respective addresses as they appeared under their signatures on the execution page of the Guarantee. [53] The plaintiff has also exhibited evidence in the form of the Post Office document on Resit Pengeposan Pos Daftar Dalam Negeri in respect of each of the three defendants, which listed out the names and addresses of the three defendants, vis-à-vis the demand letter. [54] Thus, Clause 22 above would operate to deem that these letters had been duly served five days after their respective dates of evidence of postage. Further Clause 22 also meant that the proof of giving any notice is discharged by showing that the notice has been duly addressed and posted by registered post. [55] Case-law authorities have also settled this point in clear terms. In the case of Yap Ke Huat & Ors v Pembangunan Warisan Murni Sejahtera Sdn Bhd & Anor [2008] 4 CLJ 175, the Court of Appeal held that proof of sending prepaid AR registered is sufficient and said as follows in respect of service or writ of summons by AR registered post:- “[20] In this instance, the plaintiffs had elected to serve the writ and statement of claim on this defendant by way of sending it by prepaid A.R. registered post. This defendant did not challenge that such process was never undertaken. Once this process was carried out, it is our view that there is no provision in law to say that the plaintiffs must also prove that the person so named in the post had received it. This opinion is shared by Suriyadi Halim J (as he then was) when he said in Pengkalan Concrete Sdn Bhd v. Chow Mooi & Anor [2003] 6 CLJ 326: In fact under sub-r. 1(1) of O. 10, nothing is indicated that the plaintiff must evidentially prove that the named person in the writ must be the very person who had received it i.e, if it was sent by prepaid AR registered post. I therefore was satisfied that as in this case, if all the prerequisites were fulfilled, as the plaintiff had done so, the recipient being "Yanti" (not the name of the defendants) did not vitiate that service”. [56] The Federal Court has also earlier in Amanah Merchant Bank Bhd (formerly known as Amanah-Chase Merchant Bank Bhd) v Lim Tow Choon (through Official Assignee) [1994] 2 CLJ 1 held authoritatively as follows:- “Although the words “shall be deemed” in the above case was considered in the context of the statutory provisions, in our view, we can draw an analogy from this case that, in the present appeal, it is sufficient to prove the notice of demand by sending it through the post in an envelope addressed to the last known place of address of the defendant, and once this is established the deeming provision would apply as in the cases cited above.” [57] It has also been ruled by the High Court in MBF Finance Bhd v Tiong Kieng Seng [2001] 4 CLJ 38 that if delivery is by post, showing proof of posting is sufficient to rely on presumption of service. [58] Further, in any event, the defendants did not show evidence of non-delivery of the registered letters. In the case of HSBC Bank (M) Bhd v. Wui Ling Timber (Bintulu) Sdn Bhd and Anor [2000] 8 CLJ 197, the High Court stated thus:- “Letter of demand was sent by registered post to an agreed address of the 1st respondent and deemed under cl. 21 to have been received by the 1st respondent. It is not enough for the 1st respondent to merely say they have not received it but they must go further to procure a letter from the postal authority to state that such a registered letter was not posted or delivered to the said address”. [59] Accordingly, the defendants’ assertion on the non- receipt of the letters of demand is wholly unsustainable and devoid of merit. This is thus not a triable issue. Additional Observations [60] The observations I made in another summary judgment case of Affin Bank Bhd v Tes Steel Products Sdn Bhd & Ors [2017] 8 MLJ 733 are similarly applicable here. I said:- “[35] When viewed in totality, the averments and arguments raised by the first defendant are considerably inflicted by various shortcomings that do little, if at all, to advance its resistance to this summary judgment application. [36] Above all, the case of the defendants is also riddled with averments which are not substantiated. These are bare averments without real support. No documents were produced by the first defendant to corroborate its stance on virtually all the arguments to challenge this summary judgment application. It is trite that mere bare denials or assertions do not constitute evidence and they cannot give rise to triable issues (see the Court of Appeal decision in Chen Heng Ping & Ors v Intradagang Merchant Bankers (M) Bhd [1995] 2 MLJ 363)”. [61] In my view, denials of plain and non-controversial facts ought to be deprecated for they are often a clear sign of the absence of any valid issues of real dispute, more so when the defendants had, I repeat, undoubtedly benefitted from the disbursement of the Facilities. [62] I cannot but also refer to the leading judgment of the former Supreme Court on summary judgment in Bank Negara Malaysia v. Mohd Ismail & Ors [1992] 1 CLJ 627 which held as follows:- “Under an O. 14 application, the duty of a Judge does not end as soon as a fact is asserted by one party, and denied or disputed by the other on affidavit. Where such assertion, denial or dispute is equivocal, or lacking in precision or is inconsistent with undisputed contemporary documents or other statements by the same deponent or is inherently improbable in itself, then the Judge has a duty to reject such assertion or denial, thereby rendering the issue as not triable. In our opinion, unless this principle is adhered to, a Judge is in no position to exercise his discretion judicially under an O. 14 application. Thus, apart from identifying the issues of fact or law, the Court must go one step further and determine whether they are triable. This principle is sometimes expressed by the statement that a complete defence need not be shown. The defence set up need only show that there is a triable issue”. [63] Having evaluated the facts and considered the law applicable to this instant case, I have, in the foregoing, determined that the defendants have so clearly failed to raise any triable issue or reasonable defence. I additionally find that all the arguments raised by the defendant to be entirely at variance from and not consistent with either the clear position in law or the undisputed contemporaneous documents, being the various agreements governing the Facilities and the correspondences on subrogation and repayment proposals. The resistence of the third, fourth and fifth defendants is futile, cannot succeed and must therefore fail. Conclusion [64] For the reasons that I have discussed in the foregoing, I find that the defendants have fallen very considerably short, and not succeeded, on a balance of probablilities, in demonstrating that they had any triable issue to resist the plaintiff’s summary judgment application. [65] Accordingly, I allow enclosure 9 and grant the Order 14 summary judgment for the plaintiff, with costs. Dated: 4 October 2017 t.t (MOHD NAZLAN BIN MOHD GHAZALI) Judge High Court NCC1 Kuala Lumpur Counsel: Counsel for Plaintiff Melisa Chua Messrs N K Tan & Rahim Petaling Jaya Counsel for Defendants Kabina Levan Messrs Oh Teik Keng & Partners Kuala Lumpur Official Receiver - Subri Hashim Page 18 of 19	41,517	Tika 2.6.0
A-01(A)-200-06/2017	PERAYU 1. M. KULA SEGARAN 2. SU KEONG SIONG … PERAYU - PERAYU RESPONDEN 1. SURUHANJAYA PILIHAN RAYA MALAYSIA 2. DATUK SERI MOHD HASHIM BIN ABDULLAH 3. DATUK HAJI ABDUL GHANI BIN SALLEH … RESPONDEN - RESPONDEN	Prosedur Sivil — Semakan Kehakiman — Permohonan kebenaran — Permohonan semakan kehakiman oleh wakil dan pengundi berdaftar — Pemohon yang terkilan — Kajian semula penyempadanan Bahagian-Bahagian Pilihanraya bagi Dewan Rakyat dan Dewan Negeri di Semenanjung Malaysia — Sama ada “tindakan” yang boleh terjumlah kepada satu “tindakan” yang tertakluk kepada prosiding semakan Kehakiman	03/10/2017	YA DATUK KAMARDIN BIN HASHIMKorumYA DATUK SERI HAJI MOHD ZAWAWI BIN SALLEHYA DATO' ABDUL RAHMAN BIN SEBLIYA DATUK KAMARDIN BIN HASHIM	https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=6b54ac83-ef3f-4f1e-8297-c59ff8a632e8&Inline=true	MRS NO: A-01(A)-200-06/2017 1 DALAM MAHKAMAH RAYUAN KALAYSIA [BIDANGKUASA RAYUAN] RAYUAN SIVIL NO: A-01(A)-200-06/2017 1. M. KULA SEGARAN 2. SU KEONG SIONG …PERAYU-PERAYU DAN 1. SURUHANJAYA PILIHAN RAYA MALAYSIA 2. DATUK SERI MOHD HASHIM BIN ABDULLAH 3. DATUK HAJI ABDUL GHANI BIN SALLEH …RESPONDEN- RESPONDEN [Dalam Perkara Mahkamah Tinggi di Ipoh Permohonan Semakan Kehakiman No: AA-25-3-03/2017 Dalam perkara Perkara 5, 8, 10, Bahagian VIII dan Jadual Ke-13, Perlembagaan Persekutuan Dan Dalam perkara Seksyen 25(2) dan/atau Jadual, Akta Mahkamah Kehakiman 1964 Dan Dalam perkara Aturan 15, Kaedah 12 dan Aturan 53, Kaedah-Kaedah Mahkamah 2012 dan/atau bidang kuasa sedia ada Mahkamah Dan MRS NO: A-01(A)-200-06/2017 2 Dalam perkara “Notis Syor-Syor Yang Dicadangkan Bagi Bahagian-Bahagian Pilihan Raya Persekutuan Dan Negeri dalam Negeri-Negeri Tanah Melayu (Kecuali Negeri Selangor) Sebagaimana Yang Telah Dikaji Semula Oleh Suruhanjaya Pilihan Raya Dalam Tahun 2017”, yang diwartakan di bawah Seksyen 7, Jadual Ke-13, Perlembagaan Persekutunan Dan Dalam perkara “Syor-Syor Yang Dicadangkan Bagi Bahagian-Bahagian Pilihan Raya Persekutuan Dan Negeri Bagi Negeri Perak Sebagaimana Yang Telah Dikaji Semula Oleh Suruhanjaya Pilihan Raya Dalam Tahun 2017” Dan Dalam perkara Siasatan Tempatan Kali Pertama Bahagian Pilihan Raya P.065 Ipoh Barat, N.28 Bercham, N.29 Kepayang dan N.30 Buntong yang diadakan pada 01.11.2016 di Aman Jaya Convention Centre, Bulatan Meru Raya, Bandar Meru Raya, 30020, Ipoh, Perak Dan Dalam perkara Siasatan Tempatan Kali Pertama Bahagian Pilihan Raya P.064 Ipoh Timor dan N.26 Tebing Tinggi, yang diadakan pada 01.11.2016 di Aman Jaya Convention Centre, Bulatan Meru Raya, Bandar Meru Raya, 30020, Ipoh, Perak. MRS NO: A-01(A)-200-06/2017 3 Antara 1. M. Kula Segaran 2. Su Keong Siong …Pemonon-Pemohon Dan 1. Suruhanjaya Pilihan Raya Malaysia 2. Datuk Seri Mohd Hashim Bin Abdullah 3. Datuk Haji Abdul Ghani Bin Salleh …Responden- Responden] KORAM: MOHD ZAWAWI SALLEH, HMR ABDUL RAHMAN SEBLI, HMR KAMARDIN HASHIM, HMR PENGHAKIMAN MAHKAMAH [1] Ini ialah rayuan Perayu-Perayu terhadap keputusan Hakim Mahkamah Tinggi di Ipoh, Perak (“Hakim bicara”) yang telah diberikan pada 5.5.2017 yang telah menolak permohonan Perayu-Perayu bagi mendapatkan kebenaran untuk memulakan prosiding semakan kehakiman terhadap Responden-Responden. MRS NO: A-01(A)-200-06/2017 4 [2] Melalui Notis Usul bertarikh 28.3.2017 yang telah difailkan menurut Aturan 53, Kaedah 3, Kaedah-Kaedah Mahkamah 2012 (“KKM 2012”), Perayu-Perayu telah memohon kebenaran untuk memulakan satu prosiding semakan kehakiman bagi mendapatkan, antara lain, perintah-perintah yang berikut: “1.1. Suatu Perintah certiorari untuk membatalkan keputusan Responden Pertama yang berikut: (a) Notis yang bertarikh 08.03.2017 dan bertajuk “Notis Syor-Syor Yang Dicadangkan Bagi Bahagian-Bahagian Pilihan Raya Persekutuan Dan Negeri dalam Negeri-Negeri Tanah Melayu (Kecuali Negeri Selangor) Sebagaimana Yang Telah Dikaji Semula Oleh Suruhanjaya Pilihan Raya Dalam Tahun 2017”, (“Notis Kedua”); dan/atau (b) Syor-Syor Yang Dicadangkan Bagi Bahagian-Bahagian Pilihan Raya Persekutuan bagi Negeri Perak Sebagaimana Yang Telah Dikaji Semula Oleh Suruhanjaya Pilihan Raya Dalam Tahun 2017 (“Syor-Syor yang Dicadangkan”); dan/atau 1.2. Satu deklarasi bahawa Notis tersebut dan/atau Syor-Syor Yang Dicadangkan diterbitkan tanpa jurisdiksi; 1.3. Satu deklarasi bahawa Notis tersebut dan/atau Syor-Syor Yang Dicadangkan adalah tidak berpelembagaan; 1.4. Satu deklarasi bahawa Siasatan Tempatan Kali Pertama untuk Bahagian Pilihanraya Persekutuan dan Dewan Undangan Negeri untuk P.065 Ipoh Barat, N.28 Bercham, N.29 Kepayang dan MRS NO: A-01(A)-200-06/2017 5 N.30 Buntong yang dikendalikan pada 01.11.2016 di Aman Jaya Convention Centre, Bulatan Meru Raya, Bandar Meru Raya, 30020, Ipoh, Perak, menyalahi undang-undang; dan/atau 1.5. Satu deklarasi bahawa Siasatan Tempatan Kali pertama untuk Bahagian Pilihan Raya Persekutuan dan Dewan Undangan Negeri untuk P.064 Ipoh Timor, No.26 Tebing Tinggi yang dikendalikan pada 01.11.2016 di Aman Jaya Convention Centre, Bulatan Meru Raya, Bandar Meru Raya, 30020, Ipoh, Perak, menyalahi undang-undang.”. [3] Seterusnya Perayu-Perayu memohon sekiranya kebenaran tersebut diberikan, satu perintah dikeluarkan supaya semua Notis dan/atau proses/prosiding/tatacara penyempadanan semula mengikut Notis dan Syor-Syor Yang Dicadangkan tersebut digantung sehingga pelupusan penuh prosiding semakan yang difailkan oleh Perayu-Perayu. [4] Perayu Pertama, YB M. Kula Segaran, ialah Ahli Parlimen (MP) bagi kawasan Ipoh Barat (P.065) dan Perayu Kedua, YB Su Keong Siong, ialah Ahli Parlimen (MP) bagi kawasan Ipoh Timur (P.064). Perayu-Perayu juga adalah pengundi-pengundi berdaftar dimasing- masing kawasan tersebut. MRS NO: A-01(A)-200-06/2017 6 [5] Responden Pertama (selepas ini disebut ‘SPR’) ialah satu badan yang ditubuhkan di bawah Perkara 114, Perlembagaan Persekutuan yang diberi mandat untuk: (a) mengadakan pilihanraya bagi Dewan Rakyat dan Dewan-Dewan Perundangan Negeri-Negeri dan juga menyediakan dan menyemak semula daftar pengundi untuk pilihanraya-pilihanraya tersebut; dan (b) menyemak semula pembahagian Persekutuan dan Negeri-Negeri kepada Bahagian-bahagian pilihanraya dan mengesyorkan sebarang perubahan seperti yang difikirkan perlu bagi mematuhi peruntukan-peruntukan yang terdapat di dalam Jadual Ke-13 Perlembagaan Persekutuan dengan cara untuk memastikan bahawa ia mendapat keyakinan awam pada setiap masa. [6] Responden Kedua dan Responden Ketiga ialah masing-masing merupakan Pengerusi SPR dan Setiausaha SPR. [7] Pada 15.09.2016, SPR telah mewartakan satu notis bertajuk “Notis Syor-Syor Yang Dicadangkan Bagi Bahagian-Bahagian Pilihanraya Persekutuan dan Negeri Dalam Negeri-Negeri Tanah Melayu Sebagaimana Yang Telah Dikaji Semula oleh Suruhanjaya Pilihan Raya Dalam Tahun 2016” (“Notis Pertama tersebut”). Kajian semula penyempadanan Bahagian-Bahagian Pilihanraya bagi Dewan MRS NO: A-01(A)-200-06/2017 7 Rakyat dan Dewan Negeri di Semenanjung Malaysia tersebut adalah selaras dengan peruntukan-peruntukan yang terdapat dalam Jadual Ke- 3, Perlembagaan Persekutuan. [8] SPR kemudiannya telah mengemukakan “Syor-Syor Yang Dicadangkan untuk Bahagian-Bahagian Persekutuan untuk Negeri Perak Yang Dikaji Semula oleh Suruhanjaya Pilihanraya Pada 2016” (“Syor-Syor Yang Dicadangkan tersebut”), secara atas talian dalam laman sesawang SPR yang telah diterbitkan pada 08.09.2016. [9] Pada 11.10.2016, Perayu Pertama dan 175 pengundi yang lain bagi P.065 telah membentuk satu kumpulan dan menyerahkan representasi mereka kepada SPR menurut seksyen 5(b), Jadual Ke-13, Perlembagaan Persekutuan untuk menentang syor-syor yang dicadangkan oleh SPR. Pada 12.10.2016, Perayu Kedua bersama 132 pengundi yang lain bagi P.064 telah mengambil tindakan yang sama dengan mengemukakan representasi menentang syor-syor yang dicadangkan oleh SPR. [10] Berikutan dengan itu, SPR telah mengadakan satu Siasatan Tempatan pada 01.11.2016 di Aman Jaya Convention Centre untuk MRS NO: A-01(A)-200-06/2017 8 mendengar kedua-dua representasi daripada kedua-dua Bahagian Parlimen P.065 dan P.064 tersebut (‘Siasatan Tempatan tersebut’). [11] Setelah Siasatan Tempatan tersebut diadakan, SPR telah mengeluarkan Notis Kedua dengan mengandungi beberapa perubahan terhadap syor-syor yang dicadangkan, dimana Negeri Selangor telah dikecualikan dalam Notis Kedua tersebut. Notis Kedua tersebut telah disiarkan di dalam laman web SPR dan juga dapat dilihat di beberapa tempat penampalan notis yang terletak di dalam Bahagian-Bahagian Parlimen yang berkenaan. [12] Perayu-Perayu tidak berpuashati terhadap hasil representasi- representasi yang mereka telah kemukakan bersama pengundi- pengundi Bahagian mereka kepada SPR. Perayu Pertama telah menghantar satu surat bertarikh 10.03.2017 kepada SPR bagi mendapatkan satu penjelasan. SPR telah memberikan jawapan melalui surat mereka bertarikh 15.03.2017. Perayu Pertama masih tidak berpuas hati kerana dikatakan surat jawapan tersebut tidak menyatakan bahawa pihak SPR telah memberikan pertimbangan terhadap bantahan yang telah dikemukakan oleh mereka melalui representasi-representasi. MRS NO: A-01(A)-200-06/2017 9 [13] Melalui Afidavit Sokongan yang difailkan oleh Perayu Pertama, bantahan-bantahan yang telah ditimbulkan terhadap Notis Kedua tersebut dapat diringkaskan seperti berikut: (a) SPR gagal menjelaskan kesan-kesan dan juga sebab-sebab syor-syor yang dicadangkan di dalam Notis Kedua tersebut; dan (b) SPR gagal menjelaskan bagaimana penyempadanan yang disyorkan dalam kajian penyempadanan semula tersebut yang tidak konsisten dengan seksyen 2, Jadual Ke-13, Perlembagaan Persekutuan. [14] Di hadapan Mahkamah Tinggi, Perayu-Perayu telah menghujahkan bahawa mereka mempunyai locus standi untuk membawa prosiding semakan Kehakiman terhadap Responden- Responden atas alasan bahawa hak dan kepentingan mereka sebagai Ahli Parlimen bagi P.065 dan P.064 telah terjejas dengan teruk akibat tindakan dan keputusan Responden-Responden dalam syor-syor yang dicadangkan yang melibatkan proses penyempadanan semula Kawasan Parlimen mereka. Perayu-Perayu menghujahkan bahawa dalam beberapa kes seumpama tindakan mereka, Mahkamah Tinggi telahpun memberikan kebenaran untuk memulakan prosiding semakan Kehakiman terhadap Responden-Responden yang sama. Antaranya, MRS NO: A-01(A)-200-06/2017 10 termasuklah dalam kes Pengerusi Suruhanjaya Pilihanraya Malaysia (Election Commission of Malaysia) v. See Chee How & Anor [2016] 3 MLJ 365 dimana keputusan Mahkamah Tinggi yang memberikan kebenaran telah disahkan oleh Mahkamah ini. [15] Selanjutnya, Perayu-Perayu menghujahkan bahawa mereka telahpun berjaya membangkitkan kes yang mempunyai asas untuk diperdebatkan (“arguable case”) (lihat WRP Asia Pacific Sdn Bhd v. Tenaga Nasional Bhd [2012] 4 MLJ 296). Perayu-Perayu telah mengemukakan 6 alasan mengapa kebenaran dikatakan wajar diberikan kepada mereka untuk mencabar proses kajian semula Bahagian- Bahagian pilihan raya yang sedang dijalankan di bawah Jadual Ke-13, Perlembagaan Persekutuan. Enam (6) Alasan tersebut, sebagaimana yang telah diringkaskan oleh Hakim bicara yang bijaksana di dalam Penghakiman beliau ialah seperti yang berikut: “Alasan Pertama, Notis Pertama dan Kedua yang dikeluarkan SPR adalah tanpa asas undang-undang. Perkara 113(6) Perlembagaan Persekutuan secara jelas tidak mengecualikan mana-mana negeri di dalam kajian semula kerana ungkapan ‘unit kajian semula’ merujuk kepada semua negeri di Tanah Melayu. Dengan itu, tindakan SPR mengecualikan Negeri Selangor semasa mengeluarkan Notis Pertama ataupun Notis Kedua adalah bertentangan dengan peruntukan perlembagaan. MRS NO: A-01(A)-200-06/2017 11 Kedua, Notis Pertama dan Kedua tidak sah kerana bertentangan dengan s 4(a) Jadual 13 yang dibaca bersama dengan Perkara 10(1)(a), 119(1) dan 113(2) Perlembagaan Persekutuan. Undang- undang menghendaki SPR menyatakan kesan kepada syor-syor yang dicadangkan. Tanpa maklumat tersebut, pihak pemohon tidak dapat membuat representasi yang berkesan dan telah dinafikan hak kebebasan yang dijamin di bawah Perkara 10(1)(a) Perlembagaan Persekutuan. Keputusan Mahkamah Persekutuan di dalam kes Sivarasa Rasiah v Badan Peguam Malaysia & Anor [2010] 2 MLJ 333 dirujuk. Ketiga, Syor Pertama dan Kedua tidak sah kerana gagal mematuhi peruntukan perenggan 2(c) dan (d) Jadual 13 Perlembagaan Persekutuan. Syor Pertama gagal mengambil kira jumlah bilangan pengundi dalam setiap bahagian pilihan raya di Negeri Perak. Syor Pertama jelas menunjukkan jumlah pengundi di P.064 dan P.065 jauh lebih ramai jika dibandingkan dari jumlah sebelum persempadanan semula dan purata pengundi di kawasan lain. Selain itu, Syor Pertama juga akan mengakibatkan tergendalanya hubungan tempatan. Lebih- lebih lagi syor tersebut akan mewujudkan perubahan komposisi kaum yang ketara di dalam bahagian-bahagian P.064 dan P.065 selepas kajian semula. Keadaan tersebut jelas bertentangan dengan prinsip tidak boleh ada diskriminasi seperti mana yang dijamin di bawah Perkara 8(2) Perlembagaan Persekutuan. Keempat, Syor Pertama tidak rasional dan tidak seimbang kerana dibuat tanpa asas yang munasabah. SPR gagal memberikan pertimbangan kepada prinsip-prinsip yang digariskan undang-undang di bawah s 2, Jadual 13 Perlembagaan Persekutuan. MRS NO: A-01(A)-200-06/2017 12 Kelima, ST tidak sah kerana pihak pemohon dan pengundi tidak dimaklumkan alasan serta kesan Syor Pertama, Selain itu, pihak pemohon juga dinafikan hak diwakili peguam semasa pendengaran representasi semasa ST diadakan. Oleh kerana ST adalah satu prosiding separa kehakiman, hak untuk didengar secara adil perlu diberikan kepada pihak pemohon. Keputusan Mahkamah Persekutuan di dalam kes-kes Lee Kwan Woh v Public Prosecutor [2009] 5 MLJ 301 dan Ketua Pengarah Kastam v Ho Kwan Seng [1977] 2 MLJ dirujuk. Akhirnya, bagi alasan keenam, SPR gagal mengemukakan alasan ketika tidak mengambil kira representasi pihak pemohon di dalam ST. Tugas memberikan alasan adalah berlandaskan kepada konsep kesaksamaan sepertimana yang diputuskan Mahkamah Persekutuan di dalam kes Majlis Perbandaran Pulau Pinang v Syarikat Bekerjasama-sama Serbaguna Sungai Gelugor Dengan Tanggungan [1993] 3 MLJ 1. Disamping itu, tugas memberikan alasan menjadi lebih penting apabila keputusan yang dibuat melibatkan kebebasan fundamental. Keputusan di dalam kes Hong Leong Equipment Sdn Bhd v Liew Fook Chuan And Another Appeal [1996] 1 MLJ 481 dirujuk. Kegagalan SPR mematuhi kehendak Perlembagaan Persekutuan semasa mengemukakan syor secara langsung menjejaskan hak kebebasan pihak pemohon yang dijamin bagi mendapatkan kebebasan bercakap serta bersuara, kesamarataan dan hak untuk mengundi. Oleh itu, SPR berkewajipan memberikan alasan berkait dengan keengganannya untuk memasukkan representasi yang dikemukakan pihak pemohon.”. [16] Kesemua 6 alasan yang dikemukakan dan dihujahkan oleh Perayu-Perayu di atas telah dijawab oleh Peguam-Peguam Kanan MRS NO: A-01(A)-200-06/2017 13 Persekutuan yang mewakili Responden-Responden. Hakim bicara telah mengulas setiap jawapan yang dihujahkan oleh Peguam-Peguam Kanan Persekutuan dalam Penghakiman beliau sebelum menolak permohonan Perayu-Perayu. Intipati keputusan Hakim bicara adalah seperti berikut (di m/s 53 – 54 Rekod Rayuan Tambahan): “Berdasarkan kepada alasan-alasan tersebut, adalah didapati dan diputuskan bahawa pihak pemohon gagal menunjukkan Syor Yang Dicadangkan berserta Notis-Notis yang dikeluarkan SPR adalah terjumlah kepada keputusan, tindakan atau ketinggalan yang boleh dicabar melalui semakan Kehakiman di bawah Aturan 53 KKM 2012. Pihak pemohon juga gagal membangkitkan isu atau alasan yang boleh dibicarakan. Keenam-enam alasan yang dikemukakan pihak pemohon adalah remeh. Dengan itu, permohonan pihak pemohon bagi mendapatkan kebenaran bagi memulakan tindakan semakan Kehakiman tidak berasas. Permohonan pihak pemohon ditolak tanpa sebarang perintah untuk kos.” [17] Di hadapan kami, Perayu-Perayu telah membangkitkan dua (2) isu utama untuk mencabar keputusan Hakim bicara dalam menolak permohonan Perayu-Perayu untuk mendapatkan kebenaran. Dua isu yang dimaksudkan adalah berkaitan dengan persoalan sama ada Perayu-Perayu telah berjaya menimbulkan satu kes yang mempunyai asas untuk diperdebatkan (“arguable case”) dan bukannya satu kes yang remeh. Perayu-Perayu menekankan bahawa perkara-perkara MRS NO: A-01(A)-200-06/2017 14 yang dibangkitkan dalam permohonan mereka adalah tertakluk kepada prosiding semakan Kehakiman. Disamping itu, SPR dikatakan telah gagal memberikan penjelasan terhadap perkara-perkara yang dibangkitkan dalam representasi-representasi Perayu-Perayu. [18] Diperingkat awal penghujahannya, Encik Surendra Ananth yang mewakili Perayu-Perayu telah menghujahkan mengenai undang-undang berkaitan dengan pemberian kebenaran untuk memulakan tindakan semakan Kehakiman. Dihujahkan bahawa pada peringkat ini, pihak Perayu-Perayu hanya perlu menunjukkan bahawa mereka mempunyai satu kes yang mempunyai asas untuk diperdebatkan (“arguable case”) dan kes tersebut bukan merupakan sesuatu yang remeh. Peguam bela terpelajar juga menghujahkan bahawa ambang batas (“threshold”) untuk memberikan kebenaran adalah sangat rendah. Fakta bahawa tidak terdapat isu-isu yang bermerit dan Perayu-Perayu mempunyai pilihan remedi yang lain bukanlah merupakan satu halangan untuk Perayu- Perayu mengambil tindakan melalui proses semakan Kehakiman. Perayu-Perayu menggesa supaya Mahkamah mengambil pendekatan yang lebih anjal (“flexible”) dan tidak secara terus menolak permohonan Perayu-Perayu untuk mendapatkan kebenaran tanpa memberi peluang MRS NO: A-01(A)-200-06/2017 15 kepada mereka untuk mengemukakan hujah-hujah lanjut diperingkat perbicaraan substantif. [19] Walaupun Perayu-Perayu mengakui bahawa apa-apa keputusan, tindakan dan cadangan yang dikemukakan oleh SPR bukanlah sesuatu yang muktamad oleh kerana Parlimen yang mempunyai kuasa penentu yang muktamad, namun dihujahkan bahawa apa-apa keputusan, tindakan dan cadangan oleh SPR adalah tertakluk kepada prosiding semakan Kehakiman. Peguam bela terpelajar Perayu-Perayu telah merujuk kepada beberapa keputusan dari United Kingdom. Antaranya, dalam kes R v. Parliamentary Commissioner for Administration, ex P Dyer [1994] 1 WLR 621, dimana Simon Brown LJ di m/s 625 telah memutuskan seperti berikut: “Many in government are answerable to Parliament and yet answerable also to the supervisory jurisdiction of this Court. I see nothing about the Commissioner’s role or the statutory framework within which he operates so singular as to take him wholly outside the purview of judicial review”. [20] Dalam nada dan irama yang sama, Donaldson MR dalam R v. Boundary Commission exp. Foot and Others [1983] 1 All ER 1099 menyatakan seperti berikut (di m/s 1102 dan 1117) - MRS NO: A-01(A)-200-06/2017 16 “In particular it is important that everyone should understand what is the function and duty of the courts. Parliament entrusted the duty of recommending changes in English constituency boundaries to the commission. It could, if it had wished, have further provided that anyone who was dissatisfied with those recommendations could appeal to the courts. Had it done so, the duty of the court would, to a considerable extent, have been to repeat the operations of the commission and see whether it arrived at the same answer. If it did, the appeal would have been dismissed. If it did not, it would have substituted its own recommendations. Parliament, for reasons which we can well understand, did no such thing. It made no mention of the courts and gave no right of appeal to the courts. There are some who will think that in that situation the courts have no part to play, but they would be wrong. There are many Acts of Parliament which give ministers and local authorities extensive powers to take action which affects the citizenry of this country, but give no right of appeal to the courts. In such cases, the courts are not concerned or involved so long as ministers and local authorities do not exceed the powers given to them by Parliament. Those powers may give them a wide range of choice on what action to take or to refrain from taking and so long as they confine themselves to making choices within that range the courts will have no wish or power to intervene. But if ministers or local authorities exceed their powers, if they choose to do something or to refrain from doing something in circumstances in which this is not one of the options given to them by Parliament, the courts can and will intervene in defence of the ordinary citizen. It is of the essence of parliamentary democracy that those to whom powers are given by Parliament shall be free to exercise those powers, subject to constitutional protest and criticism and parliamentary or other democratic control. But any attempt by ministers or local author ities to MRS NO: A-01(A)-200-06/2017 17 usurp powers which they have not got or to exercise their powers in a way which is unauthorized by Parliament is quite a different matter. As Sir Winston Churchill was wont to say, ‘That is something up with which we will not put.’ If asked to do so, it is then the role of the courts to intervene and, in the interest of everyone concerned, to prevent this happening. ………. Parliament and the courts are independent of each other and it is no part of the function or duty of the courts to review or intervene in any matter which pertains to Parliament itself. Thus the courts are not themselves concerned to draw or redraw constituency boundaries or to make any decision as to the basis of parliamentary representation. Those are matters for Parliament alone. When it comes to advising Parliament and the Secretary of State on these matters, it is for Parliament and Parliament alone decide what advice, if any, it requires and the nature of that advice. Parliament has thought it right to set up independent advisory bodies, the Boundary Commissions, to advise it and, in so doing, it has given the commissions instructions as to the criteria to be employed in formulating that advice. For good reasons, which we can well understand, Parliament has not asked the courts to advice it and it has not provided for any right of appeal to the courts from the advice or proposed advice of the commissions. This does not mean that courts have no part to play. They remain charged with the duty of helping to ensure that the instructions of Parliament are carried out. This is done by a procedure known as MRS NO: A-01(A)-200-06/2017 18 judicial review. Precisely what action, if any, should be taken by the courts in any particular case depends on the circumstances of that case including, in particular, the nature of the instructions which have been given by Parliament to the minister, authority or body concerned.” [21] Peguam bela terpelajar menggesa supaya mahkamah-mahkamah di Malaysia mengambil pendekatan yang sama seperti mahkamah- mahkamah di United Kingdom. Peguam bela terpelajar juga menghujahkan bahawa pendekatan yang sama telah diambil oleh mahkamah-mahkamah di India dimana kebenaran untuk memulakan tindakan prosiding semakan Kehakiman telah diberikan untuk mencabar keputusan yang dibuat oleh Suruhanjaya Pilihan Raya Negara itu. Peguam bela terpelajar merujuk kepada keputusan Mahkamah Agong India dalam kes Mohinder Singh Gill v. Chief Election Commissioner, AIR 1978 SC 851 dan Digvijay Mote v. Union of India [1993] 4 SCC 175. [22] Mengenai alasan rayuan kedua, peguam bela terpelajar menghujahkan bahawa SPR telah gagal untuk mengemukakan apa-apa alasan walaupun telah diminta oleh Perayu-Perayu melalui surat-surat mereka. Dihujahkan bahawa Hakim bicara telah terkhilaf apabila memutuskan bahawa SPR tidak perlu untuk memberikan alasan oleh MRS NO: A-01(A)-200-06/2017 19 kerana tidak dikehendaki di bawah undang-undang. Peguam bela terpelajar telah merujuk kepada keputusan Mahkamah Persekutuan dalam kes Majlis Perbandaran Pulau Pinang v. Syarikat Bekerjasama-sama Serbaguna Sungai Gelugor dengan Tanggungan [1999] 3 MLJ 1 di mana prinsip untuk memberikan alasan adalah berbangkit dari prinsip keadilan asasi. Peguam bela terpelajar memetik Penghakiman Hakim Edgar Joseph Jr. FCJ di m/s 62 – 64, seperti berikut: “In Breen v Amalgamated Engineering Union & Ors [1871] 2 QB 175 at p 191, Lord Denning observed that where a person ‘has some right or interest, or legitimate expectation of which it would not be fair to deprive him without a hearing or reasons given, then these should be afforded him accordingly, as the case may demand’. This principle has been applied in licensing cases (see, eg R v Wear Valley DC; ex p Binks [1985] 2 All ER 699). It has also been invoked by the High Court, Penang, in Rohana bte Ariffin & Anor v Universiti Sains Malaysia [1989] 1 MLJ 487 where it was ruled that a reasoned decision can be an additional constituent of the concept of fairness. In Doody v Secretary of State for the Home Department [1993] 3 All ER 92, the House of Lords did consider the question whether there was a general duty to give reasons in English Administrative Law. Lord Mustill speaking for the House said this (at p 110): MRS NO: A-01(A)-200-06/2017 20 I accept without hesitation … that the law does not a present recognize a general duty to give reasons for an administrative decision. Nevertheless it is equally beyond question that such a duty may in appropriate circumstances be implied …. ………. We endorse the principles enunciated by the Privy Council in Dr Stefan and say that in the exceptional circumstances of this case and having regard to the trend towards increased openness in matters of Government and administration, as a matter of fairness, reasons should have been given by the Council as to why it was imposing the disputed condition and thus resiling from the original approval of planning permission which was free from any pricing condition. In so holding, we should like to place special stress on the Council’s earlier statement, when responding to a plea by members of the Society regarding pricing, that pricing was an internal matter and did not concern it. To put it mildly, the circumstances here were such as to cry out for an explanation from the Council as to its departure from its earlier stance, yet none was vouchsafed to the Society until after proceedings had been commenced in Court. That belated explanation, as we have already indicated, left much to be desired.”. [23] Seterusnya, peguam bela terpelajar merujuk kepada keputusan Mahkamah ini dalam kes Hong Leong Equipment Sdn Bhd v. Liew Fook Chuan and another appeal [1996] 1 MLJ 481 dan Lee Kwan Woh v. PP [2009] 5 MLJ 301 untuk mengukuhkan hujahan beliau bahawa adalah selaras dengan prinsip keadilan asasi untuk MRS NO: A-01(A)-200-06/2017 21 memberikan alasan terhadap setiap keputusan yang dibuat oleh agensi kerajaan. Adalah jelas bahawa keperluan untuk memberikan alasan bagi sesuatu keputusan telah menjadi sebahagian hak orang yang terkilan dan telah menjadi hak-hak keperlembagaan (“constitutional right”). [24] Perayu-Perayu seterusnya menghujahkan bahawa sebagai Ahli Perlimen yang telah dipilih oleh rakyat, mereka mempunyai tanggungjawab sosial untuk memberikan alasan dan penjelasan terhadap syor-syor yang telah dicadangkan oleh SPR kepada pengundi- pengundi di kawasan mereka. Kegagalan SPR untuk memberikan alasan dan penjelasan terhadap syor-syor yang dicadangkan adalah terjumlah kepada penafian hak-hak keperlembagaan kepada para pengundi yang telah memilih mereka sebagai Ahli Parlimen. [25] Responden-Responden menentang hujah-hujah yang dikemuka- kan oleh Perayu-Perayu. Dato’ Amarjeet Singh yang mewakili Responden-Responden telah merujuk kepada keputusan dalam kes Members of the Commission of Enquiry on the Video Clip Recording of Images of A Person Purported to be an Advocate and Solicitor Speaking On Telephone on Matters of Appointment of MRS NO: A-01(A)-200-06/2017 22 Judges v. Tun Dato’ Seri Ahmad Fairuz bin Dato’ Sheikh Abdul Halim [2011] 6 MLJ 490 dan menghujahkan bahawa keputusan dalam kes itu masih merupakan undang-undang yang berlaku (“good law”) dan wajar diikuti. Dalam kes itu telah diputuskan oleh Mahkamah Persekutuan bahawa dapatan dan cadangan yang dikemukakan oleh Suruhanjaya bukanlah merupakan satu keputusan bagi maksud Aturan 53 Kaedah 2(4) KKM 2012 untuk membolehkan ia tertakluk kepada prosiding semakan Kehakiman. Dalam kes itu, Hakim Raus Sharif (sekarang KHN) dalam menyampaikan keputusan mahkamah atasan tertinggi negara menyatakan seperti yang berikut di m.s. 500, 503 dan 504: “[26] It is trite law that the purpose of an order for certiorari is to quash the legal effect of a decision. In England, in the case of Council of Civil Service Unions and others v Minister for the Civil Service [1984] 3 All ER 935 the House of Lords held that for a decision to be susceptible to the court’s reviewing powers, there must first be a decision by a decision maker or a refusal by him to make a decision, and, that decision must affect the aggrieved party by either altering his rights or obligations or depriving him of the benefits which he has been permitted to enjoy. [27] We adopt the same view. Under the scheme of O 53 of the RHC, only a person adversely affected by the decision of a public authority shall be entitled to make the application for judicial review. In the present case, there is no dispute that the Commission is a public authority. But we are of the view that the Commission is not a decision MRS NO: A-01(A)-200-06/2017 23 making body. A closer look at the Commission’s report will reveal that the Commission does not make legal decision. The report consists of findings and recommendations of the Commission on the five terms of reference entrusted upon them to do. Being mere findings and recommendations, it do not bind the respondents, not even the government. ………. [39] Nevertheless that does not happen in our case. The Commission merely investigates and does not decide. Its findings and recommendations are not binding on anybody, not even the government. Thus, we hold that the findings and recommendations of the Commission do not come within the ambit of O 53 of the RHC. In this respect, we agree with the minority decision of the Court of Appeal in upholding the decision of the learned High Court judge that there was no inconsistency between O 53 r 2(4) of the RHC and para 1 of the Schedule to the CJA. The word ‘decision’ in O 53 r 2(4) do not run foul of para 1 of the Schedule to the CJA and thus not ultra vires. [40] In light of the above, we are not able to agree with the majority decision of the Court of Appeal that the determination of whether the findings and recommendations of the Commission constitute ‘decisions’ within the ambit of O 53 r 2(4) should be taken up at the hearing of the substantive motion. We are of the view that there is no necessity to grant the application for leave on this ground when at the leave stage it can clearly be determined that the findings and recommendations of the Commission are not legal decisions that affect the rights of the respondents as envisaged under O 53 r 2(4) of the RHC. On this ground alone, the appeals should be allowed.” MRS NO: A-01(A)-200-06/2017 24 [26] Seterusnya Dato’ Amarjeet Singh menarik perhatian kami kepada keputusan terbaru Mahkamah ini dalam kes Peguam Negara v. Chan Tsu Chong & Ors (Rayuan Sivil No: M-01(A)-198-06/2017) di mana Mahkamah ini telah mengubah keputusan Mahkamah Tinggi yang telah memberikan kebenaran kepada responden untuk memulakan tindakan prosiding semakan Kehakiman dalam kes yang melibatkan isu yang sama. Dalam kes tersebut, mahkamah ini telah memutuskan bahawa tidak wujud keadaan yang mempunyai asas untuk diperdebatkan (“arguable case”) dan kebenaran untuk memulakan tindakan prosiding semakan Kehakiman telah ditolak. Peguam Kanan Persekutuan menghujahkan bahawa Hakim bicara dalam kes Rayuan di hadapan kami telah membuat keputusan yang tepat apabila menolak permohonan Perayu-Perayu untuk mendapatkan kebenaran tersebut. [27] Dato’ Amarjeet Singh juga menghujahkan bahawa syor-syor yang dicadangkan oleh SPR hanyalah satu cadangan yang tidak akan mengikat mana-mana pihak. Keputusan muktamad terhadap cadangan SPR tersebut terletak sepenuhnya kepada Parlimen. Adalah menjadi undang-undang mantap bahawa semakan kehakiman hanya boleh dibenarkan terhadap apa-apa keputusan yang membawa kesan undang-undang. Dihujahkan bahawa cadangan SPR, dalam apa jua MRS NO: A-01(A)-200-06/2017 25 keadaan sekalipun, tidak memberi kesan undang-undang terhadap Perayu-Perayu sebagai Ahli Parlimen yang telah dipilih oleh rakyat. Satu-satunya hak Perayu-Perayu untuk mencabar syor-syor yang dicadangkan oleh SPR ialah untuk hadir dalam Siasatan Tempatan, sepertimana yang telah mereka lakukan, dan mengemukakan bantahan untuk dipertimbangkan oleh SPR dengan sewajarnya. Siasatan Tempatan adalah merupakan satu forum yang sesuai dalam perkara ini. Isu yang sama telah diputuskan dalam kes Peguam Negara Malaysia v. Nurul Izzah binti Anwar & 10 Yang Lain [2017] 5 CLJ 595. [28] Peguam Kanan Persekutuan menghujahkan bahawa kes-kes daripada United Kingdom yang dirujuk oleh peguam bela terpelajar boleh dibezakan dari segi fakta. Dalam kes-kes tersebut, proses penyempadanan semula telah selesai dan sempurna dijalankan, sedangkan proses di dalam kes rayuan dihadapan Mahkamah ini masih lagi berjalan dan berterusan. Peguam Kanan Persekutuan terpelajar merujuk kepada kes Harper and Another v. Secretery of State for the Home Department [1955] 1 Ch 238 bagi menyokong hujah bahawa perkara ini sewajarnya diputuskan oleh Parlimen dan bukannya Mahkamah. Dalam kes ini, Mahkamah Rayuan United Kingdom menyatakan: MRS NO: A-01(A)-200-06/2017 26 “My reading of these rules and of the whole Act is that it was quite clearly intended that, in so far as the matter was not within the discretion of the commission, it was certainly to be a matter for Parliament to determine. I find it impossible to suppose that Parliament contemplated that, on any of these occasions when reports were presented, it would be competent for the court to determine and pronounce on whether a particular line which had commended itself to the commission was one which the court thought the best line or the right line – whether one thing rather than another was to be regarded as practicable, and so on. If it were competent for the courts to pass judgments of that kind on the reports, I am at a loss to see where the process would end and what the function of Parliament would then turn out to be.” [29] Peguam Kanan Persekutuan selanjutnya berhujah bahawa sekiranya proses penyempadanan semula kawasan pilihan raya seperti disyorkan oleh SPR masih berterusan, apa-apa tindakan semakan Kehakiman oleh mahkamah akan terjumlah kepada campurtangan mahkamah terhadap fungsi SPR seperti yang diperuntukkan dalam Perlembagaan Persekutuan. Dalam kes See Chee How, supra, Mahkamah ini telahpun memberikan pandangan yang sama mengenai isu ini seperti berikut: MRS NO: A-01(A)-200-06/2017 27 “[64] Meaning must be given to the words “proposed recommendations” used in sections 4, 5 and 7 of the Thirteenth Schedule. These words connote the preliminary nature of the recommendations. We agree with the Senior Federal Counsel that the delimitation exercise is a continous process which is eventually to be decided by the House of Representatives. It is not the function of the court to conduct its own inquiry into the objections and come to its own decision. To do so would be to usurp the powers of the EC as provided under the Constitution.” [30] Mengenai isu kegagalan SPR memberikan alasan dan penjelasan terhadap syor-syor yang dicadangkan, dihujahkan bahawa seksyen 4, Jadual ke-13, Perlembagaan Persekutuan tidak menghendakki SPR untuk memberikan sebarang alasan dan penjelasan. Sebaliknya, pihak- pihak yang terkilan, terutama pengundi bagi kawasan yang terlibat, boleh menyuarakan bantahan mereka dan membuat representasi kepada SPR semasa dua peringkat siasatan diadakan menurut seksyen 5, Jadual ke- 13. [31] Mahkamah ini dalam kes Nurul Izzah binti Anwar, supra, telah memberikan keputusan atas isu kegagalan SPR memberikan alasan dan penjelasan tentang syor-syor yang dicadangkan, seperti berikut: MRS NO: A-01(A)-200-06/2017 28 “[40] The respondents had also alleged that they were not informed of the reasons behind and the effect of the proposed recommendations before or during the enquiry and consequently the failure to do so had rendered their right to an effective hearing illusory. We find no provision in the Federal Constitution which requires the EC to inform the reasons behind the provisional recommendations. All that the scheme requires is for the EC to state the effects of the recommendations which had already been done in the notice and the proposed recommendations when it was opened for inspection. In fact, the effect of the recommendations is the subject matter of the objections which the respondents had addressed both orally and in their written representations at the enquiry. In any event, we could not, however, fully comprehend why this issue was raised as one of the grounds in questioning the legality of the local enquiry when the legality of the notice and the proposed recommendations are no longer in issue as the respondents had withdrawn the grounds of challenge on the legality of the same including the issue of the alleged failure to provide reasons behind the proposed recommendations.”. [32] Kami telah meneliti penghujahan pihak-pihak, peruntukan undang- undang dan nas-nas yang disandarkan, dan kami sebulat suara mendapati dan memutuskan bahawa rayuan Perayu-Perayu tidak mempunyai sebarang merit. Sebaliknya, kami bersetuju dengan hujah- hujah yang telah dikemukakan oleh Peguam Kanan Persekutuan bagi pihak Responden-Responden bahawa kami tidak mempunyai sebarang alasan yang kukuh untuk mengambil pendekatan yang berlainan MRS NO: A-01(A)-200-06/2017 29 daripada keputusan-keputusan terdahulu Mahkamah ini. Keputusan- keputusan terdahulu itu mempunyai asas kukuh undang-undang. [33] Kami telah mengkaji dengan teliti peruntukan-peruntukan Perlembagaan Persekutuan mengenai penubuhan, fungsi serta perjalanan SPR, terutama Perkara 113 dan Jadual Ke-13. Adalah jelas bahawa fungsi-fungsi dan tanggungjawab Responden Kedua, Responden Ketiga dan pegawai-pegawai bawahan mereka adalah menjalankan tanggungjawab keperlembagaan yang perlu dilakukan mengikut undang-undang dan dalam tempoh yang ditetapkan. [34] Tindakan Perayu-Perayu untuk mencabar proses yang sedang dijalankan oleh SPR adalah pra-matang (“premature”). Pada peringkat ini, fungsi SPR hanya mengesyorkan penyempadanan semula Bahagian-Bahagian Pilihanraya untuk dikemukakan kepada Parlimen. Pada pandangan kami, Perayu-Perayu bersilat digelanggang yang salah. [35] Kami telah memberi pertimbangan kepada hujah-hujah peguam bela terpelajar Perayu-Perayu bahawa Aturan 53 Kaedah 2(4) KKM MRS NO: A-01(A)-200-06/2017 30 2012 juga meliputi “tindakan atau peninggalan” dan bukan hanya terhadap “keputusan”. Perkataan-perkataan “tindakan atau peninggalan” telah dibawa masuk melalui KKM 2012 yang mulai berkuatkuasa pada 1.8.2012. Sebelum ini, di bawah Kaedah-Kaedah Mahkamah Tinggi 1980, Aturan 53 Kaedah 2(4) hanya menghadkan “keputusan” oleh sesuatu badan awam sahaja yang tertakluk kepada prosiding semakan Kehakiman. Kami berpandangan isu ini adalah penting dan utama dalam menentukan hala tuju rayuan Perayu-Perayu. Persoalan yang timbul ialah adakah syor-syor penyempadanan semula yang dicadangkan oleh SPR terjumlah kepada sesuatu “tindakan atau peninggalan” yang boleh tertakluk kepada prosiding semakan Kehakiman. [36] Sebagaimana dinyatakan diawal Penghakiman ini, isu yang sama telah dihujahkan oleh Dato’ Amarjeet Singh dalam kes Chan Tsu Chong, supra, bahawa syor-syor penyempadanan semula Bahagian- Bahagian Pilihanraya yang dicadangkan oleh SPR bukanlah merupakan tindakan yang mempuyai kesan perundangan dan ia tidak mengikat sesiapa. Syor dan cadangan SPR tersebut tidak menggugat hak-hak Perayu-Perayu di bawah mana-mana undang-undang. Dengan perkataan lain, hanya “tindakan” atau “peninggalan” yang memberikan MRS NO: A-01(A)-200-06/2017 31 kesan yang mengikat dan menggugat hak-hak keperlembagaan seseorang sahaja yang terjumlah kepada “tindakan” atau “peninggalan” yang tertakluk kepada prosiding semakan Kehakiman di bawah Aturan 53 Kaedah 2(4). [37] Kami bersetuju sepenuhnya dengan dapatan Mahkamah ini atas isu yang sama. Kami tidak bercadang untuk menyimpang daripada keputusan awal Mahkamah ini dalam kes Chan Tsu Chong, supra. Keputusan tersebut adalah selari dengan pandangan dan keputusan yang telah disampaikan oleh Hakim Raus Sharif, PMR (sekarang KHN) dalam kes Members of the Commission of Enquiry on the Video Clip yang kami petik diawal Penghakiman kami. [38] Kami mendapati bahawa kedudukan yang sama berlaku di United Kingdom. Ruang lingkup semakan Kehakiman di bawah Kaedah 54.1(2)(a)(ii) English Civil Procedure Rules 1998 dimana terdapat penambahan baru perkataan-perkataan ‘action’ dan ‘failure to act’, telah dijelaskan dalam ‘White Book on Civil Procedure’ vol.1 di m/s 2018, seperti berikut: “Rule 54.1(2) also defines a claim for judicial review as including a claim to review the lawfulness of a decision action or failure to act. This MRS NO: A-01(A)-200-06/2017 32 definition is a reflection of the existing scope of English public law, that is, it is intended to enable the courts to control unlawful exercises of public power or inlawful failures to perform public duties. The courts have taken a broad view of the measures that may be subject to judicial review, and the width of that jurisdiction is reflected in the words in Pt.54 which provide for review of a decision, action or failure to act. It is unlikely that Pt.54 was intended in any way to restrict the existing jurisdiction (and, if it had sought to do so, it may well have been ultra vires). The measures in respect of which judicial review lies include a wide range of decisions affecting a person’s liberty or their rights, interests, or expections or claims for benefits. They also include preliminary and procedural decisions. The courts have also granted judicial review of a number of other types of measures, such as recommendations (e.g. R.v Hallstrom Ex p. W [1986] Q.B. 1090), reports (e.g. Mahon v Air New Zealand [1984] A.C. 808), advice or guidance (e.g. R. v Secretary of State for the Environment Ex p. London Borough of Tower Hamlets [1993] Q.B. 632 and R. v Secretary of State for the Environment Ex p. Lancashire CC [1994] 4 All E.R. 165; Gillick v West Norfolk and WIsbech Area Health Authority [1986] A.C. 112) and policies of central and local government and other public bodies (e.g. R. v Secretary of State for the Home Department Ex p. Simms [2000] 2 A.C. 115; R. v Lewisham London BC Ex p. Shell U.K. [1988] 1 All E.R. 938). All these measures constitute “action…in relation to the exercise of a public function” and would equally be reviewable under the definition of a claim for judicial review in Pt 54.1(2)(ii).” [39] Dalam kes R v. Liverpool County Council, ex-Parte Baby Products Association and another [2000] LGR 171, ia melibatkan MRS NO: A-01(A)-200-06/2017 33 kenyataan akhbar oleh sebuah kerajaan tempatan dalam melaksanakan fungsi awamnya di mana kerajaan awam tersebut telah membuat pengisytiharan bahawa beberapa model kereta sorong untuk kanak- kanak tidak memenuhi piawaian keselamatan. Hal ini telah dicabar oleh Persatuan Pengeluar Peralatan tersebut. Kerajaan tempatan yang berkenaan telah mengeluarkan kenyataan akhbar tersebut dengan tujuan untuk memberi peringatan kepada orang ramai mengenai model peralatan yang tidak memenuhi piawaian keselamatan yang telah ditetapkan. Persatuan Pengeluar Model Peralatan tersebut telah mencabar untuk mendapatkan pengisytiharan bahawa kerajaan tempatan berkenaan telah bertindak diluar bidangkuasa yang telah diperuntukkan oleh undang-undang yang hanya memberikan kuasa kepada Setiausaha Negara di bawah Akta Perlindungan Pengguna 1987 untuk membuat pengisytiharan sedemikian. Lord Bingham of Cornhil CJ, dalam membenarkan permohonan untuk perintah yang dipohon, memutuskan seperti berikut: “….granting declaratory relief on the application, that the Consumer Protection Act 1987 and the General Product Safety Regulations 1994 comprised a detailed and carefully crafted code which provided protection both for the consumer against unsafe products and for the interests of manufacturers and suppliers; that, while the local authority had power to issue a suspension notice prohibiting supply on reasonable grounds for suspecting contravention of safety provisions MRS NO: A-01(A)-200-06/2017 34 under section 14 of the Consumer Protection Act 1987 and to announce the fact that it had done so, the local authority had no power to issue a press release which had the inevitable and intended object of causing the suspension of supply of the products and thereby depriving the companies of rights and safeguards that Parliament had enacted they should enjoy; and that accordingly, in issuing a press release without first issuing a suspension notice the local authority had circumvented the provisions of the legislation and had acted unlawfully.”. [40] Begitu juga dalam satu lagi kes, R v. Hallstrom and another, ex parte W (No.2) and another case [1986] 2 All ER 306 dimana fakta kes secara ringkasnya melibatkan dua orang pesakit mental telah disyorkan oleh doktor untuk ditahan di dalam wad bagi menjalani rawatan. Doktor berkenaan membuat syor di bawah kuasa yang diberikan di bawah seksyen 3(2)(a) dan seksyen 20 Akta Perubatan Mental 1983. Kedua- dua pesakit membantah terhadap syor yang dikeluarkan. Mc Cullough J, dalam membenarkan perintah yang dipohon, memutuskan seperti berikut: “Applying the principle that legislation would not be interpreted as permitting interference with the liberty of the subject unless there were clear provisions to that effect, it was to be presumed that in enacting the 1983 Act Parliament did not intend that people should be subjected against their will to treatment which others, however professionally competent, perceived, however sincerely and correctly, to be in their best interests. It followed that, unless there was clear statutory authority for it, a person, whether mentally disordered or not, could not MRS NO: A-01(A)-200-06/2017 35 be detained in hospital or undergo medical treatment without his consent and that s 3 was to be interpreted as permitting the least possible interference with the liberty of the subject. Thus, although s 3 of the 1983 Act gave authority for a patient to be admitted to hospital for treatment and detained there, such ‘admission for treatment’ was restricted to treatment in hospital as an in-patient and did not extend to out-patients whom it was intended to admit and detain for a purely nominal period during which no necessary treatment would be given. Similarly, ‘detained’ in s 20(4)(c) of the 1983 Act referred to a person who was actually detained in hospital and did not include a person who was merely liable to be detained. It followed (a) that s 3 could only be used to detain people who would be treated as in-patients and could not be used as a means of attaching conditions to a person being an out- patient and (b) that s 20 could only be used to renew authority to detain a patient whose mental condition was believed to require his detention as an in-patient. The recommendation that W be detained in hospital and the renewal of L’s detention beyond 17 June 1985 were therefore ultra vires and void, and declarations to that effect would accordingly be granted.”. [41] Berbalik kepada rayuan di hadapan kami, kami mengulangi pendirian kami bahawa syor-syor yang dicadangkan dan tindakan yang dilakukan oleh SPR sebagaimana dikehendakki oleh Perkara 113 dan Jadual ke-13 Perlembagaan Persekutuan tidak menggugat hak-hak Perayu-Perayu di bawah undang-undang dan tidak juga mengenai kesan undang-undang yang mengikat. Oleh yang demikian, kami berpandangan bahawa tindakan SPR dalam membuat syor-syor yang MRS NO: A-01(A)-200-06/2017 36 dicadangkan bukanlah merupakan “tindakan” yang boleh terjumlah kepada satu “tindakan” di bawah Aturan 53 Kaedah 2(4) KKM 2012 dimana boleh tertakluk kepada prosiding semakan Kehakiman. [42] Mengenai bantahan dan representasi Perayu-Perayu melalui surat Perayu Pertama seperti di m/s 167 Rekod Rayuan, kami dapati ia telah dijawab oleh SPR melalui surat mereka di m/surat 168 Rekod Rayuan seperti berikut: SURUHANJAYA PILIHAN RAYA MALAYSIA Menara SPR No: 2, Jalan P2T, Presint 2 Pusat Pentadbiran Kerajaan Persekutuan 62100 PUTRAJAYA Malaysia Tel:603-88927000 Faks:603-88927001 LamanWeb: http://ww.spr.gov.my _____________________________________________________________________________ Ruj.Tuan: Ruj.Kami:SPR(S)600-2/1/2(37) Tarikh: 15 Mac 2017 YB M. Kula Segaran Ahli Parlimen Ipoh Barat 1, Jalan Tun Abdul Razak Taman Idris 30100 Ipoh PERAK YB Tuan, URUSAN KAJIAN SEMULA PERSEMPADANAN BAHAGIAN-BAHAGIAN PILIHAN RAYA BAGI NEGERI-NEGERI TANAH MELAYU (KECUALI NEGERI SELANGOR) Dengan segala hormatnya kami menarik perhatian YB Tuan mengenai perkara yang tersebut di atas dan surat YB Tuan bertarikh 10 Mac 2017 adalah berkaitan. 2. Sebagaimana YB Tuan sedia maklum, Notis pameran kali kedua syor Kajian Semula Persempadanan Bahagian-Bahagian Pilihan Raya bagi negeri-Negeri Tanah Melayu (kecuali Negeri Selangor) di bawah seksyen 7, Bahagian II, Jadual Ketiga Belas, Perlembagaan Persekutuan telah diwartakan dan disiarkan pada 8 Mac 2017 dan akan berakhir pada 7 April 2017 iaitu selama satu bulan. 3. Sehubungan dengan itu, pihak YB Tuan boleh mengemukakan representasi bantahan ke atas syor yang sedang dipamerkan selaras dengan peruntukan seksyen 5 dan 7, Bahagian II, Jadual Ketiga Belas, Perlembagaan Persekutuan berkaitan dengan Bahagian pilihan raya di mana YB Tuan berdaftar sebagai tel:603-88927000 http://ww.spr.gov.my/ MRS NO: A-01(A)-200-06/2017 37 pemilih sebelum tempoh pameran berakhir pada 7 April 2017. 4. Dikesempatan ini, pihak SPR ingin merakamkan ucapan terima kasih di atas keprihatinan pihak YB Tuan berhubung perkara di atas. Sekian dimaklumkan, terima kasih. “CEKAP DAN TELUS” Saya yang menurut perintah, t.t. (MOHD NAZRI BIN ISMAIL) Pengarah Pilihan Raya Negeri Perak b/p Suruhanjaya Pilihan Raya Malaysia [43] Adalah jelas bahawa SPR telah memberikan jawapan dengan memaklumkan kepada Perayu-Perayu bahawa apa-apa bantahan bolehlah disampaikan melalui pengemukaan representasi secara bertulis selaras dengan peruntukan di bawah seksyen 5 dan 7, Jadual Ke-13, Perlembagaan Persekutuan. SPR bukan sahaja berhenti setakat itu, bahkan SPR telah mengambil tindakan susulan dengan melakukan sedikit perubahan terhadap syor-syor awal yang dicadangkan oleh mereka. KESIMPULAN [44] Berdasarkan alasan-alasan yang kami huraikan di atas, kami sebulat suara mendapati bahawa rayuan Perayu-Perayu tidak mempunyai sebarang merit. Keputusan Hakim bicara dalam menolak permohonan Perayu-Perayu untuk mendapatkan kebenaran bagi MRS NO: A-01(A)-200-06/2017 38 memulakan tindakan prosiding semakan Kehakiman adalah berdasarkan undang-undang dan tidak memerlukan campur tangan Mahkamah ini. Oleh itu, rayuan Perayu-Perayu ditolak dan keputusan Mahkamah Tinggi disahkan. [45] Atas persetujuan pihak-pihak, tiada sebarang perintah mengenai kos dibuat. Seterusnya kami memerintahkan deposit dikembalikan kepada Perayu-Perayu. Bertarikh: 3/10/2017 t.t (KAMARDIN BIN HASHIM) Hakim Mahkamah Rayuan Malaysia Peguam cara: Bagi Pihak Perayu-Perayu: Surendra Ananth, M. Kula Segaran, Su Keong Siong Tetuan Kula & Associated No. 1, Jalan Tun Abdul Razak (Maxwell Road) Taman Idris 30100 Ipoh PERAK. MRS NO: A-01(A)-200-06/2017 39 Bagi Pihak Responden-Responden: Dato’ Amarjeet Singh, Suzana Atan, Ahmad Terriruddin Salleh, Aziz Md Arshad, Nik Azrin Zairi Peguam-Peguam Kanan Persekutuan Jabatan Peguam Negara Bahagian Guaman No. 45, Persiaran Perdana Presint 4 62100 PUTRAJAYA	54,240	Tika 2.6.0
BL - MM2 - 83-2378-09/2017	PENDAKWARAYAPejabat Timbalan Pendakwaraya Negeri Selangor TERTUDUH NORMA HIU	null	03/10/2017	PN ROSLIZI BIN SULAIMAN	https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=a025a1fa-5b70-45c7-a306-4cf0e3ee415e&Inline=true	IN THE MAGISTRATE COURT AT KLANG IN THE STATE OF SELANGOR CRIMINAL TRIAL NO. MM2 – 83 – 2378 – 09/2017 PP V NORMA HIU JUDGEMENT [1] The charges proffered against the accused on 19/09/17: MAIN CHARGE BAHAWA KAMU, PADA 6/09/2017 JAM LEBIH KURANG 5.30 PETANG , DI ALAMAT NO.17A, LORONG CUNGAH,42000 PELABUHAN KLANG ,DIDALAM DAERAH KLANG, DI DALAM NEGERI SELANGOR, SEBAGAI “OPERATOR MESIN PERJUDIAN “ TELAH MENGENDALIKAN 24 BUAH MESIN KOMPUTER PERJUDIAN, DAN DENGAN ITU KAMU TELAH MELAKUKAN SATU KESALAHAN DIBAWAH SEKSYEN 4B(a) AKTA RUMAH JUDI TERBUKA 1953 YANG BOLEH DI HUKUM DIBAWAH SEKSYEN 4B AKTA YANG SAMA. ALTERNATIVE CHARGE BAHAWA KAMU, PADA 6/09/2017 JAM LEBIH KURANG 5.30 PETANG , DI ALAMAT NO.17A, LORONG CUNGAH,42000 PELABUHAN KLANG , DIDALAM DAERAH KLANG,DI DALAM NEGERI SELANGOR, TELAH DI DAPATI MENGADAKAN HIBURAN TANPA LESEN,DENGAN DEMIKIAN KAMU TELAH MELAKUKAN KESALAHAN DIBAWAH SEKSYEN 6(1) ENAKMEN HIBURAN DAN TEMPAT TEMPAT HIBURAN TAHUN 1995 (NEGERI SELANGOR) DAN BOLEH DIHUKUM DIBAWAH SEKSYEN 6(2) ENAKMEN YANG SAMA. [2] The charges have been read and explained to, and understood by the accused. She pleaded guilty unconditionally to the alternative charge and was duly convicted of the same. After taking into consideration both mitigating and aggravating factors, the accused was sentenced to one (1) month imprisonment taking effect from the date of her arrest i.e. 06/09/17. [3] The accused is a 36-year-old Indonesia national. She is the youngest in her family. She comes from a poor family. Her passport lapsed while she was remanded. [4] Section 173(b) of the Criminal Procedure Code provides that the court shall pass the sentence according to law. In Jafa Bin Daud [1981] 1 MLJ 315, passing sentence according to law means the sentence must be meted out within the ambit of the punishable section and it must also be in line with the established judicial principles on sentencing. Therefore, the appellant, in his appeal, must be able to show that the sentencer of the first instance had erred by passing sentence not within the four corner of the punishable section or the sentence was not assessed according to the established judicial principles on sentencing. If the sentence was passed according to the law and the magistrate had considered all sentencing factors before passing out sentence on the accused, the appellate court should be slow to interfere with the sentence passed by the magistrate. In Mohamed Nor [1985] 2 MLJ 200b, Abdul Hamid CJ decided as follows: The question now remains whether we should disturb the sentence in the instant case. In this regard we would observe that it is the established principle that an appellate court should be slow to interfere or disturb with a sentence passed by the court below unless it is manifestly wrong in the sense of being illegal or of being unsuitable to the proved facts and circumstances. And the mere fact that another court might pass a different sentence provides no reason for the appellate court to interfere if the court below applies the correct principles in the assessment of the sentence. Therefore, the sentence passed by the lower court can’t be dislocated just because the appellate court is of the opinion that another sentence might be suitable in that case. [5] In Zaidon Bin Shariff [1996] MLJU 159, Augustine Paul JC (as he then was) put succinctly that the sentencing court has the discretion to determine the appropriate sentence to be passed on the accused. He was reported to say: The right to determine the quantum of punishment on a guilty party is absolutely in the discretion of the trial Court. It will exercise that power judicially and will not tolerate any encroachment or even semblance of encroachment by either the prosecution or the defence in respect of that right (see New Tuck Shen v. P.P. (1982) 1 MLJ 27). [6] Similarly in Norshahrizan Bin Junaidi [2016] MLJU 465, it was held by the Court of Appeal in the following fashion: In any event, sentencing is an exercise of discretion by the trial Judge. The law simply provides, as in most cases, a spectrum of sentences – from the minimum to the maximum. The trial Court has to choose the appropriate sentence in each case within that spectrum by giving consideration to the peculiar circumstances of each case and all the relevant factors. The only constraint face by the trial Court in exercising its discretion is when the law imposes the only sentence such in the case of murder under section 302 or when the law provides for a minimum sentence in which case the trial Court cannot impose anything less than the minimum. For illustration reference may be made to the following cases: PP v Leonard Glenn Francis [1989] 2 MLJ 158; Leong Kok Huat v PP [1998] 6 MLJ 406 and Philip Lau Chee Heng v PP [1988] 3 MLJ 107. [7] Another case that is worth-mentioning here regarding the discretion of the sentencing court is Omar Bin Rudding [2017] 3 MLJ 524. In this case, the Court of Appeal had this to say: We recognized that sentencing is a matter of judicial discretion of the trial court. We were of the view that the sentence of 12 years imprisonment in the circumstances of this was adequate. It was not manifestly or grossly inadequate. We were guided by the observation of Raja Azlan Shah, AG LP (as His Royal Highness then was) in Bhandulananda Jayatilake v Public Prosecutor [1982] 1 MLJ 83 as follows: Is the sentence harsh and manifestly excessive? We would paraphrase it in this way. As this is an appeal against the exercise by the learned judge of a discretion vested in him, is the sentence so far out-side the normal discretionary limits as to enable this court to say that its imposition must have involved an error of law of some description? I have had occasion to say elsewhere, that the very concept of judicial discretion involves a right to choose between more than one possible course of action upon which there is room for reasonable people to hold differing opinions as to which is to be preferred. That is quite inevitable. Human nature being what it is, different judges applying the same principles at the same time in the same country to similar facts may sometimes reach different conclusions (see Jamieson v Jamieson [1952] AC 525). It is for that reason that some very conscientious judges have thought it their duty to visit particulars crimes with exemplary sentences; whilst others equally conscientious have thought it their duty to a view the same crimes with leniency. Therefore sentences do vary in apparently similar circumstances with the habit of mind of the particular judge. It is for that reason also that this court has said it again and again that it will not normally interfere with sentences, and the possibility or even the probability, that another court would have imposed a different sentence is not sufficient, per se, to warrant this court’s interference. [8] I would like to reiterate the reasoning given by the late HRH Raja Azlan Shah, AG LP (as His Royal Highness then was) in Bhandulananda Jayatilake v Public Prosecutor [1982] 1 MLJ 83 (supra.) concerning the concept of “judicial discretion” in the sense that I have a right to choose between more than one possible course of action upon which there is room for reasonable people to hold differing opinions as to which is to be preferred. Therefore, I see nothing illegal in my sentence when I chose one (1) month imprisonment to be imposed against the accused. [9] However, the discretion given to the court to choose the appropriate sentence should not be practiced arbitrarily. There are, of course, guidelines for the sentencing court to follow. In Ahmad Bin Hop [1992] 3 CLJ 1408, Chong Siew Fai J had underlined several principles for the court to consider while choosing the appropriate sentence i.e.: Of late, there have been increasing cases where both custodial sentences and fines were imposed for one and the same offence. As a general guideline, I would venture to state as follows: 1. The sentencing Court should consider whether imprisonment sentence is the appropriate form of punishment, regard being had to all the circumstances of the case including the nature and the gravity of the offence, and public interest. 2. If fine is an adequate punishment, then the sentences should impose a fine. Consideration should be given to the ability of the offender to pay the fine. 3. Fine may be added to a prison sentence as a means of removing the profit of the offender's offence. Here again, regard should be had to the offender's ability to pay because failure to pay would involve a further period of imprisonment of default. But if, on the material available, the sentencer is as sure as he or she can be that the offender can afford to meet the fine, the possibility of default should not cause the sentencer to reduce the principal prison term. 4. In a case where custodial sentence is imposed and forfeiture order is also made resulting in the offender obtaining no financial benefit from the offence committed, fine should not normally be imposed. After looking at the circumstances of this case, I opine that imprisonment sentence is the only appropriate form of punishment for the accused, after giving regard to all the circumstances of the case including the nature and the gravity of the offence, and also the public interest. These aspects will be discussed further in the paragraphs below. Fine is certainly not an adequate punishment. The accused is more than able to pay fine as to make fine is not an effective measure to deter the accused from committing the offence again in future. [10] I retain the discretion to choose the appropriate recourse for each offender after taking into account the particular circumstances of the case. The first and foremost consideration is the public interest. The famous case of R v Ball 35 Cr App R 164 is often cited in this regard. Hilbery J stated: "In deciding the appropriate sentence a court should always be guided by certain considerations. The first and foremost is the public interest. The criminal law is publicly enforced, not only with the object of punishing crime, but also in the hope of preventing it. A proper sentence, passed in public, serves the public interest in two ways. It may deter others who might be tempted to try crime as seeming to offer easy money on the supposition, that if the offender is caught and brought to justice, the punishment mil be negligible. Such a sentence may also deter the particular criminal from committing a crime again, or induce him to turn from a criminal to an honest life. The public interest is indeed served, and best served, if the offender is induced to turn from criminal ways to honest living. Our law does not, therefore, fix the sentence for a particular crime, but fixes a maximum sentence and leaves it to the court to decide what is, within that maximum, the appropriate sentence for each criminal in the particular circumstances of each case. Not only in regard to each crime, but in regard to each criminal, the court has the right and the duty to decide whether to be lenient or severe." [11] I am of the opinion that the public interest, in this case, is best served by sentencing the accused to one (1) month imprisonment taking effect from the date of her arrest. The offence committed by the accused cannot be tolerated. The accused, an Indonesia national, came into Malaysia and committed an act against the law of this country. The accused must therefore be punished sufficiently. The court must show its abhorrence and disapproval by passing out severe sentence. The offence committed by the accused, in my judicially considered opinion, is serious. Fine alone is certainly insufficient. [12] It must be admitted that unlicensed entertainment premises are quite rampant nowadays. Entertainment premises must be regulated since its customers normally involve unwary youths. In order to ensure that these premises are not misused for any other illegal activities such as illegal gambling, the local authorities require the operators of such premises to obtain valid license. Clearly, this is to protect the interest of the public, especially the youths. Therefore, by this judgment, I will take the opportunity to tell the public that the court views this kind of offences with much detestation and therefore, deterrent kind of sentence is needed. There is an abundance of authorities to show that the court must not neglect the element of rampancy. Mokhtar Sidin JCA in Tia Ah Leng [2004] 4 MLJ 249 had made “rampancy” as an exception to the practice of giving discount in sentencing when the offender had pleaded guilty. Therefore, in this case, one (1) month imprisonment is sufficient to serve the purpose. [13] The court, in this case, must pass a deterrent sentence in the hope that the accused will enter into honest and sincere repentance and she will not repeat the same offence or any other criminal acts in future. One (1) month imprisonment is reflective of the court attitude and seriousness in dealing with the offence. It is also hoped that the sentence will serve as a useful reminder to others not to commit the same offence. (Refer Tan Bok Yeng [1972] 1 LNS 145) [14] An accused person who pleads guilty should generally be given leniency/discount. The rationale behind this practice is that the great expense of a lengthy trial is avoided. If the court does not give discount, the offender will not be induced to enter into plea of guilty. They would rather try their luck in full trials (Refer Sau Soon Kim [1975] 2 MLJ 134). However, leniency based on guilty plea is not the automatic right of the accused. There will be exceptions to this rule. The court may refuse to give a discount and may choose to pass a severe sentence where a serious offence is committed (Leo Say [1985] 2 CLJ 155). In Teh Ah Cheng [1976] 2 MLJ 186, the accused pleaded guilty and lower court released the accused on good behavior bond for an offence of having in his possession unlawful firearms. Eusoffe Abdoolcader J (as he then was) set aside the bond and replaced it with three years imprisonment. He had this to say in his judgment: “In sentencing generally the public interest must necessarily be one of the prime considerations…..Of the several concepts relevant to sentencing, it is my considered view that deterrence and prevention assume positions in the forefront in relation to the offences of this nature”. I consider this is a serious case even though the accused had pleaded guilty at the earliest possible moment. Therefore, against the backdrop of her plea of guilty, I chose to sentence the accused to one (1) month imprisonment instead of imposing fine. [15] Counsel for the accused also prayed that his client not to be referred to the Immigration Department for deportation. The accused is an Indonesian. Her pass lapsed while she was in custody. Therefore, the accused cannot be left to roam freely in this country without valid pass and/or permit. This is the reason I ordered the accused to be referred to the Immigration Department to be deported once she has completed her sentence. [16] For the above stated reasons I sentenced the accused to one (1) month imprisonment, taking effect from the date of her arrest (06/09/17). ROSLIZI BIN SULAIMAN Magistrate Klang 03/10/2017 Deputy Public Prosecutor : Puan Amira Binti Abd Aziz Jabatan Peguam Negara Counsel for the Accused : Messrs Gerard Lazarus 9	15,539	Tika 2.6.0
BL - MM2 - 83-2378-09/2017	PENDAKWARAYAPejabat Timbalan Pendakwaraya Negeri Selangor TERTUDUH NORMA HIU	null	03/10/2017	PN ROSLIZI BIN SULAIMAN	https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=a025a1fa-5b70-45c7-a306-4cf0e3ee415e&Inline=true	IN THE MAGISTRATE COURT AT KLANG IN THE STATE OF SELANGOR CRIMINAL TRIAL NO. MM2 – 83 – 2378 – 09/2017 PP V NORMA HIU JUDGEMENT [1] The charges proffered against the accused on 19/09/17: MAIN CHARGE BAHAWA KAMU, PADA 6/09/2017 JAM LEBIH KURANG 5.30 PETANG , DI ALAMAT NO.17A, LORONG CUNGAH,42000 PELABUHAN KLANG ,DIDALAM DAERAH KLANG, DI DALAM NEGERI SELANGOR, SEBAGAI “OPERATOR MESIN PERJUDIAN “ TELAH MENGENDALIKAN 24 BUAH MESIN KOMPUTER PERJUDIAN, DAN DENGAN ITU KAMU TELAH MELAKUKAN SATU KESALAHAN DIBAWAH SEKSYEN 4B(a) AKTA RUMAH JUDI TERBUKA 1953 YANG BOLEH DI HUKUM DIBAWAH SEKSYEN 4B AKTA YANG SAMA. ALTERNATIVE CHARGE BAHAWA KAMU, PADA 6/09/2017 JAM LEBIH KURANG 5.30 PETANG , DI ALAMAT NO.17A, LORONG CUNGAH,42000 PELABUHAN KLANG , DIDALAM DAERAH KLANG,DI DALAM NEGERI SELANGOR, TELAH DI DAPATI MENGADAKAN HIBURAN TANPA LESEN,DENGAN DEMIKIAN KAMU TELAH MELAKUKAN KESALAHAN DIBAWAH SEKSYEN 6(1) ENAKMEN HIBURAN DAN TEMPAT TEMPAT HIBURAN TAHUN 1995 (NEGERI SELANGOR) DAN BOLEH DIHUKUM DIBAWAH SEKSYEN 6(2) ENAKMEN YANG SAMA. [2] The charges have been read and explained to, and understood by the accused. She pleaded guilty unconditionally to the alternative charge and was duly convicted of the same. After taking into consideration both mitigating and aggravating factors, the accused was sentenced to one (1) month imprisonment taking effect from the date of her arrest i.e. 06/09/17. [3] The accused is a 36-year-old Indonesia national. She is the youngest in her family. She comes from a poor family. Her passport lapsed while she was remanded. [4] Section 173(b) of the Criminal Procedure Code provides that the court shall pass the sentence according to law. In Jafa Bin Daud [1981] 1 MLJ 315, passing sentence according to law means the sentence must be meted out within the ambit of the punishable section and it must also be in line with the established judicial principles on sentencing. Therefore, the appellant, in his appeal, must be able to show that the sentencer of the first instance had erred by passing sentence not within the four corner of the punishable section or the sentence was not assessed according to the established judicial principles on sentencing. If the sentence was passed according to the law and the magistrate had considered all sentencing factors before passing out sentence on the accused, the appellate court should be slow to interfere with the sentence passed by the magistrate. In Mohamed Nor [1985] 2 MLJ 200b, Abdul Hamid CJ decided as follows: The question now remains whether we should disturb the sentence in the instant case. In this regard we would observe that it is the established principle that an appellate court should be slow to interfere or disturb with a sentence passed by the court below unless it is manifestly wrong in the sense of being illegal or of being unsuitable to the proved facts and circumstances. And the mere fact that another court might pass a different sentence provides no reason for the appellate court to interfere if the court below applies the correct principles in the assessment of the sentence. Therefore, the sentence passed by the lower court can’t be dislocated just because the appellate court is of the opinion that another sentence might be suitable in that case. [5] In Zaidon Bin Shariff [1996] MLJU 159, Augustine Paul JC (as he then was) put succinctly that the sentencing court has the discretion to determine the appropriate sentence to be passed on the accused. He was reported to say: The right to determine the quantum of punishment on a guilty party is absolutely in the discretion of the trial Court. It will exercise that power judicially and will not tolerate any encroachment or even semblance of encroachment by either the prosecution or the defence in respect of that right (see New Tuck Shen v. P.P. (1982) 1 MLJ 27). [6] Similarly in Norshahrizan Bin Junaidi [2016] MLJU 465, it was held by the Court of Appeal in the following fashion: In any event, sentencing is an exercise of discretion by the trial Judge. The law simply provides, as in most cases, a spectrum of sentences – from the minimum to the maximum. The trial Court has to choose the appropriate sentence in each case within that spectrum by giving consideration to the peculiar circumstances of each case and all the relevant factors. The only constraint face by the trial Court in exercising its discretion is when the law imposes the only sentence such in the case of murder under section 302 or when the law provides for a minimum sentence in which case the trial Court cannot impose anything less than the minimum. For illustration reference may be made to the following cases: PP v Leonard Glenn Francis [1989] 2 MLJ 158; Leong Kok Huat v PP [1998] 6 MLJ 406 and Philip Lau Chee Heng v PP [1988] 3 MLJ 107. [7] Another case that is worth-mentioning here regarding the discretion of the sentencing court is Omar Bin Rudding [2017] 3 MLJ 524. In this case, the Court of Appeal had this to say: We recognized that sentencing is a matter of judicial discretion of the trial court. We were of the view that the sentence of 12 years imprisonment in the circumstances of this was adequate. It was not manifestly or grossly inadequate. We were guided by the observation of Raja Azlan Shah, AG LP (as His Royal Highness then was) in Bhandulananda Jayatilake v Public Prosecutor [1982] 1 MLJ 83 as follows: Is the sentence harsh and manifestly excessive? We would paraphrase it in this way. As this is an appeal against the exercise by the learned judge of a discretion vested in him, is the sentence so far out-side the normal discretionary limits as to enable this court to say that its imposition must have involved an error of law of some description? I have had occasion to say elsewhere, that the very concept of judicial discretion involves a right to choose between more than one possible course of action upon which there is room for reasonable people to hold differing opinions as to which is to be preferred. That is quite inevitable. Human nature being what it is, different judges applying the same principles at the same time in the same country to similar facts may sometimes reach different conclusions (see Jamieson v Jamieson [1952] AC 525). It is for that reason that some very conscientious judges have thought it their duty to visit particulars crimes with exemplary sentences; whilst others equally conscientious have thought it their duty to a view the same crimes with leniency. Therefore sentences do vary in apparently similar circumstances with the habit of mind of the particular judge. It is for that reason also that this court has said it again and again that it will not normally interfere with sentences, and the possibility or even the probability, that another court would have imposed a different sentence is not sufficient, per se, to warrant this court’s interference. [8] I would like to reiterate the reasoning given by the late HRH Raja Azlan Shah, AG LP (as His Royal Highness then was) in Bhandulananda Jayatilake v Public Prosecutor [1982] 1 MLJ 83 (supra.) concerning the concept of “judicial discretion” in the sense that I have a right to choose between more than one possible course of action upon which there is room for reasonable people to hold differing opinions as to which is to be preferred. Therefore, I see nothing illegal in my sentence when I chose one (1) month imprisonment to be imposed against the accused. [9] However, the discretion given to the court to choose the appropriate sentence should not be practiced arbitrarily. There are, of course, guidelines for the sentencing court to follow. In Ahmad Bin Hop [1992] 3 CLJ 1408, Chong Siew Fai J had underlined several principles for the court to consider while choosing the appropriate sentence i.e.: Of late, there have been increasing cases where both custodial sentences and fines were imposed for one and the same offence. As a general guideline, I would venture to state as follows: 1. The sentencing Court should consider whether imprisonment sentence is the appropriate form of punishment, regard being had to all the circumstances of the case including the nature and the gravity of the offence, and public interest. 2. If fine is an adequate punishment, then the sentences should impose a fine. Consideration should be given to the ability of the offender to pay the fine. 3. Fine may be added to a prison sentence as a means of removing the profit of the offender's offence. Here again, regard should be had to the offender's ability to pay because failure to pay would involve a further period of imprisonment of default. But if, on the material available, the sentencer is as sure as he or she can be that the offender can afford to meet the fine, the possibility of default should not cause the sentencer to reduce the principal prison term. 4. In a case where custodial sentence is imposed and forfeiture order is also made resulting in the offender obtaining no financial benefit from the offence committed, fine should not normally be imposed. After looking at the circumstances of this case, I opine that imprisonment sentence is the only appropriate form of punishment for the accused, after giving regard to all the circumstances of the case including the nature and the gravity of the offence, and also the public interest. These aspects will be discussed further in the paragraphs below. Fine is certainly not an adequate punishment. The accused is more than able to pay fine as to make fine is not an effective measure to deter the accused from committing the offence again in future. [10] I retain the discretion to choose the appropriate recourse for each offender after taking into account the particular circumstances of the case. The first and foremost consideration is the public interest. The famous case of R v Ball 35 Cr App R 164 is often cited in this regard. Hilbery J stated: "In deciding the appropriate sentence a court should always be guided by certain considerations. The first and foremost is the public interest. The criminal law is publicly enforced, not only with the object of punishing crime, but also in the hope of preventing it. A proper sentence, passed in public, serves the public interest in two ways. It may deter others who might be tempted to try crime as seeming to offer easy money on the supposition, that if the offender is caught and brought to justice, the punishment mil be negligible. Such a sentence may also deter the particular criminal from committing a crime again, or induce him to turn from a criminal to an honest life. The public interest is indeed served, and best served, if the offender is induced to turn from criminal ways to honest living. Our law does not, therefore, fix the sentence for a particular crime, but fixes a maximum sentence and leaves it to the court to decide what is, within that maximum, the appropriate sentence for each criminal in the particular circumstances of each case. Not only in regard to each crime, but in regard to each criminal, the court has the right and the duty to decide whether to be lenient or severe." [11] I am of the opinion that the public interest, in this case, is best served by sentencing the accused to one (1) month imprisonment taking effect from the date of her arrest. The offence committed by the accused cannot be tolerated. The accused, an Indonesia national, came into Malaysia and committed an act against the law of this country. The accused must therefore be punished sufficiently. The court must show its abhorrence and disapproval by passing out severe sentence. The offence committed by the accused, in my judicially considered opinion, is serious. Fine alone is certainly insufficient. [12] It must be admitted that unlicensed entertainment premises are quite rampant nowadays. Entertainment premises must be regulated since its customers normally involve unwary youths. In order to ensure that these premises are not misused for any other illegal activities such as illegal gambling, the local authorities require the operators of such premises to obtain valid license. Clearly, this is to protect the interest of the public, especially the youths. Therefore, by this judgment, I will take the opportunity to tell the public that the court views this kind of offences with much detestation and therefore, deterrent kind of sentence is needed. There is an abundance of authorities to show that the court must not neglect the element of rampancy. Mokhtar Sidin JCA in Tia Ah Leng [2004] 4 MLJ 249 had made “rampancy” as an exception to the practice of giving discount in sentencing when the offender had pleaded guilty. Therefore, in this case, one (1) month imprisonment is sufficient to serve the purpose. [13] The court, in this case, must pass a deterrent sentence in the hope that the accused will enter into honest and sincere repentance and she will not repeat the same offence or any other criminal acts in future. One (1) month imprisonment is reflective of the court attitude and seriousness in dealing with the offence. It is also hoped that the sentence will serve as a useful reminder to others not to commit the same offence. (Refer Tan Bok Yeng [1972] 1 LNS 145) [14] An accused person who pleads guilty should generally be given leniency/discount. The rationale behind this practice is that the great expense of a lengthy trial is avoided. If the court does not give discount, the offender will not be induced to enter into plea of guilty. They would rather try their luck in full trials (Refer Sau Soon Kim [1975] 2 MLJ 134). However, leniency based on guilty plea is not the automatic right of the accused. There will be exceptions to this rule. The court may refuse to give a discount and may choose to pass a severe sentence where a serious offence is committed (Leo Say [1985] 2 CLJ 155). In Teh Ah Cheng [1976] 2 MLJ 186, the accused pleaded guilty and lower court released the accused on good behavior bond for an offence of having in his possession unlawful firearms. Eusoffe Abdoolcader J (as he then was) set aside the bond and replaced it with three years imprisonment. He had this to say in his judgment: “In sentencing generally the public interest must necessarily be one of the prime considerations…..Of the several concepts relevant to sentencing, it is my considered view that deterrence and prevention assume positions in the forefront in relation to the offences of this nature”. I consider this is a serious case even though the accused had pleaded guilty at the earliest possible moment. Therefore, against the backdrop of her plea of guilty, I chose to sentence the accused to one (1) month imprisonment instead of imposing fine. [15] Counsel for the accused also prayed that his client not to be referred to the Immigration Department for deportation. The accused is an Indonesian. Her pass lapsed while she was in custody. Therefore, the accused cannot be left to roam freely in this country without valid pass and/or permit. This is the reason I ordered the accused to be referred to the Immigration Department to be deported once she has completed her sentence. [16] For the above stated reasons I sentenced the accused to one (1) month imprisonment, taking effect from the date of her arrest (06/09/17). ROSLIZI BIN SULAIMAN Magistrate Klang 03/10/2017 Deputy Public Prosecutor : Puan Amira Binti Abd Aziz Jabatan Peguam Negara Counsel for the Accused : Messrs Gerard Lazarus 9	15,539	Tika 2.6.0
A52NCVC-321-09/2014	PLAINTIF CELLWAVE COMMUNICATIONS SDN BHD DEFENDAN MOHD FADZLI BIN MUSTAFA	null	03/10/2017	DATO' ISHAK BAKRI	https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=e8753e38-5809-4139-8678-acabd9f13e57&Inline=true	DALAM MAHKAMAH SESYEN DI SHAH ALAM DALAM NEGERI SELANGOR DARUL EHSAN, MALAYSIA GUAMAN NO. A52NCVC-321-09/2014 ANTARA CELLWAVE COMMUNICATIONS SDN BHD (709763-U) … PLAINTIF DAN MOHD FADZLI BIN MUSTAFA (No. K/P: 680229-07-5249) … DEFENDAN ALASAN PENGHAKIMAN Pendahuluan 1. Dalam kes ini plaintif menuntut daripada defendan wang berjumlah RM250,000.00 yang diberikan kepada defendan oleh plaintif atas permintaan defendan sebagai suatu pinjaman persahabatan pada 6.2.2013. 2. Plaintif mendakwa plaintif telah berkali-kali menuntut pembayaran balik wang berjumlah RM250,000.00 yang diberikan oleh plaintif kepada defendan sebagai pinjaman persahabatan namun defendan telah gagal membuat bayaran balik wang tersebut kepada plaintif. 3. Defendan menentang tuntutan plaintif dan mendakwa bahawa wang yang diberikan oleh plaintif kepada defendan merupakan sebagai bayaran perkhidmatan konsultasi, mesyuarat, bimbingan dan perancangan yang diberi oleh defendan kepada plaintif dan bukannya sebagai pinjaman persahabatan. Fakta-Fakta Yang Tidak Dipertikaikan 4. Plaintif telah memberikan wang sebanyak RM250,000.00 kepada defendan dan defendan telah menerima wang tersebut sebanyak RM250,000.00 daripada plaintif pada 6.2.2013 dan defendan telah menandatangani satu baucar pembayaran bertarikh 6.2.2013 yang mengakui penerimaan wang berjumlah RM250,000.00 tersebut. 5. Semasa perbicaraan Dato Amrul Hisyam Bin Alias (SP1) hadir sebagai saksi plaintif manakala Mohd Fadzli Bin Mustafa (SD1) dan Sabri Bin Abdul Radzi (SD2) hadir sebagai saksi defendan. Keterangan Saksi-Saksi 6. Dato Amrul Hisyam bin Alias (SP1) merupakan salah seorang pengarah syarikat plaintif. Dalam keterangannya beliau menyatakan bahawa beliau adalah salah seorang pengarah yang meluluskan pinjaman persahabatan kepada defendan berjumlah RM250,000.00 di atas permintaan defendan. SP1 juga dalam keterangannya menyatakan bahawa seorang lagi pengarah syarikat plaintif iaitu isteri beliau tiada sebarang bantahan untuk syarikat plaintif memberikan pinjaman persahabatan sebanyak RM250,000.00 kepada defendan. 7. SP1 juga dalam keterangannya juga menyatakan bahawa beliau telah menyerahkan satu baucar pembayaran (payment voucher) yang telah ditandatangani oleh defendan pada 6.2.2013 iaitu tarikh yang sama wang berjumlah RM250,000.00 diserahkan kepada defendan sebagai pinjaman persahabatan. 8. SP1 juga menjelaskan bahawa baucar bayaran (payment voucher) bukan hanya untuk urusan pembayaran tetapi untuk segala urusan pengeluaran wang oleh syarikat tanpa mengira jumlah untuk segala aktiviti syarikat untuk mengeluarkan wang dari akaun syarikat menggunakan baucar bayaran (payment voucher). 9. Defendan (SD1) dalam keterangannya menyatakan wang berjumlah RM250,000.00 yang diakui diterima oleh beliau adalah untuk tujuan pembayaran perkhidmatan konsultasi, mesyuarat, bimbingan dan perancangan yang diberi oleh defendan kepada plaintif. Begitu pun, dalam keterangannya ketika disoal balas oleh peguamcara plaintif, defendan menyatakan tiada sebarang perlantikan sebagai konsultan mahu pun perjanjian bertulis dan juga tiada sebarang invois yang dikeluarkan oleh SD1 kepada syarikat plaintif termasuk juga kepada satu lagi syarikat yang didakwa oleh defendan sebagai anak syarikat plaintif iaitu Stealth Solutions Sdn Bhd. 10. Defendan sendiri dalam keterangannya menyatakan ketika pemeriksaan balas oleh peguamcara plaintif bahawa tidak terdapat nama plaintif sebagai pemegang saham Stealth Solutions Sdn. Bhd. KEPUTUSAN MAHKAMAH 11. Berdasarkan kepada keterangan saksi-saksi, mahkamah mendapati bahawa plaintif telah berjaya membuktikan bahawa wang berjumlah RM250,000.00 yang telah diberikan oleh plaintif adalah suatu pinjaman persahabatan atas permintaan defendan kepada plaintif sendiri. Plaintif telah berjaya membuktikan bahawa wang berjumlah RM250,000.00 tersebut telah diserahkan kepada defendan. 12. Walaupun tiada sebarang perjanjian bertulis dibuat mengenai perjanjian persahabatan tersebut, namun terdapatnya pengakuan defendan menerima jumlah wang sebanyak RM250,000.00 tersebut dan terdapatnya baucar penbayaran (payment voucher) yang ditandatangani oleh defendan sendiri. 13. Oleh itu adalah jelas dan nyata bahawa isu mengenai penyerahan wang berjumlah RM250,000.00 tidak boleh dipertikaikan oleh defendan. 14. Dalam pembelaannya, defendan telah memplidkan bahawa wang berjumlah RM250,000.00 adalah sebagai pembayaran perkhidmatan konsultasi, mesyuarat, bimbingan dan perancangan yang diberi oleh defendan kepada plaintif. Oleh itu beban pembuktian telah berpindah kepada defendan untuk membuktikan dakwaanya. Mahkamah merujuk kepada Seksyen 102 Akta Keterangan 1950 yang memperuntukkan seperti berikut:- “The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side . ILLUSTRATIONS ... (b) A sues B for money due on a bond. The execution of the bond is admitted, but B says that i t was obtained by fraud, which A denies. If no evidence were given on either side, A would succeed as the bond is not disputed and the fraud is not proved. Therefore the burden of proof is on B.” 15. Mahkamah mendapati bahawa walaupun defendan memplidkan bahawa wang berjumlah RM250,000.00 adalah sebagai pembayaran perkhidmatan konsultasi, mesyuarat, bimbingan dan perancangan yang diberi oleh defendan kepada plaintif namun semasa disoal balas defendan mengakui bahawa tidak terdapat sebarang surat perlantikan mahupun surat penerimaan perlantikan sebagai konsultan untuk plaintif mahupun satu lagi syarikat yang didakwa defendan sebagai anak syarikat p laintif . 16. Oleh itu mahkamah sukar untuk menerima keterangan defendan tentang perkara ini tanpa sebarang bukti memandangkan terdapat penerimaan wang berjumlah RM250,000 yang diakui sendiri oleh defendan. Ini bukanlah jumlah wang yang kecil tetapi merupakan jumlah yang besar. 17. Defendan juga di dalam plidingnya memplidkan bahawa satu lagi syarikat iaitu Stealth Solutions Sdn. Bhd adalah anak syarikat plaintif namun dalam keterangan defendan semasa pemeriksaan balas oleh peguamcara plaintif , defendan telah mengakui bahawa plaintif bukanlah pemegang mana-mana saham bagi syarikat Stealh Solutions Sdn. Bhd. 18. Oleh itu adalah jelas bahawa defendan telah gagal untuk membuktikan bahawa kedua syarikat iaitu plaintif dan Stealth Solutions Sdn. Bhd. mempunyai apa-apa kaitan sama sekali . Seksyen 103 Akta Keterangan 1950 memperuntukkan seperti berikut:- “The burden of proof as to any particular fact l ies on that person who wishes the court to believe in its existence , unless i t is provided by any law that the proof of that fact shal l l ie on any particular person. ILLUSTRATIONS ... (b) B wishes the court to believe that at the time in question he was elsewhere. He must prove it.” 19. Mahkamah mendapati bahawa dakwaan defendan mengenai kedua-dua syarikat iaitu p laintif dan Stealth Solutions Sdn. Bhd. sebagai syarikat induk dan anak syarikat tidak disokong oleh apa-apa bukti dokumentari sedangkan beban pembuktian kini telah beralih ke pada defendan berdasarkan peruntukan seksyen 103 Akta Keterangan 1950. 20. Mahkamah mendapati bahawa dakwaan defendan tidak memenuhi sebarang peruntukkan undang -undang yang menyokong dakwaannya dan hanyalah dakwaan kosong defendan semata-mata. 21. Mahkamah mendapati bahawa defendan semasa perbicaraan terutamanya semasa pemeriksaan balas oleh peguamcara plaintif telah gagal untuk membuktikan dakwaan-dakwaan bahawa defendan adalah seorang konsultan yang dilantik oleh p laintif untuk memberikan perkhidmatan seperti yang didakwa oleh defendan. 22. Mahkamah juga mendapati bahawa dengan ketiadaan sebarang bukti dokumentari mengenai perlantikan defendan mahupun sebarang kertas kerja, minit mesyuarat, khidmat nasihat defendan kepada p laintif bagi menunjukkan bahawa defendan benar-benar dilantik sebagai konsultan untuk plaintif bercanggah dengan apa yang didakwa oleh defendan di dalam plidingnya serta bukti dokumentari seperti maklumat mengenai Stealth Solutions Sdn. Bhd. 23. Mahkamah juga mendapati bahawa defendan telah memberikan keterangan yang bercanggah berkenaan mengenai penubuhan syarikat Era Diskusi Sdn. Bhd. yang mana defendan mendakwa bahawa penubuhan syarikat tersebut adalah untuk menerima pembayaran daripada plaintif . Ini memandangkan bahawa kete rangan defendan sendiri sewaktu pemeriksaan balas oleh peguamcara plaintif , defendan telah memberikan keterangan bahawa syarikat Era Diskusi Sdn. Bhd. telah ditubuhkan lebih awal iaitu pada 11.6.2012. 24. Defendan telah dilantik sebagai salah seorang pengarah dalam syarikat Era Diskusi Sdn. Bhd. tersebut pada 8.1.2013 dan mahkamah juga mendapati bahawa keterangan defendan ini bercanggah apabila d efendan menerima wang berjumlah RM250,000.00 tersebut dan bukannya dibuat pembayaran kepada syarikat Era Diskusi Sdn.Bhd. yang menurut keterangan defendan ditubuhkan untuk menerima segala pembayaran khidmat konsultan oleh defendan. 25. Mahkamah mendapati bahawa keterangan-keterang an defendan amat bercanggah dengan keterangan beliau sendiri dan mahkamah, di atas imbangan kebarangkalian , tidak dapat menerima keterangan defendan sebagai menyokong pembelaan yang diutarakan oleh defendan. 26. Saksi defendan SD2 pula pada pendapat mahkamah tidak membantu kes defendan memandangkan keterangan SD2 yang tidak dapat mengingati kejadian-kejadian yang berlaku. 27. Mahkamah merujuk kepada kes Tan Aik Teck V Tang Soon Chye [2007] 5 CLJ 441 yang mana Mokhtar Sidin HMR (sebagaimana beliau pada waktu itu) telah memutuskan bahawa:- “[7] The plainti ff admitted that there was no loan agreement in respect of the loan given to the defendant. The loan given could only be proved by the two cheques which were paid into the defendant's account and also the admission by the defendant that he had put the money into his bank account. Since the defendant had admitted that he had received the two cheques and had credited them into his account, I am of the view that the plainti ff had discharged his burden that the money was a loan unless proven otherwise by the defendant. As such, the burden is on the defendant that the money given to him by the plainti ff was not a friendly loan… ...[12] It is clear to me that the defendant, in particular his counsel, was under the misconception what is meant by a friendly loan . A friendly loan is opposed to the normal borrowing from a moneylender or financial insti tution. A friendly loan is a loan between two persons based on trust… …[13]In my view, a friendly loan is a loan given by the lender to the borrower based on mutual trust whereby the borrower was to repay the loan within the specified time with no interests charged. For the reasons I have stated, I see no merit in the contention of the defendant in respect of this…” 28. Mahkamah berpendapat dengan mengguna pakai prinsip di dalam kes Tan Aik Teck (supra) maka amatlah jelas bahawa defendan perlu membuktikan dan menunjukkan sebaliknya bahawa wang berjumlah RM250,000.00 yang diakui diterima oleh defendan bukanlah satu pinjaman persahabatan. 29. Defendan juga perlu membuktikan dan menunjukkan kepada mahkamah bahawa wang tersebut adalah sebagai bayaran untuk perkhidmatan defendan sebagai konsultan namun defendan di sini telah gagal untuk membuktikan di atas imbangan kebarangkalian bahawa wang tersebut diterima oleh defendan sebagai bayaran perkhidmatan defendan sebagai konsultan. 30. Berdasarkan kepada alasan-alasan di atas , mahkamah memutuskan, atas imbangan kebarangkalian , plaintif telah membuktikan tuntutan plaintif terhadap defendan. Justeru itu mahkamah memutuskan tuntutan plaintif terhadap defendan dibenarkan dengan kos. 31. Oleh yang demikian, defendan diperintahkan membayar kepada plaintif wang berjumlah RM250,000.00 , faedah 5% setahun bermula dari tarikh saman difailkan sehingga tarikh penyelesaian penuh. 32. Kos perbicaraan ini ditetapkan pada jumlah RM10,000.00 dibayar oleh defendan kepada plaintif . Bertarikh pada 3 haribulan Oktober 2017 tt (ISHAK BIN BAKRI) Hakim, Mahkamah Sesyen Shah Alam. Selangor.	12,870	Tika 2.6.0
BA-25-5-01/20017	PEMOHON ROBIN ANAK IMBAL (No RF/l/KPL 150308, No K/P:840414-13-5653) RESPONDEN 1. SAC DATO’ MOHD RODZI BIN ISMAIL PENGERUSI LEMBAGA TATATERTIB BRIGED TENGAH PASUKAN GERAKAN AM, PDRM, CHERAS, SELANGOR 2. LEMBAGA TATATERTIB BRIGED TENGAH PASUKAN GERAKAN AM, PDRM, CHERAS, SELANGOR 3. KETUA POLIS NEGERA … RESPONDEN - 4. KERAJAAN MALAYSIA RESPONDEN	null	03/10/2017	YA DATO' HAJI MOHD YAZID BIN HAJI MUSTAFA	https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=137bbabf-e5ec-42d7-9e09-00a5c6aeed6a&Inline=true	1 DALAM MAHKAMAH TINGGI MALAYA DI SHAH ALAM DI NEGERI SELANGOR DARUL EHSAN SEMAKAN KEHAKIMAN NO: BA-25-5-01/20017 Dalam perkara satu permohonan oleh ROBIN ANAK IMBAL (No RF/l/KPL 150308, No K/P:840414-13-5653) dan untuk memohon satu Perintah Deklarasi dan/atau Certiorari Dan Dalam perkara keputusan yang dibuat oleh Lembaga Tatatertib Briged Tengah Pasukan Gerakan Am, Cheras, Selangor, berkuatkuasa pada 15.05.2014; Dan Dalam perkara Perintah-Perintah Am Bab D: Peraturan-Peraturan Pegawai Awam (Kelakuan & Tatatertib) 1993 dan Peraturan-Peraturan Pegawai Awam (Kelakuan & Tatatertib) (Pindaan 2002) dan Peraturan- Peraturan Lembaga Tatatertib Perkhidmatan Awam 1993; Dan 2 Dalam Perkara 5, 7, 8 dan 135 Perlembagaan Persekutuan; Dan Dalam Perkara Aturan 53 Kaedah- Kaedah Mahkamah 2012 ANTARA ROBIN ANAK IMBAL (No RF/l/KPL 150308, No K/P:840414-13-5653) … PEMOHON DAN 1. SAC DATO’ MOHD RODZI BIN ISMAIL PENGERUSI LEMBAGA TATATERTIB BRIGED TENGAH PASUKAN GERAKAN AM, PDRM, CHERAS, SELANGOR 2. LEMBAGA TATATERTIB BRIGED TENGAH PASUKAN GERAKAN AM, PDRM, CHERAS, SELANGOR 3. KETUA POLIS NEGERA … RESPONDEN- 4. KERAJAAN MALAYSIA RESPONDEN ALASAN PENGHAKIMAN PENDAHULUAN 1. Pada 31.01.2017, Pemohon menfailkan permohonan bahawa pelanjutan tempoh masa diberi untuk menfailkan permohonan 3 semakan kehakiman diluar tempoh masa dan kebenaran untuk semakan kehakiman. 2. Pada 26.04.2017 Mahkamah telah membenarkan permohonan Pemohon untuk menfailkan permohonan semakan kehakiman di luar tempoh masa. Mahkamah juga membenarkan kebenaran untuk semakan kehakiman. 3. Tidak berpuashati dengan keputusan tersebut, pihak Peguam Negara telah menfailkan Notis Rayuan merayu kepada Mahkamah Rayuan terhadap keputusan Mahkamah yang membenarkan permohonan Pemohon untuk menfailkan permohonan semakan kehakiman di luar masa. FAKTA KES 4. Pada 28.11.2012 Pemohon telah dituduh di Mahkamah Sesyen Shah Alam atas kesalahan melakukan rompakan. 5. Pada 27.03.2013, Pengerusi Lembaga Tatatertib Bridget Tengah Pasukan Gerakan Am, PDRM Cheras mengeluarkan surat tunjuk sebab dengan mengemukakan satu pertuduhan tatatertib yang melibatkan kesalahan pada tarikh yang sama dengan pertuduhan jenayah di Mahkamah Seksyen yang dikatakan dilakukan pada tarikh 14.11.2012 antara jam 3.45 petang hingga 8.30 malam. 6. Pemohon melalui surat representasi bertarikh 15.04.2013 telah menjawab surat tunjuk sebab tersebut. 7. Pada 15.05.2014, Pemohon telah disabitkan dan dijatuhkan hukuman 10 tahun penjara. 4 8. Pada 16.05.2014 Pemohon telah menfailkan Notis Rayuan ke atas sabitan tersebut. 9. Lembaga Tatatertib telah bersidang pada 15.05.2014 dan memutuskan Pemohon didapati bersalah atas pertuduhan dan dijatuhkan hukuman buang kerja berkuatkuasa mulai tarikh 15.05.2014. Pemohon hanya menerima surat pemberitahuan hukuman tatatertib bertarikh 27.05.2014 pada 01.07.2014. 10. Pada 21.05.2015 rayuan jenayah Pemohon telah didengar oleh Mahkamah Tinggi Shah Alam dan Pemohon telah dibebaskan. 11. Pada 31.01.2017, Pemohon telah menfailkan permohonan pelanjutan tempoh masa diberikan untuk menfailkan permohonan semakan kehakiman di luar masa dan kebenaran untuk semakan kehakiman. KEDUDUKAN UNDANG-UNDANG 12. Kedudukan undang-undang adalah mantap bahawa permohonan semakan kehakiman hendaklah difailkan dalam tempoh masa 90 hari dari tarikh apabila keputusan yang dipersoalkan tersebut pertama kali dimaklumkan kepadanya atau dari tarikh apabila alasan untuk permohonan tersebut mula-mula berbangkit. 13. Keperluan-keperluan yang memerlukan pematuhan oleh pemohon adalah bersifat mandatori dan mesti dipatuhi secara ketat oleh pemohon yang ingin mendapatkan kebenaran untuk semakan kehakiman. Faktor masa 90 hari merupakan faktor yang sangat penting dan mandatori untuk dipatuhi sebagaimana dinyatakan 5 secara spesifik dalam Aturan 53 Kaedah 3(6) Kaedah-Kaedah Mahkamah 2012. 14. Dalam kes Pengarah Kastam Negeri Johor & Others v Kedai Makan Kebun Teh (Sutera Utama) Sdn Bhd & Ors [2014] 3 CLJ 733 memutuskan; “...the requirement that needed to be complied with by the Applicant were mandatory in nature and must be adhered to strictly by an Applicant desirous of obtaining leave for judicial review…” 15. Aturan 53 Kaedah 3 (7) Kaedah-Kaedah Mahkamah 2012 memperuntukkan; “…. (7) The Court may, upon application, extend the time specified in rule 3 (6) if it considers that there is a good reason for doing so…” 16. Namun begitu, Aturan 53 Kaedah 3 (7) memberi ruang kepada Mahkamah untuk membenarkan Pemohon memohon kebenaran semakan kehakiman dengan menfailkan permohonan pelanjutan tempoh masa. Mahkamah hanya boleh menggunakan budi bicara untuk membenarkan pelanjutan tempoh masa sekiranya terdapatnya alasan-alasan yang baik dikemukakan oleh Pemohon bagi menyokong permohonannya. (Rujuk kes Wong Kin Hoong & Anor v Ketua Pengarah Jabatan Alam Sekitar & Anor [2013] 4 CLJ 193 dan kes Mersing Omnibus Co Sdn Bhd v The Minister of Labour & Manpower & Anor [1983] CLJ (Rep) 266) DAPATAN MAHKAMAH 17. Isu yang perlu diputuskan di dalam kes ini ialah samada Pemohon telah berjaya mengemukakan alasan-alasan yang baik untuk satu pelanjutan masa dibenarkan? 6 18. Sebab-sebab yang dikemukakan oleh Pemohon bagi menyokong permohonan pelanjutan tempoh masa dijelaskan dalam affidavit Pemohon sebagaimana berikut; 18.1 Peguam pemohon yang merupakan peguambela pemohon untuk kes jenayah iaitu Encik Nik Mohamed Ikhwan bin Nik Mahamud dari Tetuan Nik Ikhwan & Co pada ketika itu, telah memberikan nasihat perundangan kepada pemohon bahawa tindakan sivil terhadap Jabatan Kerajaan dan Kerajaan untuk mencabar pembuangan kerja boleh diambil dalam masa 3 tahun dan ia bermula dari tarikh sekiranya pemohon dilepaskan dan dibebaskan dari pertuduhan jenayah sepenuhnya (bermula dari tarikh kes jenayah selesai) 18.2 Oleh yang demikian, Pemohon dan peguam Pemohon pada ketika itu telah memfokuskan untuk kejayaan rayuan kes jenayah di peringkat rayuan di Mahkamah Tinggi Shah Alam. Maka apabila rayuan kes jenayah berkeputusan memihak kepada Pemohon pada 21/5/2015 dan tidak ada rayuan dari pihak pendakwaan, barulah peguam Pemohon pada masa material iaitu Encik Nik Mohamed lkhwan bin Nik Mahamud memulakan tindakannya untuk kes sivil. Namun, atas kesedaran dan keprihatinan akan pentingnya tindakan sivil untuk mencabar pembuangan kerja bagi anak guamnya, Encik Nik Mohamed lkhwan bin Nik Mahamud telah bersikap jujur dengan menasihati Pemohon agar mencari peguam yang lebih arif dalam kes pembuangan kerja. 18.3 Pernyataan Pemohon ini telah disahkan oleh peguam En.Nik Mohamed lkhwan bin Nik Mahamud sendiri di mana beliau telah mengemukakan Afidavit Tambahan Pemohon (1) yang diikrarkan olehnya pada 26/1/2017. Berikut di perturunkan isi kandungan Afidavit beliau :- "....3. Saya sesungguhnya menyatakan dan mengesahkan perkara- perkara berikut:- i. Bahawa pada awal Julai 2014 saya telah dilantik oleh Robin Anak Imbal (No. RF UKPL 150308, No. WP: 840414-13-5653) yang merupakan Pemohon dalam Permohonan Semakan 7 Kehakiman ini untuk mewakili beliau di peringkat rayuan kes jenayah di Mahkamah Tinggi Shah Alam bagi Rayuan Jenayah No: 425(A)-1-06/2014 di atas keputusan Mahkamah Sesyen (3) shah Alam yang telah mensabitkan Pemohon di bawah Seksyen 395 Kanun Keseksaan dan menjatuhkan hukuman penjara 10 tahun. Saya telah dilantik bagi menggantikan peguam Pemohon yang terdahulu di peringkat Mahkamah Sesyen iaitu Encik Roy Gingkoi dari Tetuan Zulkifli, Roy Gingkoi & Co.; ii. Selanjutnya, saya telah memfailkan Petisyen Rayuan bertarikh 17/7/2014 di Mahkamah Tinggi Shah Alam bagi Rayuan Jenayah No:425(A)-1 -06/201 4 bagi pihak Pemohon; iii. Saya juga telah turut diserahkan oleh Pemohon sesalinan dokumen-dokumen bersabit prosiding tatatertib terhadap Pemohon antara lain Surat Tunjuk Sebab bertarikh 27/3/2013 (dirujuk sebagai Eksibit RAI-2 dalam Afidavit Sokongan Pemohon yang menyokong Permohonan Semakan Kehakiman ini), Surat Representasi Pemohon bertarikh 15/4/2013 (dirujuk sebagai "Eksibit RAI-3" dalam Afidavit Sokongan Pemohon yang menyokong Permohonan Semakan Kehakiman ini) berserta Surat Pemberitahuan Hukuman Tatatertib bertarikh 27/5/2014 (dirujuk sebagai "Eksibit RAI-5" dalam Afidavit Sokongan Pemohon yang menyokong Permohonan Semakan Kehakiman ini). Pemohon telah meminta saya agar turut mewakili Pemohon dalam mengendalikan kes pembuangan kerja Pemohon dan saya telah bersetuiu; iv. Saya juga telah antara lain menasihatkan beliau bahawa bagi kes mencabar pembuangan keria Pemohon, tindakan sivil terhadap iabatan kerajaan dan kerajaan boleh dibuat dalam tempoh masa 3 tahun dan ia bermula dari tarikh sekiranya Pemohon dilepaskan dan dibebaskan dari pertuduhan jenayah sepenuhnya (bermula dari tarikh kes jenayah selesai); v. Oleh yang demikian, saya telah memfokuskan untuk keiayaan rayuan kes jenayah di peringkat rayuan di Mahkamah Tinggi 8 Shah Alam bagi memastikan Pemohon berjaya dalam rayuan jenayahnya sebelum saya meneruskan dengan tindakan susulan iaitu tindakan sivil untuk mencabar pembuangan kerja Pemohon; vi. Pada 21/5/2015 rayuan jenayah Pemohon melalui Rayuan Jenayah No: 42H(A)-1-06/2014 dan 42(3)-2-06/2014 (Rayuan Bersilang) telah didengar oleh Mahkamah Tinggi Shah Alam dan berkeputusan seperti berikut:- a) rayuan Pemohon dibenarkan; b) rayuan silang oleh pihak pendakwaan ditolak; c) keputusan Hakim Mahkamah Sesyen Shah Alam diketepikan d) Pemohon dilepaskan dan dibebaskan dari pertuduhan. vii. Lebih kurang dua (2) minggu selepas keputusan kes jenayah, saya telah membuat semakan di Mahkamah dan mendapati bahawa tidak ada rayuan difailkan oleh pihak pendakwaan ke Mahkamah Rayuan di atas keputusan Mahkamah Tinggi Shah Alam pada 21/5/2015 yang membebaskan dan melepaskan Pemohon dari Pertuduhan. Oleh yang demikian, Pemohon telah bersih dari kesalahan jenayah. viii. Saya selanjutnya telah memaklumkan Pemohon perkara ini dan memaklumkannnya bahawa tindakan susulan iaitu tindakan sivil untuk mencabar pembuangan kerja Pemohon boleh diteruskan; ix. Dua (2) atau Tiga (3) bulan selepas itu, saya telah menyediakan sesalinan Afidavit Pemohon untuk difailkan di Mahkamah bagi mencabar keputusan buang kerja dan saya telah menghubungi Pemohon agar beliau menandatangani Afidavit tersebut di hadapan Pesuruhjaya Sumpah. Namun demikian, saya tidak memfailkan Permohonan Semakan Kehakiman di Mahkamah kerana merasakan perlu membuat 9 penambahbaikan memandangkan ini adalah kes pertama seumpama ini yang saya kendalikan; x. Dalam tahun 2016, saya kemudiannya telah memanggil Pemohon sekali lagi untuk menandatangani Afidavit di hadapan Pesuruhjaya Sumpah di Mahkamah Tinggi Kuala Lumpur setelah membuat sedikit penambah baikan dan saya telah memaklumkan Pemohon bahawa Afidavit sebelum ini memang tidak difailkan lagi di Mahkamah; xi. Setelah, Pemohon menandatangani Afidavit yang telah saya sediakan, saya masih merasa kurang yakin untuk dokumen tersebut difailkan kerana sememangnya saya sebelum ini tidak pernah mengendalikan kes seumpama ini. Dengan rasa penuh tanggungiawab, saya telah berterus terang dengan Pemohon dan menasihatkan Pemohon agar mencari peguam lain yang lebih arif dalam bidang ini memandangkan ia membabitkan 'livelihood' Pemohon ; xii. Saya kemudiannya telah menerima panggilan telefon dari Pemohon bahawa Pemohon berhasrat untuk berjumpa dengan peguam En. G. Subramaniam Nair dari Tetuan Maniam Nair & Co. untuk mendapatkan nasihat perundangan kedua sebagaimana yang dicadangkan oleh pegawai Pemohon iaitu lnsp 13650 Kamarul Faizal bin Zakaria dan saya telah menyatakan bahawa saya tidak ada halangan iika Pemohon ingin menggunakan khidmat peguam lain demi kebaikan Pemohon; xiii. Saya kemudiannya telah dimaklumkan oleh Pemohon bahawa peguam En. G. Subramaniam Nair telah menasihatkan Pemohon bahawa tindakan untuk mencabar pembuangan kerja hendaklah dibuat melalui Permohonan Semakan Kehakiman di bawah Aturan 53 Kaedah-Kaedah Mahkamah 2012 dan tempoh untuk memfailkan Permohonan Semakan Kehakiman di Mahkamah ialah 3 bulan dari tarikh keputusan buang kerja dimaklumkan dan bukannya 3 tahun sepertimana yang telah saya nasihatkan pada awalnya kepada Pemohon. 10 19. Berdasarkan pengataan-pengataan di atas, saya mendapati alasan-alasan kenapa berlakunya kelewatan 2 tahun 4 bulan dalam menfailkan permohonan semakan kehakiman ini adalah berikutan dari permasalahan dari segi nasihat undang-undang yang diterima. Peguam yang mewakilinya iaitu Encik Nik Mohamad Ikhwan bin Nik Mahamud dari Tetuan Nik Ikhwan & Co telah mengesahkan bahawa kelewatan dipihaknya adalah tidak sengaja dan Pemohon memang tidak mengetahui tempoh pemfailan adalah tiga (3) bulan daripada tarikh keputusan yang dimaklumkan. 20. Saya menerima alasan-alasan yang dikemukakan oleh Pemohon dan saya mendapati alasan-alasan tersebut mewajarkan untuk saya menggunakan budi bicara untuk membenarkan satu pelanjutan tempoh masa. 21. Dalam kes ini, saya mendapati kelewatan berlaku ekoran kekhilafan di pihak peguam dalam memberi nasihat guaman kepada Pemohon. Pemohon tidak wajar dihukum atas kekhilafan ini. Kedudukan undang-undang adalah mantap iaitu, “…The Applicant should not suffer or be penalised for the mistake on the part of solicitors on the issue of time frame provided by law in regards to judicial review application at the High Court as ordinarily a litigant does not stand to benefit by resorting to delay and in fact he runs a serious risk...” 22. Dalam kes Rohana binti Ariffin v Universiti Sains Malaysia Hashim Hussin Yaakob v Universiti Sains Malaysia [1988] 2 MLJ 609 di muka surat 612 memutuskan; 11 “…In any event, therefore, if it was not open to me to act under Order 2 rule 1(1), then so far as may have been necessary, I had no hesitation in making the necessary orders for extension of time in the exercise of my discretion by virtue of the provisions of Order 3 rule 5(1) and (2) having regard to all the circumstances in order to satisfy the insistent demands for justice. Most particularly, in exercising my discretion, I took into consideration the fact that there might have been here a mistake on the part of the applicants' solicitor in the interpretation of a complex set of rules which, so far as I am aware, had never been judicially considered in any reported case of our courts, as a result of which, it might be said, that the applicants had fallen foul of the time limits imposed by the rules of court. If so, I did not consider that they ought to suffer for their solicitor's mistakes, regard being had to the particular circumstances of their cases. I considered that such a mistake – if mistake there had been – could and should be a ground for extension of time and I so ordered. The authority I should like to cite in support of this proposition is the following passage in the judgment of Chang Min Tat F.J. in Gan Hay Chong v Siow Kian Yuh [1975] 2 MLJ 129 131: "He concluded that a mistake by a solicitor was not a sufficient ground for granting an extension of time to file a notice of appeal or a memorandum of appeal. If he had taken the view that the mistake of the appellant's solicitors in the circumstances of this case was not such a ground, his view would, with respect, be unexceptionable but as a general dictum, it went, to my mind, too far." I therefore dismissed the preliminary objection and directed that the applications be heard on the merits. https://www.lexisnexis.com/my/legal/search/runRemoteLink.do?A=0.23588015521814942&bct=A&service=citation&risb=21_T26622196708&langcountry=MY&linkInfo=F%23MY%23MLJ%23vol%252%25sel1%251975%25page%25129%25year%251975%25tpage%25131%25sel2%252%25 12 23. Peguam Kanan Persekutuan juga menghujahkan ketidakadilan akan terjadi kepada Polis Diraja Malaysia (PDRM) jika permohonan pelanjutan masa ini dibenarkan. Ini adalah kerana, walaupun kelewatan Pemohon memfailkan permohonan semakan kehakiman ini bukan berpunca daripada tindakan/ peninggalan pihak PDRM tetapi pihak PDRM akan menanggung ketidakadilan jika relief akhir memihak kepada Pemohon. Kerugian tersebut bukan setakat dari segi kewangan tetapi juga dari segi kelancaran pentadbiran dan urusan kerja PDRM. Isu ketidakadilan kepada PDRM ini adalah benar dan nyata (the injustice is real) memandangkan tempoh kelewatan yang melampau. Lanjutan dari itu, Mahkamah perlu mempertimbangkan permohonan pelanjutan masa ini dari segi keadilan kepada kedua-dua pihak. Pihak PDRM tidak patut menanggung kerugian /kesusahan atas kesilapan pihak Pemohon. 24. Saya menolak hujahan Peguam Kanan Persekutuan di perenggan 23 atas alasan-alasan: Pertamanya, pihak PDRM tidak sepatutnya meneruskan tindakan tatatertib sehingga kes jenayah Pemohon selesai. Peraturan-Peraturan Pegawai Am (Kelakuan dan Tatatertib) (Pindaan) 2002 iaitu Peraturan 30 (1) memperuntukkan bahawa tindakan tatatertib tidak boleh diambil sehingga prosiding jenayah selesai atas alasan yang sama dengan pertuduhan jenayah. 25. Keduanya, isu pembuangan kerja melibatkan hak pekerja yang merupakan “fundamental rights” yang dijamin oleh Perkara 5 (1) Perlembagaan Persekutuan, yang mewajarkan Pemohon diberi hak untuk didengar. 13 26. Ketiganya, saya juga telah meneliti kes-kes pembuangan kerja yang dikemukakan oleh Peguamcara Pemohon, yang mana Mahkamah telah menggunakan budi bicara untuk membenarkan satu pelanjutan masa walaupun wujudnya kelewatan yang melampau. 27. Berdasarkan alasan-alasan di atas, saya berpuashati Pemohon telah berjaya mengemukakan sebab-sebab yang baik untuk Mahkamah menggunakan budi bicaranya untuk satu pelanjutan tempoh masa. 28. Dalam kes On Guan Teck & Ors v Hijjas [1982] 1 MLJ 105, Mahkamah memutuskan; “…the court has an unfettered discretion to grant or refuse an extension of time…” Dan seterusnya memutuskan; “…and in order to justify an extension of time, there must be some materials on which the court can exercise its discretion in favour of the applicant...” YA DATO’HAJI MOHD YAZID BIN HAJI MUSTAFA HAKIM LJC MAHKAMAH TINGGI SHAH ALAM 03 OKTOBER 2017 Pihak-pihak 14 Peguamcara Pemohon: Puan Ebrina Zubir daripada Tetuan Maniam Nair & Co Peguamcara Responden: Pn Zaliha Mohd Janis, Peguam Kanan Persekutuan daripada Unit Guaman Cawangan Selangor, Kamar Penasihat Undang-undang Negeri Selangor	19,069	Tika 2.6.0
15- 84-09/2015	PEMOHON ABAN A/L MUNIANDY (Pentadbir 1 Bagi Pihak Muniandy A/L R.Thoongani)… PEMOHON RESPONDEN 1. PENTADBIR TANAH PEJABAT TANAH DAERAH GOMBAK… RESPONDEN PERTAMA 2. TENAGA NASIONAL BERHAD (No syarikat: 200866) … RESPONDEN KEDUA	null	03/10/2017	YA DATO' HAJI MOHD YAZID BIN HAJI MUSTAFA	https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=048372d6-7e5c-4425-80dd-d5c724d4c4a3&Inline=true	1 DI MAHKAMAH TINGGI MALAYA DI SHAH ALAM DI NEGERI SELANGOR DARUL EHSAN RUJUKAN TANAH NO: 15- 84-09/2015 ANTARA PATHMANABAN A/L MUNIANDY (Pentadbir 1 Bagi Pihak Muniandy A/L R.Thoongani)… PEMOHON DAN 1. PENTADBIR TANAH PEJABAT TANAH DAERAH GOMBAK… RESPONDEN PERTAMA 2. TENAGA NASIONAL BERHAD (No syarikat: 200866) … RESPONDEN KEDUA ALASAN PENGHAKIMAN PENDAHULUAN 1. Pemohon adalah Pentadbir bagi pihak tuan tanah. 2. Tanah terlibat iaitu Lot 3597, hakmilik Geran 53054, Mukim Rawang, Gombak. Mempunyai keluasan 41,227.2844 meter persegi, dengan pegangan kekal, serta tiada syarat nyata dan sekatan kepentingan. Tarikh warta adalah pda 1.1.2015 dan dinilai pada tarikh yang sama. Tanah tersebut diambil bagi tujuan projek naiktaraf talian TNB 33KV kepada 275KV PMU Bukit Tarek dan Chubadak. 2 3. Pada masa pengambilan, terdapat pokok kelapa sawit berusia 30 tahun ,pokok getah tua dan laluan rentis 33KV,yang kesemuanya bawah satu pelan tapak dan dibawah satu nama. 4. Ekoran pengambilan, kedudukan tanah adalah jelas sebagaimana yang ditunjukkan dalam lampiran Penilai Pencelah iaitu : i. Rentis baru (yang diwarnakan merah jambu) 275KV telah menyebabkan tanah terpisah dua iaitu warna merah dan kuning (rujuk lampiran F). ii. Ianya menjadi dua hakmilik. TUNTUTAN PEMOHON 5. Pemohon dalam kes ini memohon untuk kenaikan nilai tanah dan menuntut pecah pisah sahaja bagi bahagian kuning dan merah. TUNTUTAN PECAH PISAH/SEVERENCE 6. Semasa perbicaraan, Pentadbir tanah tidak memberi pampasan bagi pecah pisah keatas tanah baki. 7. Laporan penilai Pemohon menyatakan Pemohon wajar dibayar pampasan pecah pisah atas alasan baki tanah terpisah dari tanah asal (severing such land from his other land). 8. Laporan kerajaan menyatakan pecah pisah tidak wajar diberikan kerana tanah baki masih luas dan ekonomik. 9. Penilai pencelah menyatakan Pemohon tidak berhak untuk menuntut pampasan pecah pisah atas alasan tuan tanah bebas untuk menggunakan laluan dibawah rentis dan hanya wujud kesan mudarat sahaja (rujuk muka surat 12 laporan penilai pencelah). 3 10. Pencelah juga menfailkan affidavit untuk mengesahkan pemohon tiada halangan untuk menggunakan laluan bawah rentis. 11. Pihak-pihak telah juga mengemukakan hujahan bertulis dan saya mendapati hujahan bertulis adalah berasaskan laporan penilaian masing-masing. Pendapat Pengapit Kerajaan 12. Saya berpendapat pemohon tidak berhak untuk mendapat pampasan keatas severance berdasarkan alasan berikut : i. Walaupun lot subjek terbahagi kepada dua tetapi pemohon tidak dinafikan untuk mengakses tanah baki yang berwarna kuning. ii. Rentis TNB hanya melalui bahagian atas tanah dan tidak melibatkan laluan bawah rentis. iii. Pihak pengambil telah menfailkan afidavit yang membenarkan pemohon menggunakan laluan rentis. Pendapat Pengapit Swasta 13. Merujuk kepada Pelan Tapak kedua dua pihak, saya bersetuju terdapat kesan pecah pisah akibat dari pengambilan ini. Bahagian yang diambil dan dipunyai oleh TNB untuk menaiktaraf kepada 275KV laluan pencawang elektrik memotong tanah ini kepada dua bahagian, iaitu bahagian A dan Bahagian B. Bahagian A masih berhadapan jalan tanah merah dan Bahagian B masih dipunyai oleh tuan tanah yang sama menjadi lapisan kedua. Tanah berkenaan masih di bawah zon pertanian semasa pengambilan. 4 14. Peguam TNB tidak menafikan Bahagian B terpisah dari bahagian A dan menjadi lapisan kedua tetapi menyatakan dalam mahkamah dan affidavitnya tuan tanah bebas untuk lintas di bawah laluan rentis. 15. Saya berpendapat ‘Principle of Equivalent’ tidak sama bagi Bahagian B sebelum dan selepas pengambilan. Sebelum pengambilan ini, Bahagian B sebahagian dari pelan tapak dan selepas pengambilan ianya terpisah dan menjadi lapisan kedua. 16. Setelah memberi pertimbangan sewajarnya, saya berpendapat kadar bagi pecah pisah ialah 2.5% untuk Bahagian B. Keputusan Mahkamah Ke atas Tuntutan Pecah Pisah/Severance 17. Sebelum pengambilan kali kedua, sudah wujud rentis diatas tanah subjek untuk membekalkan kuasa 33KV. Pada masa itu, tidak timbul isu severance. 18. Isu severance hanya timbul setelah TNB mengambil sebahagian tanah untuk menaiktaraf kuasa kepada 275KV. 19. Pihak pencelah telah menfailkan afidavit menyatakan mereka tidak mempunyai halangan untuk pemohon menggunakan tanah yang diambil (tanah bawah rentis) dimana pemohon bebas untuk melintasi diantara bahagian merah dan kuning. 20. Kategori tanah dan zoning lot subjek masih lagi pertanian serta kedudukan lot di kawasan pedalaman dan hanya boleh dimasuki melalui jalan tanah merah. Disamping itu, ia juga tidak ada potensi 5 pembangunan, juga faktor yang diambilkira bagi menentukan severance. 21. Walaupun tanah ini berada di kawasan pedalaman dan tidak ada potensi pembangunan, tidak dinafikan kesan naiktaraf daripada 33KV kepada 275KV menyebabkan tanah baki bahagian kuning tidak boleh diurus seperti dahulu dengan mudah sebagai satu entiti (compact entity). Ekoran baki tanah masih lagi besar dan ekonomik bagi tanah pertanian, saya mendapati award yang minima sebanyak 2% dari harga pasaran bahagian kuning adalah wajar. 22. Atas alasan ini, ianya mewajarkan pemohon diberi pampasan 2% daripada harga pasaran tanah baki warna kuning sahaja. Pecah Pisah: Bahagian B: 11,310.28 mp @ RM120.00 smp @ 2%= RM27,144.70 23. Tiada pampasan pecah pisah untuk bahagian A kerana ianya berhadapan jalan. TUNTUAN KEATAS NILAI PASARAN Pendapat Pengapit Kerajaan 24. Saya mendapati nilaian RM150.00 semeter persegi untuk laluan diluar rentis adalah munasabah dan berpatutan berdasarkan alasan-alasan berikut: i. Terdapat 2 perbandingan sepunya, yang digunakan oleh kesemua penilai. ii. Saya bersetuju dengan pelarasan ketiga-tiga pihak. 6 25. Saya mendapati Pentadbir telah khilaf dengan memberi kadar 10% keatas tanah dibawah laluan rentis kerana ianya bercanggah dengan Akta Bekalaan Letrik yang memperuntukkan 30%. 26. Ekoran itu, saya mendapati laluan dibawah rentis dinaikkan kepada 30%. Pengiraan dan puratanya adalah seperti berikut: Setelah memberi pertimbangan sewajarnya, saya berpendapat kadar harga sebanyak RM150 semeter persegi dikekalkan untuk tanah di luar laluan rentis, dan kadar RM45 (30% dari RM150.00) semeter persegi untuk tanah dibawah laluan rentis. Pengiraannya adalah seperti berikut : Luas Tanah Luar Rentis 29,284.28 mp @ RM 150.00 smp =RM 4,392,642.66 Luas Tanah Bawah Rentis 11,943.00 mp @ RM 45.00 smp = RM 537,435.00 Jumlah 41,227.28 mp = RM4,930,077.66 Kadar Purata @ RM119.58 smp Katakan RM120.00 smp Pampasan Tambahan. Tanah warta (bawah rentis) : 7,123 mp @ RM 120.00 smp = RM854,760.00 Tanah Plot B : 308 mp @ RM 120.00 smp = RM36,960.00 Jumlah = RM891,720.00 Tolak pampasan Pentadbir = RM817,410.00 Tambahan pampasan = RM74,310.00 7 Pendapat Pengapit Swasta 27. Saya bersetuju dengan pendapat pengapit kerajaan. Keputusan Mahkamah 28. Akta Bekalan Letrik jelas memperuntukkan 30% daripada nilai pasaran untuk laluan bawah rentis. Ekoran itu, kadar 30% adalah kadar yang sepatutnya diawardkan oleh Pentadbir kepada Pemohon dan bukannya kadar 10%. 29. Berdasarkan alasan-alasan diatas, Mahkamah membenarkan tuntutan Pemohon keatas severance sebanyak RM27,144.70 dan tambahan nilai tanah sebanyak RM74,310.00. YA DATO’ HAJI MOHD YAZID BIN HAJI MUSTAFA HAKIM LJC MAHKAMAH TINGGI SHAH ALAM 3 OKTOBER 2017 Pihak-Pihak Peguamcara Pemohon: Ms Christna Jacob bersama En Indran daripada Tetuan Indran K, C Jacob & Associates 8 Peguamcara Responden 1: Cik Etty Eliany Tesno daripada Kamar Penasihat Undang-Undang Negeri Selangor Peguamcara Responden 2: Mrs Mehala daripada Tetuan Shook Lin & Bok	8,077	Tika 2.6.0
B-05(M)-100-03/2016	PERAYU KIRUPANATHAN A/L TANGARAJA … PERAYU RESPONDEN Pendakwaraya	Dadah Berbahaya — Rayuan — Pengedaran — Perayu dijatuhkan hukuman mati mandatori — Sama ada Hakim Bicara gagal untuk mengambil kira setiap inti pati yang diperlukan untuk membuktikan kes pengedaran dadah — Sama ada Hakim Bicara telah terkhilaf apabila membuat penemuan affirmative bahawa Perayu mempunyai mens rea milikan — Sama ada Perayu bukan pengedar malah hanya merupakan penghantar barang [delivery boy] — Sama ada informer telah berperanan aktif dalam merangsang atau mencadangkan perlakuan suatu kesalahan pengedaran dadah — Akta Dadah Berbahaya 1952 [Akta 234], ss 2, 37(d), 39B(1)(a), 40, 40A dan 41; Akta Keterangan 1950 [Akta 56], s114(g); Kanun Prosedur Jenayah [Akta 593], s 173(f)(i)	02/10/2017	YA DATO' ASMABI BINTI MOHAMADKorumYA DATUK WIRA MOHTARUDIN BIN BAKIYA DATUK ABDUL KARIM BIN ABDUL JALILYA DATO' ASMABI BINTI MOHAMAD	https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=02128f79-bb5e-41e5-94bc-ab4accc92af5&Inline=true	1 DALAM MAHKAMAH RAYUAN MALAYSIA DI PUTRAJAYA (BIDANG KUASA RAYUAN) RAYUAN JENAYAH NO: B-05(M)-100-03/2016 ANTARA KIRUPANATHAN A/L TANGARAJA …PERAYU [Identity Card No.: 900223-14-6159] DAN PENDAKWA RAYA …RESPONDEN (Dalam Mahkamah Tinggi Shah Alam, Selangor) (Perbicaraan Jenayah Bil: 45A-97-10/2014) Antara Pendakwa Raya Lawan 1. Kirupanathan a/l Tangaraja 2. Prem Kumar a/l Pannirselvam 3. Mohamed Kasim bin Narukani 4. Kalai Vaanan a/l Tannarsu KORUM: MOHTARUDIN BIN BAKI, HMR ABDUL KARIM BIN ABDUL JALIL, HMR ASMABI BINTI MOHAMAD, HMR 2 PENGHAKIMAN MAHKAMAH Latar Belakang [1] Perayu telah dihadapkan dengan satu pertuduhan bagi kesalahan mengedar dadah berbahaya di bawah Akta Dadah Berbahaya 1952 (ADB) yang boleh membawa hukuman mati mandatori di bawah Seksyen 39B (2) ADB. [2] Pertuduhan terhadap Perayu dan tiga orang lagi adalah seperti yang berikut: “Bahawa kamu bersama-sama pada 17 Februari 2014 jam lebih kurang 4.30 petang, bertempat di hadapan Maybank Seksyen 4, Jalan C180/1, Pekan Batu 11, Cheras di dalam daerah Kajang, di dalam Negeri Selangor Darul Ehsan bagi mencapai niat bersama telah mengedar dadah berbahaya iaitu sejumlah berat 58.1 gram Heroin dan 88.8 gram Monoacetylmorphine dan oleh yang demikian, kamu telah melakukan suatu kesalahan di bawah Seksyen 39B(1)(a) Akta Dadah Berbahaya 1952 dan boleh dihukum di bawah Seksyen 39B(2) Akta yang sama dibaca bersama Seksyen 34 Kanun Keseksaan.” Kes Pendakwaan [3] Pada 17.02.2014 jam lebih kurang 9.30 pagi, D/Kop Anbalan a/l Vasu (SP2) yang bertugas di IPK Selangor, menerima maklumat 3 daripada sumber berdaftar di Jabatan Siasatan Jenayah Narkotik IPK Selangor menyatakan adanya aktiviti pengedaran dadah jenis heroin dengan harga RM8,000.00 bagi satu pound di kawasan Jusco Balakong. Pengedar dikenali sebagai Boy dan nombor telefonnya ialah 014- 6454951. [4] Pada hari yang sama, jam 10.30 pagi, SP2 menemui ketuanya ASP Mohd Husni bin Manaf (SP4) untuk memaklumkan mengenai maklumat tersebut. SP4 mengarahkan SP2 untuk bertindak sebagai Agent Provocateur/Penyamar Sulit (AP). Seterusnya pada jam 11.00 pagi, SP4 mengumpul semua anggotanya untuk tujuan taklimat. SP2 kemudiannya telah menelefon Boy dan memaklumkan bahawa beliau berminat untuk membeli dadah dan Boy memberitahu SP2 syarat pembelian mestilah sekurang-kurangnya 3 pound ke atas. Setelah memaklumkan syarat kepada SP4, SP4 bersetuju untuk mengambil sebanyak 3 pound dan akan menyediakan flash roll berjumlah RM24,000.00. [5] Pada jam 11.30 pagi, SP4 mengadakan suatu lagi taklimat yang selesai pada jam 1.00 tengah hari. Selesai taklimat, SP4 bersama anggotanya menuju ke Jusco Balakong dalam tiga pasukan dengan menaiki kenderaan jenis Myvi, Kembara, Hilux dan juga motosikal. Sementara itu, SP2 pula bergerak berseorangan ke arah yang sama dengan menaiki kereta Toyota Vios bernombor pendaftaran WUS 8590. [6] Pada jam lebih kurang 4.00 petang, SP2 memasuki tempat letak kereta Pasaraya Jusco Balakong atas arahan SP4. Sejurus selepas itu, SP2 menghubungi Boy untuk memaklumkan beliau berada di kawasan 4 tempat letak kereta Pasaraya Jusco Balakong dan kereta beliau ialah jenis Toyota Vios berwarna silver bernombor pendaftaran WUS 8590. Boy meminta SP2 menunggu di tempat tersebut. Dua minit kemudian, Boy meminta SP2 keluar dari keretanya. Apabila SP2 keluar dari keretanya, seorang lelaki India mendekati dan memperkenalkan diri sebagai Boy. SP2 memaklumkan bahawa beliau ingin membeli dadah. Boy memaklumkan harga satu pound dadah ialah RM8,000.00 dan tidak boleh kurang daripada 3 pound. Jika SP2 membeli 10 pound ke atas, harga boleh dikurangkan. SP2 memaklumkan kepada Perayu, beliau bersetuju membeli 3 pound. Boy memaklumkan dia perlu pergi mengambil bekalan dan bekalan hanya boleh dibekalkan selepas menerima bayaran. Atas permintaan Boy, SP2 menunjukkan wangnya yang berada di dalam beg silangnya. SP2 memaklumkan “saya nak tengok barang dulu, selagi saya tidak tengok barang itu, saya takkan passing duit.” Boy meminta SP2 menunggu di situ dan memberitahu bahawa bosnya sedang menunggu di deretan kedai bersebelahan Jusco Balakong. Boy kemudian beredar dari situ. [7] SP2 memaklumkan SP4 tentang hasil rundingannya dengan Boy dan bahawa Boy telah beredar ke deretan kedai bersebelahan Jusco Balakong. SP4 dan anggotanya terus beredar menghala ke kawasan deretan kedai tersebut dan mengambil kedudukan masing-masing. [8] Tidak lama selepas itu, Boy menelefon SP2 dan meminta SP2 datang ke deretan kedai berhampiran kedai Seng Heng. SP2 keluar dari tempat letak kereta Jusco Balakong, menuju deretan kedai dan memberhentikan keretanya di tepi kedai Seng Heng. SP2 keluar dari 5 keretanya dan nampak Boy berdiri berdekatan kedai Seng Heng bersama-sama dua orang lelaki India, Tertuduh Kedua dan Tertuduh Ketiga (Tertuduh Kedua dan Tertuduh Ketiga semasa perbicaraan di Mahkamah Tinggi). Apabila SP2 sampai berdekatan, Boy memperkenalkan Mohamed Kasim sebagai bosnya dan Mohamed Kasim turut memperkenalkan Prem Kumar sebagai rakan kongsinya. SP2 meminta untuk melihat barang dulu. Pada masa yang sama, Prem Kumar memberitahu, “Tidak perlu takut abang. Kita ambil duit dahulu dan barang akan sampai ke kereta abang.” Boy dan Prem Kumar bersetuju untuk menunjukkan barang kepada SP2. [9] Boy menaiki kereta SP2 dan meminta SP2 membuat pusingan. Semasa di dalam kereta, Boy menerima panggilan telefon dan Boy memaklumkan kepada SP2 bahawa ada satu kereta Proton Satria berwarna hitam nombor WME 6143 menunggu mereka di kawasan Maybank. SP2 memandu ke arah Maybank dan meletakkan keretanya bersebelahan kereta Satria. Boy turun dari kereta SP2 dan berjalan ke bahagian pemandu kereta Satria. SP2 nampak pemandu kereta Satria ialah seorang lelaki India. Apabila Boy sampai di bahagian pemandu kereta Satria, Boy diserahkan satu bungkusan plastik berwarna hitam melalui tingkap dan lalu membawanya ke SP2. SP2 keluar dari keretanya dan meminta Boy membuka bungkusan plastik tersebut dan menunjukkan isi kandungannya kepada SP2. Apabila bungkusan hitam tersebut dibuka, SP2 nampak salah satu bungkusan di dalam plastik itu mengandungi ketulan-ketulan yang disyaki dadah. SP2 terus memberikan arahan strike kepada SP4 dan anggotanya. 6 [10] SP4 dan anggotanya terus menyerbu dan menangkap Boy dan pemandu kereta Satria. Boy cuba melarikan diri tetapi berjaya ditangkap. Boy dikenalpasti sebagai Kirupanathan a/l Tangaraja (Perayu). Manakala, pemandu kereta Satria dikenalpasti sebagai Kalai Vaanan a/l Tannarsu (Tertuduh Keempat di Mahkamah Tinggi). [11] Anggota polis yang ditempatkan oleh SP4 di hadapan kedai Seng Heng telah menangkap Prem Kumar a/l Pannirselvam (Tertuduh Kedua) dan Mohamed Kasim bin Narukani (Tertuduh Kedua dan Ketiga di Mahkamah Tinggi). Dua orang wanita, Fatimah dan Punitha turut berada di tempat Tertuduh Kedua dan Tertuduh Ketiga ditangkap. [12] SP4 telah membuat pemeriksaan ke atas bungkusan plastik hitam yang berada dalam pegangan Perayu semasa serbuan. SP4 mendapati di dalam plastik hitam itu terdapat tiga bungkusan surat khabar yang di dalam setiap bungkusan surat khabar tersebut terdapat tiga plastik lutsinar berisi bahan disyaki dadah. [13] Pemeriksaan ke atas kereta Satria tersebut menemui satu beg galas jenama Mizuno di dalamnya terdapat satu plastik putih yang mengandungi satu bungkusan yang di dalamnya ada satu peket plastik lutsinar yang mengandungi bahan disyaki dadah. [14] SP4 telah membuat rampasan terhadap barang kes dadah tersebut dan membuat penandaan pada setiap barang kes yang dirampas. SP4 membawa kesemua tangkapan ke Balai Polis Kajang. 7 [15] Pada jam 11.00 malam pada hari yang sama, SP4 telah menyerahkan kesemua tangkapan dan barang kes kepada Pegawai Penyiasat Insp Ahmad Zubir bin Zainal Abidin (SP6). SP6 telah menyimpan kesemua barang kes di dalam almari besi berkunci di pejabatnya. Pada 21.02.2014, SP6 telah menyerahkan barang kes dadah kepada ahli kimia Dr. Saravana Kumar a/l Jayaranam (SP1). [16] SP1 telah menjalankan analisis ke atas barang kes tersebut dan mengesahkan berat dadah dalam beg plastik hitam ialah masing- masingnya 58.1 gram heroin dan 8.8 gram monoacetylmorphine. Manakala berat dadah dalam beg galas jenama mizuno di dalam kereta Satria ialah masing-masingnya 18.1 gram heroin dan 4 gram monoacetylmorphine (selepas ini akan dirujuk sebagai dadah tersebut). Dapatan Hakim Bicara di akhir kes pendakwaan [17] Hakim Bicara menerima keterangan SP2 bahawa Perayu ialah orang yang berurusan dengan SP2 dari awal sehingga dia ditangkap di hadapan kawasan Maybank. Perayu ialah pihak yang menetapkan syarat jualan dadah tersebut kepada SP2 iaitu harga satu pound ialah RM8,000.00 dan hendaklah dibeli sekurang-kurangnya tiga pound. [18] Apabila Perayu sampai di hadapan Maybank, Perayu telah keluar dari kereta SP2 dan menuju ke kereta Satria. Perayu mengambil bungkusan plastik hitam daripada Kalai Vaanan (Tertuduh Keempat di Mahkamah Tinggi) dan membawanya ke SP2. Perayu telah membuka 8 bungkusan tersebut untuk menunjukkan isi kandungannya yang mengandungi dadah tersebut. [19] Keterangan SP2 jelas menunjukkan Perayu mempunyai niat untuk mengedar dadah tersebut dengan menjualnya kepada SP2. [20] Walaupun dicabar, keterangan SP2 tidak tergugat dan diterima oleh Mahkamah. Merujuk kepada kes PP v Mohd Haifah [1982] 1 MLJ 155, Hakim Bicara mendapati SP2 ialah seorang AP dan keterangannya tidak memerlukan keterangan sokongan yang lain. [21] Antara isu yang dibangkitkan oleh peguam bela Perayu adalah bahawa informer hendaklah dipanggil untuk memberikan keterangan. Hakim Bicara mendapati hujahan ini tidak bermerit kerana tidak ada penglibatan secara aktif informer dalam kes ini. Juga dibangkitkan bahawa Fatimah dan Punitha perlu dipanggil oleh pihak pendakwaan sebagai saksi. Hakim Bicara mendapati hujahan ini juga tidak bermerit kerana pihak pendakwaan telah berjaya membuktikan kes prima facie ke atas Perayu. Isu-isu lain seperti siasatan SP6 tidak lengkap dan tidak selamat diterima oleh Mahkamah tidak bermerit dan bercanggah dengan keterangan saksi-saksi pendakwaan. Kes Pembelaan [22] Perayu telah memilih untuk memberikan keterangan secara bersumpah. Perayu menyatakan bahawa dia tidak mengetahui terdapat dadah di dalam bungkusan plastik tersebut. Pada hari kejadian, Perayu 9 menyatakan bahawa dia diminta oleh kawannya bernama Bangsaprem untuk mengambil barang iaitu cip, di kuil di Mid Valley dan menghantarnya ke Jusco Balakong. Bangsaprem memberitahu apabila cip diserahkan, mereka akan membayar RM20,000.00. [23] Perayu menyatakan SP2 telah menelefonnya dan memberitahu dia (SP2) sedang menunggu untuk mengambil cip di tempat letak kereta Jusco Balakong. Di situ, Perayu membawa SP2 berjumpa dengan dua orang kawannya di hadapan Seng Heng dan kemudiannya, Perayu dan SP2 bergerak ke Maybank. Apabila tiba di Maybank, Perayu turun dan berjumpa Kalai Vaanan (Tertuduh Keempat) untuk bertanya mengenai cipnya. Perayu mendapati cip itu diikat dalam satu bungkusan plastik yang dihulurkan oleh Tertuduh Keempat. Perayu mengambil bungkusan itu dan membawanya ke SP2. Tiba-tiba, dia diserbu, dipukul dan ditangkap dan seterusnya dibawa ke balai polis. Dapatan di akhir kes pembelaan [24] Hakim bicara mendapati pembelaan Perayu bahawa dia telah diminta kawannya Bangsaprem untuk menghantar barang (cip) kepada SP2 dan adanya bayaran yang akan diberikan daripada SP2 untuk penghantaran tersebut jelas bercanggah dengan keterangan SP2. [25] Hakim bicara juga mendapati bahawa Perayu telah menyebut nama Bangsaprem buat pertama kali hanya di peringkat pembelaan dan nama ini tidak pernah ditimbulkan di peringkat pendakwaan. 10 [26] Setelah menilai semua aspek keterangan, Hakim Bicara menolak pembelaan Perayu kerana pembelaannya merupakan penafian semata- mata. Perayu telah gagal untuk menimbulkan keraguan munasabah dan Hakim Bicara juga berpuas hati pihak pendakwaan telah membuktikan kesnya di luar keraguan munasabah. [27] Oleh itu, Hakim Bicara mendapati Perayu bersalah dan disabitkan atas kesalahan di bawah Seksyen 39B(1)(a) Akta Dadah Berbahaya dan dijatuhkan hukuman mati sebagaimana ditetapkan oleh undang-undang. Rayuan [28] Peguam bela mengemukakan alasan-alasan rayuan seperti berikut: (a) YA Hakim telah terkhilaf dari segi fakta dan undang-undang kerana telah gagal untuk mempertimbangkan bahawa pihak pendakwaan telah gagal untuk membuktikan kes prima facie terhadap Perayu. (b) YA Hakim telah terkhilaf dari segi fakta dan undang-undang apabila gagal untuk mengambil kira setiap inti pati yang diperlukan untuk membuktikan suatu kes terhadap Perayu seperti yang diperuntukkan di bawah S.173(f)(i) Kanun Prosedur Jenayah. 11 (c) YA Hakim telah terkhilaf dari segi fakta dan undang-undang apabila gagal membuat penemuan milikan di akhir kes pendakwaan sebelum anggapan pengedaran boleh digunakan. (d) YA Hakim telah terkhilaf dari segi fakta dan undang-undang apabila membuat penemuan affirmative bahawa Perayu mempunyai mens rea possession. (e) YA Hakim telah terkhilaf dari segi fakta dan undang-undang apabila gagal memahami bahawa pihak pembelaan hanya perlu menimbulkan keraguan pada kes pendakwaan dan bukannya membuktikan kes melampaui keraguan yang munasabah. (f) YA Hakim telah terkhilaf dari segi fakta dan undang-undang apabila membuat penemuan bahawa informer tidak ada penglibatan aktif dalam kes ini. Walhal SP2 telah mengesahkan bahawa berat dan harga dadah telah dirunding oleh informer. Justeru itu, informer sebenarnya telah berfungsi sebagai AP. (g) YA Hakim telah terkhilaf dari segi fakta dan undang-undang apabila secara “tacitly” memberikan imuniti di bawah S.40 dan S.40A ADB kepada informer yang telah berperanan aktif dalam kes ini. 12 (h) YA Hakim telah terkhilaf dari segi fakta dan undang-undang apabila gagal membuat penemuan bahawa informer tidak mempunyai imuniti maka S.41 ADB boleh dibangkitkan terhadap informer yang telah berperanan aktif dalam kes ini. (i) YA Hakim telah terkhilaf dari segi fakta dan undang-undang apabila gagal untuk membangkitkan peruntukan Seksyen 114(g) Akta Keterangan 1950 di mana kegagalan pihak pendakwaan untuk memanggil informer yang telah memainkan peranan yang aktif sebagai saksi. Keterangan informer tersebut sememangnya boleh memberi gambaran yang lebih jelas berkenaan dengan kes ini. (j) YA Hakim telah terkhilaf dari segi fakta dan undang-undang apabila beliau gagal atau tidak membuat satu penilaian maksimum pada peringkat kes pendakwaan terhadap pernyataan SP2 yang bercanggahan dengan SD1 dan SD3 berkenaan dengan kewujudan seorang lelaki lain bersama SP2. SD1 menyatakan bahawa semasa dia menaiki kereta SP2, dia nampak seorang lelaki Melayu berbadan besar. Ini telah disokong dengan keterangan SD3. (k) YA Hakim telah terkhilaf dari segi fakta dan undang-undang dalam tidak mengambil kira bahawa pendakwaan telah gagal mengemukakan maklumat log panggilan telefon Perayu, SP2, Tertuduh Kedua, Ketiga dan Keempat. Jika dikemukakan, dapat menunjukkan trail of communication dan itu secara 13 langsung dapat membuktikan Perayu bukan pengedar malah hanya merupakan delivery boy. (l) YA Hakim telah terkhilaf dari segi fakta dan undang-undang apabila tidak mengambil pernyataan SP6 yang bersetuju dengan cadangan peguam bela bahawa beliau tidak melakukan satu siasatan dengan lengkap. Di mana kegagalan SP6 untuk melakukan siasatan yang lengkap telah menyebabkan jurang yang banyak dalam kes ini, antaranya ialah ketiadaan log panggilan telefon, borang rampasan dan borang bongkar terhadap telefon bimbit. (m) YA Hakim telah terkhilaf dari segi fakta dan undang-undang apabila gagal membuat pindaan kepada pertuduhan pertama di akhir kes pembelaan sebelum menjatuhkan hukuman terhadap Perayu. (n) YA Hakim telah terkhilaf dari segi fakta dan undang-undang apabila gagal membuat penemuan bahawa pertuduhan pertama ialah cacat defective. Dapatan kami Alasan (a), (b), (c) dan (d) Petisyen Rayuan [29] Isu pertama yang dibangkitkan oleh Perayu merangkumi alasan (a), (b), (c) dan (d) dalam Petisyen Rayuan iaitu sama ada Perayu telah 14 secara betul disabitkan atas kesalahan mengedar dadah tersebut pada tarikh, waktu dan di alamat seperti yang tertera dalam pertuduhan. Peguam bela Perayu yang bijaksana telah menghujahkan, pendakwaan telah gagal membuktikan inti pati penting pertuduhan iaitu mens rea possession. Ringkasnya peguam bela telah menghujahkan Hakim Mahkamah Tinggi yang bijaksana telah gagal membuat suatu penemuan yang affirmative bahawa Perayu mempunyai kawalan dan jagaan terhadap dadah tersebut termasuklah pengetahuan mengenainya sepertimana yang dipertuduhkan. [30] Selanjutnya peguam bela Perayu menghujahkan, oleh sebab Hakim Bicara tidak menerima pakai anggapan di bawah seksyen 37 (d) ADB, pihak pendakwaan hendaklah membuktikan inti pati wujudnya pengedaran dadah tersebut secara langsung. Atas alasan yang dihujahkan, peguam bela menyatakan penemuan fakta oleh Hakim Bicara adalah salah dan wajar diketepikan oleh Mahkamah ini. [31] Sepertimana yang telah kami huraikan pada awal penghakiman, teras kes pendakwaan terhadap Perayu ialah pengedaran sebenar dadah berbahaya jenis Heroin seberat 58.1 gram dan Monoacetylmorphine seberat 88.8 gram melalui suatu penjualan melalui AP yang merupakan suatu kesalahan di bawah seksyen 39B (1) (a) ADB. Bagi pertuduhan yang dihadapkan ke atas Perayu, pihak pendakwaan tidak perlu membuktikan inti pati Perayu mempunyai kawalan, jagaan dan pengetahuan ke atas dadah tersebut. Ini disebabkan kesalahan yang dihadapi Perayu ialah menjual dadah. 15 [32] Tafsiran bagi perkataan ‘pengedaran dadah’ menurut seksyen 2 ADB ialah: “.....termasuklah melakukan salah satu daripada perbuatan- perbuatan ini, iaitu mengilang, mengimport, mengeksport, menyimpan, menyorok, membeli, menjual, memberi, menerima, menyetor, mengendalikan, mengangkut, membawa, menghantar, mengirim, berusaha mendapatkannya, membekal atau mengedar sesuatu dadah berbahaya atau dengan cara lain di bawah penguatkuasaan Akta ini atau peraturan-peraturan yang dibuat di bawah Akta ini.” [33] Dalam kes ini Perayu dikatakan telah menjual dadah tersebut kepada SP2 selaku AP. Seksyen yang relevan dalam ADB berhubung dengan isu informer dan AP ialah seksyen 40 dan 40A ADB. Tafsiran dan pemakaian kedua-dua seksyen ini telah dibincangkan dengan terperinci dalam beberapa kes yang telah diputuskan sebelum ini. (Lihat Munusamy Vendagasalam v. PP [1987] 1 CLJ 250; [1987] CLJ (Rep) 221; Namasiyiam Doraisamy v. PP & Other Cases [1987] 1 CLJ 540; [1987] CLJ (Rep) 240; PP v. Mansor Md Rashid & Anor [1997] 1 CLJ 233; Ti Chuee Hiang v. PP [1995] 3 CLJ 1; Ghazalee Kassim & Anor v. PP [2009] 4 CLJ 737). [34] Huraian mengenai siapakah yang disifatkan sebagai AP telah dibincang dengan panjang lebar dalam kes Wan Mohd Azman Hassan v P.P. [2010] 4 CLJ 529: 16 “In a typical police undercover operation scenario (as happened in this case) the police would receive information from its informer of a drug trafficking activity. An agent provocateur, normally himself a police officer, will then be assigned to undertake what is called a “sting operation”. The agent provocateur will then get in touch with the informer. The informer will then arrange for an introduction and meeting between the agent provocateur, (who will play the role of a drug-buyer) and the drug trafficker. The informer will take no active role and normally disappear. Negotiations will then take place between the agent provocateur and the drug trafficker where the amount of drugs to be supplied, its price and place of delivery will be discussed and agreed upon. The agent provocateur himself thus takes an active role in the commission of the offence. Both parties became wiling participants in the offence. This is what is meant by the phrase ‘to abet the commission of the offence’ as found in s. 40A of the Act. The agent provocateur role is to uncover the offence and gather the evidence to be later given at the trial against the trafficker. This, as discussed later in this judgment, is however not entrapment that gives rise to a legitimate defence.” [35] Dalam kes yang tersebut di atas AP disifatkan sebagai seorang yang merangsang atau mencadangkan perlakuan suatu kesalahan kepada seorang lain dengan harapan orang itu akan menuruti cadangan AP sehingga boleh menyebabkan orang itu boleh disabitkan dengan sesuatu kesalahan di bawah undang-undang sebagaimana yang dirangsang dan / atau dicadangkan oleh AP. [36] Kebolehterimaan keterangan AP dan juga kredibiliti AP tidak menjadi isu kerana seksyen 40A ADB memberikan perlindungan kepada 17 AP. Keterangan AP juga tidak perlu disokong oleh keterangan bebas lain. Tanggapan bahawa keterangan AP adalah kredibel juga boleh dipatahkan jika pembelaan mengemukakan keterangan yang cukup untuk menunjukkan AP ialah saksi yang tidak kredibel. (Lihat kes Pendakwa Raya v. Han Kong Juan & Ors [1983] 1 CLJ 245; [1983] CLJ (Rep) 773 HC). [37] Pendakwaan telah mempremiskan kesnya terhadap Perayu di bawah seksyen 39B(1)(a) ADB iaitu pengedaran sebenar melalui penjualan dadah tersebut kepada seorang AP. Kes Pendakwaan bukanlah kerana Perayu memiliki dadah tersebut. Persoalannya adalah sama ada berdasarkan factual matrix kes ini, pendakwaan telah berjaya membuktikan inti pati pengedaran dadah tersebut melalui suatu penjualan terhadap Perayu. [38] Dalam kes Pendakwa Raya v. Saari bin Jusoh [2007] 2 CLJ 197 setelah membincangkan beberapa tafsiran bagi perkataan ‘selling’/‘sale’ and ‘contract to sell’ yang diberi masing-masingnya oleh Webster’s New World Dictionary Edisi Ketiga, Butterworths Australian Legal Dictionary, The Law Lexicon oleh Ramanatha Aiyar dan juga pada kes Inland Revenue Commissioners v. Littlewoods Order Stores [1962] 2 All ER 279 yang merujuk kepada Benjamin on Sale Edisi Kedelapan, YA Augustine Paul HMR (pada ketika itu bersidang sebagai HMP) menyimpulkan tafsiran bagi perkataan penjualan (sale) sebagai: “A sale is therefore complete upon transfer of property in the goods even though the price has not been paid. A sale in this sense cannot 18 therefore be described as an act preparatory to the sale or as negotiations leading to the sale or even an agreement for sale.” [39] Sementara itu dalam kes yang sama YA Abdul Aziz Mohamad HMP menyatakan: ”For my part in considering the dictionary meaning of ’sell’ for the purpose of determining the ordinary meaning of ’selling’ in the definition of ’trafficking’, I would reject Webster meaning No. 2, without having to resort to the existence of paras (b) and (c) of s. 39B (1) as one that could not have been intended by the legislature. The meaning intended is No. 1, which for the present case is “to... deliver...goods...for money”. So long as the delivery is for money- which the delivery in this case was – as opposed to delivery as a gift or on some other basis, it is selling even though the money for which the goods are delivered has not passed to the seller. ……….. I am of course of the view that the act of selling takes place once the goods are transferred or delivered even though the price has not been paid.” [40] Berdasarkan fakta kes yang kami huraikan dalam alasan ini, terdapat fakta yang lebih daripada mencukupi (overwhelming) di hadapan Hakim Bicara bahawa wujudnya rundingan aktif antara SP2 dan Perayu berhubung transaksi menjual dan membekal dadah tersebut. Selain SP2 dan Perayu tidak ada apa-apa keterangan yang menunjukkan ada pihak ketiga yang terlibat sebagaimana yang didakwa oleh Perayu. Setelah 19 rundingan dijalankan yang tinggal ialah urusan pembayaran harga pembelian. [41] Walaupun dalam kes ini pembayaran harga dadah tersebut belum dibayar, ini tidaklah bermakna inti pati “menjual” tidak dibuktikan. Dalam kes Wan Marzuki Wan Abdullah v PP [2013] 1 CLJ 177 Mahkamah Persekutuan telah menyatakan: “Thus, in the present case, the non-payment of the agreed price should not mean that there was no actual delivery of the drugs on the appointed day. The court was in agreement with the view expressed by the Court of Appeal that actual delivery is a question of fact and degree and it depends on the particular facts of an individual case.” [42] Dalam kes Tarmizi Yacob & Anor v PP & Anor Appeal [2010] 8 CLJ 503 mahkamah memutuskan transaksi jual beli itu lengkap apabila (perayu dalam kes itu) telah menyerah dadah tersebut kepada PW10 dan hanya menunggu pembayaran apabila pihak polis bergerak untuk menangkap mereka. Suatu fakta yang jelas ialah penjualan itu lengkap apabila penyerahan dadah tersebut dibuat walaupun pembayaran belum lagi dibuat. Dalam kes di hadapan kami “flash rolled money” ditunjukkan kepada Perayu. [43] Dalam kes PP v Chia Leong Foo [2000] 4 CLJ 649 YA Hakim Mahkamah telah merujuk kepada kes Mahkamah Persekutuan iaitu PP v Mansor bin Mohd Rashid & Anor [1996] MLJ 560 dan menjelaskan: 20 “Subsection (1) of s. 39B (1) of the Act enumerates three separate and distinct offence relating to traficking in dangerous drugs. Section 2 of the Act defines “trafficking” as: …includes the doing of any of the following acts, that is to say, manufacturing, importing, exporting, keeping, concealing, buying, selling, giving, receiving, storing, administering, transporting, carrying, sending, delivering, procuring, supplying, or distributing any dangerous drugs; It must be observed that most acts that constitute “trafficking’ as defined in s. 2 of the Act like, for example,keeping, concealing, storing, transporting, and carrying dangerous drugs involved prerequisite element of possession unlike, for instance, the sale and supply of dangerous drugs which need not necesssarily involve posession as demonstrated by Pendakwa Raya v Mansor bin Mohd Rashid & Anor [1996] 3 MLJ 560.” [44] Dalam kes Pendakwa Raya v Mansor bin Mohd Rashid & Anor [1996] 3 MLJ 560 Mahkamah Persekutuan memutuskan: “Having regard to the evidence of this case, it is our view that the learned trial judge was unduly concerned with the exclusivity of possession of room ‘K’ and the custody or control of the cannabis in question in relation to Amran. It is essential to bear in mind that the case of the prosecution was not based on control or custody thereby invoking the presumption of possession, or on possession of 200g or more cannabis thereby attracting te presumption of traficking under s 37 (d) or (da)(iv) of the Act.The prosecution founded its case of traficking on ‘sale’ of the cannabis to PW9, the agent provocateur”. 21 [45] Berdasarkan fakta yang kami perturunkan dalam alasan ini, kami berpuas hati tidak berlaku apa-apa kekhilafan undang-undang dan / atau fakta yang memerlukan Mahkamah ini campur tangan dalam keputusan Hakim Bicara. Alasan (f), (g), (h) dan (i) Petisyen Rayuan [46] Alasan (f), (g), (h) dan (i) Petisyen Rayuan merujuk kepada dakwaan Perayu bahawa informer terlibat secara aktif dalam rundingan jual beli dadah tersebut. Peguam bela bijaksana Perayu telah menghujahkan atas kegagalan pihak pendakwaan memanggil informer sebagai saksi wujud kelompangan dalam kes pendakwaan. Oleh yang demikian, Hakim Bicara sewajarnya membangkitkan peruntukan seksyen 114 (g) Akta Keterangan 1950 terhadap pendakwaan. [47] Apabila peranan informer dicabar di Mahkamah seperti dalam kes ini, Mahkamah perlu menilai keterangan yang dibentangkan pendakwaan dan melihat sama ada informer telah bertindak secara aktif dalam rundingan dan transaksi penjualan dadah tersebut sehingga boleh disifatkan memainkan peranan sebagai AP. Ini merupakan persoalan fakta yang perlu dinilai oleh Mahkamah dengan teliti dan adil (lihat Munusamy v PP [1987] 1 MLJ 492). Kami perhatikan aspek ini telah dipertimbangkan oleh Hakim Bicara dengan amat berhati-hati. Jelas daripada fakta yang dihuraikan dalam alasan ini, informer hanya sekadar memperkenalkan SP2 kepada Perayu dan tidak terlibat secara langsung dalam rundingan dan / atau transaksi jual beli dadah dan / atau berperanan sebagai AP sebagaimana yang dihujahkan. Rundingan dan 22 transaksi dalam kes ini hanya melibatkan SP2 dan AP semata-mata. Keterangan juga menunjukkan informer tidak pernah muncul di tempat di mana rundingan dijalankan. Walaupun saksi-saksi pendakwaan telah disoal balas bertubi-tubi berhubung kehadiran informer di tempat kejadian, namun keterangan mereka tetap tidak tergugat (lihat soal balas SP2 di m.s. 69 (barisan 25 ke 35) -70 (barisan 5) Rekod Rayuan Jilid 2A baris 25-35 (m.s. 69). [48] Isu yang sama telah dibangkitkan dalam kes Osman Din v Pendakwa Raya [1955] 2 SLR 129 ; Lai Kam Loy v PP [1994] 1 SLR 787 ; Lim Young Sien v P.P [1994] 2 SLR 257 di mana mahkamah telah memutuskan bahawa informer bukanlah saksi yang wajib atau yang perlu dipanggil pendakwaan. Ini bergantung keadaan sekeliling kes. Dalam keadaan kes pendakwaan yang boleh dibuktikan terhadap tertuduh melalui keterangan lain yang bebas, kegagalan memanggil informer tidak menyebabkan berlakunya kelompangan dalam kes pendakwaan. [49] Terdapat juga kes di mana informer memainkan peranan yang lebih besar berbanding dengan kes di hadapan kami, mahkamah memutuskan kegagalan memanggil informer sebagai saksi tidak menjejaskan keputusan kes kerana terdapat keterangan yang lebih daripada mencukupi (overwhelming) untuk membolehkan mahkamah membuat keputusannya (lihat Namasiyam v PP [1987] MLJ 336). [50] Dalam kes Wan Yurilhami Wan Yaacob v PP [2010] 1 CLJ 17, dalam keadaan informer sekadar memperkenalkan AP kepada perayu 1 dan hadir semasa transaksi jual beli dadah dijalankan, mahkamah 23 memutuskan kehadiran informer ialah semata-mata untuk menyakinkan (to lend credence) perayu-perayu tentang niat AP untuk membeli dadah. Oleh yang demikian, informer bukan bertindak sebagai AP. [51] Jelas Hakim Bicara telah secara betul membangkitkan peruntukan seksyen 40 ADB yang memberikan perlindungan kepada informer. [52] Atas alasan yang kami huraikan di atas, kami berpuas hati alasan- alasan yang dibangkitkan Perayu tidak bermerit dan ditolak oleh mahkamah. Alasan (k) & (l) Petisyen Rayuan [53] Alasan (k) dan (l) berkaitan dengan dakwaan Perayu bahawa dalam kes ini tiada suatu penyiasatan yang lengkap dan menyeluruh dijalankan oleh pegawai penyiasat (SP6) dan kegagalan pihak pendakwaan mengemukakan log panggilan telefon Perayu. Kami bersetuju dengan hujahan pendakwaan bahawa isu yang dibangkitkan ini terlalu remeh sebab tidak terdapat apa-apa kelompangan wujud dalam kes pendakwaan. Ini adalah kerana keterangan yang dikemukakan adalah lebih daripada mencukupi (overhelming), Perayu melakukan kesalahan sebagaimana dituduh. Kes pendakwaan tidak memerlukan lain-lain keterangan sokongan (lihat kes Idris Harun v PP Appeal case No. P-05-42-2004). Seksyen 40A ADB terpakai dalam keadaan kes ini di mana undang-undang menyatakan keterangan AP tidak boleh dianggap sebagai tidak boleh dipercayai semata-mata dia telah cuba 24 bersubahat atau subahat itu semata-mata untuk mendapat keterangan terhadap orang yang disubahati. [54] Jelas alasan rayuan ini juga tidak bermerit. Alasan (m) & (n) Petisyen Rayuan [55] Alasan terakhir ialah dakwaan Perayu bahawa pertuduhan terhadap Perayu cacat dan / atau defektif. Perayu pada asalnya dituduh dengan tiga orang lain. Dua antara mereka, Tertuduh 2 dan Tertuduh 3 (di Mahkamah Tinggi) telah dilepas dan dibebaskan pada tahap akhir kes pembelaan. Peguam bela menghujahkan dalam keadaan ini pertuduhan wajar dipinda untuk menunjukkan bahawa hanya Perayu terlibat dengan kesalahan mengedar dadah tersebut. Setelah meneliti rekod prosiding, kami berpuas hati Perayu tidak dalam apa-apa keadaan diprejudis atas alasan yang dibangkitkan Perayu. Fakta berhubung kes ini adalah jelas dan dalam pengetahuan penuh Perayu. [56] Penegasan kami di atas disokong oleh kes Msimanga Lesaly v PP [2005] 4 MLJ 314 iaitu suatu kes di mana Perayu telah dituduh bersama seorang lain dan dengan niat bersama di bawah seksyen 34 Kanun Kesiksaan. Apabila tertuduh yang satu lagi dibebas dan dilepaskan pada tahap akhir kes pendakwaaan, dakwaan berasaskan niat bersama turut gugur. Dalam keadaan ini dihujahkan pendakwaan perlu meminda pertuduhan untuk meminda rujukan kepada inti pati Perayu bertindak dengan niat bersama. Mahkamah memutuskan perkara ini tidak boleh menyebabkan pertuduhan menjadi defektif terhadap Perayu. Ini adalah 25 kerana sudah menjadi undang-undang yang terasas seksyen 34 Kanun Kesiksaan tidak mewujudkan suatu kesalahan substantif tetapi semata- mata suatu kaedah undang-undang untuk menggambarkan tanggung jawab bersama oleh beberapa orang. (Lihat juga kes Chota bin Abdul Razak v PP [1991] 3 MLJ 77; Teh Thiam Huat v PP [1996] 3 SLR 631). [57] Berdasarkan alasan ini, hujahan peguam bela perayu ditolak. Penutup [58] Berdasarkan alasan-alasan yang telah kami huraikan dalam penghakiman ini, kami sebulat suara menolak rayuan Perayu dan mengekalkan keputusan Hakim Bicara terhadap sabitan dan hukuman. Kami berpuas hati sabitan dan hukuman adalah selamat. Bertarikh : 2 Oktober 2017 signed (ASMABI BINTI MOHAMAD) Hakim Mahkamah Rayuan Malaysia 26 Peguam Bela Perayu: Tetuan Gerard Lazarus & Associates No.27, Tingkat 2 Jalan Tengku Kelana 41000 Klang Selangor Darul Ehsan Pendakwaan: Timbalan Pendakwa Raya Jabatan Peguam Negara Bahagian Perbicaraan & Rayuan Aras 5, No. 45, Lot 4G7 Presint 4, Persiaran Perdana 62100 Putrajaya	35,328	Tika 2.6.0
B-02(NCVC)(W)-638-04/2016	PERAYU 1. BULYAH BINTI ISHAK (NO. K/P: 740108-14-5054) 2. NORAINI BINTI ABDULLAH (NO. K/P: 690225-01-5918) (Pentadbir-Pentadbir Harta Pusaka NOR ZAINIR BIN RAHMAT) … PERAYU - PERAYU RESPONDEN AMBANK (M) BERHAD (NO. SYARIKAT: 8515-D) (Dalam Penggulungan) … RESPONDEN	Land Law — Appeal— Indefeasibility of title and interests — Whether 1st Defendant was merely holding as a “bare trustee” for the deceased — Whether 4th defendant an immediate purchaser or a bona fide party or privy to information pertaining to Exhibit P1, P2 and D25 — Whether 4th defendant's knowledge and fides of the 4th defendant relevant for the purpose of Section 340 (2) of the National Land Code — Whether proviso to s 340(3) of the National Land Code applicable — National Land Code, section 340	02/10/2017	YA DATO' ASMABI BINTI MOHAMADKorumYA DATUK DR. PRASAD SANDOSHAM ABRAHAMYA DATO' ZAMANI BIN A. RAHIMYA DATO' ASMABI BINTI MOHAMAD	https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=927c47c4-981d-4e4a-a10f-f075972a56ce&Inline=true	1 DALAM MAHKAMAH RAYUAN DI MALAYSIA (BIDANGKUASA RAYUAN) RAYUAN SIVIL NO. : B-02(NCVC)(W)-638-04/2016 ANTARA 1. BULYAH BINTI ISHAK (NO. K/P: 740108-14-5054) 2. NORAINI BINTI ABDULLAH (NO. K/P: 690225-01-5918) (Pentadbir-Pentadbir Harta Pusaka NOR ZAINIR BIN RAHMAT) …PERAYU-PERAYU DAN AMBANK (M) BERHAD (NO. SYARIKAT: 8515-D) (Dalam Penggulungan) …RESPONDEN DENGAN DALAM MAHKAMAH RAYUAN DI MALAYSIA (BIDANGKUASA RAYUAN) RAYUAN SIVIL NO. : B- 02(NCVC)(W)-803-04/2016 HE-CON SDN BHD (NO. SYARIKAT: 270572-M) (Dalam Penggulungan) …PERAYU DAN 1. BULYAH BINTI ISHAK (NO. K/P: 740108-14-5054) 2 2. NORAINI BINTI ABDULLAH (NO. K/P: 690225-01-5918) (Pentadbir-Pentadbir Harta Pusaka NOR ZAINIR BIN RAHMAT) …RESPONDEN-RESPONDEN DAN [DALAM PERKARA DI MAHKAMAH TINGGI MALAYA DI SHAH ALAM NEGERI SELANGOR DARUL EHSAN, MALAYSIA GUAMAN NO: 22-NCVC-307-04/2013 ANTARA 1. BULYAH BINTI ISHAK (NO. K/P: 740108-14-5054) 2. NORAINI BINTI ABDULLAH (NO. K/P: 690225-01-5918) (Pentadbir-Pentadbir Harta Pusaka NOR ZAINIR BIN RAHMAT, simati) …PLAINTIF-PLAINTIF DAN 1. HE-CON SDN BHD (NO. SYARIKAT: 270572-M) (Dalam Penggulungan) 2. TEOW BENG HUR (NO. K/P: 610326-01-6247) 3. NARRIMAH BINTI ABDULLAH (NO. K/P: 541023-01-5806) 4. AMBANK (M) BERHAD (NO. SYARIKAT: 8515-D) …DEFENDAN-DEFENDAN Keputusan yang diberikan oleh Yang Arif Dato’ Ahmad Zaidi bin Ibrahim pada 7.3.2016] 3 CORAM: PRASAD SANDOSHAM ABRAHAM, JCA ZAMANI BIN A. RAHIM, JCA ASMABI BINTI MOHAMAD, JCA (Asmabi Binti Mohamad JCA, delivering Judgment of the Court) JUDGMENT OF THE COURT INTRODUCTION [1] There are two appeals fixed before us. Appeal No. B-02(NCVC)(W)-638-04/2016 (“Appeal No. 638”) is an appeal by the Appellants, Bulyah Binti Ishak and Noraini Binti Abdullah, the Administrators of the Estate of Nor Zainir Bin Rahmat (the 1st and 2nd Plaintiff/Plaintiff against of the decision of the learned High Court Judge of Shah Alam (“the learned Judge”) dated 07.03.2016 made after a full trial, which dismissed the Plaintiffs’ claim against Ambank (M) Berhad (“the 4th Defendant”) with costs of RM15.000.00. [2] Appeal No. B-02(NCVC)(W)-803-04/2016 (“Appeal No. 803”) is an appeal by the Appellant, He-Con Sdn Bhd (the 1st Defendant) against part of the decision of the learned Judge which allowed the Plaintiffs’ claim against the Appellant as per prayer (p) of the Statement of Claim, a declaration that the deceased was the beneficial owner of a 3½ Storey Shop Lot at No. 31, Jalan Tengku Ampuan Zabedah J9/J, Seksyen 9, 4 40100 Shah Alam, Selangor Darul Ehsan under Title No. HDS 151345, Lot No. P.T. 917 Mukim Bandar Shah Alam, Daerah Petaling, Selangor (“the Property”) with costs of RM15,000.00. [3] Both Appeal No. 638 and Appeal No. 803 were consolidated vide an order of this Court dated 31.05.2016. Parties had also informed the Court that for the purpose of these two appeals they would be referring to the Records of Appeal as in Appeal No. 638. [4] We will refer to the parties as they were described in the High Court. BRIEF BACKGROUND FACTS [5] The Plaintiffs are the joint administrators of the Estate of Nor Zainir bin Rahmat, the deceased (“the deceased”) who passed away on 26.06.2002. The 1st Plaintiff is also the widow of the deceased. [6] The 1st Defendant, who is the appellant in Appeal No. 803 is a company set up under the Companies Act 1965. The 1st Defendant has since been wound up. The 2nd and 3rd Defendants are directors of the 1st Defendant. Both the 2nd and 3rd Defendants are bankrupts. [7] The 4th Respondent (“the 4th Defendant”) is a licensed financial institution which registered address is at Level 22, Bangunan Ambank Group, Jalan Raja Chulan, 50200 Kuala Lumpur. 5 [8] Pursuant to a Sale and Purchase Agreement dated 22.12.1997 (“the Agreement”), the deceased agreed to purchase the Property from the 1st Defendant. The deceased paid the purchase price in full (see Exhibits P1 & P2 at page 584-594 & 665-668 Volume 2(3) of Appeal Record (AR)). [9] By a Power of Attorney dated 26.04.2002 which was registered in the High Court of Kuala Lumpur on 30.04.2002 under Presentation No. 29803/02, the 1st Power of Attorney (see Exhibit P2 at pages 665-668 Volume 2(3) AR), the 1st Defendant appointed and / or named the deceased the “Attorney” of the Property. Paragraph 3, of the 1st Power of Attorney states that it is an irrevocable power of attorney. [10] Pursuant to the Power of Attorney dated 21.05.2012, registered in the High Court of Kuala Lumpur on 19.07.2002 vide Presentation No.18192/02, the 2nd Power of Attorney (see Exhibit P3 at pages 669- 674 Volume 2(3) of AR), the deceased appointed the 1st Plaintiff as the “Substitute Attorney”. [11] The deceased died on 26.06.2002. The Letters of Administration was issued on 09.11.2005 vide Petition No. S7-31-280-2004. Both the Plaintiffs were appointed as administrators of the estate of the deceased (see Exhibit P5 at pages 606-609 Volume 2(3) AR)). [12] At the time the title of the said Property was to be issued, the 1st Plaintiff had requested that the title to be registered in her name. However, the developer refused to give its consent for direct transfer (see 6 Exhibits P7, P8, P9, P10, P11 (at pages 595-596, 597-598, 599, 600- 601, 602-603 Volume 2(3) of AR). [13] The 1st Plaintiff later found out the stamp duties and assessment bills for the said Property were in the sum of RM110,355.60. The sum was too high, the 1st Plaintiff could not afford to pay the stamp duties and the assessment as she had three small children to support. Due to financial constraint, the 1st Plaintiff postponed the idea to effect the transfer of the Property to her name. [14] The 1st Plaintiff obtained the order from the Kuala Lumpur High Court to administer the Property vide vesting order dated 09.12.2008 (See Exhibit P6 (at pages 615-616 of Volume 2(3) of AR 2(3)). [15] Towards the end of 2011, the 1st Plaintiff discovered that the 1st Defendant, who was no longer the owner of the Property, having sold it to the deceased and received the full purchase price, had charged the Property to the 4th Defendant. This was done without the 1st Plaintiff’s permission and / or consent (see pages 468-501 Volume 2(2) of AR, pages 502-523, 524-547 of Volume 2 of AR 2(3)). The 1st Plaintiff then lodged two police reports, on 29.11.2011 vide Jalan Tun Razak Police Report No. M8739/11 and on 30.07.2012 vide Dang Wangi Police Report No. 029961/12 respectively (see Exhibits P16 & P16(a) at pages 632 and 642 Volume 2(3) AR). 7 [16] On 10.01.2012, the 1st Plaintiff lodged a private caveat over the Property vide Presentation No. 1129/2012. However, the same was removed (see Exhibit P7 (at pages 655 Volume 2(3) of AR). [17] The 1st Plaintiff through her solicitors demanded for an explanation from the 4th Defendant pertaining to the charge vide a letter dated 09.08.2012 (see Exhibit P18 at pages 643-644 Volume 2(3) AR)). The 4th Defendant responded to the said letter by serving the 1st Plaintiff with the cause papers pertaining to the action commenced by the 4th Defendant, seeking for, amongst others, an order for sale of the Property as the 1st Defendant had breached the terms and conditions of the financing facilities. An order for sale was granted and the Property was scheduled for auction on 08.04.2013. However, the Plaintiffs filed this action to recover the Property. [18] After hearing two witnesses for the Plaintiffs and one witness each from the 1st and 4th Defendants respectively, the learned Judge allowed the Plaintiff’s claim against the 1st Defendant with cost of RM15,000.00. With respect to the Plaintiff’s claim against the 4 th Defendant, the learned Judge dismissed the Plaintiffs’ claim against the 4th Defendant with costs of RM15,000.00. The learned Judge further ordered the 4 th Defendant to proceed with the auction of the Property to recover the amount due to it and if there is any surplus from the sale, the said sum shall be paid to the Plaintiffs. 8 [19] The Plaintiffs appeal against the learned Judge’s order in dismissing their claim against the 4 th Defendant. The 1st Defendant on the other hand appeals against the order of the learned Judge in allowing the Plaintiffs claim against the 1st Defendant. THE MEMORANDUM OF APPEAL FOR B-02(NCVC)(W)-638-04/2016 [20] The summary of the issues raised in the Memorandum of Appeal were as follows: (a) The learned Judge erred in law and fact when the learned Judge has misdirected his mind to the principles enunciated in the two Federal Court cases, Kamarulzaman Omar & Ors v Yakub Husin & Ors [2014] 1 CLJ 897 (Kamarulzaman) and Samuel Naik Siang Ting v Public Bank Bhd [2015] 8 CLJ 944 (Samuel Naik). (b) The learned Judge erred in law and fact when the learned Judge had failed to direct his mind to the fact that after the Plaintiffs’ claim against the 1st Defendant was allowed, consequentially, the Plaintiffs’ claim against the 4th Defendant too must be allowed. (c) The learned Judge erred and misdirected himself in law and fact when he failed to direct his mind to the fact that the Presentations Nos. 52709/2010, 52710/2010 and 52711/2010 all dated 27.05.2010 are defeasible under 9 section 340 (2) of the National Land Code (NLC) as the 4th Defendant is the immediate holder and / or charger of the Property. (d) The learned Judge had erred and misdirected himself in law and fact when he failed to direct his mind to the fact that the 1st Defendant had no right to allow the 4th Defendant to execute the instrument for the registration of the charge over the said Property as the 1st Defendant was only a “bare trustee” of the said Property, having sold the same to the deceased and received the full purchase price as stated in the 1st Power of Attorney dated 26.04.2002 which was registered in the High Court Kuala Lumpur on 30.04.2002 (Registration No: 29503/02). (e) The learned Judge had erred and had misdirected his mind in law and fact when he failed to direct his mind to the fact that the 1st Defendant had no right to charge the said Property and / or the 4th Defendant has no right to execute the registration of the charge in its favour, as the power to do was vested on the deceased as stipulated in Clause 4 of the 1st Power of Attorney and / or the 1st Plaintiff as stated in Clause 3 of the 2nd Power of Attorney dated 21.05.2002 and registered in the High Court of Kuala Lumpur on 19.07.2002 (Registration No. 13192/02). 10 (f) The learned Judge had erred and misdirected himself in law and in fact when he decided that the 4 th Defendant had no knowledge about the fraud committed by the 1st Defendant when the issue of fides of the 4th Defendant were not relevant to its defence. (g) The learned Judge had erred and misdirected his mind in law and in fact when the learned Judge, despite having decided that the deceased and / or the Plaintiffs were the beneficial owners of the Property went on to direct the 4 th Respondent to proceed with the auction of the said Property and be entitled to the proceeds, the remaining balance if any, to be paid to the Plaintiffs. (h) The learned Judge had erred and had misdirected his mind in law and in fact when the learned Judge failed to direct his mind to the fact that the instrument pertaining to the registration of the charge by the 4th Defendant was void and of no effect. (i) The learned Judge erred and had misdirected his mind in law and fact when he dismissed the Plaintiffs’ claim against the 4th Defendant. 11 IN THE HIGH COURT The Plaintiffs’ case [21] Before the High Court, the following evidence was adduced through the 1st Plaintiff (SP2) and one, Bhadarul Baharain bin Sulaiman (SP1), the solicitor involved in the preparation and execution of the Agreement, Powers of Attorney: (a) The deceased had purchased the Property from the 1st Defendant on 22.12.1997 vide the Agreement (“Exhibit P1”). This was supported by the Resolution of the Board of Directors of the 1st Defendant (“Exhibit D25”) (at page 660 of Volume 2(3) of AR). The deceased had paid the full purchase price of RM2,133,651.00 (“Exhibit P2”). However, before the Property could be transferred to the deceased, the deceased passed away (Exhibit P4 at page 296 of Volume 2(2) of AR). Before the deceased passed away, the deceased had executed the 2nd Power of Attorney dated 21.05.2002 wherein the deceased has appointed the 1st Plaintiff as “Substitute Attorney” (Exhibit P3). Both these Powers of Attorney had been duly registered in Kuala Lumpur High Court (Exhibits P2 & P3). (b) At the time the Agreement was executed the individual grant of the Property had not yet been issued by the Land Office. 12 (c) During the time the Powers of Attorney were executed, the said Property had not been fully constructed. When the Property was completed around 2004, the 1st Plaintiff had requested the developer, Sunway Masalam Sdn Bhd to register the Property in the name of the deceased but the developer refused and had registered the Property in the name of the 1st Defendant instead. (d) On 09.12.2008, the 1st Plaintiff managed to get the consent of the Court to transfer the estate of the deceased, including the Property in her name (Exhibit P6 (at pages 615 – 616 of Volume 2(3) of AR)). (e) The 1st, 2nd and 3rd Defendants were fully aware that the 1st Plaintiff was one of the administrators of the estate of the deceased. Further after Exhibits P1 and P2 were executed, the 1st to the 3rd Defendants were never involved in any of the transactions concerning the Property. (f) All payments of bills pertaining to quit rent and assessment were paid by the 1st Plaintiff representing the estate of the deceased. All these receipts were in the name of the deceased (Exhibit P13 (at pages 610-614) & Exhibit P14 (at pages 617-624) of Volume 2(3) of AR). (g) The 1st Defendant agreed to transfer the said Property in the name of the estate of the deceased, however they failed to do 13 so and had fraudulently charged the said Property to the 4th Defendant despite knowing that the said Property belong to the deceased. (h) The 1st Defendant had charged the said Property to the 4 th Defendant on 27.05.2010 as a security for financial facilities it obtained from the 4th Defendant. The instruments for the purpose of the charge were executed by the 2nd and 3rd Defendants on behalf of the 1st Defendant without the consent of the 1st Plaintiff as the administrator of the estate of the deceased. The 1st Plaintiff had lodged Police reports concerning this matter. (i) SP1 was the solicitor involved with the preparation of the Agreement (“Exhibit P1”), the 1st Power of Attorney (“Exhibit P2”) and the 2nd Power of Attorney (“Exhibit P3”). According to SP1 both the 1st Defendant and the deceased agreed that the purchase price had been paid in full. SP1 was also the solicitor who was involved with the registration of the 1st and 2nd Power of Attorney. (j) There were elements of fraud involved which resulted in the registration of the charge instrument in favour of the 4 th Defendant. The 4th Defendant was also negligent in not conducting a search with the proper authority to ascertain the status of the ownership of the Property before or after registering the charge instruments. 14 Case for the 1st Defendant’s case [22] Vide its witness, one Tee Siew Kai (SD1), the Liquidator of 1st Defendant, the 1st Defendant stated as follows: (a) SD1 was appointed as the liquidator of the 1st Defendant vide an order of the Shah Alam High Court dated 10.12.2012. SD1 became aware of the Plaintiff’s claim only on 01.04.2013. He tried to contact the 1st Defendant’s directors, Teo Beng Hur and Narrimah binti Abdullah (“the 2nd & 3rd Defendant cited herein”) requesting them to hand over, amongst others, the Statement of Affairs”, books and records relating to the 1st Defendant in their possession but until the time he stood as the witness in Court these Defendants had not responded. Despite reminders having been sent there was no response from any of them. (b) During SD1’s examination of the affairs of the 1st Defendant, SD1 discovered a Director’s Resolution dated 26.04.2004 authorising the 1st Defendant to enter the 1st Power of Attorney with the deceased with respect to the sale and purchase of the Property together with unattested copy of the 1st alleged Power of Attorney signed by the 2nd and 3rd Defendant. SD1 had also confirmed the existence of the Agreement and the two Powers of Attorney. From the 15 documents SD1 obtained from the Receiver & Manager SD1 also sighted the Agreement, 1st and 2nd Power of Attorney. (c) SD1 couldn’t not verify the authenticity of the documents as he had no personal knowledge. (d) SD1 could not retrieve any documents to prove the payment of the purchase price in the sum of RM213,363.10 and RM1,920,267.90 respectively, allegedly paid by the deceased to the 1st Defendant. According to SD1, there was nothing to prove that the sale and purchase of the Property had been concluded. (e) SD1 confirmed that he did not send Exhibit P2 for analysis by a handwriting expert to ascertain the authenticity of the document as well as the signatures contained in the document which were relied by the Plaintiffs. (f) SD1 testified that he had no personal knowledge pertaining to the Agreement and all transactions involving the said Property. (g) According to SD1, the 1st Defendant is hopelessly insolvent and does not have any available cash. The 1st Defendant will not be able to satisfy the judgment, in event judgment is awarded to the Plaintiffs. 16 Case for the 4th Defendant [23] The 4th Defendant through its Manager, one Michael Khong Khai Tuck (SD2) testified as follows: (a) The 4th Defendant had granted General Banking Facilities to the 1st Defendant consisting of Contract Financing Facility, Overdraft Facility and Trade Facility. A Facility Agreement was executed between the 1st Defendant and the 4th Defendant. (b) The 1st Defendant was required to provide security with respect of the banking facilities. There was a resolution of the Directors of the 1st Defendant dated 10.09.2009 which resolved that the 1st Defendant shall create a 1st party charge over the Property. As a result of that three charges were created by the 1st Defendant in favour of the 4th Defendant. (c) Before executing the charge instruments, the 4th Defendant had conducted a proper search on the Property and found that the 1st Defendant was the registered owner of the Property and the Property was free from all encumbrances. However, the 4th Defendant did not see it fit to visit and / or view the Property. (d) As the 1st Defendant had breached the terms of financing Agreement, the 4th Defendant then terminated the financing 17 agreement, withdrew all facilities granted to the 1st Defendant and commenced proceedings to obtain an order for sale of the Property from the Kuala Lumpur High Court. (e) At the time the 1st Defendant applied for the financing facilities the 4th Defendant had no information pertaining to the existence of the Agreement between the 1st Defendant and the deceased and / or the existence of the Power of Attorney executed by the deceased and the 1st Defendant and the “Substitute Attorney”. Neither was there any site visit made to the Property. The Decision of the High Court [24] The findings of the learned Judge are as follows: (a) The deceased is the owner of the Property as the deceased had purchased the Property and paid the full purchase price of the Property to the 1st Defendant. The evidence of the Plaintiffs pertaining to the above was more probable as compared to the 1st Defendant. The Plaintiffs’ evidence was supported by documentary evidence in the form of Exhibit P2 which confirmed that the full purchase price had been paid to the 1st Defendant. (b) Exhibit P2 was signed by the manager of the 1st Defendant and witnessed by the Plaintiffs’ witness, SP1, an advocate 18 and solicitor. Exhibit P2 was duly stamped in accordance with the applicable law. The 1st, 2nd and 3rd Defendants had never disputed the signing of the document and / or claim that the same is false. The 2nd and 3rd Defendants were not called by the 1st Defendant to challenge the evidence of the Plaintiffs. (c) The burden is on the 1st Defendant to secure the attendance of the 2nd and 3rd Defendants as witnesses in court to prove their case. (d) The 1st Defendant had not taken steps to challenge the authenticity of the document by sending the same to the handwriting expert for verification. No police report was lodged by the 1st Defendant. Only the 2nd and 3rd Defendant would be in a position to challenge the Plaintiffs’ evidence. The learned Judge had invoked the provision of section 114 (g) of the Evidence Act 1950 against the 1st Defendant. (e) The 1st Defendant could not prove its allegation that the deceased did not have the means to pay that huge sum of money to the 1st Defendant. The 1st Defendant could not counter the overwhelming evidence offered by the Plaintiffs in the form the Agreement and the 1st and 2nd Power of Attorney. (f) The fact that the 1st Defendant is the immediate owner of the Property was not disputed. The 1st Defendant had bought the Property when it was still under construction. The ownership 19 can still be disputed and / or the title is defeasible if the elements mentioned under section 340 (2) of the NLC existed. (g) There were affirmative findings that the deceased was the lawful owner of the Property. The 1st Defendant knew from the outset that the purchase price had been paid in full to the 1st Defendant. As such the 1st Defendant was holding the Property as a “bare trustee” for the deceased and had no right to deal with the Property. (h) As the 1st Power of Attorney was an irrevocable power of attorney and for valuable consideration, all rights and interest in the Property had been transferred to the deceased and subsequently by virtue of the 2nd Power of Attorney the rights and obligations had been transferred by the deceased to the 1st Plaintiff. (i) The 1st Defendant failed to produce evidence to show that the Administrators of the Estate of the deceased had given permission and / or mandate to 1st Defendant to charge the Property as a security for financial facilities granted to it by the 4th Respondent. (j) The Property belong to the deceased and the 1st Defendant was merely holding the Property as a “bare trustee” for the deceased. Therefore, the 1st, 2nd and 3rd Defendants had no power and / or authority to charge the Property to the 4 th 20 Defendant as a security for the financing facilities the 1st Defendant took from the 4th Defendant. (k) The 4th Respondent was a bona fide party. There was no evidence to prove that the 4 th Defendant was negligent. Further it was disclosed during the trial that the approach taken by the Plaintiff was that the 1st, 2nd and 3rd Defendants had intentionally suppressed the information pertaining to Exhibit P1, P2 and D25 from the 4th Defendant at the time the application for the facilities was made. (l) The 4th Defendant had taken all reasonable measures to verify the status of the Property before the loan was approved. The search conducted by them proved that the 1st Defendant was the owner of the Property and the Property was free from all encumbrances. Based on the aforesaid the Plaintiffs had failed to prove that the charge was void and unenforceable. (m) The fact that the 1st Defendant had breached the terms of the financing facilities was not disputed. The process undertaken by the 4th Defendant in securing the order for sale is in order, the forfeiture of the Property was in accordance with the law. Therefore, the 4th Defendant has the right to proceed with the said auction, any amount remaining from the sale shall be paid to the Plaintiffs. 21 OUR DECISION The law [25] We were mindful of the limited role of the appellate court in relation to findings of facts made by the court of first instance. [26] In the course of that, we had sought guidance from the very often quoted case of Lee Ing Chin @ Lee Teck Seng v Gan Yook Chin [2003] 2 MLJ 97 where the Court of Appeal held as follows: “an appellate court will not, generally speaking, intervene unless the trial court is shown to be plainly wrong in arriving at its decision. But appellate interference will take place in cases where there has been no or insufficient judicial appreciation of the evidence.” [27] Reference is also made to the decision of the Federal Court in Gan Yook Chin v Lee Ing Chin @ Lee Teck Seng [2004] 4 CLJ 309 where the Federal Court held that the test of “insufficient judicial appreciation of evidence” adopted by the Court of Appeal was in relation to the process of determining whether or not the trial court had arrived at its decision or findings correctly on the basis of the relevant law and the established evidence. 22 The Appeals Before Us Appeal No. 803 [28] Having heard the evidence of the Plaintiffs’ witnesses and the evidence of SD1 as well as the documents that were tendered in Court, the learned Judge accepted the evidence of the Plaintiff as being more probable as compared to the evidence of SD1. The learned Judge went on to rule that the Plaintiffs had successfully proven that the purchase price for the said Property had been fully settled by the deceased based on the evidence of the 1st Plaintiff (SP2) and the solicitor (SP1) responsible for the preparation and execution Exhibits P1, P2 and P3 respectively. The evidence of the Plaintiffs was further supported by Exhibit D5, the 1st Defendant’s Circular Resolution dated 26.04.2002 which authorized the 2nd Defendant to sign all documents pertaining to the Power of Attorney on behalf of the 1st Defendant. The learned Judge held that the deceased is the rightful owner of the Property. [29] The 1st Defendant failed to challenge the evidence of the Plaintiffs pertaining to the existence of Exhibits P1, P2 and P3 or D5, as SD1 had no documents with him. All documents relevant to the case are still in the possession of the 2nd and 3rd Defendants who were not called as witnesses for the 1st Defendant. Neither, SD1, the 1st Defendant or the 2nd and 3rd Defendant for that matter had taken steps to challenge the authenticity of Exhibit P2. No police report was lodged and / or the documents sent for analysis to ascertain the authenticity of this document. Neither did SD1 verify with the 2nd and 3rd Defendants if they 23 had executed the same as they were the very persons who would be in the position to verify the authenticity of the document. [30] We noted that SD1 was appointed as a liquidator for the 1st Defendant only on 10.12.2012 vide an order of the Shah Alam Court dated 10.12.2012. SD1 testified that he became aware of the Plaintiff’s claim only on or about 01.04.2013. SD1 had also testified that he had no knowledge pertaining to Exhibits P1, P2 and P3 and other documents of the 1st Defendant as the same are still in the possession of the 2nd and 3rd Defendants who had refused to accede to SD1’s request to provide the documents. We observe Exhibits P1, P2 and P3 were executed on 22.12.1997, 26.04.2002 and 30.04.2002 respectively. The terms of Exhibit P2 are clear. Therefore, no evidence shall be given in proof of the terms of Exhibit P2 except the document itself. When the terms of the agreement have been reduced to writing parties are bound by the terms of the agreement and the agreement could only be proved by the agreement itself (see Section 91 of the Evidence Act 1950; Tindok Besar Estate Sdn Bhd v Tinjar & Co [1979] 1 LNS 119 ; MBF Leasing Sdn Bhd v Eng Poh Hong [2004] 6 CLJ 473). [31] As SD1 has no personal knowledge pertaining to the facts surrounding the sale and purchase of the Property and / or the execution of Exhibit P2 and P3, having come to the scene many years after Exhibits P1, P2 and P3 were executed and had no documents with him, he would not be in the position to offer evidence to the contrary to disprove the Plaintiffs’ case. 24 [32] We are of the view that the learned Judge had rightly invoked the provision of Section 114(g) of the Evidence Act 1950 against the 1st Defendant due to the non-calling of the 2nd and 3rd Defendants in Court as these Defendants had personal knowledge of the matter and would be in a better position to provide the best evidence for the 1st Defendant. The burden lies on the 1st Defendant to call the 2nd and 3rd Defendants to testify on its behalf. This finding is in line with the provision of Section 103 of the Evidence Act 1950 (see Maju Holdings Sdn Bhd v Fortune Wealth (H-K) Ltd & Other Appeals [2004] 4 CLJ 282 ; Formosa Resort Properties Sdn Bhd v Bank Bumiputra Malaysia Bhd [2010] 6 CLJ 530). [33] Based on the aforesaid, we found that the findings of the learned Judge are predicated on the evidence that was presented before him. Hence we found no appealable error on the part of the learned Judge that merit curial intervention. Appeal No. 603 [34] Turning now to the appeal filed by the Plaintiffs against the decision of the learned Judge to dismiss the Plaintiffs’ claim against the 4th Defendant. It was the contention of the Plaintiffs, once the claim of the Plaintiffs against the 1st Defendant is allowed, the Plaintiffs’ claim against the 4th Defendant ought to be allowed. [35] Having resolved that the 1st Power of Attorney is an irrevocable power of attorney and for valuable consideration and that the deceased 25 is the rightful owner of the Property, the next issue to be considered is whether the learned Judge was right in dismissing the Plaintiffs’ claim against the 4th Defendant. As shown above the 4th Defendant is a financial institution which had provided the financial facilities to the 1 st Defendant with the Property being pledged as a first party charge in favour of the 4th Defendant. [36] The 4th Defendant argued that it had no knowledge about the claim. Based on its own search, the 4th Defendant was satisfied, the 1st Defendant is the registered owner of the Property. The Plaintiffs were not privy to the charge which only involved the 1st Defendant and the 4th Defendant. [37] The next issue to be considered is whether for the purpose of Section 340 (2) of the NLC knowledge and fides of the 4th Defendant are relevant. [38] Section 340 (2) of the NLC states that the title and interest of a person or body shall not be indefeasible: (a) In event of fraud or misrepresentation where the person or body, or agent of the person or body was privy to; (b) In cases where the registration was secured by forgery, or by mean of an insufficient or void instrument. 26 [39] Subsection 340 (3) of the NLC states that in cases where the title or interest of any person or body is not indefeasible due to the circumstances illustrated above, it shall be liable to be set aside in the hands of any person or body to whom it may be subsequently transferred. [40] The learned Counsel for the Plaintiffs had stated in the Memorandum of Appeal that the learned Judge had erred and misdirected himself in law and in fact when His Lordship had ignored the established principles enunciated in the Federal Court case of Kamarulzaman Omar & Ors v Yakub Husin [2014] 1 CLJ 897 (“Kamarulzaman”) and followed by Samuel Naik Siang Ting v Public Bank Bhd [2015] 8 CLJ 944 (“Samuel Naik”) which provide the trial courts the guide on how to deal with the situation when the challenge is made under Section 340 (2) as follows: (a) Firstly, the court must ascertain if the title or interest in dispute is registered in the name of an immediate purchaser or a subsequent purchaser; (b) In the event the title or interest is registered in the name of an immediate purchaser, the court will not “offer a shield of indefeasibility”. The title is still liable to be set aside. [41] Guided by the above high authorities against the factual matrix of the case at hand, we are satisfied that the 4 th Defendant is an immediate holder of the charge. Therefore, as illustrated above the fides of the 4th Defendant are irrelevant. 27 [42] The Plaintiffs argued as the learned Judge had ruled that the deceased is the rightful owner of the Property as he had paid the full purchase price, the 1st Defendant is merely holding the said Property as a “bare trustee” to the deceased. In view of this, the learned Judge ought to have made a finding that the Plaintiffs’ case against the 4 th Defendant ought to be allowed. [43] We found merit in this argument. After having made the findings the full price for the said Property had been paid, the 1st Defendant stood in the position of a “bare trustee’ to the deceased. As a “bare trustee”, the 1st Defendant could not deal with the Property or treat as if the Property belong to him. Further in this case an irrevocable power of attorney had been executed. Clause 4 of Exhibit P2 states that the deceased had the sole right to deal with the Property. In view of the aforesaid, the transaction entered into by the 1st Defendant and the 4th Defendant for the purpose of the financing facilities is void ab initio. Hence, the learned Judge ought not to have dismissed the Plaintiffs’ case against the 4th Defendant. Obviously, His Lordship’s decision to dismiss the Plaintiffs’ claim and allow the 4 th Defendant to proceed with the order for sale of the Property went against the principle enunciated in Kamarulzaman and Samuel Naik. From the cases cited herein a vendor who is a “bare trustee” has no beneficial interest in the Property. Therefore, the said vendor is not authorized by law to sell, transfer or deal with the Property to the new purchaser or holder of my interest in the land. There is sufficient evidence before us that the 1st Plaintiff had taken possession of the Property and had been paying quit rents and 28 assessment bills to the proper authorities (see paragraph 20(f)) of this Grounds of Judgment). [44] The learned Counsel for the Plaintiffs had referred us to the Supreme Court case of Yeong Ah Chee v Lee Chong Hai & Anor and Other Appeals [1994] 3 CLJ 20 where it was held that “When the full purchase price is paid, the vendor becomes a bare trustee for the purchaser”. In OCBC Bank (Malaysia) Bhd V Pendaftar Hakmilik Negeri Johor Darul Takzim [1999] 2 CLJ 949 the Court of Appeal clarified that the word “interest” used in Section 340 (2) of the NLC also applies to an interest in the form of a charge or a lease. [45] Notwithstanding the fact that the Plaintiffs in this case had not taken steps to lodge a caveat, it did not mean that the Plaintiffs’ rights and interest are vitiated, as in law a caveat does not create interest or rights (see Samuel Naik [supra]). [46] We found, the learned Judge erred and misdirected his mind as to the law and fact, when His Lordship ruled that the 4 th Defendant was a bona fide party and was not negligent in causing the charge over the Property to be registered in its favour. There is clear and blatant disregard to the established principles enunciated in Kamarulzaman and Samuel Naik as discussed above. 29 CONCLUSION [47] Having examined the pleadings, the notes of proceedings, and having heard the respective learned Counsels, we found that with respect to Appeal No. 803, the learned Judge had sufficiently evaluated the evidence before His Lordship both testimonial and documentaries and had correctly allowed the Plaintiffs’ claim against the 1st Defendant. We are satisfied there was no appealable error which merit our intervention. [48] With respect to Appeal No.638, are as we have illustrated in the preceding paragraphs we found that the learned Judge fell into error in failing to appreciate the principles of law enunciated in in Kamarulzaman and Samuel Naik. We were constrained to hold that the learned Judge failed to judicially appreciate the evidence and / or the law presented before him so as to render his decision plainly wrong and upon curial scrutiny merit our appellate intervention. [49] Based on the aforesaid, we unanimously affirm the learned Judge’s decision which allowed the Plaintiffs’ claim against the 1st defendant with costs of RM15,000.00. With respect to the Plaintiff’s appeal against the decision of the learned Judge which dismissed the Plaintiff’s claim against the 4th Respondent, we allowed the Plaintiffs’ appeal with costs of RM15,000.00. Accordingly, we set aside the order of the learned Judge. We further order that the costs shall be subject to payment allocateur fees. 30 [50] We therefore ordered accordingly. Dated this 2nd October 2017. (ASMABI BINTI MOHAMAD) Judge Court of Appeal, Malaysia 31 Parties: 1. Messrs Akberdin & Co Advocate & Solicitor For and on Behalf of the Appellants No.AAG/6, Block D, Tingkat Bawah Jalan Plumbun AA7/AA Pusat Komersial Seksyen 7 40000 Shah Alam Selangor Darul Ehsan [Ref: AK/L/3178/13(APP)] …Mr Tan Chong Lii 2. Messrs C.Sukumaran & Co Advocate & Solicitors For and on Behalf of the 4th Respondent Lot 2.01B, 2nd Floor Wisma Equity 150, Jalan Ampang 50450 Kuala Lumpur [Ref: CSC(KL) (Ambank)/29(OS)/Ain] …Mr Malcom Fernandez Mr Muhd Hadzwan Mr Mark Cheng 3. Messrs Ranjit Ooi & Robert Low Advocate & Solicitors For and on Behalf of the 1st Respondent No. 53 Jalan Maarof Bangsar 59000 Kuala Lumpur [Ref: OHL.TCL.TINA.0049.2012] … Mr Harjinder Singh Sandhu	39,877	Tika 2.6.0
B-02(NCVC)(W)-638-04/2016	PERAYU 1. BULYAH BINTI ISHAK (NO. K/P: 740108-14-5054) 2. NORAINI BINTI ABDULLAH (NO. K/P: 690225-01-5918) (Pentadbir-Pentadbir Harta Pusaka NOR ZAINIR BIN RAHMAT) … PERAYU - PERAYU RESPONDEN AMBANK (M) BERHAD (NO. SYARIKAT: 8515-D) (Dalam Penggulungan) … RESPONDEN	Land Law — Appeal— Indefeasibility of title and interests — Whether 1st Defendant was merely holding as a “bare trustee” for the deceased — Whether 4th defendant an immediate purchaser or a bona fide party or privy to information pertaining to Exhibit P1, P2 and D25 — Whether 4th defendant's knowledge and fides of the 4th defendant relevant for the purpose of Section 340 (2) of the National Land Code — Whether proviso to s 340(3) of the National Land Code applicable — National Land Code, section 340	02/10/2017	YA DATO' ASMABI BINTI MOHAMADKorumYA DATUK DR. PRASAD SANDOSHAM ABRAHAMYA DATO' ZAMANI BIN A. RAHIMYA DATO' ASMABI BINTI MOHAMAD	https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=927c47c4-981d-4e4a-a10f-f075972a56ce&Inline=true	1 DALAM MAHKAMAH RAYUAN DI MALAYSIA (BIDANGKUASA RAYUAN) RAYUAN SIVIL NO. : B-02(NCVC)(W)-638-04/2016 ANTARA 1. BULYAH BINTI ISHAK (NO. K/P: 740108-14-5054) 2. NORAINI BINTI ABDULLAH (NO. K/P: 690225-01-5918) (Pentadbir-Pentadbir Harta Pusaka NOR ZAINIR BIN RAHMAT) …PERAYU-PERAYU DAN AMBANK (M) BERHAD (NO. SYARIKAT: 8515-D) (Dalam Penggulungan) …RESPONDEN DENGAN DALAM MAHKAMAH RAYUAN DI MALAYSIA (BIDANGKUASA RAYUAN) RAYUAN SIVIL NO. : B- 02(NCVC)(W)-803-04/2016 HE-CON SDN BHD (NO. SYARIKAT: 270572-M) (Dalam Penggulungan) …PERAYU DAN 1. BULYAH BINTI ISHAK (NO. K/P: 740108-14-5054) 2 2. NORAINI BINTI ABDULLAH (NO. K/P: 690225-01-5918) (Pentadbir-Pentadbir Harta Pusaka NOR ZAINIR BIN RAHMAT) …RESPONDEN-RESPONDEN DAN [DALAM PERKARA DI MAHKAMAH TINGGI MALAYA DI SHAH ALAM NEGERI SELANGOR DARUL EHSAN, MALAYSIA GUAMAN NO: 22-NCVC-307-04/2013 ANTARA 1. BULYAH BINTI ISHAK (NO. K/P: 740108-14-5054) 2. NORAINI BINTI ABDULLAH (NO. K/P: 690225-01-5918) (Pentadbir-Pentadbir Harta Pusaka NOR ZAINIR BIN RAHMAT, simati) …PLAINTIF-PLAINTIF DAN 1. HE-CON SDN BHD (NO. SYARIKAT: 270572-M) (Dalam Penggulungan) 2. TEOW BENG HUR (NO. K/P: 610326-01-6247) 3. NARRIMAH BINTI ABDULLAH (NO. K/P: 541023-01-5806) 4. AMBANK (M) BERHAD (NO. SYARIKAT: 8515-D) …DEFENDAN-DEFENDAN Keputusan yang diberikan oleh Yang Arif Dato’ Ahmad Zaidi bin Ibrahim pada 7.3.2016] 3 CORAM: PRASAD SANDOSHAM ABRAHAM, JCA ZAMANI BIN A. RAHIM, JCA ASMABI BINTI MOHAMAD, JCA (Asmabi Binti Mohamad JCA, delivering Judgment of the Court) JUDGMENT OF THE COURT INTRODUCTION [1] There are two appeals fixed before us. Appeal No. B-02(NCVC)(W)-638-04/2016 (“Appeal No. 638”) is an appeal by the Appellants, Bulyah Binti Ishak and Noraini Binti Abdullah, the Administrators of the Estate of Nor Zainir Bin Rahmat (the 1st and 2nd Plaintiff/Plaintiff against of the decision of the learned High Court Judge of Shah Alam (“the learned Judge”) dated 07.03.2016 made after a full trial, which dismissed the Plaintiffs’ claim against Ambank (M) Berhad (“the 4th Defendant”) with costs of RM15.000.00. [2] Appeal No. B-02(NCVC)(W)-803-04/2016 (“Appeal No. 803”) is an appeal by the Appellant, He-Con Sdn Bhd (the 1st Defendant) against part of the decision of the learned Judge which allowed the Plaintiffs’ claim against the Appellant as per prayer (p) of the Statement of Claim, a declaration that the deceased was the beneficial owner of a 3½ Storey Shop Lot at No. 31, Jalan Tengku Ampuan Zabedah J9/J, Seksyen 9, 4 40100 Shah Alam, Selangor Darul Ehsan under Title No. HDS 151345, Lot No. P.T. 917 Mukim Bandar Shah Alam, Daerah Petaling, Selangor (“the Property”) with costs of RM15,000.00. [3] Both Appeal No. 638 and Appeal No. 803 were consolidated vide an order of this Court dated 31.05.2016. Parties had also informed the Court that for the purpose of these two appeals they would be referring to the Records of Appeal as in Appeal No. 638. [4] We will refer to the parties as they were described in the High Court. BRIEF BACKGROUND FACTS [5] The Plaintiffs are the joint administrators of the Estate of Nor Zainir bin Rahmat, the deceased (“the deceased”) who passed away on 26.06.2002. The 1st Plaintiff is also the widow of the deceased. [6] The 1st Defendant, who is the appellant in Appeal No. 803 is a company set up under the Companies Act 1965. The 1st Defendant has since been wound up. The 2nd and 3rd Defendants are directors of the 1st Defendant. Both the 2nd and 3rd Defendants are bankrupts. [7] The 4th Respondent (“the 4th Defendant”) is a licensed financial institution which registered address is at Level 22, Bangunan Ambank Group, Jalan Raja Chulan, 50200 Kuala Lumpur. 5 [8] Pursuant to a Sale and Purchase Agreement dated 22.12.1997 (“the Agreement”), the deceased agreed to purchase the Property from the 1st Defendant. The deceased paid the purchase price in full (see Exhibits P1 & P2 at page 584-594 & 665-668 Volume 2(3) of Appeal Record (AR)). [9] By a Power of Attorney dated 26.04.2002 which was registered in the High Court of Kuala Lumpur on 30.04.2002 under Presentation No. 29803/02, the 1st Power of Attorney (see Exhibit P2 at pages 665-668 Volume 2(3) AR), the 1st Defendant appointed and / or named the deceased the “Attorney” of the Property. Paragraph 3, of the 1st Power of Attorney states that it is an irrevocable power of attorney. [10] Pursuant to the Power of Attorney dated 21.05.2012, registered in the High Court of Kuala Lumpur on 19.07.2002 vide Presentation No.18192/02, the 2nd Power of Attorney (see Exhibit P3 at pages 669- 674 Volume 2(3) of AR), the deceased appointed the 1st Plaintiff as the “Substitute Attorney”. [11] The deceased died on 26.06.2002. The Letters of Administration was issued on 09.11.2005 vide Petition No. S7-31-280-2004. Both the Plaintiffs were appointed as administrators of the estate of the deceased (see Exhibit P5 at pages 606-609 Volume 2(3) AR)). [12] At the time the title of the said Property was to be issued, the 1st Plaintiff had requested that the title to be registered in her name. However, the developer refused to give its consent for direct transfer (see 6 Exhibits P7, P8, P9, P10, P11 (at pages 595-596, 597-598, 599, 600- 601, 602-603 Volume 2(3) of AR). [13] The 1st Plaintiff later found out the stamp duties and assessment bills for the said Property were in the sum of RM110,355.60. The sum was too high, the 1st Plaintiff could not afford to pay the stamp duties and the assessment as she had three small children to support. Due to financial constraint, the 1st Plaintiff postponed the idea to effect the transfer of the Property to her name. [14] The 1st Plaintiff obtained the order from the Kuala Lumpur High Court to administer the Property vide vesting order dated 09.12.2008 (See Exhibit P6 (at pages 615-616 of Volume 2(3) of AR 2(3)). [15] Towards the end of 2011, the 1st Plaintiff discovered that the 1st Defendant, who was no longer the owner of the Property, having sold it to the deceased and received the full purchase price, had charged the Property to the 4th Defendant. This was done without the 1st Plaintiff’s permission and / or consent (see pages 468-501 Volume 2(2) of AR, pages 502-523, 524-547 of Volume 2 of AR 2(3)). The 1st Plaintiff then lodged two police reports, on 29.11.2011 vide Jalan Tun Razak Police Report No. M8739/11 and on 30.07.2012 vide Dang Wangi Police Report No. 029961/12 respectively (see Exhibits P16 & P16(a) at pages 632 and 642 Volume 2(3) AR). 7 [16] On 10.01.2012, the 1st Plaintiff lodged a private caveat over the Property vide Presentation No. 1129/2012. However, the same was removed (see Exhibit P7 (at pages 655 Volume 2(3) of AR). [17] The 1st Plaintiff through her solicitors demanded for an explanation from the 4th Defendant pertaining to the charge vide a letter dated 09.08.2012 (see Exhibit P18 at pages 643-644 Volume 2(3) AR)). The 4th Defendant responded to the said letter by serving the 1st Plaintiff with the cause papers pertaining to the action commenced by the 4th Defendant, seeking for, amongst others, an order for sale of the Property as the 1st Defendant had breached the terms and conditions of the financing facilities. An order for sale was granted and the Property was scheduled for auction on 08.04.2013. However, the Plaintiffs filed this action to recover the Property. [18] After hearing two witnesses for the Plaintiffs and one witness each from the 1st and 4th Defendants respectively, the learned Judge allowed the Plaintiff’s claim against the 1st Defendant with cost of RM15,000.00. With respect to the Plaintiff’s claim against the 4 th Defendant, the learned Judge dismissed the Plaintiffs’ claim against the 4th Defendant with costs of RM15,000.00. The learned Judge further ordered the 4 th Defendant to proceed with the auction of the Property to recover the amount due to it and if there is any surplus from the sale, the said sum shall be paid to the Plaintiffs. 8 [19] The Plaintiffs appeal against the learned Judge’s order in dismissing their claim against the 4 th Defendant. The 1st Defendant on the other hand appeals against the order of the learned Judge in allowing the Plaintiffs claim against the 1st Defendant. THE MEMORANDUM OF APPEAL FOR B-02(NCVC)(W)-638-04/2016 [20] The summary of the issues raised in the Memorandum of Appeal were as follows: (a) The learned Judge erred in law and fact when the learned Judge has misdirected his mind to the principles enunciated in the two Federal Court cases, Kamarulzaman Omar & Ors v Yakub Husin & Ors [2014] 1 CLJ 897 (Kamarulzaman) and Samuel Naik Siang Ting v Public Bank Bhd [2015] 8 CLJ 944 (Samuel Naik). (b) The learned Judge erred in law and fact when the learned Judge had failed to direct his mind to the fact that after the Plaintiffs’ claim against the 1st Defendant was allowed, consequentially, the Plaintiffs’ claim against the 4th Defendant too must be allowed. (c) The learned Judge erred and misdirected himself in law and fact when he failed to direct his mind to the fact that the Presentations Nos. 52709/2010, 52710/2010 and 52711/2010 all dated 27.05.2010 are defeasible under 9 section 340 (2) of the National Land Code (NLC) as the 4th Defendant is the immediate holder and / or charger of the Property. (d) The learned Judge had erred and misdirected himself in law and fact when he failed to direct his mind to the fact that the 1st Defendant had no right to allow the 4th Defendant to execute the instrument for the registration of the charge over the said Property as the 1st Defendant was only a “bare trustee” of the said Property, having sold the same to the deceased and received the full purchase price as stated in the 1st Power of Attorney dated 26.04.2002 which was registered in the High Court Kuala Lumpur on 30.04.2002 (Registration No: 29503/02). (e) The learned Judge had erred and had misdirected his mind in law and fact when he failed to direct his mind to the fact that the 1st Defendant had no right to charge the said Property and / or the 4th Defendant has no right to execute the registration of the charge in its favour, as the power to do was vested on the deceased as stipulated in Clause 4 of the 1st Power of Attorney and / or the 1st Plaintiff as stated in Clause 3 of the 2nd Power of Attorney dated 21.05.2002 and registered in the High Court of Kuala Lumpur on 19.07.2002 (Registration No. 13192/02). 10 (f) The learned Judge had erred and misdirected himself in law and in fact when he decided that the 4 th Defendant had no knowledge about the fraud committed by the 1st Defendant when the issue of fides of the 4th Defendant were not relevant to its defence. (g) The learned Judge had erred and misdirected his mind in law and in fact when the learned Judge, despite having decided that the deceased and / or the Plaintiffs were the beneficial owners of the Property went on to direct the 4 th Respondent to proceed with the auction of the said Property and be entitled to the proceeds, the remaining balance if any, to be paid to the Plaintiffs. (h) The learned Judge had erred and had misdirected his mind in law and in fact when the learned Judge failed to direct his mind to the fact that the instrument pertaining to the registration of the charge by the 4th Defendant was void and of no effect. (i) The learned Judge erred and had misdirected his mind in law and fact when he dismissed the Plaintiffs’ claim against the 4th Defendant. 11 IN THE HIGH COURT The Plaintiffs’ case [21] Before the High Court, the following evidence was adduced through the 1st Plaintiff (SP2) and one, Bhadarul Baharain bin Sulaiman (SP1), the solicitor involved in the preparation and execution of the Agreement, Powers of Attorney: (a) The deceased had purchased the Property from the 1st Defendant on 22.12.1997 vide the Agreement (“Exhibit P1”). This was supported by the Resolution of the Board of Directors of the 1st Defendant (“Exhibit D25”) (at page 660 of Volume 2(3) of AR). The deceased had paid the full purchase price of RM2,133,651.00 (“Exhibit P2”). However, before the Property could be transferred to the deceased, the deceased passed away (Exhibit P4 at page 296 of Volume 2(2) of AR). Before the deceased passed away, the deceased had executed the 2nd Power of Attorney dated 21.05.2002 wherein the deceased has appointed the 1st Plaintiff as “Substitute Attorney” (Exhibit P3). Both these Powers of Attorney had been duly registered in Kuala Lumpur High Court (Exhibits P2 & P3). (b) At the time the Agreement was executed the individual grant of the Property had not yet been issued by the Land Office. 12 (c) During the time the Powers of Attorney were executed, the said Property had not been fully constructed. When the Property was completed around 2004, the 1st Plaintiff had requested the developer, Sunway Masalam Sdn Bhd to register the Property in the name of the deceased but the developer refused and had registered the Property in the name of the 1st Defendant instead. (d) On 09.12.2008, the 1st Plaintiff managed to get the consent of the Court to transfer the estate of the deceased, including the Property in her name (Exhibit P6 (at pages 615 – 616 of Volume 2(3) of AR)). (e) The 1st, 2nd and 3rd Defendants were fully aware that the 1st Plaintiff was one of the administrators of the estate of the deceased. Further after Exhibits P1 and P2 were executed, the 1st to the 3rd Defendants were never involved in any of the transactions concerning the Property. (f) All payments of bills pertaining to quit rent and assessment were paid by the 1st Plaintiff representing the estate of the deceased. All these receipts were in the name of the deceased (Exhibit P13 (at pages 610-614) & Exhibit P14 (at pages 617-624) of Volume 2(3) of AR). (g) The 1st Defendant agreed to transfer the said Property in the name of the estate of the deceased, however they failed to do 13 so and had fraudulently charged the said Property to the 4th Defendant despite knowing that the said Property belong to the deceased. (h) The 1st Defendant had charged the said Property to the 4 th Defendant on 27.05.2010 as a security for financial facilities it obtained from the 4th Defendant. The instruments for the purpose of the charge were executed by the 2nd and 3rd Defendants on behalf of the 1st Defendant without the consent of the 1st Plaintiff as the administrator of the estate of the deceased. The 1st Plaintiff had lodged Police reports concerning this matter. (i) SP1 was the solicitor involved with the preparation of the Agreement (“Exhibit P1”), the 1st Power of Attorney (“Exhibit P2”) and the 2nd Power of Attorney (“Exhibit P3”). According to SP1 both the 1st Defendant and the deceased agreed that the purchase price had been paid in full. SP1 was also the solicitor who was involved with the registration of the 1st and 2nd Power of Attorney. (j) There were elements of fraud involved which resulted in the registration of the charge instrument in favour of the 4 th Defendant. The 4th Defendant was also negligent in not conducting a search with the proper authority to ascertain the status of the ownership of the Property before or after registering the charge instruments. 14 Case for the 1st Defendant’s case [22] Vide its witness, one Tee Siew Kai (SD1), the Liquidator of 1st Defendant, the 1st Defendant stated as follows: (a) SD1 was appointed as the liquidator of the 1st Defendant vide an order of the Shah Alam High Court dated 10.12.2012. SD1 became aware of the Plaintiff’s claim only on 01.04.2013. He tried to contact the 1st Defendant’s directors, Teo Beng Hur and Narrimah binti Abdullah (“the 2nd & 3rd Defendant cited herein”) requesting them to hand over, amongst others, the Statement of Affairs”, books and records relating to the 1st Defendant in their possession but until the time he stood as the witness in Court these Defendants had not responded. Despite reminders having been sent there was no response from any of them. (b) During SD1’s examination of the affairs of the 1st Defendant, SD1 discovered a Director’s Resolution dated 26.04.2004 authorising the 1st Defendant to enter the 1st Power of Attorney with the deceased with respect to the sale and purchase of the Property together with unattested copy of the 1st alleged Power of Attorney signed by the 2nd and 3rd Defendant. SD1 had also confirmed the existence of the Agreement and the two Powers of Attorney. From the 15 documents SD1 obtained from the Receiver & Manager SD1 also sighted the Agreement, 1st and 2nd Power of Attorney. (c) SD1 couldn’t not verify the authenticity of the documents as he had no personal knowledge. (d) SD1 could not retrieve any documents to prove the payment of the purchase price in the sum of RM213,363.10 and RM1,920,267.90 respectively, allegedly paid by the deceased to the 1st Defendant. According to SD1, there was nothing to prove that the sale and purchase of the Property had been concluded. (e) SD1 confirmed that he did not send Exhibit P2 for analysis by a handwriting expert to ascertain the authenticity of the document as well as the signatures contained in the document which were relied by the Plaintiffs. (f) SD1 testified that he had no personal knowledge pertaining to the Agreement and all transactions involving the said Property. (g) According to SD1, the 1st Defendant is hopelessly insolvent and does not have any available cash. The 1st Defendant will not be able to satisfy the judgment, in event judgment is awarded to the Plaintiffs. 16 Case for the 4th Defendant [23] The 4th Defendant through its Manager, one Michael Khong Khai Tuck (SD2) testified as follows: (a) The 4th Defendant had granted General Banking Facilities to the 1st Defendant consisting of Contract Financing Facility, Overdraft Facility and Trade Facility. A Facility Agreement was executed between the 1st Defendant and the 4th Defendant. (b) The 1st Defendant was required to provide security with respect of the banking facilities. There was a resolution of the Directors of the 1st Defendant dated 10.09.2009 which resolved that the 1st Defendant shall create a 1st party charge over the Property. As a result of that three charges were created by the 1st Defendant in favour of the 4th Defendant. (c) Before executing the charge instruments, the 4th Defendant had conducted a proper search on the Property and found that the 1st Defendant was the registered owner of the Property and the Property was free from all encumbrances. However, the 4th Defendant did not see it fit to visit and / or view the Property. (d) As the 1st Defendant had breached the terms of financing Agreement, the 4th Defendant then terminated the financing 17 agreement, withdrew all facilities granted to the 1st Defendant and commenced proceedings to obtain an order for sale of the Property from the Kuala Lumpur High Court. (e) At the time the 1st Defendant applied for the financing facilities the 4th Defendant had no information pertaining to the existence of the Agreement between the 1st Defendant and the deceased and / or the existence of the Power of Attorney executed by the deceased and the 1st Defendant and the “Substitute Attorney”. Neither was there any site visit made to the Property. The Decision of the High Court [24] The findings of the learned Judge are as follows: (a) The deceased is the owner of the Property as the deceased had purchased the Property and paid the full purchase price of the Property to the 1st Defendant. The evidence of the Plaintiffs pertaining to the above was more probable as compared to the 1st Defendant. The Plaintiffs’ evidence was supported by documentary evidence in the form of Exhibit P2 which confirmed that the full purchase price had been paid to the 1st Defendant. (b) Exhibit P2 was signed by the manager of the 1st Defendant and witnessed by the Plaintiffs’ witness, SP1, an advocate 18 and solicitor. Exhibit P2 was duly stamped in accordance with the applicable law. The 1st, 2nd and 3rd Defendants had never disputed the signing of the document and / or claim that the same is false. The 2nd and 3rd Defendants were not called by the 1st Defendant to challenge the evidence of the Plaintiffs. (c) The burden is on the 1st Defendant to secure the attendance of the 2nd and 3rd Defendants as witnesses in court to prove their case. (d) The 1st Defendant had not taken steps to challenge the authenticity of the document by sending the same to the handwriting expert for verification. No police report was lodged by the 1st Defendant. Only the 2nd and 3rd Defendant would be in a position to challenge the Plaintiffs’ evidence. The learned Judge had invoked the provision of section 114 (g) of the Evidence Act 1950 against the 1st Defendant. (e) The 1st Defendant could not prove its allegation that the deceased did not have the means to pay that huge sum of money to the 1st Defendant. The 1st Defendant could not counter the overwhelming evidence offered by the Plaintiffs in the form the Agreement and the 1st and 2nd Power of Attorney. (f) The fact that the 1st Defendant is the immediate owner of the Property was not disputed. The 1st Defendant had bought the Property when it was still under construction. The ownership 19 can still be disputed and / or the title is defeasible if the elements mentioned under section 340 (2) of the NLC existed. (g) There were affirmative findings that the deceased was the lawful owner of the Property. The 1st Defendant knew from the outset that the purchase price had been paid in full to the 1st Defendant. As such the 1st Defendant was holding the Property as a “bare trustee” for the deceased and had no right to deal with the Property. (h) As the 1st Power of Attorney was an irrevocable power of attorney and for valuable consideration, all rights and interest in the Property had been transferred to the deceased and subsequently by virtue of the 2nd Power of Attorney the rights and obligations had been transferred by the deceased to the 1st Plaintiff. (i) The 1st Defendant failed to produce evidence to show that the Administrators of the Estate of the deceased had given permission and / or mandate to 1st Defendant to charge the Property as a security for financial facilities granted to it by the 4th Respondent. (j) The Property belong to the deceased and the 1st Defendant was merely holding the Property as a “bare trustee” for the deceased. Therefore, the 1st, 2nd and 3rd Defendants had no power and / or authority to charge the Property to the 4 th 20 Defendant as a security for the financing facilities the 1st Defendant took from the 4th Defendant. (k) The 4th Respondent was a bona fide party. There was no evidence to prove that the 4 th Defendant was negligent. Further it was disclosed during the trial that the approach taken by the Plaintiff was that the 1st, 2nd and 3rd Defendants had intentionally suppressed the information pertaining to Exhibit P1, P2 and D25 from the 4th Defendant at the time the application for the facilities was made. (l) The 4th Defendant had taken all reasonable measures to verify the status of the Property before the loan was approved. The search conducted by them proved that the 1st Defendant was the owner of the Property and the Property was free from all encumbrances. Based on the aforesaid the Plaintiffs had failed to prove that the charge was void and unenforceable. (m) The fact that the 1st Defendant had breached the terms of the financing facilities was not disputed. The process undertaken by the 4th Defendant in securing the order for sale is in order, the forfeiture of the Property was in accordance with the law. Therefore, the 4th Defendant has the right to proceed with the said auction, any amount remaining from the sale shall be paid to the Plaintiffs. 21 OUR DECISION The law [25] We were mindful of the limited role of the appellate court in relation to findings of facts made by the court of first instance. [26] In the course of that, we had sought guidance from the very often quoted case of Lee Ing Chin @ Lee Teck Seng v Gan Yook Chin [2003] 2 MLJ 97 where the Court of Appeal held as follows: “an appellate court will not, generally speaking, intervene unless the trial court is shown to be plainly wrong in arriving at its decision. But appellate interference will take place in cases where there has been no or insufficient judicial appreciation of the evidence.” [27] Reference is also made to the decision of the Federal Court in Gan Yook Chin v Lee Ing Chin @ Lee Teck Seng [2004] 4 CLJ 309 where the Federal Court held that the test of “insufficient judicial appreciation of evidence” adopted by the Court of Appeal was in relation to the process of determining whether or not the trial court had arrived at its decision or findings correctly on the basis of the relevant law and the established evidence. 22 The Appeals Before Us Appeal No. 803 [28] Having heard the evidence of the Plaintiffs’ witnesses and the evidence of SD1 as well as the documents that were tendered in Court, the learned Judge accepted the evidence of the Plaintiff as being more probable as compared to the evidence of SD1. The learned Judge went on to rule that the Plaintiffs had successfully proven that the purchase price for the said Property had been fully settled by the deceased based on the evidence of the 1st Plaintiff (SP2) and the solicitor (SP1) responsible for the preparation and execution Exhibits P1, P2 and P3 respectively. The evidence of the Plaintiffs was further supported by Exhibit D5, the 1st Defendant’s Circular Resolution dated 26.04.2002 which authorized the 2nd Defendant to sign all documents pertaining to the Power of Attorney on behalf of the 1st Defendant. The learned Judge held that the deceased is the rightful owner of the Property. [29] The 1st Defendant failed to challenge the evidence of the Plaintiffs pertaining to the existence of Exhibits P1, P2 and P3 or D5, as SD1 had no documents with him. All documents relevant to the case are still in the possession of the 2nd and 3rd Defendants who were not called as witnesses for the 1st Defendant. Neither, SD1, the 1st Defendant or the 2nd and 3rd Defendant for that matter had taken steps to challenge the authenticity of Exhibit P2. No police report was lodged and / or the documents sent for analysis to ascertain the authenticity of this document. Neither did SD1 verify with the 2nd and 3rd Defendants if they 23 had executed the same as they were the very persons who would be in the position to verify the authenticity of the document. [30] We noted that SD1 was appointed as a liquidator for the 1st Defendant only on 10.12.2012 vide an order of the Shah Alam Court dated 10.12.2012. SD1 testified that he became aware of the Plaintiff’s claim only on or about 01.04.2013. SD1 had also testified that he had no knowledge pertaining to Exhibits P1, P2 and P3 and other documents of the 1st Defendant as the same are still in the possession of the 2nd and 3rd Defendants who had refused to accede to SD1’s request to provide the documents. We observe Exhibits P1, P2 and P3 were executed on 22.12.1997, 26.04.2002 and 30.04.2002 respectively. The terms of Exhibit P2 are clear. Therefore, no evidence shall be given in proof of the terms of Exhibit P2 except the document itself. When the terms of the agreement have been reduced to writing parties are bound by the terms of the agreement and the agreement could only be proved by the agreement itself (see Section 91 of the Evidence Act 1950; Tindok Besar Estate Sdn Bhd v Tinjar & Co [1979] 1 LNS 119 ; MBF Leasing Sdn Bhd v Eng Poh Hong [2004] 6 CLJ 473). [31] As SD1 has no personal knowledge pertaining to the facts surrounding the sale and purchase of the Property and / or the execution of Exhibit P2 and P3, having come to the scene many years after Exhibits P1, P2 and P3 were executed and had no documents with him, he would not be in the position to offer evidence to the contrary to disprove the Plaintiffs’ case. 24 [32] We are of the view that the learned Judge had rightly invoked the provision of Section 114(g) of the Evidence Act 1950 against the 1st Defendant due to the non-calling of the 2nd and 3rd Defendants in Court as these Defendants had personal knowledge of the matter and would be in a better position to provide the best evidence for the 1st Defendant. The burden lies on the 1st Defendant to call the 2nd and 3rd Defendants to testify on its behalf. This finding is in line with the provision of Section 103 of the Evidence Act 1950 (see Maju Holdings Sdn Bhd v Fortune Wealth (H-K) Ltd & Other Appeals [2004] 4 CLJ 282 ; Formosa Resort Properties Sdn Bhd v Bank Bumiputra Malaysia Bhd [2010] 6 CLJ 530). [33] Based on the aforesaid, we found that the findings of the learned Judge are predicated on the evidence that was presented before him. Hence we found no appealable error on the part of the learned Judge that merit curial intervention. Appeal No. 603 [34] Turning now to the appeal filed by the Plaintiffs against the decision of the learned Judge to dismiss the Plaintiffs’ claim against the 4th Defendant. It was the contention of the Plaintiffs, once the claim of the Plaintiffs against the 1st Defendant is allowed, the Plaintiffs’ claim against the 4th Defendant ought to be allowed. [35] Having resolved that the 1st Power of Attorney is an irrevocable power of attorney and for valuable consideration and that the deceased 25 is the rightful owner of the Property, the next issue to be considered is whether the learned Judge was right in dismissing the Plaintiffs’ claim against the 4th Defendant. As shown above the 4th Defendant is a financial institution which had provided the financial facilities to the 1 st Defendant with the Property being pledged as a first party charge in favour of the 4th Defendant. [36] The 4th Defendant argued that it had no knowledge about the claim. Based on its own search, the 4th Defendant was satisfied, the 1st Defendant is the registered owner of the Property. The Plaintiffs were not privy to the charge which only involved the 1st Defendant and the 4th Defendant. [37] The next issue to be considered is whether for the purpose of Section 340 (2) of the NLC knowledge and fides of the 4th Defendant are relevant. [38] Section 340 (2) of the NLC states that the title and interest of a person or body shall not be indefeasible: (a) In event of fraud or misrepresentation where the person or body, or agent of the person or body was privy to; (b) In cases where the registration was secured by forgery, or by mean of an insufficient or void instrument. 26 [39] Subsection 340 (3) of the NLC states that in cases where the title or interest of any person or body is not indefeasible due to the circumstances illustrated above, it shall be liable to be set aside in the hands of any person or body to whom it may be subsequently transferred. [40] The learned Counsel for the Plaintiffs had stated in the Memorandum of Appeal that the learned Judge had erred and misdirected himself in law and in fact when His Lordship had ignored the established principles enunciated in the Federal Court case of Kamarulzaman Omar & Ors v Yakub Husin [2014] 1 CLJ 897 (“Kamarulzaman”) and followed by Samuel Naik Siang Ting v Public Bank Bhd [2015] 8 CLJ 944 (“Samuel Naik”) which provide the trial courts the guide on how to deal with the situation when the challenge is made under Section 340 (2) as follows: (a) Firstly, the court must ascertain if the title or interest in dispute is registered in the name of an immediate purchaser or a subsequent purchaser; (b) In the event the title or interest is registered in the name of an immediate purchaser, the court will not “offer a shield of indefeasibility”. The title is still liable to be set aside. [41] Guided by the above high authorities against the factual matrix of the case at hand, we are satisfied that the 4 th Defendant is an immediate holder of the charge. Therefore, as illustrated above the fides of the 4th Defendant are irrelevant. 27 [42] The Plaintiffs argued as the learned Judge had ruled that the deceased is the rightful owner of the Property as he had paid the full purchase price, the 1st Defendant is merely holding the said Property as a “bare trustee” to the deceased. In view of this, the learned Judge ought to have made a finding that the Plaintiffs’ case against the 4 th Defendant ought to be allowed. [43] We found merit in this argument. After having made the findings the full price for the said Property had been paid, the 1st Defendant stood in the position of a “bare trustee’ to the deceased. As a “bare trustee”, the 1st Defendant could not deal with the Property or treat as if the Property belong to him. Further in this case an irrevocable power of attorney had been executed. Clause 4 of Exhibit P2 states that the deceased had the sole right to deal with the Property. In view of the aforesaid, the transaction entered into by the 1st Defendant and the 4th Defendant for the purpose of the financing facilities is void ab initio. Hence, the learned Judge ought not to have dismissed the Plaintiffs’ case against the 4th Defendant. Obviously, His Lordship’s decision to dismiss the Plaintiffs’ claim and allow the 4 th Defendant to proceed with the order for sale of the Property went against the principle enunciated in Kamarulzaman and Samuel Naik. From the cases cited herein a vendor who is a “bare trustee” has no beneficial interest in the Property. Therefore, the said vendor is not authorized by law to sell, transfer or deal with the Property to the new purchaser or holder of my interest in the land. There is sufficient evidence before us that the 1st Plaintiff had taken possession of the Property and had been paying quit rents and 28 assessment bills to the proper authorities (see paragraph 20(f)) of this Grounds of Judgment). [44] The learned Counsel for the Plaintiffs had referred us to the Supreme Court case of Yeong Ah Chee v Lee Chong Hai & Anor and Other Appeals [1994] 3 CLJ 20 where it was held that “When the full purchase price is paid, the vendor becomes a bare trustee for the purchaser”. In OCBC Bank (Malaysia) Bhd V Pendaftar Hakmilik Negeri Johor Darul Takzim [1999] 2 CLJ 949 the Court of Appeal clarified that the word “interest” used in Section 340 (2) of the NLC also applies to an interest in the form of a charge or a lease. [45] Notwithstanding the fact that the Plaintiffs in this case had not taken steps to lodge a caveat, it did not mean that the Plaintiffs’ rights and interest are vitiated, as in law a caveat does not create interest or rights (see Samuel Naik [supra]). [46] We found, the learned Judge erred and misdirected his mind as to the law and fact, when His Lordship ruled that the 4 th Defendant was a bona fide party and was not negligent in causing the charge over the Property to be registered in its favour. There is clear and blatant disregard to the established principles enunciated in Kamarulzaman and Samuel Naik as discussed above. 29 CONCLUSION [47] Having examined the pleadings, the notes of proceedings, and having heard the respective learned Counsels, we found that with respect to Appeal No. 803, the learned Judge had sufficiently evaluated the evidence before His Lordship both testimonial and documentaries and had correctly allowed the Plaintiffs’ claim against the 1st Defendant. We are satisfied there was no appealable error which merit our intervention. [48] With respect to Appeal No.638, are as we have illustrated in the preceding paragraphs we found that the learned Judge fell into error in failing to appreciate the principles of law enunciated in in Kamarulzaman and Samuel Naik. We were constrained to hold that the learned Judge failed to judicially appreciate the evidence and / or the law presented before him so as to render his decision plainly wrong and upon curial scrutiny merit our appellate intervention. [49] Based on the aforesaid, we unanimously affirm the learned Judge’s decision which allowed the Plaintiffs’ claim against the 1st defendant with costs of RM15,000.00. With respect to the Plaintiff’s appeal against the decision of the learned Judge which dismissed the Plaintiff’s claim against the 4th Respondent, we allowed the Plaintiffs’ appeal with costs of RM15,000.00. Accordingly, we set aside the order of the learned Judge. We further order that the costs shall be subject to payment allocateur fees. 30 [50] We therefore ordered accordingly. Dated this 2nd October 2017. (ASMABI BINTI MOHAMAD) Judge Court of Appeal, Malaysia 31 Parties: 1. Messrs Akberdin & Co Advocate & Solicitor For and on Behalf of the Appellants No.AAG/6, Block D, Tingkat Bawah Jalan Plumbun AA7/AA Pusat Komersial Seksyen 7 40000 Shah Alam Selangor Darul Ehsan [Ref: AK/L/3178/13(APP)] …Mr Tan Chong Lii 2. Messrs C.Sukumaran & Co Advocate & Solicitors For and on Behalf of the 4th Respondent Lot 2.01B, 2nd Floor Wisma Equity 150, Jalan Ampang 50450 Kuala Lumpur [Ref: CSC(KL) (Ambank)/29(OS)/Ain] …Mr Malcom Fernandez Mr Muhd Hadzwan Mr Mark Cheng 3. Messrs Ranjit Ooi & Robert Low Advocate & Solicitors For and on Behalf of the 1st Respondent No. 53 Jalan Maarof Bangsar 59000 Kuala Lumpur [Ref: OHL.TCL.TINA.0049.2012] … Mr Harjinder Singh Sandhu	39,877	Tika 2.6.0
22NCVC-254-12/2013	PLAINTIF Johnson Fluid Engineering Sdn Bhd (No. Syarikat: 228328-K) DEFENDAN 1. Jambulingam a/l Sethuraman Raki (No K/P: 510219-10-5561) (Likuidator kepada Roebuck Development Sdn Bhd No. Syarikat: 138028-W) 2. MB Resort Sdn Bhd (No. Syarikat: 764803-p)	null	01/10/2017	YA DATO' DR. CHOO KAH SING	https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=c8d7fb77-1a9d-4a4e-a674-20d043858cb4&Inline=true	Page 1 of 19 DALAM MAHKAMAH TINGGI MALAYA DI JOHOR BAHRU DALAM NEGERI JOHOR DARUL TAKZIM, MALAYSIA GUAMAN NO. 22NCVC-254-12/2013 ANTARA JOHNSON FLUID ENGINEERING SDN BHD (NO. SYARIKAT: 228328-K) PLAINTIF DAN 1. JAMBULINGAM A/L SETHURAMAN RAKI (NO. K/P: 510219-10-5561) (Likuidator kepada Roebuck Development Sdn Bhd No. Syarikat: 138028-W) 2. MB RESORT SDN BHD (NO. SYARIKAT: 764803-P) DEFENDAN-DEFENDAN JUDGMENT CHOO KAH SING Judicial Commissioner High Court Johor Bahru Date: 1.10.2017 Page 2 of 19 Introduction [1] This case concerns the rightful ownership of three units of apartment, namely, RG-23, R1-20 and R3-19 (hereinafter referred to as the „said properties‟), in a resort condominium development known as “Condominium La Cemara Desaru Beach Resort” (hereinafter referred to as the „said development‟). [2] The said development was developed by one Roebuck Development Sdn. Bhd. (hereinafter referred to as „Roebuck‟). There are ten blocks of condominium, six blocks were completed, and certificates of fitness were issued. Before the entire development could be completed, Roebuck was wound-up on 29.7.2004 via a company winding-up suit No. MT1-28-14-2004. The said winding-up suit was filed by one Allied Alpine (M) Sdn. Bhd. The 1st defendant was appointed as the subsequent liquidator who took over from a previous liquidator Wong Weng Foo (2nd defendant‟s witness – D2W-1) to proceed with the liquidation exercise. [3] On 2.3.2007, the 1st defendant obtained a vesting order from the High Court to deal with Roebuck‟s assets, including the said development. Based on the said vesting order, the 1st defendant was allowed to sell the said development to one Mahabuilders Sdn. Bhd. (hereinafter referred to as „Mahabuilders‟). Mahabuilders was the successful party in a sale by tender exercise to purchase the said development for a consideration sum of RM7,750,000.00. [4] The 1st defendant transferred the said development which was erected on Master title No. H.S(D) 13599, Lot No. PTD 1588, Mukim Page 3 of 19 Pantai Timur, District of Kota Tinggi, State of Johor, to MB Resort Sdn. Bhd., who is the 2nd defendant. MB Resort was a nominee of Mahabuilders. [5] The plaintiff claimed that the said properties ought not to be included in the sale of the said development to Mahabuilders or the 2nd defendant. The plaintiff averred that Roebuck had already sold the said properties to the plaintiff before Roebuck was wound-up on 29.7.2004. Therefore, the said properties could not be part of Roebuck‟s assets in the winding-up exercise. [6] The plaintiff claimed that it was the rightful owner of the said properties as opposed to the 2nd defendant‟s defence which claimed it is the rightful owner of the said properties. [7] The 2nd defendant averred that it had purchased the whole development, and the said properties formed part of the said development as well. Hence, it was the rightful owner of the said properties. [8] The plaintiff averred that the 1st defendant as the liquidator had failed to exclude the said properties from the sale of the said development to the 2nd defendant. As a result of the 1st defendant‟s negligence or omission and refusal to exclude the said properties from the said development, the plaintiff had suffered losses. [9] The parties had gone through a full trial. On 13.8.2017, this Court allowed the plaintiff‟s claim. The reasons for the decision of this Court are set down as below. Page 4 of 19 Brief Facts The Plaintiff’s Case [10] The Plaintiff averred that as early as 3.5.2003, Roebuck made an offer to the plaintiff that the said properties owned by Roebuck be used to set off its debts with the plaintiff, vis-à-vis by transferring the said properties to the plaintiff as full and final settlement of its debts owed to the plaintiff. [11] The plaintiff accepted the offer on 3.5.2003. A confirmation letter was issued by Roebuck on 6.8.2003 to the plaintiff pertaining to the set off agreement made between the parties. On 15.12.2003, following from the set off agreement and the said confirmation letter, the parties entered into three sale and purchase agreements (hereinafter referred to as the „SPAs‟) in relation to the said properties respectively. Vacant possession of the said properties were delivered to the plaintiff on 13.3.2004. [12] Several months later, on 29.7.2004, Roebuck was wound up. In the course of the liquidation exercise, the development, including the said properties, was subsequently sold and transferred to the 2nd defendant by the 1st defendant. The plaintiff averred the 1st defendant had wrongfully sold and transferred the said properties to the 2nd defendant. [13] Premised on the above facts, the plaintiff had filed this suit against the defendants seeking for the return of the said properties or in the alternative for the defendants to pay damages to the plaintiff. Page 5 of 19 The 1st Defendant’s Defence [14] In gist, the 1st defendant‟s defence was that he had acted within what the law required of him to do as a liquidator in a liquidation exercise. He discovered the plaintiff‟s interest only when he sought to obtain the consent to transfer from the various parties who had lodged a private caveat on the master title sometime in the middle of year 2012. [15] The 1st defendant averred that the plaintiff had failed or neglected and due to its own recklessness did not produce sufficient documents to him to state its interest in the said properties during the liquidation exercise. The 1st defendant also averred that the plaintiff had sat on its rights all this time and failed to keep itself updated as to the development of the Roebuck‟s status. [16] The 1st defendant further averred that the plaintiff contacted the 1st defendant only in 2012 after a lapse of 8 years since the SPAs which were dated 15.12.2003. [17] The 1st defendant contended, although it was not pleaded, that the SPAs dated 15.12.2003 were caught under s.293 of the then Companies Act 1965 read together with s.53(1) of the Bankruptcy Act 1967 which render the sale transactions between the plaintiff and Roebuck as void. The 2nd Defendant’s Defence [18] In pith, the 2nd defendant‟s defence was that it was a bona fide purchaser of the said development, and therefore, the 2nd defendant was entitled to retain the said properties. The 2nd defendant relied on s.293 Page 6 of 19 of the then Companies Act 1965 as its defence, therefore, the plaintiff could not have good title of the said properties. [19] The 2nd defendant contended that the sale between the 1st defendant, acting as the liquidator of Roebuck, and the 2nd defendant was sanctioned and approved by the High Court order dated 15.8.2006 read together with the vesting order dated 2.3.2007. As such, this Court has no jurisdiction to vary or set aside another High Court order with concurrent jurisdiction. The plaintiff has to first set aside the vesting order before bringing this action, otherwise, the plaintiff‟s claim is premature, the 2nd defendant argued. The Finding of this Court [20] The parties have filed a common „Issues to be Tried‟ (marked as „J‟), and there are in total 19 paragraphs in the said document. In substance, the 19 paragraphs could be surmised into 3 main issues. Firstly, whether the 1st defendant was negligent in carrying out the liquidation exercise. Secondly, whether the sale transaction between the plaintiff and Roebuck was caught within the ambit of s. 293 of the Companies Act 1965. Thirdly, whether the 2nd defendant was a bona fide purchaser. The parties‟ written submissions have in fact centred on these three main issues. Hence, this Court will address these issues below. First Issue: Whether the 1st defendant was negligent in carrying out the liquidation exercise Page 7 of 19 [21] The 1st defendant came on board in the liquidation exercise via a High Court Order dated 15.8.2006 (in the winding up suit). Based on the said Court Order, the 1st defendant was supposed to obtain all the Roebuck‟s documents and/or records from the previous liquidator Wong Weng Foo. However, the 1st defendant did not take further steps to retrieve the documents and/or records from the previous liquidator when the previous liquidator did not respond to his request. The 1st defendant‟s justification for not pursuing further to retrieve the documents from the previous liquidator was that he did not have enough funds for taking up a legal action against the previous liquidator to compel him to produce the documents/records of Roebuck. The 1st defendant felt that it was more urgent and important to liquidate/realize the available assets at hand at that time. [22] With regard to the question asked by the plaintiff‟s counsel in relation to why he did not take any legal action against the ex-directors of the Roebuck for the failure to file any Statement of Affairs of the company, the 1st defendant gave a similar answer as in the preceding paragraph. [23] In the 1st defendant‟s counsel‟s written submission, the learned counsel did not address this first issue. [24] It is the considered view of this Court that the 1st defendant could not rely on the excuse that there was insufficient funding to pursue a legal action against the previous liquidator or the ex-directors of Roebuck, therefore, he did not take any further steps to retrieve the records/documents from the previous liquidator or ex-directors. This Court is of the view that it is the duty of a liquidator to comply with an Page 8 of 19 order of the Court in that the liquidator must exhaust all avenues to obtain all records/documents which are related to the company concerned so as to understand the actual position and the financial standing of the company. [25] A liquidator could not abrogate his legal duty by relying on the excuse that the financial strength of the company concerned was poor. The company concerned would not have been in the status of liquidation if it financial strength was not poor. [26] This Court noted that in this same liquidation exercise, the 1st defendant had also taken a similar approach or attitude towards retrieving other documents besides those documents which are related to this case. With regard to other documents/records, the 1st defendant has also been sued for his negligence, omission or failure to take further steps to retrieve the same. Roebuck and the 2nd defendant were sued by one Oh Kang Kuang (and another) in suit 22NCVC-89-05/2014 in the High Court of Johor Bahru (citation [2016] MLRHU 1) („the earlier case‟). The claim in that is based on similar facts and similar issues as in this present case. The only difference is that of the subject properties. [27] With regard to the findings of that High Court in relation to the negligence, omission or failure to take action by the 1st defendant, the learned trial judge has this to say in his judgment: “Having examined the evidence adduced, I am of the considered view that Mr. Jambulingam (SD4), the liquidator, has failed to take reasonable steps to retrieve the documents and records especially with Page 9 of 19 regards to the sale of the properties by the 1st Defendant [Roebuck] from either the ex-directors of the 1st Defendant or the liquidators for the following reasons: i) No diligent and reasonable efforts were made by SD4 in retrieving the documents and records of sale from either the previous liquidator or the ex- directors of the 1st Defendant. By writing once and waiting for a response is obviously not a sufficient effort in retrieving the documents and records. He should have waited and made a few more attempts before deciding to go for the verification exercise. ii) When there was no response from the ex-director Mr. Ong Cheng Hoe of the 1st Defendant, DW4 should have made attempts to contact the other directors of the 1st Defendant which he failed to do. Nevertheless, SD4 then assumed that the ex- directors were not going to be cooperative. With respect, I find that such an assumption is totally without basis. iii) …. I find that such an excuse is not acceptable at all. The only reason I could find for SD4 not taking such steps is because he preferred to choose an easy way out in carrying out his duties as a liquidator.” Page 10 of 19 [28] After considering the evidence in this present case, this Court has come to the same conclusion as the learned trial judge in the earlier case that the approach taken by the 1st defendant in carrying out the liquidation exercise of Roebuck was incompetent and negligent. The 1st defendant had failed to exercise due care to ensure all documents/records are retrieved before seeking for a verification order from the court. [29] The 1st defendant told this Court that it is uncertain whether an action against the ex-directors of Roebuck would have yielded a positive result. This Court could not accept this explanation for his inaction, because being a liquidator, he could not make a conjecture of the outcome and decide to abandon his duties and responsibilities and take an easy way out. His duties and responsibilities were to take all necessary and reasonable steps provided under the law to carry out his appointed task. The learned counsel for the plaintiff submitted that the 1st defendant could have relied on ss. 234(3), 236(2)(a), 237(1), 252 and 300 of the Companies Act 1965 to assist him to retrieve the necessary documents/records of Roebuck. This Court accepts the learned counsel for the plaintiff‟s submission on this point. [30] Based on the above findings, this Court is satisfied that the 1st defendant, as the liquidator of the liquidation exercise, failed to carry out his duties and responsibility in a professional manner. Second Issue: Whether the sale transaction between the plaintiff and Roebuck was caught within the ambit of s. 293 of the then Companies Act 1965 Page 11 of 19 [31] Section 293 of the Companies Act 1965 states as follows: (1) Any transfer, mortgage, delivery of goods, payment, execution or other act relating to property made or done by or against a company which, had it been made or done by or against an individual, would in his bankruptcy under the law of bankruptcy be void or voidable shall, in the event of the company being wound up, be void or voidable in like manner. (2) For the purposes of this section the date which corresponds with the date of presentation of the bankruptcy petition in the case of an individual shall be- (a) in the case of a winding up by the Court- (i) the date of the presentation of the petition; or (ii) where before the presentation of the petition a resolution has been passed by the company for voluntary winding up the date upon which the resolution to wind up the company voluntarily, is passed, whichever is the earlier; and (b)in the case of a voluntary winding up the date upon which the winding up is deemed by this Act to have commenced. (3) Any transfer or assignment by a company of all its property to trustees for the benefit of all its creditors shall be void. [32] The legal proposition of s.293 has been lucidly explained in the decision of the Federal Court in Sime Diamond Leasing (M) Sdn. Bhd. Page 12 of 19 v JB Precision Moulding Industries Sdn. Bhd. [1998] 4 CLJ 557, p. 568, wherein it states as follows: “We must now turn to consider s.293 of the Companies Act. The law relating to fraudulent preferences is set out in s. 53 of the Bankruptcy Act, which is made applicable to companies by s.293 of the Companies Act, and is designed to preserve the sanctity of the pari pasu principle by which creditors in a winding-up share rateably in the assets available for distribution. As in bankruptcy cases, a creditor of a company is not entitled to a set-off against his obligation to repay the preference. (See, In re A Debtor [1927] 1 Ch. 410; Calzaturificio Zeneth Pty Ltd (In Liquidation) v N.S.W. Leather and Trading Co. Ltd [1970] VR 605). We note, in passing, that in Lian Keow Sdn. Bhd. v Overseas Credit Finance (M) Sdn. Bhd. [1988] 2 MLJ 449 Seah SCJ, speaking in the Supreme Court, held that the rules of bankruptcy as to fraudulent preferences are applied to the winding up of companies. To take the matter further, it is clear law that the court has no power to make an order setting aside payments and transfers made in the run-up to bankruptcy in favour of a particular creditor which were Page 13 of 19 designed to prefer him over other creditors unless the following five conditions are satisfied: (1) that the transaction in question took place within six months prior to the commencement of winding up; (2) that it satisfied the description of one of the types of transaction mentioned in s.53(1) of Bankruptcy Act; (3) that it took place at a time when the company was insolvent; (4) that the person in whose favour the transaction was effected stood in the relation of creditor to the company; and (5) the effect of the transaction was to confer on that person a preference, priority or advantage over other creditors in the winding up. The onus was, of course upon the Liquidator to satisfy all the five requirements aforesaid. …. The principle of central importance underlying s.293(1) of the Act is that where a debtor company, has at a relevant time, given a preference to any person, the liquidator may apply to the court for an order under the section setting aside the preference.” Page 14 of 19 [33] The Federal Court in Sime Diamond Leasing (M) Sdn. Bhd. has categorically listed down the conditions for s. 293 to apply. [34] In this instant case, not an iota of evidence was adduced in the defendants‟ case to establish that at the time of the set off agreement was reached, i.e. on 3.5.2003, or at the time the SPAs were entered into on 15.12.2003 Roebuck was insolvent. Neither did the defendants establish in evidence that the set off agreement or the entering of the SPAs was to confer on the plaintiff a preference, priority or advantage over other creditors in the winding up of Roebuck. In the absence of these two conditions, the defendants‟ argument on undue preference must fail. [35] In addition to the above finding, this Court is of the considered view that the defendants could not rely on this principle of undue preference as their defence. Firstly, for the 1st defendant, the 1st defendant did not file any counter-claim relying on the principle of undue influence to seek a declaration to set aside the transaction of the said properties. [36] Secondly, undue preference was not pleaded at the first place in the 1st defendant‟s statement of claim. Although the 1st defendant‟s counsel attempted to amend its statement of defence at the eleventh hour, it could not improve the 1st defendant‟s case. Based on the available evidence before this Court, the 1st defendant did not retrieve all the documents/records of Roebuck that present the true financial position of Roebuck. Hence, the 1st defendant could not establish that Roebuck was insolvent at the material time of the transaction between the plaintiff and Roebuck. Page 15 of 19 [37] Thirdly, for the 2nd defendant, although the 2nd defendant has pleaded undue preference in its defence, unfortunately, only a liquidator could apply to the Court to set aside a transaction which falls within s.293 (see JCT Ltd v Muniandy a/l Nadasan & Ors [2016] 6 MLJ 621). Lastly, the 2nd defendant failed to specifically plead relevant facts in its defence which could show there was undue preference. [38] Based on the above findings, this Court is of the considered view that s.293 of the Companies Act 1965 is not applicable in this given set of evidence and facts. Third Issue: Whether the 2nd defendant was a bona fide purchaser [39] It is questionable that the 2nd defendant was a bona fide purchaser for one main reason. The vesting order dated 2.3.2007, paragraph (b) does not contain any reference to the 2nd defendant. Paragraph (b) states as follows: “That the Liquidator shall be allowed to sell the immovable property of the Respondent’s company with the power to transfer the immovable property to Mahabuilders Sdn Bhd (Co. No. 101505-A) of Nos. 53 & 55, Jalan Baiduri 1, Taman Tasek, Johor Bahru 80200 Johor the successful bidder/tenderer of the sale by tender (hereinafter referred to “as the Purchaser”) wherein the description of the property are as follows:- ” Page 16 of 19 [40] There was no court order to allow the 1st defendant to sell and transfer the said development, including the said properties, to the 2nd defendant. Although the defendants submitted that the 2nd defendant was the nominee of Mahabuilders, it was incumbent upon the liquidator to apply to the court to allow Mahabuilders to appoint its nominee to be named as the purchaser. [41] Further, this Court finds the reduction of sale price by RM800,000.00 was not sanctioned by any court order. The discount given by the 1st defendant to the 2nd defendant is questionable. [42] Based on the above reasons, this Court is of the considered view that the 2nd defendant could not establish it was a bona fide purchaser. Other Issues [43] After having examined the oral and documentary evidence adduced by the plaintiff, this Court is satisfied that the plaintiff has proved it had obtained good title to the said properties. Based on the earlier findings in relation to the issue of undue preference, it is not relevant for this Court to determine when the agreement of set off was entered into, i.e. whether at the time the plaintiff accepted the offer made by Roebuck on 3.5.2003 or upon the execution of the SPAs on 15.12.2003. In either event, the defendants have failed to establish the transaction was done in preference of the plaintiff over other creditors (if any) and that Roebuck was insolvent at the material time. Page 17 of 19 Conclusion [44] This Court after having found the plaintiff had obtained good title of the said properties, and that the 1st defendant was negligent in carrying out his duties and responsibilities as the liquidator, therefore, holds the rights and ownership of the said properties did not pass on to the 1st defendant as the liquidator in the said vesting order dated 2.3.2007. Since the 1st defendant and/or Roebuck has no good title of the said properties, a fortiori, the 2nd defendant could not have good title as well. [45] Notwithstanding the finding that the transaction between the 1st defendant and 2nd defendant was not sanctioned by the court, this Court is not ready to vitiate the entire vesting order after having considered the plaintiff‟s intention and the interests of other parties who were not involved in this suit but in one way or the other affected by the vesting order dated 2.3.2007. If this Court vitiates the vesting order, the repercussion would be severe in that many parties‟ interests will be affected and worse is that the whole revival of the development would be affected. [46] Based on the above reasoning, this Court ordered the declarations as prayed as follows: (i) suatu declarasi bahawa plaintif adalah pemilik benefisial unit- unit yang dikenali sebagai RG-23, R1-20 dan R3-19, Condominium La Cemara Desaru Beach Resort yang dipegang dibawah hakmilik induk yang dikenali sebagai HS(D) 13599, Lot No. PTD 1588 Mukim Pantai Timur, Daerah Kota Tinggi, Johor (nnit-unit tersebut); Page 18 of 19 (ii) suatu deklarasi bahawa hak in rem plaintif keatas unit-unit tersebut adalah terpelihara walaupun terdapatnya Perintah- Perintah bertarikh 15.8.2006 dan 2.3.2007 di Mahkamah Tinggi Johor Baharu MT1-28-14-2004; dan (iii) suatu perintah bahawa unit-unit RG-23, R1-20 dan R3-19 dikecualikan daripada jualan hartanah oleh Defendan Pertama kepada Defendan Kedua dan milikan kosong diberikan kepada plaintif. [47] This Court also ordered the defendants to pay costs of RM10,000.00 each to the plaintiff. -Signed- ………………………………………… (CHOO KAH SING) Judicial Commissioner High Court, Johor Bahru Page 19 of 19 Counsel for the Plaintiff: M. Menon Messrs. Jaffar & Menon Counsel for the 1st Defendant : Malcolm Fernandez (Mark Cheng with him) Messrs. C. Sukumaran & Co. Counsel for the 2nd Defendant : WJ Chen Messrs. WJ Chen & Company	25,612	Tika 2.6.0
WA-12ANCC-76-09/2016	PLAINTIF 1. ) Winn Worldwide Sdn. Bhd. & 1 Lagi 2. ) Winn Worldwide Sdn Bhd & 1 Lagi DEFENDAN Yap Tham Pow & 1 Lagi	null	30/09/2017	YA DATUK LAU BEE LAN	https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=fe426fef-9994-4fbc-8e81-391c688acc1f&Inline=true	DALAM MAHKAMAH TINGGI MALAYA DI MUAR 1 DALAM MAHKAMAH TINGGI MALAYA DI KUALA LUMPUR 5 DALAM WILAYAH PERSEKUTUAN, MALAYSIA RAYUAN SIVIL NO.WA-12ANCC-76-09/2016 ANTARA 10 1. WINN WORLDWIDE SDN. BHD. (No. Syarikat: 1001636-U) (dahulunya dikenali sebagai … PERAYU- ENERGY WINN SDN. BHD.) PERAYU 2. YEE TUCK POH 15 (No. K/P: 670901-08-6239) DAN 1. YAP THAM POW 20 (No. K/P: 611122-10-6579) 2. JANE CHANG LIN JIN … RESPONDEN (No.K/P: 720324-07-5750) RESPONDEN (Dalam Mahkamah Sesyen di Kuala Lumpur 25 Dalam Wilayah Persekutuan, Malaysia Guaman No.WA-B52NCC-365-04/2016 Antara 30 1. Yap Tham Pow (No.K/P: 611122-10-6579) 2. Jane Chang Lin Jin … Plaintif- (No.K/P: 720324-07-5750) Plaintif 35 Dan 1. Winn Worldwide Sdn. Bhd. (No. Syarikat: 1001636-U) (dahulunya dikenali sebagai 40 Energy Winn Sdn. Bhd.) 2. Yee Tuck Poh (No.K/P: 670901-08-6239) 3. Lembaga Hasil Dalam … Defendan- Negeri Malaysia Defendan) 45 2 5 GROUNDS OF DECISION [1] This is an appeal by the Appellants/Defendants against the learned Sessions Court Judge’s (‘SCJ’) decision made on 24/8/2016 in respect of the Respondents/Plaintiffs’ application in encl.19 made 10 under O.14 A of the Rules of Court 2012 (‘ROC 2012’) wherein she allowed the following paragraphs of the Amended Statement of Claim - “(a) perintah deklarasi mengisytiharkan bahawa Akuan Persetujuan bertarikh 25.02.2014 tersebut adalah satu perjanjian antara H.O.L. 15 Chain Store (Malaysia) Sdn. Bhd. dan Defendan Ketiga dan ia tidak boleh dikuatkuasakan terhadap Plaintif-Plaintif; (b) … 20 (c) perintah bahawa jumlah RM656,673.69 bersama-sama kesemua faedah yang dipegang oleh peguamcara Defendan Pertama dan Kedua sebagai amanah dibayar kepada Plaintif-Plaintif dengan serta merta; 25 (d) faedah pada kadar 5% setahun ke atas jumlah penghakiman dari tarikh perintah di sini sehingga tarikh penyelesaian penuh; (e) kos”. I shall adopt the manner the parties are referred to at the Sessions 30 Court. [2] Having considered the Written Submissions of Counsel for the Defendants and the Plaintiffs, I dismissed the appeal of the Defendants with costs of RM6,000.00 to be paid by the Defendants to 35 the Plaintiffs. The reasons for my decision is set below. [3] Looking at encl.19 (pp.69-76 of the ROA Vol.1), the sole question to be decided by the learned SCJ is - 3 “Samada Akuan Persetujuan bertarikh 25.02.2014 adalah satu perjanjian 5 antara H.O.L. Chain Store (Malaysia) Sdn. Bhd. dan Defendan Ke-3 dan ia tidak boleh dikuatkuasakan terhadap Plaintif-Plaintif?” “Whether the ‘Akuan Persetujuan’ dated 25.02.2014 is an agreement between H.O.L. Chain Store (Malaysia) Sdn. Bhd. and the 3rd Defendant and it cannot be enforced against the Plaintiffs?” 10 [4] In this appeal the Defendants attempted to raise the issues in paras 2 to 13 of their Written Submission. I agreed with the Plaintiffs these issues are irrelevant for the following reasons: (a) All issues between the Defendants and the Plaintiffs in relation 15 to the Share Sale Agreement pertaining had already been raised and decided by the learned SCJ in another Suit No.B52NCVC-31-07/2013 where an Order dated 24/7/2015 was granted as follows: “(a) permohonan Plaintif-Plaintif dalam Notis Permohonan bertarikh 02.04.2015 (Kandungan 93) di sini adalah dibenarkan; 20 (b) Defendan-Defendan membayar jumlah Ringgit Malaysia Enam Ratus Lima Puluh Enam Ribu Enam Ratus Tujuh Puluh Tiga Dan Sen Enam Puluh Sembilan (RM656,673.69) bersama-sama faedah ke dalam satu akaun simpanan tetap dipegang oleh peguamcara 25 Defendan sebagai pemegang amanah sehingga perlupusan muktamad pertikaian tuntutan Lembaga Hasil Dalam Negeri terhadap H.O.L Chain Store (Malaysia) Sdn Bhd; (c) Plaintif-Plaintif adalah diberi kebebasan untuk mencabar Akuan 30 Persetujuan bertarikh 25hb Februari 2014 antara Defendan Ke-2 dan Lembaga Hasil Dalam Negeri; (d) berkenaan tuntutan balas Defendan-Defendan, Mahkamah mendapati Plaintif-Plaintif adalah bertanggungjawab ke atas 35 caruman yang perlu dibayar sepertimana dalam Klausa 5.5 Share Sale Agreement bertarikh 16.05.2012 dan Defendan Pertama adalah dibenarkan untuk mengambil tindakan perlaksanaan terhadap Plaintif-Plaintif, jika perlu, setelah perlupusan muktamad pertikaian tuntutan cukai tahun 2011 antara Lembaga Hasil Dalam 40 Negeri dan H.O.L. Chain Store (Malaysia) Sdn. Bhd; dan (e) tiada perintah terhadap kos”. I wish to stress there was no appeal against this Order of 24/7/2015; 45 4 5 (b) These issues are res judicata and should not be re-litigated as held by the Supreme Court in Asia Commercial Finance (M) Berhad v. Kawal Teliti Sdn. Bhd. [1995] 3 CLJ 783 at p.784 Held 1 and 2. 10 (c) The Defendants’ argument that H.O.L Chain Store (Malaysia) Sdn Bhd had made full payment to LHDN was not an issue or question raised during the hearing of the O.14 A application (encl.19) in the Sessions Court and therefore could not be raised in this appeal here. I drew support from the case of Government of the State 15 of Sarawak & Anor v Chong Chieng Jen [2016] MLJU 113 which is an appeal from an O.14A application filed by the respondent/ defendant where there were 4 questions of law posed for the High Court’s determination but the appeal concerned only the 1st question of whether the appellant/1st plaintiff (State Government of Sarawak 20 and/or the 2nd appellant/2nd plaintiff (a government department and an organ of the government) have the right to sue and maintain an action for damages for defamation against the respondent /defendant. The appeal is against the decision of the High Court at Kuching which dismissed the State Government and the State 25 Financial Authority’s action for defamation by reason that although the State Government or statutory body can sue and be sued, that right does not extend to the right to sue for defamation. Abdul Rahman Sebli JCA delivering the majority judgment of the Court of Appeal stated - 30 “[90] If a litigant omits to include any question of law that is determinative of the rights of the parties and fails in his application, he cannot turn around and say that the case must nevertheless proceed to trial as the 5 court has yet to decide on the remaining issues of law that he omitted to 5 include in the O 14A application. He cannot have the best of both worlds and to approbate and reprobate. [91] In our view, since all four questions have now been answered in favour of the appellants, the claim against the respondent has been established without any further need to hear evidence from the respondent 10 nor for further arguments to be canvassed before the learned High Court judge”. (d) In any event I agreed with the submission of the Plaintiffs that this appeal (in WA-B52NCC-365-04/2016) should be confined only to the construction of the document of the “Akuan Persetujuan” (pp.189-15 190 ROA Vol.1) which was the only question for the determination of the learned SCJ. In the circumstances the other issues which the Defendants are attempting to raise are irrelevant. In this regard I relied on the case of Lee Guan Par v Hotel Universal Sdn Bhd [2005] 4 MLJ 589 at 599[36] wherein Nik Hashim JCA (as 20 he then was) (delivering the judgment of the Court of Appeal) found “the learned judge had misdirected himself when he considered the hardship the appellant would have to bear if double rental was ordered against [him]” and held “the learned judge ought to have decided the issue strictly on the facts and the law and not on 25 sentiment”. Similarly here, the Court ought to focus only on the issue confronting the learned SCJ as alluded to in para 3 above. [5] Now turning to the issue at hand, I accepted the Plaintiffs’ submission that the Defendants did not - 30 (a) dispute the said “Akuan Persetujuan” was made between H.O.L Chain Store (Malaysia) Sdn Bhd and LHDN and the Plaintiffs were never a party thereto; (b) challenge the validity of the said “Akuan Persetujuan” between H.O.L Chain Store (Malaysia) Sdn Bhd and LHDN; 35 6 (c) deny that amount under the said “Akuan Persetujuan” was paid 5 by H.O.L Chain Store (Malaysia) Sdn Bhd not the 1st and 2nd Defendants. [6] I find there was no evidence from H.O.L Chain Store (Malaysia) Sdn Bhd to show that they entered the “Akuan Persetujuan” under 10 any threat or duress. In fact the admissions of the Defendants gleaned from the “Appellants’ Further Submissions” - “(a) the said Akuan Persetujuan dated 25.02.2014 is an agreement between HOL and LHDN; (paragraph 7 of Appellants’ Further Submissions); and 15 (b) the said Akuan Persetujuan cannot be enforced against the Respondents (paragraph 8 of Appellants’ Further Submissions)”. confirmed that the “Akuan Persetujuan” was voluntarily intended by 20 H.O.L Chain Store (Malaysia) Sdn Bhd and LHDN. [7] I am of the view that the issue of indemnity between the Plaintiffs and the 1st Defendant does not arise because H.O.L Chain Store (Malaysia) Sdn Bhd paid the amount to LHDN pursuant to the 25 said “Akuan Persetujuan”, not pursuant to the Share Sale Agreement between the Plaintiffs and the 1st Defendant. [8] Furthermore, the Defendants had suffered no loss because the agreed amount in the said “Akuan Persetujuan” was paid by H.O.L 30 Chain Store (Malaysia) Sdn Bhd and not the Defendants. However no action whatsoever was taken by H.O.L Chain Store (Malaysia) Sdn Bhd. 7 [9] It is important to note that the Defendants had in their Amended 5 Statement of Defence dated 2/6/2016 at para 65A admitted that the Plaintiffs were never a party to the said “Akuan Persetujuan” because LHDN only take action against the company which is H.O.L Chain Store (Malaysia) Sdn Bhd and the existing directors of the company. 10 [10] The argument of s.75 of the Income Tax Act raised by the Defendants has no relevancy here because the payment of the tax was made pursuant to the “Akuan Persetujuan” made between H.O.L Chain Store (Malaysia) Sdn Bhd and LHDN. 15 [11] The said “Akuan Persetujuan” was never made known to the Plaintiffs until the Plaintiffs commenced Suit No.B52NCVC-31- 07/2013 in the Sessions Court. In this connection, I accepted the explanation of the learned Counsel for the Plaintiffs given in oral Reply that whilst it is true he received the e-mail dated 28/6/2013 20 together with attachment, but the Plaintiffs were never informed of the Defendants’ intention of entering into “Akuan Persetujuan” until the commencement of the Suit as the copy of “Akuan Persetujuan” received by him was an unsigned copy (p.333 ROA Vol.1) unlike the signed copy found at 190 ROA Vol.1. 25 [12] The Plaintiffs were never a party to the “Akuan Persetujuan” and were not privy to the same and therefore the “Akuan Persetujuan” cannot be enforced against the Plaintiffs. In this regard I relied on - 30 (i) Woolley Development Sdn Bhd v Tiara Contours Construction Sdn Bhd [2015] MLJU 1288 where Nallini 8 Pathmanathan JCA (delivering the judgment of the Court of Appeal) 5 held - “[53] In the instant case, the second defendant was not party to, nor privy to the sale and purchase agreement which was concluded between the plaintiff and Cherating. As such, the plaintiff could not seek to enforce the settlement agreement against a non-party, namely the second defendant”. 10 (ii) Green Crescent Resources v Ching Miew Yoke & Ors. [2016] 2 MLJ 579 where her Ladyship held “[57] The doctrine of the privity of contract precludes any such statements or arrangements from becoming binding on Green Crescent, as it was never privy to, 15 nor party to the same.” Conclusion [13] For the foregoing reasons I find the learned SCJ has arrived at her findings based on the correct facts and principles of law and there 20 is no reason for this Court to intervene or disturb the decision of the learned SCJ. Hence the dismissal of the Defendants’ appeal with costs. Dated: 30/9/2017 25 SGD. (LAU BEE LAN) Judge 30 35 9 5 Counsel for the Appellants/Defendants: Encik Oh Teik Keng Messrs Oh Teik Keng & Partners Advocates & Solicitors 10 No. 24-1, Jalan 2/96A Taman Cheras Makmur 56100 Kuala Lumpur 15 Counsel for the Respondents/Plaintiffs: Encik Beh Chee Wei Messrs Beh & Co. Advocates & Solicitors 20 B-2-3, Blok B, Kuchai Exchange No. 43, Jalan Kuchai Maju 13 Kuchai Entrepreneurs Park 58200 Kuala Lumpur 25	13,160	Tika 2.6.0
22NCVC-750-11/2016	PLAINTIF ANNAMOORTHY A/L MOOKAN DEFENDAN 1. HAP SENG STAR SDN BHD 2. MERCEDES BENZ MALAYSIA SDN BHD 3. MERCEDES BENZ SERVICES MALAYSIA SDN BHD 4. DAIMLER CHRYSLER AG	Civil Procedure - Application to reinstate Writ and Statement of Claim and to set aside judgment in default - suit was struck out due to the plaintiff’s solicitor’s non-attendance on the case management dates and non-compliance with the pre-trial case management directions - judgment in default was also entered in favour of the first defendant’s counter claim - whether the plaintiff’s solicitor was negligent - whether that of itself is sufficient for the Court to exercise its discretion to reinstate the suit and set aside the judgment in default - devoid of any merit - the court dismissed the plaintiff’s application - Rules of Court 2012, order 34 rule 2(3) and (4), 6 (1) and (2).	29/09/2017	YA DATUK S. NANTHA BALAN	https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=7f2c2477-8aa1-4cab-b0b6-f39ba07e427a&Inline=true	IN THE HIGH COURT OF KUALA LUMPUR IN THE FEDERAL TERRITORY OF MALAYSIA (CIVIL DIVISION) CIVIL SUIT NO. : WA-22NCVC-750-11/2016 BETWEEN ANNAMOORTHY A/L MOOKAN …PLAINTIFF AND 1. HAP SENG STAR SDN BHD 2. MERCEDES BENZ MALAYSIA SDN BHD 3. MERCEDES BENZ SERVICES MALAYSIA SDN BHD 4. DAIMLER CHRYSLER AG … DEFENDANTS GROUNDS OF JUDGMENT (Enclosure 25) Introduction 1. These are my grounds of judgment in respect of an application by the plaintiff (Enclosure 25) to reinstate the Writ and Statement of Claim dated 25 November 2016 which was struck out on 19 April 2017. The plaintiff also seeks to set aside the judgment in default which was entered against the plaintiff in respect of the first defendant’s counterclaim on 19 April 2017. 2. In this case, the suit was fixed for full trial on 24, 25 and 26 May 2017. These dates were fixed on 21 December 2016. When the matter was called up for case management on 19 April 2017, counsel for the plaintiff did not appear. The plaintiff’s counsel also did not turn up on the earlier case management date i.e. 13 April 2017. There is no dispute that as at 19 April 2017, the plaintiff had not complied with the pre-trial case management directions (“PTCM directions”) which were issued on 21 December 2016. Hence, the suit was struck out as there was non-compliance with the PTCM directions and also due to the non-attendance of the plaintiff’s counsel. On that date, judgment was also entered against the plaintiff in respect of the first defendant’s counter-claim. The starting point in the present context is the PTCM directions that were issued on 21 December 2016. They are as follows:- “Court: Trial Date(s): 24, 25 & 26.05.2017 (3 Days) at 9.00am Plaintiff: 3 Witnesses Defendant: 5 Witnesses (D1 -2 Witnesses, D2/D3: 3 Witnesses) Interlocutory applications (if any) are to be filed no later than 26.01.2017 Pre-trial CM directions: All Pre-Trial Case Management directions must be fully complied with by 19.04.2017, failing which the suit or counterclaim (if any) will be struck out or judgment entered accordingly, depending on who is to blame for the non-compliance. There should be no Part C documents unless they meet the criteria for inclusion in Part C. Witness Statements: All witness statements are to be filed and served by 11.05.2017, failing which the evidence of the witness whose witness statement was not filed by the due date will not be taken during the trial. There should be no witnesses under subpoena without prior notice to and approval by the Judge at CM. Efforts must be made to obtain a full witness statement from the witness under subpoena and if the witness refuses to give the answers to the questions then he/she must be given a list of questions (without answers) in advance of the trial. All documents must be in the Bundle of Documents and should not be tendered at trial through any of the witnesses. CM date(s): 1) 26.01.2017 at 8.30am 2) 19.04.2017 at 8.30 a.m.” [Emphasis added] 3. I should add that the plaintiff was at all material times represented by the firm of Messrs. Ram. Counsel from that firm who appeared for the plaintiff was Mr. Sundramoorthy. I turn now to the Court’s minutes for 19 April 2017 which read as follows: “Court: P's sol. are not present in Court today. They were not present on the last CM date as well (13.04.2017). PTCM directions have not been complied with. As P's sol. have carriage of the case and bear principal responsibility to get the case ready and ensure full compliance with PTCM directions and as there is no explanation by P's sol. as to why PCTM directions have not been complied with - the case is hereby struck off. Suit is struck off. Under Order 34 Rule 2 (3) and/or Order 34 Rule 6 (1) - I hereby enter judgment in default in respect of D1's counterclaim - prayer (A), (B), (E) and (F) of Encl (6) are allowed P to pay costs of RM 7,500.00 to D1 (subject to 4% allocatur). P to pay total costs of RM 5,000.00 to D2 and D3 (subject to 4% allocatur) Trial on 24 - 25 May 2017 is vacated Encl (14) is struck off. No order as to costs. Suit against D4 is struck off.” [emphasis added] 4. Consequently, the Order dated 19 April 2017 that was extracted reads as follows: “.....PURSUANT TO Order 34 ruled 2(3) and 6(1) of the Rules of Court 2012 IT IS ADJUDGED that this action against the 1st, 2nd, 3rd and 4th Defendants be dismissed and the Plaintiff shall pay the costs of (i) RM7,500.00 to the 1st Defendant, and (ii) RM5,000.00 to the 2nd and 3rd Defendants. IT IS FURTHER ADJUDGED that the Plaintiff shall pay to the 1st Defendant: 1. Storage Charge from 14 May 2016 until 30 December 2016 amounting to RM12,243.00; 2. Storage Charge at the rate of RM50,00 (per day from 31 December 2016 until the Plaintiff or his authorized representative has removed his Car from the 1st Defendant’s premises; and 3. Interest at the rate of 5% per annum on all sums due and payable by the Plaintiff to the 1st Defendant from 30 December 2016 until full and final settlement. IT IS DECLARED that the 1st Defendant is at liberty to dispose of the Plaintiff’s car with Registration No. WA 9991 M, Model No. E250 AVA (W212) (CKD), Chassis No. WDD2120366L042468 and Engine No. 27492030157666 (“Car”) in anyway the 1st Defendant deems fit and the Plaintiff shall indemnify the 1st Defendant for any costs incurred as a result of such removal.” 5. I should add that the order reads as the action against the defendants be “dismissed”. This part of the order dated 19 April 2017 was subsequently amended under Order 20 rule 11 Rules of Court 2012 (“slip rule”) to read as “struck out”. I turn now to the facts of the case. Plaintiff’s synopsis 6. The plaintiff’s case is that in August 2014, he purchased from the first defendant (“D1”), a brand new Mercedes Benz E250 CKD model with registration number WA9991-M (“the said motorcar”) for a sum of RM404,962.50. 7. The plaintiff claims that he purchased the said motorcar which was designed, manufactured, tested, distributed, delivered, supplied, inspected, marketed, sold and warranted by the defendants. 8. The plaintiff also claims that he was deceived by the defendants’ misrepresentations regarding the reliability, durability and dealer support for the said motorcar. The plaintiff claims that he did not receive the benefit of the bargain and suffered loss as a result of the defendants’ misrepresentations. 9. According to the plaintiff, a substantial factor in the plaintiff’s purchasing decision was the defendants’ extensive promotional and advertising campaign which focussed on the superior quality, reliability, durability, fuel economy and dealer support for the said motorcar. According to the plaintiff, at the time of the sale, he was under the impression that he was purchasing a vehicle that was free of any design defects. However, the plaintiff was unaware that the said motorcar was in fact suffering from design defects. 10. In this regard, the plaintiff claims that approximately between 2-8 months after purchasing the said motorcar, he began to experience substantial, continuous and multiple problems with the said motorcar. Some of the necessary repairs and replacements were covered by the original manufacturer’s warranty. 11. It was at this moment in time that the plaintiff was finally made aware that he had purchased a motorcar that was plagued by design defects. The plaintiff allegedly suffered damages as a result of purchasing the said motorcar. 12. In addition to the damages which he has suffered, he claims that he has also endured pain, suffering, damage and considerable inconvenience. According to the plaintiff, this action concerns the numerous quality, design, manufacturing and reliability defects with the said motorcar that renders it to be of unmerchantable quality and unsuitable for use. The plaintiff alleges that the lack of merchantable quality and unsuitability for use of the said motorcar is contrary to the defendants’ representations. 13. Also, it is alleged by the plaintiff that the repeated repairs and replacements during the warranty period had failed to ensure that the said motorcar was repaired or defects corrected in any lasting way and the said motorcar could neither function as required nor as represented. The plaintiff therefore seeks an award of damages against the defendants for intentional, wilful, and/or negligent failure to disclose that the said motorcar was inherently defective and was in a dangerous condition. 14. The reliefs sought by the plaintiff (per paragraph 63 of the statement of claim) are as follows:- “ i. General Damages for loss of usage of the said car, the diminished value of the said Mercedes Benz, costs of replacing the said car with another car for daily travel/usage, pain and suffering, stress, trouble and inconvenience; ii. Punitive, Aggravated and Exemplary Damages for a sum of RM2,000,000.00 and/or an amount that this Honourable Court deems appropriate; iii. A Declaration that the Defendants are jointly and severally liable for any and all damages awarded; iv. Restitution and/or a refund off all monies paid to or received by the Defendants from the sale of the said Mercedes Benz to the Plaintiff on the basis that the said Mercedes Benz was return to D1on 13.6.2016 and unjust enrichment; v. Rescission of the Hire Purchase Agreement dated 26.9.2014 between D3and the Plaintiff; vi. Alternative to prayer 63 (iv) above, the Defendants to provide a latest brand new trouble free Mercedes Benz Model E250 car of same model of current year; vii. Pre and post judgment interest pursuant Rules of Court 2012; viii. Costs; ix. Such further and other relief as this Honourable Court may deem just and appropriate in all the circumstances;” 15. I turn now to D1’s position. First defendant’s position 16. D1 is one of the authorised dealer of the second defendant (“D2”). On or around 7 August 2014, the plaintiff purchased the said motorcar from D1 and agreed to be governed by inter alia the following documents: a. Offer to Purchase Form dated 7 August 2014 (“OTP Form”); and b. D2’s Warranty Terms & Conditions (“Warranty T & C”). 17. According to D1, the Warranty T & C records all warranties that were given to the plaintiff and this is expressly provided for in the OTP Form. In accordance with the Warranty T & C, all complaints made by the plaintiff were investigated and repaired by D1. Further, when sending the said motorcar for repairs, the plaintiff expressly agreed to be bound by inter alia the Pre-Work in Progress (WIP) form which inter alia provides that: a. Any claim for any damage caused to the said motorcar is limited to the rectification free of cost; b. No claim for incident and/or consequential losses is admissible; and c. Storage charge is payable if the plaintiff does not collect the said motorcar within 3 days of the date of completion of its repairs. 18. According to D1, notwithstanding these terms and conditions, the plaintiff still failed, refused and/or neglected to collect the said motorcar from D1’s premises. Hence, D1’s position in this suit is inter alia as follows: a. The plaintiff's assertions of defects are without merits, as the complaints had already been dealt with in accordance with inter alia the Warranty T & C; b. In any event, the plaintiff agreed to inter alia limit any claim to the rectification free of cost and to not hold D1 liable for any loss, damage or deterioration to the said motorcar during its storage with D1; and c. The plaintiff’s failure to collect the said motorcar is a breach of contract and amounts to a trespass. 19. As such, D1 has counterclaimed for the following reliefs:- “ A. Storage Charge from 14.05.2016 until 30.12.2016 amounting to RM12,243.00; B. Storage Charge at the rate of RM50.00 per day from 31.12.2016 until the Plaintiff or his authorised representative has removed his Car from the 1st Defendant’s premises; C. Loss and damages suffered by D1as a result of the Plaintiff’s trespass; D. Mandatory injunction to compel the Plaintiff or his authorised representative to remove his Car from the 1st Defendant’s premises within 7 days from the judgment date; E. Declaration that D1is at liberty to dispose of the Plaintiff’s Car in anyway D1deems fit and the Plaintiff shall indemnify D1for any costs incurred as a result of such removal; F. Interest at the rate of 5% per annum on all sums due and payable by the Plaintiff to D1from 30.12.2016 until full and final settlement; G. Costs; and H. Any further and other reliefs this Honourable Court deems fit and proper to grant.” Second defendant’s position 20. At all material times, D2 assembled certain models of Mercedes-Benz motor vehicles and distributes those vehicles to its authorized dealers such as D1 in Malaysia. D1 is an authorized dealer of D2 and is authorized by D2 to sell the Mercedes-Benz motor vehicles to end customers such as the plaintiff in Malaysia, but such authorization is not for and on behalf of D2. 21. It is D2’s position that the plaintiff is not entitled to his claim, particularly for a new replacement motorcar and/or a refund of all monies paid to the defendants to date, for the following reasons:- (a) All vehicles distributed by D2 are in compliance with the Sale of Goods Act 1957 and the Consumer Protection Act 1999, and are of merchantable quality, fit for the purposes for which they are supplied and free from defects; (b) At all material times when the said motorcar was delivered to D1 for its sale to the end customer, the said motorcar was of merchantable quality, fit for the purposes for which it is supplied and free from defects; (c) A vehicle delivery certificate was issued by D1 showing that the said motorcar was of merchantable quality and that the necessary jobs and/or checking were completed before the said motorcar was delivered. The vehicle delivery certificate was also acknowledged by the plaintiff himself confirming the same; (d) A warranty for defective material or workmanship on the terms and conditions as set out in a standard form Passenger Car Introduction Booklet would be attached to such vehicle sold for a period of 4 years from the date of registration of the said motorcar (“Warranty”); (e) D2’s liability is as set out in the Warranty that is attached to the said motorcar and is limited to the repair or exchange of parts as D2 in its sole discretion deems appropriate and shall not be liable for any consequential losses or damage arising through any defects. (f) All the complaints in respect of the said motorcar have been promptly attended to where necessary under and in accordance with the Warranty. The said motorcar had been attended to and duly repaired where necessary under and in accordance with the Warranty, and has been ready for collection since 11 May 2016 and that it is the plaintiff who has refused and/or failed to collect the said motorcar. (g) D2 has not been involved with any handling, service or repair of the said motorcar since it was delivered to D1 prior to D1’s sale of the said motorcar to the plaintiff. (h) The said motorcar is not unmerchantable and/or unsuitable for use as alleged by the plaintiff. (i) A courtesy motor vehicle was provided to the plaintiff to keep the plaintiff on the road at all times during the time when the said motorcar was checked in under the Warranty with D1 until the said motorcar is complete and ready for the plaintiff’s collection. 22. I turn now to the third defendant’s position. Third defendant’s position 23. The third defendant (“D3”) is a company incorporated in Malaysia and having its principal business of activity in hire purchase financing, dealer floor-stock financing and marketing of branded motor insurance products. D3 also provides financial services to the customers of D2 as well as its authorized dealers. The sole connection that D3 has with the matters averred to in this action is that it provided a hire purchase loan to the plaintiff with regards to his purchase of the said motorcar. 24. In this regard, D3 contends that there is no cause of action against D3 and all allegations by the plaintiff as against D3 are without basis. Therefore, the plaintiff’s claim against D3 is an abuse of the process and is unsustainable. The arguments 25. As I said at the outset, the Court had given PTCM directions and the parties were under a duty to comply with the said directions by 19 April 2017. 26. However, the plaintiff’s previous solicitors, Messrs. Ram failed to comply with the PTCM direction which resulted in the plaintiff’s suit being struck out and judgment in default entered in favour of D1’s counter claim. The Writ Summons and Statement of Claim dated 25 November 2016 was struck out in pursuant to Order 34 Rule 2(3) and Order 34 Rule 6(1), Rules of Court 2012 (“ROC”) and they read as:- “Order 34 Rule 2(3):- “The Court, having given directions under rule 2(2) or rule 3 may either on its own motion or upon the application of any party, if any party defaults in complying with any such directions, dismiss such action or proceedings or strike out the defence or counterclaim or enter judgment or make such order as it thinks fit”. Order 34 Rule 6(1): “If, at the time appointed for the pre-trial case management, any party fails to attend, the Court may dismiss the action or proceedings or strike out the defence or counterclaim or enter judgment or make such other order as the Court thinks fit”. 27. But, Order 34 Rule 2(4) and Rule 6(2) ROC 2012 provides a remedy wherein it states:- “Any judgment or order made under rule 2(3) may be set aside by the Court, on the application of the party, on such terms, if any, as it thinks just” 28. And Order 34 Rule 6(2) provides that:- “An order made by the Court in the absence of a party concerned or affected by the order may be set aside by the Court, on the application of that party, on such terms as it thinks just” 29. It was therefore contended for the plaintiff that based on Order 34 Rule 2(4) and Rule 6(2) ROC, this Court is clothed with jurisdiction to set aside the judgment dated 19 April 2017 and reinstate the plaintiff’s action. 30. It is conceded by counsel for the plaintiff that the suit was dismissed based on non-compliance with the PTCM directions and due to non-attendance of the plaintiff’s previous solicitor on the last case management date on 19 April 2016. 31. The plaintiff’s present solicitors referred to Exhibit TEC 8 pg 160 of D1’s Affidavit and Exhibits D2-5 and D3-6 of D2 & D3’s Affidavits and contended that the plaintiff’s previous solicitor, Mr. Sundramoorthy has been adjudicated a bankrupt and that is the reason for his failure to comply with the PTCM directions and failure to attend court on the case management date on 19 April 2014. According to the plaintiff, when a solicitor has been served with an adjudicating and receiving order, the said solicitor is no longer fit or qualified to practice and therefore is not an advocate and solicitor of the High Court of Malaya. 32. It is alleged that the plaintiff’s previous solicitor had through his Whatsapp message dated 18 May 2017, (Exhibit A-2 Affidavit in Support – Enclosure 26) informed the plaintiff that he had to cease practice immediately and this fact was only informed to the court after the judgment was entered on 19 April 2017 through letter dated 11 May 2017. 33. The plaintiff maintains that he did not intentionally disobey the PTCM directions or failed to attend court. Further, the plaintiff had been constantly following up on the status of the case as may be seen from Exhibits A-5, of the Plaintiff’s Affidavits in Reply. The plaintiff alleges that the actions of the previous solicitors had clearly fallen below the standard of care required of a solicitor to protect his client’s interest. The plaintiff was not aware of non-attendance of the previous solicitor on 13 April 2017 and again on 19 April 2017. 34. According to the plaintiff, the Affidavits of the defendants also reveal that they had problems communicating with the plaintiff’s previous solicitor and they had the same problem of contacting him on the final case management date (see: D1’s Affidavit para 24 pg 12). 35. Further, the plaintiff relied on Exhibits A-1, A-2 & A-5 of the Plaintiffs Affidavit in Support (Enclosure 26) and the Plaintiff’s Affidavits in reply (Enclosure 31) to prove that:- a) He was aware of the trial dates on 24, 25 and 27 May 2017; b) The plaintiff was also aware of the case management date on 19 April 2017; c) The plaintiff was informed that the bundle of documents was filed in court and therefore on 27 January 2017 the plaintiff requested for a copy of the bundle from his previous solicitors. Refer Exhibit A-5, Plaintiff’s Affidavits in Reply (see: Enclosure 31) d) The plaintiff was not informed of the non-attendance of his previous solicitors on 19 April 2017 when he informed the solicitor on 20 April 2017 that his payment has been banked in; e) On 18 May 2017, the plaintiff’s previous solicitors had informed that he had to cease practice immediately and therefore had requested for adjournment of trial date from the court, (see: Exhibit A-2 Affidavit in Support; f) The previous solicitor did not inform him that he had been adjudicated a bankrupt; g) The plaintiff was not aware of his case being struck out by the court and that judgment has been entered favouring D1; h) The plaintiff was only aware of the status of his case upon consulting the current solicitor on 13 June 2017; and i) Immediately and upon obtaining a copy of the judgment from D2 and D3’s solicitor, the plaintiff proceeded to file this application on 29 June 2017. 36. Based on the above explanations, it was submitted for the plaintiff that this is a deserving case for this Court to exercise its discretion conferred under the Court’s inherent jurisdiction and under Order 34 Rule 2(3) and Rule 6(2) ROC to allow the plaintiff’s application herein and for the matter to be set down for full trial. Counsel for the plaintiff urged that the plaintiff should not be denied access to justice due to the clear negligence committed by his previous solicitor. The crux of the plaintiff’s case for reinstatement is that he should not be penalised for his solicitor’s negligence. The question is first, whether the plaintiff’s solicitor was negligent and if so, whether that of itself is sufficient for the Court to exercise its discretion to reinstate the suit and set aside the judgment in default. Solicitor’s mistake/negligence 37. On the facts, it is without doubt that the Order to strike out the suit and entry of judgment in default (vis-a-vis D1’s counterclaim) was caused by the plaintiff’s own solicitors’ negligence. 38. There is no evidence whatsoever to show that the plaintiff’s previous solicitor had done all that was necessary with regards to compliance with PTCM directions. 39. In Chua Cheng Wan v Chua Thiam Siew & 7 Ors [1999] AMEJ 0005, Abdul Wahab Patail J held that a party cannot rely on its own solicitors’ mistake to support its application to reinstate a suit which was struck out. He held:- “… even if the predicament of the plaintiff arises from a mistake of the counsel, it would not have been reason for the exercise of the discretion to reinstate even if it exists. A lawyer’s mistake is not an excuse.” 40. In How Hock Sing @ Low Kim Chwee v Lee Say Peng [2015] MLJU 712, Mohd Nazlan Mohd Ghazali JC (as he then was) warned against the court being too accommodative to a party whose non-compliance caused delay and waited costs. He also explained the rationale for the rigid enforcement of the rule that a solicitor’s mistake is not an excuse for non-compliance with the Court’s directions. In that case, he said:- “… even if it was argued that the predicament of the plaintiff arises from a mistake of his counsel, this is still not a sufficient excuse … it would become a charter for the incompetent if the court had to conduct almost impossible investigations in apportioning blame between the solicitor on one hand and his client on another.” 41. Hence, applying the approach that was taken in the cases referred to above, it appears that the plaintiff cannot be allowed to shield behind his previous solicitor’s negligence for inter alia non-compliance with the PTCM directions. The plaintiff is bound by his solicitors’ acts and omissions. 42. As for the plaintiff’s suggestion that a dismissal of Enclosure 25 would constitute a denial of his right to be heard on merits, it is relevant to refer to the judgment of Selventhiranathan J (as he then was) in Sunway PMI-Pile Construction Sdn Bhd v Pembenaan Chan & Chua Sdn Bhd [2002] 7 MLJ 538 (High Court) where he said:- “The court was not unaware that such an order would effectively shut out the defendant from ventilating its defence and counterclaim prior to judgment being entered in favour of the plaintiff and that such a step would in the normal course be considered as being against that rule of natural justice which enjoins that no final curial decision should be made in favour of one party without the other party being given an opportunity to be heard. … that rule of natural justice could not apply here as this was not a situation of the defendant being prevented from presenting its case. On the contrary, this was an instance where the defendant elected not to avail itself of the benefit of that rule by consciously electing to disregard the directions of the court given pursuant to the provisions of O 34 ...” 43. In any event, following Chua Cheng Wan (per Abdul Wahab Patail J) the merits of the plaintiff’s case is immaterial to the disposal of Enclosure 25. In that case the learned Judge held:- “The argument that a plaintiff’s claim has merit is of peripheral interest in an application for reinstatement, which is concerned more with the question why the action was struck off in the first place.” 44. Here, the action was struck off due to the plaintiff’s blatant disregard of the PTCM directions, which must be taken seriously by all parties at all times. It is worth repeating that at the first case management on 21 December 2016, the plaintiff, D1, D2 and D3 by their solicitors were present at this Honourable Court wherein it was directed that, inter alia:- a) all PTCM directions must be fully complied by 19 April 2017, failing which the suit or counterclaim (if any) will be struck out or judgment entered accordingly, depending on who is to blame for non-compliance; b) parties are to attend case management on 26 January 2017 and 19 April 2017 to update the Court on the status of the matter; and c) trial was fixed on 24 May 2017, 25 May 2017 and 16 May 2017. 45. On 26 January 2017, Mr. Sundramoorthy attended court for the case management. The case was then fixed for case management on 20 March 2017. On 20 March 2017, Mr. Sundramoorthy did not attend and had on the morning of 20 March 2017 requested that the solicitors for D2 and D3 to mention on his behalf. The solicitors for D2 and D3 had proceeded to do so as requested. The Court had on this occasion fixed the matter for next case management on 13 April 2017. 46. On 13 April 2017, Mr. Sundramoorthy once again did not attend to the case management and had again on the morning of 13 April 2017 requested D1’s solicitors, Messrs. Gan Partnership, to mention on his behalf. This time around, D1’s solicitors only undertook to this Court to inform Messrs. Ram of the outcome of the case management, which D1’s solicitors did. On this date, the Court reminded parties that all the pre-trial directions and trial documents are to be complied with by 19 April 2017 as it had earlier directed. This reminder was stressed to Messrs. Ram by D1’s solicitors via their letter of 13 April 2017 which reads as:- “….. We refer to the case management held before Yang Arif Tuan S. Nantha Balan on 13 April 2017 and the tele-conversation between your Mr Ramasundramoorthy a/l Permalu and our Lee Xin Div on 13 April 2017. 2. We undertook to inform you in respect of the outcome of the case management. 3. The Learned Judge directed as follows: 3.1 Unless all “pre-trial case management directions” are duly complied with by 19 April 2017 (Wednesday) at 8.30 am, this suit will be struck out or judgment will be entered accordingly. 3.2 The next case management to be on 19 April 2017 (Wednesday) at 8.30 am.” 47. However, neither Mr. Sundramoorthy nor the plaintiff was present at the case management on 19 April 2017. Furthermore, the PTCM directions were not complied with by the plaintiff and the suit against all the defendants was accordingly struck out and a judgment in terms of D1’s counterclaim against the plaintiff was entered pursuant to Order 34 Rule 2(3) and Rule 6(1) ROC. 48. On 8 May 2017, D1’s solicitors wrote to Messrs Ram and the letter reads as:- “2. We enclose herewith the following documents by way of service on you as solicitors for the Plaintiff: 2.1 Sealed Judgment dated 19 April 2017; and 2.2 Sealed Allocator dated 19 April 2017. 3. Your client must: 3.1 comply with the terms of the Judgment; and 3.2 forward to us RM7,500.00 being the costs awarded by the Court to our client and RM200.00 being the allocator fees. 4. Unless the terms of the Judgment are complied with, and our costs and the allocator fees are paid to us, within 7 days hereof, our client may be constrained to inter alia: 4.1 take enforcement proceedings against your client; and 4.2 dispose of your client’s vehicle in any way our client deems fit and your client shall indemnify our client for any costs incurred as a result of such removal without further reference to you.” 49. On 11 May 2017, Messrs. Ram wrote to the Court with a copy the solicitors for D2 and D3 as well as solicitors for D1, requesting that the trial dates of this action be rescheduled given that Mr. Sundramoorthy had to ‘cease practice’ due to an adjudicating and receiving order against the said solicitor. The letter reads as:- “Date: 11.5.2017 ….. PER: MAHKAMAH TINGGI KUALA LUMPUR KES NO WA-22NCVC-750-11/2016 Kami merujuk kepada perkara diatas yang ditetapkan untuk bicara kes pada 25.2.2017. Kami memohon agar bicara kes ini ditunda ke tarikh lain memandangkan anak guam terpaksa mengambil peguam bagi menggantikan saya. Kami terpaksa ‘cease practice’ secara serta merta akibat satu Perintah AORO ke atas kami pada bulan April 2017 yang dilakukan tanpa pengetahuan kami. Kami dalam proses mengenepikan Perintah tersebut. Memandangkan keadaan diluar jangkaan ini, kami memohon agar faktor ini diambil kira untuk membenarkan permohonan ini dan peguamcara baru akan mengambil alih kes ini dalam masa terdekat.” 50. On 20 June 2017, more than 2 months after the judgment dated 19 April 2017, D2’s and D3’s solicitors received a letter from the plaintiff’s current solicitors, Messrs. Louis, Kali & Co enclosing a copy of the Notice of Change of Solicitor dated 19 June 2017, before being served with the plaintiff’s application for a reinstatement of the action on 28 June 2017. 51. Essentially, for a reinstatement to be allowed, there are three principles to be borne in mind:- a) Reinstatement is not a matter as of right. b) Reinstatement involves an exercise of the court’s discretion. c) There must be sufficient material before the court to enable it to find the exercise of its discretion. see:- Hewlett Packard Sales (M) Sdn Bhv v Active Team Mould Engineering Sdn Bhd & Ors [2003] 1 MLJ 247 (CA) at page 250 para C – D. Kejuruteraan Taipan (M) Sdn Bhd v Loh & Loh Construction Sdn Bhd [2012] 1 CLJ 130 (HC) at page 135 para 9. 52. In exercising its discretion, the court will consider various factors such as:- a) In instances where one party had failed to appear, whether there are sufficient and reasonable reasons for the absence. b) Whether there is a serious risk of prejudice to the other party. c) Whether there was an issue of delay for the reinstatement. d) Whether the conduct of the party who is applying for reinstatement was intentional and contumelious. see:- Hatara (M) Sdn Bhd v Petroliam Nasional Bhd (Petronas) &Anor [2010] 4 MLJ 17 (CA) at page 23 para 17 – 19; Yogananthy a/p AS Thambaiya v Idris bin Osman [2010] 5 MLJ 676 (CA) at page 681, para 12; Kejuruteraan Taipan (M) Sdn Bhd v Loh & Loh Construction Sdn Bhd [2012] 1 CLJ 135 (HC) at page 135 para 9; Gan Kim Kiat & Bros Realty Sdn Bhd v Leang Ah Kan [1983] 1 MLJ 351 (ACJ) at page 352 para B, right column. 53. The plaintiff argued that first, the action was struck out because of Mr. Sundramoorthy’s non-compliance of the PTCM directions and non-attendance of the case management, which the plaintiff did not have knowledge of, given that at all material times, he was under the impression that Mr. Sundramoorthy had complied with all the PTCM directions and attended the case management. 54. Therefore, the plaintiff states that he should not be penalized and shut out from pursing his case against the defendants (see: para 3, 4, 16 - 18 and 26 of the plaintiff’s Affidavit in Support (Enclosure 26) and paragraph 5 of the plaintiff’s Affidavit in Reply (Enclosure 31). In particular, it is relevant to quote the following paragraphs in the plaintiff’s affidavit in support of the present application which summarises the plaintiff’s predicament:- “26. Saya sesungguhnya menyatakan bahawa berdasarkan keterangan di atas ia adalah jelas bahawa ketidakhadiran peguam terdahulu tiada dalam pengetahuan saya dan kecuaian peguamcara saya yang terdahulu tidak sepatutnya digunakan bagi menghukum saya dengan membatalkan tindakan saya yang mempunyai satu kes yang bermerit dan patut ditetapkan bagi bicara penuh. 27. Saya sesungguhnya juga menyatakan bahawa saya telah mempercayai peguamcara saya terdahulu dan telah mempercayai penerangan beliau bahawa Mahkamah akan menghantar surat kepada saya untuk memaklumkan berkenaan dengan tarikh yang baru dan hanya telah mengetahui hal yang sebenarnya apabila berjumpa dengan peguamcara yang baru pada 13.6.2017. 28. Saya menegaskan bahawa keadaan ini yang telah menyebabkan kes saya telah dibatalkan oleh Mahkamah ini bukan disengajakan atau dilakukan oleh saya. Saya dengan ini memohon maaf bagi segala kesulitan kepada Mahkamah ini memandangkan saya telah percaya kes berada ditangan peguam yang bertindak bagi kepentingan diri saya. Saya sememangnya merupakan mangsa bagi tindakan peguam saya terdahulu yang tidak professional. 29. Saya juga menyatakan bahawa jika permohonan ini dibenarkan oleh Mahkamah yang Mulia, peguamcara saya akan memfailkan kesemua kertas kausa yang perlu difailkan mengikut arahan Mahkamah ini. Saya amat berharap supaya diberikan satu lagi peluang untuk meneruskan dengan tindakan ini supaya kes didengar atas merit memandangkan dari bukti-bukti yang diekshibitkan ianya jelas bahawa saya tiada langsung mempunyai pengetahuan mengenai status kes saya kerana tidak dimaklum langsung oleh peguam saya terdahulu.” 55. It was submitted for the defendants that the plaintiff’s lack of knowledge as to Mr. Sundramoorthy’s situation or whether he had complied with PTCM directions, is not a sufficient or valid reason for the Court to exercise its discretion to allow for the reinstatement. First, given that Mr. Sundramoorthy was appointed to represent the plaintiff, the conduct of Mr. Sundramoorthy on the matter should bind the plaintiff, regardless of whether the plaintiff had full knowledge of how the plaintiff’s action was being conducted by Mr. Sundramoorthy. Secondly, the negligence (as alleged by the plaintiff in para 26 of the Affidavit in Support) of Mr. Sundramoorthy in failing to comply with the PTCM directions and to attend the case management is also not a sufficient reason for reinstatement. In Lembaga Kemajuan Tanah Persekutuan (FELDA) & Anor v Awang Soh bin Mamat & Ors [2009] 4 MLJ 610 (CA) at page 631 paragraph 21 it was held by the Court of Appeal that the conduct of the solicitor binds the litigant whom the solicitor is representing and solicitors who fail to act in the best interest of the client, ‘do so at their own peril and to the detriment of their client’. 56. Furthermore, the plaintiff had stated in his Affidavit in Support (para 17) and his Affidavit in Reply (para 14) that the plaintiff encountered difficulties getting updates from Mr. Sundramoorthy. Again, this should not be a reason for reinstatement. 57. The plaintiff as the litigant ought to have taken steps to ensure that Messrs. Ram was acting in the best interest of the plaintiff. Clearly, this also goes to show that the plaintiff had a lack of interest in ensuring that the action was conducted properly by Mr. Sundramoorthy. 58. In so far as D2 and D3 are concerned, it was submitted that will be unfair and prejudicial to D2 and D3 if the reinstatement is allowed, this is because:- a) D2 and D3 are not privy to the issues of communications between the plaintiff and Mr. Sundramoorthy and in any event it should not be used to penalize D2 and D3; b) D2 and D3 had at all times complied with all the PTCM directions and attended to all the case managements fixed by this Honourable Court; and c) The defendants had taken further steps to inform Mr. Sundramoorthy of the outcome of the case managements. The solicitors for D1 had informed Mr. Sundramoorthy of the need for compliance of PTCM directions and of the case management which the plaintiff and Mr. Sundramoorty were clearly aware of. 59. In terms of timelines, it is to be noted that the suit was filed on 25 November 2016. The action was struck out on 19 April 2017 and on 29 June 2017 the plaintiff filed Enclosure 25. The defendants maintain that considerable judicial time and resources as well as the parties’ time and resources had been wasted by reason of the dilatoriness of the plaintiff’s previous solicitors. 60. According to counsel for the defendants, the Court should keep at the forefront of its mind the need and importance of ensuring strict compliance of pre-trial case managements directions given to litigants when exercising the discretion for reinstatement. Analysis and conclusion 61. From the narrative of events that transpired, it is clear that before 19 April 2017, the matter had come up for case management on 13 April 2017. On 13 April 2017, Mr. Sundramoorthy did not turn up and the solicitors for D1 undertook to inform him of the outcome. 62. The explanation by counsel for the plaintiff for Mr. Sundramoorthy’s absence in Court on 19 April 2017 and his failure to comply with PTCM directions, is quite untenable. Indeed, it can be seen from the narrative of the plaintiff’s summary of case that the background facts took place in or around August 2015. The suit was filed in 25 November 2016 and PTCM directions were given on 21 December 2016. 63. Thus, it was known all round that if PTCM directions were not complied with, then there will be adverse consequences. At any rate, parties were fully aware that based on the PTCM directions, the suit will be struck out or judgment entered depending on who is to blame for the non-compliance. Looking at the events that have transpired, I have no hesitation in concluding that in the present situation, it is the plaintiff (through his previous solicitors), who is totally to be blamed for the dilatoriness in getting their case for trial. 64. In this regard, it is also necessary to refer to the case of How Hock Sing v Lee Say Peng & Ors [2015] 9 CLJ 368 HC, where Nazlan Ghazali JC (as he then was) had at paragraphs [16] to [22] comprehensively examined and discussed the relevant principles on this aspect of the adjectival law on case management directions, which I gratefully adopt:- “The Applicable Law & Findings By This Court Order 34 & "Unless Order" [16] The rules on pre-trial case management are contained in O. 34 of RC 2012. They came into effect on 1 August 2012 and superseded the previous O. 34 of the Rules of High Court 1980 ("RHC 1980") which applied to actions begun by writ. The amendments brought into effect significant changes to the procedures to be adhered to prior to the trial of an action. The term "case management" is described by Brown J in George Westen Ltd v. Domtar Inc [2012] 354 DLR (4th) 121 as follows: refers to a broad range of powers exercised by judges in the course of managing a civil proceeding. Through case management, a judge intervenes in the proceedings prior to trial in order to give directions for the preparation of the case for trial, for the actual conduct of the trial, or to attempt to resolve the proceedings. Case management requires the application of a range of management tools in order to secure the just, most expeditious, least expensive and proportionate determination of proceedings on its merits. [17] However, the pro-active role expected of the courts in stipulating time-frames and giving directions for the purpose of the trial, supported by the authority to impose sanctions for failure to comply with such directions is not newly introduced by O. 34 of the RC 2012. It was already embodied in O. 34 of RHC 1980. In the decision of the Federal Court in Tan GeokLan v. La Kuan [2004] 2 CLJ 301; [2004] 3 MLJ 465, Mohd Noor Ahmad FCJ stated the following: The learned trial judge should have also considered the need to expedite the disposal of the case with a view of saving costs, reducing delays and minimizing the burden of the court. Our civil procedure had been revamped from time to time for the purpose. One example is the case management procedure (Order 34 of the Rules of the High Court 1980 ("the RHC")). The significance of this procedure is that it marks a change from the traditional position under which the progress of cases was left largely in the hands of the parties. Now, under the procedure the court controls the progress of cases by the exercise of its powers given to it to enable it, and not the parties, to dictate the progress of cases at the pre-trial stage, ensuring that the practices and procedures applicable during that stage are complied with promptly and not abused. [18] Nevertheless, the language in the present O. 34 unmistakably provides for a greater emphasis in the directory and pro-active nature of the judicial role and extent of involvement now envisaged in pre-trial case management. The relevant parts of O. 34 r. 2(1) and (2) of RC 2012 read as follows: Pre-trial case management when directed by the Court (Order 34 r 2) 2(1) without prejudice to rule 1, at any time before any action or proceedings are tried, the Court may direct parties to attend a pre-trial case management relating to the matters arising in the action or proceedings. (2) at a pre-trial case management, the Court may consider any matter including the possibility of settlement of all or any of the issues in the action or proceedings and require the parties to furnish the Court with such information as it thinks fit, and the appropriate orders and directions that should be made to secure the just, expeditious and economical disposal of the action or proceedings, including... [19] It surely therefore stands to reason that a necessary pre-requisite for a workable and efficient environment where the courts are under the duty "to secure the just, expeditious and economical disposal" of actions is that there ought to be a robust case management system which does not easily tolerate lax enforcement of case management orders. This is acknowledged by the new provision in O. 34 r. 2(3) which is more specific in stating the consequence of not complying with such orders if compared against the previous O. 34 r. 7 of RHC 1980. The latter reads as follows: 7. Failure to comply with Judge's direction If any party to an action fails to comply with any direction given by the Judge at any pre-trial conference, such order may be made against the defaulting party by the Judge as meets the ends of justice. [20] The case of Sunway PMI-Pile Construction SdnBhd v. Pembenaan Chan & Chua SdnBhd [2003] 5 CLJ 63; [2002] 7 MLJ 538 held that authority to make such orders must include the power to order that the defence and counterclaim be dismissed and judgment be entered for the plaintiff. The present O. 34 r. 2(3) and (4) of RC 2012 on the other hand more categorically provides the following: (3) The Court, having given directions under rule 2(2) or rule 3 may either on its own motion or upon the application of any party, if any party defaults in complying with any such directions, dismiss such action or proceedings or strike out the defence or counterclaim or enter judgment or to make such order as it thinks fit. (4) Any judgment or order made under rule 2 (3) may be set aside by the Court, on the application of the party, on such terms, if any, as it thinks just. [emphasis added] 65. Ultimately, the question here is whether the plaintiff’s application discloses sufficient grounds for the exercise of the Court’s discretion to reinstate the suit and set-aside the judgment in default date 19 April 2017. It will be recalled that the PTCM directions were not at all complied with by the plaintiff. In fact, there was absolutely no evidence that the plaintiff’s solicitors had taken any steps towards compliance with PTCM directions. Counsel for the plaintiff now says that the plaintiff should not be prejudiced because of the fault, negligence or bankrupt status of the previous solicitor, Mr. Sundramoorthy. 66. In this regard, I observe that other than stating that adjudicating and receiving orders were made against Mr. Sundramoorthy, there is no credible evidence that adjudicating and receiving orders were in fact made against Mr. Sundramoorthy prior to 19 April 2017. At any rate, even if adjudicating and receiving orders were made against Mr. Sundramoorthy, that does not qualify as an excuse for non-compliance with PTCM directions. Thus, assuming it is factually true that Mr. Sundramoorthy had been adjudicated a bankrupt, prior to 19 April 2017, then he ought to have been transparent with his client and arrange for the file to be transferred to another solicitor who will be able to ensure that the PTCM directions are complied with. 67. In this regard, I should add that any last minute perfunctory attempt at complying with PTCM directions is an exercise in futility as there would have to be sufficient time for the input of the other solicitors to be taken and for amendments and adjustments to be made to the issues to be tried, agreed facts and bundle of documents. All of these will obviously take time. 68. Here, the Court had issued PTCM directions on 21 December 2016 and parties were directed to ensure that there was full compliance with PTCM directions, failing which the suit or counterclaim will be struck out or judgment entered as the case may be, depending on who is to blame for non-compliance. There was no ambiguity about the PTCM directions and the consequences that will follow in the event of non-compliance. Thus, even if Mr. Sundramoorthy had turned up on 19 April 2017, the outcome would have been no different as there was absolutely no compliance with the PTCM directions. It is clear that Mr. Sundramoorthy, as the solicitor for the plaintiff at that time, had not taken the Court’s PTCM directions seriously. 69. Indeed, even the letter dated 13 April 2017, from Messrs. Gan Partnership to Messrs. Ram appears to have had no effect as it did not jolt Mr. Sundramoorthy into any form of action in terms of urgently complying with PTCM directions. 70. Also, I have not had the benefit of Mr. Sundramoorthy’s explanation via an affidavit for purposes of the present explanation. Hence, everything in relation to what he did or did not do or even as regard his so-called bankruptcy status remains in the realm of speculation and surmise. It is important to note that as a result of non-compliance with PTCM directions and Mr. Sundramoorthy’s non-attendance on 19 April 2017, the suit was struck out and judgment entered in respect of D1’s counterclaim and consequently the trial dates on 24, 25 and 26 May 2017 were vacated. Counsel for the plaintiff submitted that there is no prejudice and that the case can be fixed for trial the soonest possible. That is easier said than done. Counsel’s submissions ignores the fact that the Court does not have an unlimited set of dates to fill up and that trial dates are fixed well in advance so that the Court’s diary is properly and efficiently utilised and managed. The suggestion that new trial dates can be fixed means that we are to start at “ground zero” and is patently a suggestion that does not sit well with the current litigation landscape and the strict adjectival rules on case management. 71. It is critical to emphasise that it was neither the Court nor the opposite parties which prevented the plaintiff from having his day in Court. In this case, the denial of access to justice was “self-induced” by the acts or omissions of the plaintiff’s previous solicitor. At times a party may have to pay the ultimate price for the acts or omission or mistake of their solicitor. 72. In this regard, one may draw comparisons with Lembaga Kemajuan Tanah Persekutuan (FELDA) & Anor v Awang Soh bin Mamat & Ors 2009] 4 MLJ 610 CA where the defendant’s solicitors and the defendants did not turn up on the trial date, because the solicitor who last attended court for case management (and who had since left the firm representing the defendants) had not entered the date in the firm’s diary. That was a case which was properly case managed and was ready for trial, in the sense that all pre-trial protocols had been complied with. It is just that due to a human “slip-up” the trial date was not entered in the diary and the solicitors for the defendants (and their client) did not turn up at the trial as they were unaware of the trial date. The court went ahead with the trial and entered judgment against the defendant. The defendant’s application to set aside the judgment was refused by the High Court and the appeal to the Court of Appeal was dismissed. In paragraph 24 of the judgment, the Court of Appeal highlighted the present judicial policy of strict adherence to hearing dates and the court’s minimum tolerance to adjournments to say nothing of the waste of judicial time and resources and the undermining of the efforts of the judiciary to eradicate the backlog of cases faced by the courts. 73. No doubt, that was a case which involved an application to set aside a judgment after a full trial, whereas here it is an application to set aside an order to strike out the suit and the entry of judgment in default in respect of D1’s counterclaim due to counsel’s absence in Court and the failure on the plaintiff’s part to ensure full compliance with PTCM directions. 74. It is trite that the plaintiff, as the protagonist of the suit had carriage of the suit and was primarily responsible for ensuring full compliance with PTCM directions. Indeed, the plaintiff’s present solicitors have not sought to shift the blame to anyone other than Mr. Sundramoorthy. Rightly so. They candidly accept that it was Mr. Sundramoorthy’s fault or negligence that resulted in non-compliance with PTCM directions. I do not understand how Mr. Sundramoorthy’s so-called bankruptcy status per se, can be relied upon as an excuse for the non-compliance with the PTCM directions which was issued approximately five (5) month before 19 April 2017 which gave Mr. Sundramoorthy ample time to comply with the PTCM directions. No doubt, it is said that the sins or mistake of the solicitor should not be visited upon the client. But this is not an inflexible rule. It is not even a rule to start off with. It is merely a reminder to the Court that in certain situations, it may be unfair or inequitable to blame the client for the acts or omissions of the solicitor. 75. In my view, the plaintiff, as the client also has a responsibility to ensure that the solicitor has done his part. No doubt there appears to have be some degree of Whats-App communication between the plaintiff and Mr. Sundramoorthy as to the status of the suit and preparation towards trial. But I do think that more could and should have been done by the plaintiff. 76. It is worth emphasising that the plaintiff’s case here is predicated on a complaint that the said motor-car was inherently defective and that it suffered from design flaws. This begs the question as to how the plaintiff intended to prove these allegations at trial. Would it be just his mere say-so or would he have proven this through an expert automobile engineer’s report? If it is the plaintiff’s mere say so then it would at-best be a lay-man’s uninformed opinion, which would be quite unhelpful in terms of proving his case. And if it is to be proven via an expert automobile engineer’s report after the expert had inspected, examined and test-run the said motorcar, then such a report should have been in existence prior to 19 April 2017. But in his affidavit, the plaintiff did not mention the existence of any such report which means that there is presently no such report in existence. And so, the question is, what steps did the plaintiff take in terms of providing the requisite documents towards preparation of the trial. Ultimately, it appears that the plaintiff had left everything to Mr. Sundramoorthy who in turn appears to have done nothing in so far as compliance with PTCM directions are concerned. 77. In the upshot, despite the impassioned plea and the trenchant submissions that were made on behalf of the plaintiff, I was not convinced that this was, as counsel for the plaintiff put it, “a deserving case”, for the exercise of the Court’s discretion to reinstate the suit and to set aside the judgment in default. Indeed, it would be both unfair and inequitable to excuse the plaintiff for non-compliance with PTCM directions and for the suit to be reinstated and the judgment in default on D1’s counterclaim to be set aside. I find that the plaintiff’s application is devoid of any merit. As such, for the reasons as discussed above, I dismissed the plaintiff’s application and ordered the plaintiff to pay costs of RM3,000.00 (subject to 4% allocator) to D1 and costs of RM2,000.00 (subject to 4% allocatur) to D2 and RM2,000.00 (subject to 4% allocator) to D3. Order accordingly. Date: 29 September 2017 S. Nantha Balan Judge High Court Kuala Lumpur Counsel: Ms. Komathi Kaliappan together with Jessica Mary Louis (Messrs Louis, Kali & Co) for the plaintiffs. Mr. Lee Xin Div (Messrs Gan Partnership) for the first defendant. Ms. Tan Hwee Yee (Messrs Chooi & Co) for the second & third defendants. Statute: Order 34 Rule 2(3) Rules of Court 2012 Order 34 Rule 2(4) Rules of Court 2012 Order 34 Rule 6(1) Rules of Court 2012 Order 34 Rule 6(2) Rules of Court 2012 Cases: Chua Cheng Wan v Chua Thiam Siew & 7 Ors [1999] AMEJ 0005 HC How Hock Sing @ Low Kim Chwee v Lee Say Peng [2015] MLJU 712 HC Sunway PMI-Pile Construction Sdn Bhd v Pembenaan Chan & Chua Sdn Bhd [2002] 7 MLJ 538 HC Lembaga Kemajuan Tanah Persekutuan (FELDA) & Anor v Awang Soh bin Mamat & Ors [2009] 4 MLJ 610 CA Hewlett Packard Sales (M) Sdn Bhd v Active Team Mould Engineering Sdn Bhd & Ors [2003] 1 MLJ 247 CA Kejuruteraan Taipan (M) Sdn Bhd v Loh & Loh Construction Sdn Bhd [2012] 1 CLJ 130 HC Hatara (M) Sdn Bhd v Petroliam Nasional Bhd (Petronas) &Anor [2010] 4 MLJ 17 CA Yogananthy a/p AS Thambaiya v Idris bin Osman [2010] 5 MLJ 676 CA Kejuruteraan Taipan (M) Sdn Bhd v Loh & Loh Construction Sdn Bhd [2012] 1 CLJ 135 HC Gan Kim Kiat & Bros Realty Sdn Bhd v Leang Ah Kan [1983] 1 MLJ 351 HC Page 40 of 42	56,170	Tika 2.6.0
22NCVC-750-11/2016	PLAINTIF ANNAMOORTHY A/L MOOKAN DEFENDAN 1. HAP SENG STAR SDN BHD 2. MERCEDES BENZ MALAYSIA SDN BHD 3. MERCEDES BENZ SERVICES MALAYSIA SDN BHD 4. DAIMLER CHRYSLER AG	Civil Procedure - Application to reinstate Writ and Statement of Claim and to set aside judgment in default - suit was struck out due to the plaintiff’s solicitor’s non-attendance on the case management dates and non-compliance with the pre-trial case management directions - judgment in default was also entered in favour of the first defendant’s counter claim - whether the plaintiff’s solicitor was negligent - whether that of itself is sufficient for the Court to exercise its discretion to reinstate the suit and set aside the judgment in default - devoid of any merit - the court dismissed the plaintiff’s application - Rules of Court 2012, order 34 rule 2(3) and (4), 6 (1) and (2).	29/09/2017	YA DATUK S. NANTHA BALAN	https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=7f2c2477-8aa1-4cab-b0b6-f39ba07e427a&Inline=true	IN THE HIGH COURT OF KUALA LUMPUR IN THE FEDERAL TERRITORY OF MALAYSIA (CIVIL DIVISION) CIVIL SUIT NO. : WA-22NCVC-750-11/2016 BETWEEN ANNAMOORTHY A/L MOOKAN …PLAINTIFF AND 1. HAP SENG STAR SDN BHD 2. MERCEDES BENZ MALAYSIA SDN BHD 3. MERCEDES BENZ SERVICES MALAYSIA SDN BHD 4. DAIMLER CHRYSLER AG … DEFENDANTS GROUNDS OF JUDGMENT (Enclosure 25) Introduction 1. These are my grounds of judgment in respect of an application by the plaintiff (Enclosure 25) to reinstate the Writ and Statement of Claim dated 25 November 2016 which was struck out on 19 April 2017. The plaintiff also seeks to set aside the judgment in default which was entered against the plaintiff in respect of the first defendant’s counterclaim on 19 April 2017. 2. In this case, the suit was fixed for full trial on 24, 25 and 26 May 2017. These dates were fixed on 21 December 2016. When the matter was called up for case management on 19 April 2017, counsel for the plaintiff did not appear. The plaintiff’s counsel also did not turn up on the earlier case management date i.e. 13 April 2017. There is no dispute that as at 19 April 2017, the plaintiff had not complied with the pre-trial case management directions (“PTCM directions”) which were issued on 21 December 2016. Hence, the suit was struck out as there was non-compliance with the PTCM directions and also due to the non-attendance of the plaintiff’s counsel. On that date, judgment was also entered against the plaintiff in respect of the first defendant’s counter-claim. The starting point in the present context is the PTCM directions that were issued on 21 December 2016. They are as follows:- “Court: Trial Date(s): 24, 25 & 26.05.2017 (3 Days) at 9.00am Plaintiff: 3 Witnesses Defendant: 5 Witnesses (D1 -2 Witnesses, D2/D3: 3 Witnesses) Interlocutory applications (if any) are to be filed no later than 26.01.2017 Pre-trial CM directions: All Pre-Trial Case Management directions must be fully complied with by 19.04.2017, failing which the suit or counterclaim (if any) will be struck out or judgment entered accordingly, depending on who is to blame for the non-compliance. There should be no Part C documents unless they meet the criteria for inclusion in Part C. Witness Statements: All witness statements are to be filed and served by 11.05.2017, failing which the evidence of the witness whose witness statement was not filed by the due date will not be taken during the trial. There should be no witnesses under subpoena without prior notice to and approval by the Judge at CM. Efforts must be made to obtain a full witness statement from the witness under subpoena and if the witness refuses to give the answers to the questions then he/she must be given a list of questions (without answers) in advance of the trial. All documents must be in the Bundle of Documents and should not be tendered at trial through any of the witnesses. CM date(s): 1) 26.01.2017 at 8.30am 2) 19.04.2017 at 8.30 a.m.” [Emphasis added] 3. I should add that the plaintiff was at all material times represented by the firm of Messrs. Ram. Counsel from that firm who appeared for the plaintiff was Mr. Sundramoorthy. I turn now to the Court’s minutes for 19 April 2017 which read as follows: “Court: P's sol. are not present in Court today. They were not present on the last CM date as well (13.04.2017). PTCM directions have not been complied with. As P's sol. have carriage of the case and bear principal responsibility to get the case ready and ensure full compliance with PTCM directions and as there is no explanation by P's sol. as to why PCTM directions have not been complied with - the case is hereby struck off. Suit is struck off. Under Order 34 Rule 2 (3) and/or Order 34 Rule 6 (1) - I hereby enter judgment in default in respect of D1's counterclaim - prayer (A), (B), (E) and (F) of Encl (6) are allowed P to pay costs of RM 7,500.00 to D1 (subject to 4% allocatur). P to pay total costs of RM 5,000.00 to D2 and D3 (subject to 4% allocatur) Trial on 24 - 25 May 2017 is vacated Encl (14) is struck off. No order as to costs. Suit against D4 is struck off.” [emphasis added] 4. Consequently, the Order dated 19 April 2017 that was extracted reads as follows: “.....PURSUANT TO Order 34 ruled 2(3) and 6(1) of the Rules of Court 2012 IT IS ADJUDGED that this action against the 1st, 2nd, 3rd and 4th Defendants be dismissed and the Plaintiff shall pay the costs of (i) RM7,500.00 to the 1st Defendant, and (ii) RM5,000.00 to the 2nd and 3rd Defendants. IT IS FURTHER ADJUDGED that the Plaintiff shall pay to the 1st Defendant: 1. Storage Charge from 14 May 2016 until 30 December 2016 amounting to RM12,243.00; 2. Storage Charge at the rate of RM50,00 (per day from 31 December 2016 until the Plaintiff or his authorized representative has removed his Car from the 1st Defendant’s premises; and 3. Interest at the rate of 5% per annum on all sums due and payable by the Plaintiff to the 1st Defendant from 30 December 2016 until full and final settlement. IT IS DECLARED that the 1st Defendant is at liberty to dispose of the Plaintiff’s car with Registration No. WA 9991 M, Model No. E250 AVA (W212) (CKD), Chassis No. WDD2120366L042468 and Engine No. 27492030157666 (“Car”) in anyway the 1st Defendant deems fit and the Plaintiff shall indemnify the 1st Defendant for any costs incurred as a result of such removal.” 5. I should add that the order reads as the action against the defendants be “dismissed”. This part of the order dated 19 April 2017 was subsequently amended under Order 20 rule 11 Rules of Court 2012 (“slip rule”) to read as “struck out”. I turn now to the facts of the case. Plaintiff’s synopsis 6. The plaintiff’s case is that in August 2014, he purchased from the first defendant (“D1”), a brand new Mercedes Benz E250 CKD model with registration number WA9991-M (“the said motorcar”) for a sum of RM404,962.50. 7. The plaintiff claims that he purchased the said motorcar which was designed, manufactured, tested, distributed, delivered, supplied, inspected, marketed, sold and warranted by the defendants. 8. The plaintiff also claims that he was deceived by the defendants’ misrepresentations regarding the reliability, durability and dealer support for the said motorcar. The plaintiff claims that he did not receive the benefit of the bargain and suffered loss as a result of the defendants’ misrepresentations. 9. According to the plaintiff, a substantial factor in the plaintiff’s purchasing decision was the defendants’ extensive promotional and advertising campaign which focussed on the superior quality, reliability, durability, fuel economy and dealer support for the said motorcar. According to the plaintiff, at the time of the sale, he was under the impression that he was purchasing a vehicle that was free of any design defects. However, the plaintiff was unaware that the said motorcar was in fact suffering from design defects. 10. In this regard, the plaintiff claims that approximately between 2-8 months after purchasing the said motorcar, he began to experience substantial, continuous and multiple problems with the said motorcar. Some of the necessary repairs and replacements were covered by the original manufacturer’s warranty. 11. It was at this moment in time that the plaintiff was finally made aware that he had purchased a motorcar that was plagued by design defects. The plaintiff allegedly suffered damages as a result of purchasing the said motorcar. 12. In addition to the damages which he has suffered, he claims that he has also endured pain, suffering, damage and considerable inconvenience. According to the plaintiff, this action concerns the numerous quality, design, manufacturing and reliability defects with the said motorcar that renders it to be of unmerchantable quality and unsuitable for use. The plaintiff alleges that the lack of merchantable quality and unsuitability for use of the said motorcar is contrary to the defendants’ representations. 13. Also, it is alleged by the plaintiff that the repeated repairs and replacements during the warranty period had failed to ensure that the said motorcar was repaired or defects corrected in any lasting way and the said motorcar could neither function as required nor as represented. The plaintiff therefore seeks an award of damages against the defendants for intentional, wilful, and/or negligent failure to disclose that the said motorcar was inherently defective and was in a dangerous condition. 14. The reliefs sought by the plaintiff (per paragraph 63 of the statement of claim) are as follows:- “ i. General Damages for loss of usage of the said car, the diminished value of the said Mercedes Benz, costs of replacing the said car with another car for daily travel/usage, pain and suffering, stress, trouble and inconvenience; ii. Punitive, Aggravated and Exemplary Damages for a sum of RM2,000,000.00 and/or an amount that this Honourable Court deems appropriate; iii. A Declaration that the Defendants are jointly and severally liable for any and all damages awarded; iv. Restitution and/or a refund off all monies paid to or received by the Defendants from the sale of the said Mercedes Benz to the Plaintiff on the basis that the said Mercedes Benz was return to D1on 13.6.2016 and unjust enrichment; v. Rescission of the Hire Purchase Agreement dated 26.9.2014 between D3and the Plaintiff; vi. Alternative to prayer 63 (iv) above, the Defendants to provide a latest brand new trouble free Mercedes Benz Model E250 car of same model of current year; vii. Pre and post judgment interest pursuant Rules of Court 2012; viii. Costs; ix. Such further and other relief as this Honourable Court may deem just and appropriate in all the circumstances;” 15. I turn now to D1’s position. First defendant’s position 16. D1 is one of the authorised dealer of the second defendant (“D2”). On or around 7 August 2014, the plaintiff purchased the said motorcar from D1 and agreed to be governed by inter alia the following documents: a. Offer to Purchase Form dated 7 August 2014 (“OTP Form”); and b. D2’s Warranty Terms & Conditions (“Warranty T & C”). 17. According to D1, the Warranty T & C records all warranties that were given to the plaintiff and this is expressly provided for in the OTP Form. In accordance with the Warranty T & C, all complaints made by the plaintiff were investigated and repaired by D1. Further, when sending the said motorcar for repairs, the plaintiff expressly agreed to be bound by inter alia the Pre-Work in Progress (WIP) form which inter alia provides that: a. Any claim for any damage caused to the said motorcar is limited to the rectification free of cost; b. No claim for incident and/or consequential losses is admissible; and c. Storage charge is payable if the plaintiff does not collect the said motorcar within 3 days of the date of completion of its repairs. 18. According to D1, notwithstanding these terms and conditions, the plaintiff still failed, refused and/or neglected to collect the said motorcar from D1’s premises. Hence, D1’s position in this suit is inter alia as follows: a. The plaintiff's assertions of defects are without merits, as the complaints had already been dealt with in accordance with inter alia the Warranty T & C; b. In any event, the plaintiff agreed to inter alia limit any claim to the rectification free of cost and to not hold D1 liable for any loss, damage or deterioration to the said motorcar during its storage with D1; and c. The plaintiff’s failure to collect the said motorcar is a breach of contract and amounts to a trespass. 19. As such, D1 has counterclaimed for the following reliefs:- “ A. Storage Charge from 14.05.2016 until 30.12.2016 amounting to RM12,243.00; B. Storage Charge at the rate of RM50.00 per day from 31.12.2016 until the Plaintiff or his authorised representative has removed his Car from the 1st Defendant’s premises; C. Loss and damages suffered by D1as a result of the Plaintiff’s trespass; D. Mandatory injunction to compel the Plaintiff or his authorised representative to remove his Car from the 1st Defendant’s premises within 7 days from the judgment date; E. Declaration that D1is at liberty to dispose of the Plaintiff’s Car in anyway D1deems fit and the Plaintiff shall indemnify D1for any costs incurred as a result of such removal; F. Interest at the rate of 5% per annum on all sums due and payable by the Plaintiff to D1from 30.12.2016 until full and final settlement; G. Costs; and H. Any further and other reliefs this Honourable Court deems fit and proper to grant.” Second defendant’s position 20. At all material times, D2 assembled certain models of Mercedes-Benz motor vehicles and distributes those vehicles to its authorized dealers such as D1 in Malaysia. D1 is an authorized dealer of D2 and is authorized by D2 to sell the Mercedes-Benz motor vehicles to end customers such as the plaintiff in Malaysia, but such authorization is not for and on behalf of D2. 21. It is D2’s position that the plaintiff is not entitled to his claim, particularly for a new replacement motorcar and/or a refund of all monies paid to the defendants to date, for the following reasons:- (a) All vehicles distributed by D2 are in compliance with the Sale of Goods Act 1957 and the Consumer Protection Act 1999, and are of merchantable quality, fit for the purposes for which they are supplied and free from defects; (b) At all material times when the said motorcar was delivered to D1 for its sale to the end customer, the said motorcar was of merchantable quality, fit for the purposes for which it is supplied and free from defects; (c) A vehicle delivery certificate was issued by D1 showing that the said motorcar was of merchantable quality and that the necessary jobs and/or checking were completed before the said motorcar was delivered. The vehicle delivery certificate was also acknowledged by the plaintiff himself confirming the same; (d) A warranty for defective material or workmanship on the terms and conditions as set out in a standard form Passenger Car Introduction Booklet would be attached to such vehicle sold for a period of 4 years from the date of registration of the said motorcar (“Warranty”); (e) D2’s liability is as set out in the Warranty that is attached to the said motorcar and is limited to the repair or exchange of parts as D2 in its sole discretion deems appropriate and shall not be liable for any consequential losses or damage arising through any defects. (f) All the complaints in respect of the said motorcar have been promptly attended to where necessary under and in accordance with the Warranty. The said motorcar had been attended to and duly repaired where necessary under and in accordance with the Warranty, and has been ready for collection since 11 May 2016 and that it is the plaintiff who has refused and/or failed to collect the said motorcar. (g) D2 has not been involved with any handling, service or repair of the said motorcar since it was delivered to D1 prior to D1’s sale of the said motorcar to the plaintiff. (h) The said motorcar is not unmerchantable and/or unsuitable for use as alleged by the plaintiff. (i) A courtesy motor vehicle was provided to the plaintiff to keep the plaintiff on the road at all times during the time when the said motorcar was checked in under the Warranty with D1 until the said motorcar is complete and ready for the plaintiff’s collection. 22. I turn now to the third defendant’s position. Third defendant’s position 23. The third defendant (“D3”) is a company incorporated in Malaysia and having its principal business of activity in hire purchase financing, dealer floor-stock financing and marketing of branded motor insurance products. D3 also provides financial services to the customers of D2 as well as its authorized dealers. The sole connection that D3 has with the matters averred to in this action is that it provided a hire purchase loan to the plaintiff with regards to his purchase of the said motorcar. 24. In this regard, D3 contends that there is no cause of action against D3 and all allegations by the plaintiff as against D3 are without basis. Therefore, the plaintiff’s claim against D3 is an abuse of the process and is unsustainable. The arguments 25. As I said at the outset, the Court had given PTCM directions and the parties were under a duty to comply with the said directions by 19 April 2017. 26. However, the plaintiff’s previous solicitors, Messrs. Ram failed to comply with the PTCM direction which resulted in the plaintiff’s suit being struck out and judgment in default entered in favour of D1’s counter claim. The Writ Summons and Statement of Claim dated 25 November 2016 was struck out in pursuant to Order 34 Rule 2(3) and Order 34 Rule 6(1), Rules of Court 2012 (“ROC”) and they read as:- “Order 34 Rule 2(3):- “The Court, having given directions under rule 2(2) or rule 3 may either on its own motion or upon the application of any party, if any party defaults in complying with any such directions, dismiss such action or proceedings or strike out the defence or counterclaim or enter judgment or make such order as it thinks fit”. Order 34 Rule 6(1): “If, at the time appointed for the pre-trial case management, any party fails to attend, the Court may dismiss the action or proceedings or strike out the defence or counterclaim or enter judgment or make such other order as the Court thinks fit”. 27. But, Order 34 Rule 2(4) and Rule 6(2) ROC 2012 provides a remedy wherein it states:- “Any judgment or order made under rule 2(3) may be set aside by the Court, on the application of the party, on such terms, if any, as it thinks just” 28. And Order 34 Rule 6(2) provides that:- “An order made by the Court in the absence of a party concerned or affected by the order may be set aside by the Court, on the application of that party, on such terms as it thinks just” 29. It was therefore contended for the plaintiff that based on Order 34 Rule 2(4) and Rule 6(2) ROC, this Court is clothed with jurisdiction to set aside the judgment dated 19 April 2017 and reinstate the plaintiff’s action. 30. It is conceded by counsel for the plaintiff that the suit was dismissed based on non-compliance with the PTCM directions and due to non-attendance of the plaintiff’s previous solicitor on the last case management date on 19 April 2016. 31. The plaintiff’s present solicitors referred to Exhibit TEC 8 pg 160 of D1’s Affidavit and Exhibits D2-5 and D3-6 of D2 & D3’s Affidavits and contended that the plaintiff’s previous solicitor, Mr. Sundramoorthy has been adjudicated a bankrupt and that is the reason for his failure to comply with the PTCM directions and failure to attend court on the case management date on 19 April 2014. According to the plaintiff, when a solicitor has been served with an adjudicating and receiving order, the said solicitor is no longer fit or qualified to practice and therefore is not an advocate and solicitor of the High Court of Malaya. 32. It is alleged that the plaintiff’s previous solicitor had through his Whatsapp message dated 18 May 2017, (Exhibit A-2 Affidavit in Support – Enclosure 26) informed the plaintiff that he had to cease practice immediately and this fact was only informed to the court after the judgment was entered on 19 April 2017 through letter dated 11 May 2017. 33. The plaintiff maintains that he did not intentionally disobey the PTCM directions or failed to attend court. Further, the plaintiff had been constantly following up on the status of the case as may be seen from Exhibits A-5, of the Plaintiff’s Affidavits in Reply. The plaintiff alleges that the actions of the previous solicitors had clearly fallen below the standard of care required of a solicitor to protect his client’s interest. The plaintiff was not aware of non-attendance of the previous solicitor on 13 April 2017 and again on 19 April 2017. 34. According to the plaintiff, the Affidavits of the defendants also reveal that they had problems communicating with the plaintiff’s previous solicitor and they had the same problem of contacting him on the final case management date (see: D1’s Affidavit para 24 pg 12). 35. Further, the plaintiff relied on Exhibits A-1, A-2 & A-5 of the Plaintiffs Affidavit in Support (Enclosure 26) and the Plaintiff’s Affidavits in reply (Enclosure 31) to prove that:- a) He was aware of the trial dates on 24, 25 and 27 May 2017; b) The plaintiff was also aware of the case management date on 19 April 2017; c) The plaintiff was informed that the bundle of documents was filed in court and therefore on 27 January 2017 the plaintiff requested for a copy of the bundle from his previous solicitors. Refer Exhibit A-5, Plaintiff’s Affidavits in Reply (see: Enclosure 31) d) The plaintiff was not informed of the non-attendance of his previous solicitors on 19 April 2017 when he informed the solicitor on 20 April 2017 that his payment has been banked in; e) On 18 May 2017, the plaintiff’s previous solicitors had informed that he had to cease practice immediately and therefore had requested for adjournment of trial date from the court, (see: Exhibit A-2 Affidavit in Support; f) The previous solicitor did not inform him that he had been adjudicated a bankrupt; g) The plaintiff was not aware of his case being struck out by the court and that judgment has been entered favouring D1; h) The plaintiff was only aware of the status of his case upon consulting the current solicitor on 13 June 2017; and i) Immediately and upon obtaining a copy of the judgment from D2 and D3’s solicitor, the plaintiff proceeded to file this application on 29 June 2017. 36. Based on the above explanations, it was submitted for the plaintiff that this is a deserving case for this Court to exercise its discretion conferred under the Court’s inherent jurisdiction and under Order 34 Rule 2(3) and Rule 6(2) ROC to allow the plaintiff’s application herein and for the matter to be set down for full trial. Counsel for the plaintiff urged that the plaintiff should not be denied access to justice due to the clear negligence committed by his previous solicitor. The crux of the plaintiff’s case for reinstatement is that he should not be penalised for his solicitor’s negligence. The question is first, whether the plaintiff’s solicitor was negligent and if so, whether that of itself is sufficient for the Court to exercise its discretion to reinstate the suit and set aside the judgment in default. Solicitor’s mistake/negligence 37. On the facts, it is without doubt that the Order to strike out the suit and entry of judgment in default (vis-a-vis D1’s counterclaim) was caused by the plaintiff’s own solicitors’ negligence. 38. There is no evidence whatsoever to show that the plaintiff’s previous solicitor had done all that was necessary with regards to compliance with PTCM directions. 39. In Chua Cheng Wan v Chua Thiam Siew & 7 Ors [1999] AMEJ 0005, Abdul Wahab Patail J held that a party cannot rely on its own solicitors’ mistake to support its application to reinstate a suit which was struck out. He held:- “… even if the predicament of the plaintiff arises from a mistake of the counsel, it would not have been reason for the exercise of the discretion to reinstate even if it exists. A lawyer’s mistake is not an excuse.” 40. In How Hock Sing @ Low Kim Chwee v Lee Say Peng [2015] MLJU 712, Mohd Nazlan Mohd Ghazali JC (as he then was) warned against the court being too accommodative to a party whose non-compliance caused delay and waited costs. He also explained the rationale for the rigid enforcement of the rule that a solicitor’s mistake is not an excuse for non-compliance with the Court’s directions. In that case, he said:- “… even if it was argued that the predicament of the plaintiff arises from a mistake of his counsel, this is still not a sufficient excuse … it would become a charter for the incompetent if the court had to conduct almost impossible investigations in apportioning blame between the solicitor on one hand and his client on another.” 41. Hence, applying the approach that was taken in the cases referred to above, it appears that the plaintiff cannot be allowed to shield behind his previous solicitor’s negligence for inter alia non-compliance with the PTCM directions. The plaintiff is bound by his solicitors’ acts and omissions. 42. As for the plaintiff’s suggestion that a dismissal of Enclosure 25 would constitute a denial of his right to be heard on merits, it is relevant to refer to the judgment of Selventhiranathan J (as he then was) in Sunway PMI-Pile Construction Sdn Bhd v Pembenaan Chan & Chua Sdn Bhd [2002] 7 MLJ 538 (High Court) where he said:- “The court was not unaware that such an order would effectively shut out the defendant from ventilating its defence and counterclaim prior to judgment being entered in favour of the plaintiff and that such a step would in the normal course be considered as being against that rule of natural justice which enjoins that no final curial decision should be made in favour of one party without the other party being given an opportunity to be heard. … that rule of natural justice could not apply here as this was not a situation of the defendant being prevented from presenting its case. On the contrary, this was an instance where the defendant elected not to avail itself of the benefit of that rule by consciously electing to disregard the directions of the court given pursuant to the provisions of O 34 ...” 43. In any event, following Chua Cheng Wan (per Abdul Wahab Patail J) the merits of the plaintiff’s case is immaterial to the disposal of Enclosure 25. In that case the learned Judge held:- “The argument that a plaintiff’s claim has merit is of peripheral interest in an application for reinstatement, which is concerned more with the question why the action was struck off in the first place.” 44. Here, the action was struck off due to the plaintiff’s blatant disregard of the PTCM directions, which must be taken seriously by all parties at all times. It is worth repeating that at the first case management on 21 December 2016, the plaintiff, D1, D2 and D3 by their solicitors were present at this Honourable Court wherein it was directed that, inter alia:- a) all PTCM directions must be fully complied by 19 April 2017, failing which the suit or counterclaim (if any) will be struck out or judgment entered accordingly, depending on who is to blame for non-compliance; b) parties are to attend case management on 26 January 2017 and 19 April 2017 to update the Court on the status of the matter; and c) trial was fixed on 24 May 2017, 25 May 2017 and 16 May 2017. 45. On 26 January 2017, Mr. Sundramoorthy attended court for the case management. The case was then fixed for case management on 20 March 2017. On 20 March 2017, Mr. Sundramoorthy did not attend and had on the morning of 20 March 2017 requested that the solicitors for D2 and D3 to mention on his behalf. The solicitors for D2 and D3 had proceeded to do so as requested. The Court had on this occasion fixed the matter for next case management on 13 April 2017. 46. On 13 April 2017, Mr. Sundramoorthy once again did not attend to the case management and had again on the morning of 13 April 2017 requested D1’s solicitors, Messrs. Gan Partnership, to mention on his behalf. This time around, D1’s solicitors only undertook to this Court to inform Messrs. Ram of the outcome of the case management, which D1’s solicitors did. On this date, the Court reminded parties that all the pre-trial directions and trial documents are to be complied with by 19 April 2017 as it had earlier directed. This reminder was stressed to Messrs. Ram by D1’s solicitors via their letter of 13 April 2017 which reads as:- “….. We refer to the case management held before Yang Arif Tuan S. Nantha Balan on 13 April 2017 and the tele-conversation between your Mr Ramasundramoorthy a/l Permalu and our Lee Xin Div on 13 April 2017. 2. We undertook to inform you in respect of the outcome of the case management. 3. The Learned Judge directed as follows: 3.1 Unless all “pre-trial case management directions” are duly complied with by 19 April 2017 (Wednesday) at 8.30 am, this suit will be struck out or judgment will be entered accordingly. 3.2 The next case management to be on 19 April 2017 (Wednesday) at 8.30 am.” 47. However, neither Mr. Sundramoorthy nor the plaintiff was present at the case management on 19 April 2017. Furthermore, the PTCM directions were not complied with by the plaintiff and the suit against all the defendants was accordingly struck out and a judgment in terms of D1’s counterclaim against the plaintiff was entered pursuant to Order 34 Rule 2(3) and Rule 6(1) ROC. 48. On 8 May 2017, D1’s solicitors wrote to Messrs Ram and the letter reads as:- “2. We enclose herewith the following documents by way of service on you as solicitors for the Plaintiff: 2.1 Sealed Judgment dated 19 April 2017; and 2.2 Sealed Allocator dated 19 April 2017. 3. Your client must: 3.1 comply with the terms of the Judgment; and 3.2 forward to us RM7,500.00 being the costs awarded by the Court to our client and RM200.00 being the allocator fees. 4. Unless the terms of the Judgment are complied with, and our costs and the allocator fees are paid to us, within 7 days hereof, our client may be constrained to inter alia: 4.1 take enforcement proceedings against your client; and 4.2 dispose of your client’s vehicle in any way our client deems fit and your client shall indemnify our client for any costs incurred as a result of such removal without further reference to you.” 49. On 11 May 2017, Messrs. Ram wrote to the Court with a copy the solicitors for D2 and D3 as well as solicitors for D1, requesting that the trial dates of this action be rescheduled given that Mr. Sundramoorthy had to ‘cease practice’ due to an adjudicating and receiving order against the said solicitor. The letter reads as:- “Date: 11.5.2017 ….. PER: MAHKAMAH TINGGI KUALA LUMPUR KES NO WA-22NCVC-750-11/2016 Kami merujuk kepada perkara diatas yang ditetapkan untuk bicara kes pada 25.2.2017. Kami memohon agar bicara kes ini ditunda ke tarikh lain memandangkan anak guam terpaksa mengambil peguam bagi menggantikan saya. Kami terpaksa ‘cease practice’ secara serta merta akibat satu Perintah AORO ke atas kami pada bulan April 2017 yang dilakukan tanpa pengetahuan kami. Kami dalam proses mengenepikan Perintah tersebut. Memandangkan keadaan diluar jangkaan ini, kami memohon agar faktor ini diambil kira untuk membenarkan permohonan ini dan peguamcara baru akan mengambil alih kes ini dalam masa terdekat.” 50. On 20 June 2017, more than 2 months after the judgment dated 19 April 2017, D2’s and D3’s solicitors received a letter from the plaintiff’s current solicitors, Messrs. Louis, Kali & Co enclosing a copy of the Notice of Change of Solicitor dated 19 June 2017, before being served with the plaintiff’s application for a reinstatement of the action on 28 June 2017. 51. Essentially, for a reinstatement to be allowed, there are three principles to be borne in mind:- a) Reinstatement is not a matter as of right. b) Reinstatement involves an exercise of the court’s discretion. c) There must be sufficient material before the court to enable it to find the exercise of its discretion. see:- Hewlett Packard Sales (M) Sdn Bhv v Active Team Mould Engineering Sdn Bhd & Ors [2003] 1 MLJ 247 (CA) at page 250 para C – D. Kejuruteraan Taipan (M) Sdn Bhd v Loh & Loh Construction Sdn Bhd [2012] 1 CLJ 130 (HC) at page 135 para 9. 52. In exercising its discretion, the court will consider various factors such as:- a) In instances where one party had failed to appear, whether there are sufficient and reasonable reasons for the absence. b) Whether there is a serious risk of prejudice to the other party. c) Whether there was an issue of delay for the reinstatement. d) Whether the conduct of the party who is applying for reinstatement was intentional and contumelious. see:- Hatara (M) Sdn Bhd v Petroliam Nasional Bhd (Petronas) &Anor [2010] 4 MLJ 17 (CA) at page 23 para 17 – 19; Yogananthy a/p AS Thambaiya v Idris bin Osman [2010] 5 MLJ 676 (CA) at page 681, para 12; Kejuruteraan Taipan (M) Sdn Bhd v Loh & Loh Construction Sdn Bhd [2012] 1 CLJ 135 (HC) at page 135 para 9; Gan Kim Kiat & Bros Realty Sdn Bhd v Leang Ah Kan [1983] 1 MLJ 351 (ACJ) at page 352 para B, right column. 53. The plaintiff argued that first, the action was struck out because of Mr. Sundramoorthy’s non-compliance of the PTCM directions and non-attendance of the case management, which the plaintiff did not have knowledge of, given that at all material times, he was under the impression that Mr. Sundramoorthy had complied with all the PTCM directions and attended the case management. 54. Therefore, the plaintiff states that he should not be penalized and shut out from pursing his case against the defendants (see: para 3, 4, 16 - 18 and 26 of the plaintiff’s Affidavit in Support (Enclosure 26) and paragraph 5 of the plaintiff’s Affidavit in Reply (Enclosure 31). In particular, it is relevant to quote the following paragraphs in the plaintiff’s affidavit in support of the present application which summarises the plaintiff’s predicament:- “26. Saya sesungguhnya menyatakan bahawa berdasarkan keterangan di atas ia adalah jelas bahawa ketidakhadiran peguam terdahulu tiada dalam pengetahuan saya dan kecuaian peguamcara saya yang terdahulu tidak sepatutnya digunakan bagi menghukum saya dengan membatalkan tindakan saya yang mempunyai satu kes yang bermerit dan patut ditetapkan bagi bicara penuh. 27. Saya sesungguhnya juga menyatakan bahawa saya telah mempercayai peguamcara saya terdahulu dan telah mempercayai penerangan beliau bahawa Mahkamah akan menghantar surat kepada saya untuk memaklumkan berkenaan dengan tarikh yang baru dan hanya telah mengetahui hal yang sebenarnya apabila berjumpa dengan peguamcara yang baru pada 13.6.2017. 28. Saya menegaskan bahawa keadaan ini yang telah menyebabkan kes saya telah dibatalkan oleh Mahkamah ini bukan disengajakan atau dilakukan oleh saya. Saya dengan ini memohon maaf bagi segala kesulitan kepada Mahkamah ini memandangkan saya telah percaya kes berada ditangan peguam yang bertindak bagi kepentingan diri saya. Saya sememangnya merupakan mangsa bagi tindakan peguam saya terdahulu yang tidak professional. 29. Saya juga menyatakan bahawa jika permohonan ini dibenarkan oleh Mahkamah yang Mulia, peguamcara saya akan memfailkan kesemua kertas kausa yang perlu difailkan mengikut arahan Mahkamah ini. Saya amat berharap supaya diberikan satu lagi peluang untuk meneruskan dengan tindakan ini supaya kes didengar atas merit memandangkan dari bukti-bukti yang diekshibitkan ianya jelas bahawa saya tiada langsung mempunyai pengetahuan mengenai status kes saya kerana tidak dimaklum langsung oleh peguam saya terdahulu.” 55. It was submitted for the defendants that the plaintiff’s lack of knowledge as to Mr. Sundramoorthy’s situation or whether he had complied with PTCM directions, is not a sufficient or valid reason for the Court to exercise its discretion to allow for the reinstatement. First, given that Mr. Sundramoorthy was appointed to represent the plaintiff, the conduct of Mr. Sundramoorthy on the matter should bind the plaintiff, regardless of whether the plaintiff had full knowledge of how the plaintiff’s action was being conducted by Mr. Sundramoorthy. Secondly, the negligence (as alleged by the plaintiff in para 26 of the Affidavit in Support) of Mr. Sundramoorthy in failing to comply with the PTCM directions and to attend the case management is also not a sufficient reason for reinstatement. In Lembaga Kemajuan Tanah Persekutuan (FELDA) & Anor v Awang Soh bin Mamat & Ors [2009] 4 MLJ 610 (CA) at page 631 paragraph 21 it was held by the Court of Appeal that the conduct of the solicitor binds the litigant whom the solicitor is representing and solicitors who fail to act in the best interest of the client, ‘do so at their own peril and to the detriment of their client’. 56. Furthermore, the plaintiff had stated in his Affidavit in Support (para 17) and his Affidavit in Reply (para 14) that the plaintiff encountered difficulties getting updates from Mr. Sundramoorthy. Again, this should not be a reason for reinstatement. 57. The plaintiff as the litigant ought to have taken steps to ensure that Messrs. Ram was acting in the best interest of the plaintiff. Clearly, this also goes to show that the plaintiff had a lack of interest in ensuring that the action was conducted properly by Mr. Sundramoorthy. 58. In so far as D2 and D3 are concerned, it was submitted that will be unfair and prejudicial to D2 and D3 if the reinstatement is allowed, this is because:- a) D2 and D3 are not privy to the issues of communications between the plaintiff and Mr. Sundramoorthy and in any event it should not be used to penalize D2 and D3; b) D2 and D3 had at all times complied with all the PTCM directions and attended to all the case managements fixed by this Honourable Court; and c) The defendants had taken further steps to inform Mr. Sundramoorthy of the outcome of the case managements. The solicitors for D1 had informed Mr. Sundramoorthy of the need for compliance of PTCM directions and of the case management which the plaintiff and Mr. Sundramoorty were clearly aware of. 59. In terms of timelines, it is to be noted that the suit was filed on 25 November 2016. The action was struck out on 19 April 2017 and on 29 June 2017 the plaintiff filed Enclosure 25. The defendants maintain that considerable judicial time and resources as well as the parties’ time and resources had been wasted by reason of the dilatoriness of the plaintiff’s previous solicitors. 60. According to counsel for the defendants, the Court should keep at the forefront of its mind the need and importance of ensuring strict compliance of pre-trial case managements directions given to litigants when exercising the discretion for reinstatement. Analysis and conclusion 61. From the narrative of events that transpired, it is clear that before 19 April 2017, the matter had come up for case management on 13 April 2017. On 13 April 2017, Mr. Sundramoorthy did not turn up and the solicitors for D1 undertook to inform him of the outcome. 62. The explanation by counsel for the plaintiff for Mr. Sundramoorthy’s absence in Court on 19 April 2017 and his failure to comply with PTCM directions, is quite untenable. Indeed, it can be seen from the narrative of the plaintiff’s summary of case that the background facts took place in or around August 2015. The suit was filed in 25 November 2016 and PTCM directions were given on 21 December 2016. 63. Thus, it was known all round that if PTCM directions were not complied with, then there will be adverse consequences. At any rate, parties were fully aware that based on the PTCM directions, the suit will be struck out or judgment entered depending on who is to blame for the non-compliance. Looking at the events that have transpired, I have no hesitation in concluding that in the present situation, it is the plaintiff (through his previous solicitors), who is totally to be blamed for the dilatoriness in getting their case for trial. 64. In this regard, it is also necessary to refer to the case of How Hock Sing v Lee Say Peng & Ors [2015] 9 CLJ 368 HC, where Nazlan Ghazali JC (as he then was) had at paragraphs [16] to [22] comprehensively examined and discussed the relevant principles on this aspect of the adjectival law on case management directions, which I gratefully adopt:- “The Applicable Law & Findings By This Court Order 34 & "Unless Order" [16] The rules on pre-trial case management are contained in O. 34 of RC 2012. They came into effect on 1 August 2012 and superseded the previous O. 34 of the Rules of High Court 1980 ("RHC 1980") which applied to actions begun by writ. The amendments brought into effect significant changes to the procedures to be adhered to prior to the trial of an action. The term "case management" is described by Brown J in George Westen Ltd v. Domtar Inc [2012] 354 DLR (4th) 121 as follows: refers to a broad range of powers exercised by judges in the course of managing a civil proceeding. Through case management, a judge intervenes in the proceedings prior to trial in order to give directions for the preparation of the case for trial, for the actual conduct of the trial, or to attempt to resolve the proceedings. Case management requires the application of a range of management tools in order to secure the just, most expeditious, least expensive and proportionate determination of proceedings on its merits. [17] However, the pro-active role expected of the courts in stipulating time-frames and giving directions for the purpose of the trial, supported by the authority to impose sanctions for failure to comply with such directions is not newly introduced by O. 34 of the RC 2012. It was already embodied in O. 34 of RHC 1980. In the decision of the Federal Court in Tan GeokLan v. La Kuan [2004] 2 CLJ 301; [2004] 3 MLJ 465, Mohd Noor Ahmad FCJ stated the following: The learned trial judge should have also considered the need to expedite the disposal of the case with a view of saving costs, reducing delays and minimizing the burden of the court. Our civil procedure had been revamped from time to time for the purpose. One example is the case management procedure (Order 34 of the Rules of the High Court 1980 ("the RHC")). The significance of this procedure is that it marks a change from the traditional position under which the progress of cases was left largely in the hands of the parties. Now, under the procedure the court controls the progress of cases by the exercise of its powers given to it to enable it, and not the parties, to dictate the progress of cases at the pre-trial stage, ensuring that the practices and procedures applicable during that stage are complied with promptly and not abused. [18] Nevertheless, the language in the present O. 34 unmistakably provides for a greater emphasis in the directory and pro-active nature of the judicial role and extent of involvement now envisaged in pre-trial case management. The relevant parts of O. 34 r. 2(1) and (2) of RC 2012 read as follows: Pre-trial case management when directed by the Court (Order 34 r 2) 2(1) without prejudice to rule 1, at any time before any action or proceedings are tried, the Court may direct parties to attend a pre-trial case management relating to the matters arising in the action or proceedings. (2) at a pre-trial case management, the Court may consider any matter including the possibility of settlement of all or any of the issues in the action or proceedings and require the parties to furnish the Court with such information as it thinks fit, and the appropriate orders and directions that should be made to secure the just, expeditious and economical disposal of the action or proceedings, including... [19] It surely therefore stands to reason that a necessary pre-requisite for a workable and efficient environment where the courts are under the duty "to secure the just, expeditious and economical disposal" of actions is that there ought to be a robust case management system which does not easily tolerate lax enforcement of case management orders. This is acknowledged by the new provision in O. 34 r. 2(3) which is more specific in stating the consequence of not complying with such orders if compared against the previous O. 34 r. 7 of RHC 1980. The latter reads as follows: 7. Failure to comply with Judge's direction If any party to an action fails to comply with any direction given by the Judge at any pre-trial conference, such order may be made against the defaulting party by the Judge as meets the ends of justice. [20] The case of Sunway PMI-Pile Construction SdnBhd v. Pembenaan Chan & Chua SdnBhd [2003] 5 CLJ 63; [2002] 7 MLJ 538 held that authority to make such orders must include the power to order that the defence and counterclaim be dismissed and judgment be entered for the plaintiff. The present O. 34 r. 2(3) and (4) of RC 2012 on the other hand more categorically provides the following: (3) The Court, having given directions under rule 2(2) or rule 3 may either on its own motion or upon the application of any party, if any party defaults in complying with any such directions, dismiss such action or proceedings or strike out the defence or counterclaim or enter judgment or to make such order as it thinks fit. (4) Any judgment or order made under rule 2 (3) may be set aside by the Court, on the application of the party, on such terms, if any, as it thinks just. [emphasis added] 65. Ultimately, the question here is whether the plaintiff’s application discloses sufficient grounds for the exercise of the Court’s discretion to reinstate the suit and set-aside the judgment in default date 19 April 2017. It will be recalled that the PTCM directions were not at all complied with by the plaintiff. In fact, there was absolutely no evidence that the plaintiff’s solicitors had taken any steps towards compliance with PTCM directions. Counsel for the plaintiff now says that the plaintiff should not be prejudiced because of the fault, negligence or bankrupt status of the previous solicitor, Mr. Sundramoorthy. 66. In this regard, I observe that other than stating that adjudicating and receiving orders were made against Mr. Sundramoorthy, there is no credible evidence that adjudicating and receiving orders were in fact made against Mr. Sundramoorthy prior to 19 April 2017. At any rate, even if adjudicating and receiving orders were made against Mr. Sundramoorthy, that does not qualify as an excuse for non-compliance with PTCM directions. Thus, assuming it is factually true that Mr. Sundramoorthy had been adjudicated a bankrupt, prior to 19 April 2017, then he ought to have been transparent with his client and arrange for the file to be transferred to another solicitor who will be able to ensure that the PTCM directions are complied with. 67. In this regard, I should add that any last minute perfunctory attempt at complying with PTCM directions is an exercise in futility as there would have to be sufficient time for the input of the other solicitors to be taken and for amendments and adjustments to be made to the issues to be tried, agreed facts and bundle of documents. All of these will obviously take time. 68. Here, the Court had issued PTCM directions on 21 December 2016 and parties were directed to ensure that there was full compliance with PTCM directions, failing which the suit or counterclaim will be struck out or judgment entered as the case may be, depending on who is to blame for non-compliance. There was no ambiguity about the PTCM directions and the consequences that will follow in the event of non-compliance. Thus, even if Mr. Sundramoorthy had turned up on 19 April 2017, the outcome would have been no different as there was absolutely no compliance with the PTCM directions. It is clear that Mr. Sundramoorthy, as the solicitor for the plaintiff at that time, had not taken the Court’s PTCM directions seriously. 69. Indeed, even the letter dated 13 April 2017, from Messrs. Gan Partnership to Messrs. Ram appears to have had no effect as it did not jolt Mr. Sundramoorthy into any form of action in terms of urgently complying with PTCM directions. 70. Also, I have not had the benefit of Mr. Sundramoorthy’s explanation via an affidavit for purposes of the present explanation. Hence, everything in relation to what he did or did not do or even as regard his so-called bankruptcy status remains in the realm of speculation and surmise. It is important to note that as a result of non-compliance with PTCM directions and Mr. Sundramoorthy’s non-attendance on 19 April 2017, the suit was struck out and judgment entered in respect of D1’s counterclaim and consequently the trial dates on 24, 25 and 26 May 2017 were vacated. Counsel for the plaintiff submitted that there is no prejudice and that the case can be fixed for trial the soonest possible. That is easier said than done. Counsel’s submissions ignores the fact that the Court does not have an unlimited set of dates to fill up and that trial dates are fixed well in advance so that the Court’s diary is properly and efficiently utilised and managed. The suggestion that new trial dates can be fixed means that we are to start at “ground zero” and is patently a suggestion that does not sit well with the current litigation landscape and the strict adjectival rules on case management. 71. It is critical to emphasise that it was neither the Court nor the opposite parties which prevented the plaintiff from having his day in Court. In this case, the denial of access to justice was “self-induced” by the acts or omissions of the plaintiff’s previous solicitor. At times a party may have to pay the ultimate price for the acts or omission or mistake of their solicitor. 72. In this regard, one may draw comparisons with Lembaga Kemajuan Tanah Persekutuan (FELDA) & Anor v Awang Soh bin Mamat & Ors 2009] 4 MLJ 610 CA where the defendant’s solicitors and the defendants did not turn up on the trial date, because the solicitor who last attended court for case management (and who had since left the firm representing the defendants) had not entered the date in the firm’s diary. That was a case which was properly case managed and was ready for trial, in the sense that all pre-trial protocols had been complied with. It is just that due to a human “slip-up” the trial date was not entered in the diary and the solicitors for the defendants (and their client) did not turn up at the trial as they were unaware of the trial date. The court went ahead with the trial and entered judgment against the defendant. The defendant’s application to set aside the judgment was refused by the High Court and the appeal to the Court of Appeal was dismissed. In paragraph 24 of the judgment, the Court of Appeal highlighted the present judicial policy of strict adherence to hearing dates and the court’s minimum tolerance to adjournments to say nothing of the waste of judicial time and resources and the undermining of the efforts of the judiciary to eradicate the backlog of cases faced by the courts. 73. No doubt, that was a case which involved an application to set aside a judgment after a full trial, whereas here it is an application to set aside an order to strike out the suit and the entry of judgment in default in respect of D1’s counterclaim due to counsel’s absence in Court and the failure on the plaintiff’s part to ensure full compliance with PTCM directions. 74. It is trite that the plaintiff, as the protagonist of the suit had carriage of the suit and was primarily responsible for ensuring full compliance with PTCM directions. Indeed, the plaintiff’s present solicitors have not sought to shift the blame to anyone other than Mr. Sundramoorthy. Rightly so. They candidly accept that it was Mr. Sundramoorthy’s fault or negligence that resulted in non-compliance with PTCM directions. I do not understand how Mr. Sundramoorthy’s so-called bankruptcy status per se, can be relied upon as an excuse for the non-compliance with the PTCM directions which was issued approximately five (5) month before 19 April 2017 which gave Mr. Sundramoorthy ample time to comply with the PTCM directions. No doubt, it is said that the sins or mistake of the solicitor should not be visited upon the client. But this is not an inflexible rule. It is not even a rule to start off with. It is merely a reminder to the Court that in certain situations, it may be unfair or inequitable to blame the client for the acts or omissions of the solicitor. 75. In my view, the plaintiff, as the client also has a responsibility to ensure that the solicitor has done his part. No doubt there appears to have be some degree of Whats-App communication between the plaintiff and Mr. Sundramoorthy as to the status of the suit and preparation towards trial. But I do think that more could and should have been done by the plaintiff. 76. It is worth emphasising that the plaintiff’s case here is predicated on a complaint that the said motor-car was inherently defective and that it suffered from design flaws. This begs the question as to how the plaintiff intended to prove these allegations at trial. Would it be just his mere say-so or would he have proven this through an expert automobile engineer’s report? If it is the plaintiff’s mere say so then it would at-best be a lay-man’s uninformed opinion, which would be quite unhelpful in terms of proving his case. And if it is to be proven via an expert automobile engineer’s report after the expert had inspected, examined and test-run the said motorcar, then such a report should have been in existence prior to 19 April 2017. But in his affidavit, the plaintiff did not mention the existence of any such report which means that there is presently no such report in existence. And so, the question is, what steps did the plaintiff take in terms of providing the requisite documents towards preparation of the trial. Ultimately, it appears that the plaintiff had left everything to Mr. Sundramoorthy who in turn appears to have done nothing in so far as compliance with PTCM directions are concerned. 77. In the upshot, despite the impassioned plea and the trenchant submissions that were made on behalf of the plaintiff, I was not convinced that this was, as counsel for the plaintiff put it, “a deserving case”, for the exercise of the Court’s discretion to reinstate the suit and to set aside the judgment in default. Indeed, it would be both unfair and inequitable to excuse the plaintiff for non-compliance with PTCM directions and for the suit to be reinstated and the judgment in default on D1’s counterclaim to be set aside. I find that the plaintiff’s application is devoid of any merit. As such, for the reasons as discussed above, I dismissed the plaintiff’s application and ordered the plaintiff to pay costs of RM3,000.00 (subject to 4% allocator) to D1 and costs of RM2,000.00 (subject to 4% allocatur) to D2 and RM2,000.00 (subject to 4% allocator) to D3. Order accordingly. Date: 29 September 2017 S. Nantha Balan Judge High Court Kuala Lumpur Counsel: Ms. Komathi Kaliappan together with Jessica Mary Louis (Messrs Louis, Kali & Co) for the plaintiffs. Mr. Lee Xin Div (Messrs Gan Partnership) for the first defendant. Ms. Tan Hwee Yee (Messrs Chooi & Co) for the second & third defendants. Statute: Order 34 Rule 2(3) Rules of Court 2012 Order 34 Rule 2(4) Rules of Court 2012 Order 34 Rule 6(1) Rules of Court 2012 Order 34 Rule 6(2) Rules of Court 2012 Cases: Chua Cheng Wan v Chua Thiam Siew & 7 Ors [1999] AMEJ 0005 HC How Hock Sing @ Low Kim Chwee v Lee Say Peng [2015] MLJU 712 HC Sunway PMI-Pile Construction Sdn Bhd v Pembenaan Chan & Chua Sdn Bhd [2002] 7 MLJ 538 HC Lembaga Kemajuan Tanah Persekutuan (FELDA) & Anor v Awang Soh bin Mamat & Ors [2009] 4 MLJ 610 CA Hewlett Packard Sales (M) Sdn Bhd v Active Team Mould Engineering Sdn Bhd & Ors [2003] 1 MLJ 247 CA Kejuruteraan Taipan (M) Sdn Bhd v Loh & Loh Construction Sdn Bhd [2012] 1 CLJ 130 HC Hatara (M) Sdn Bhd v Petroliam Nasional Bhd (Petronas) &Anor [2010] 4 MLJ 17 CA Yogananthy a/p AS Thambaiya v Idris bin Osman [2010] 5 MLJ 676 CA Kejuruteraan Taipan (M) Sdn Bhd v Loh & Loh Construction Sdn Bhd [2012] 1 CLJ 135 HC Gan Kim Kiat & Bros Realty Sdn Bhd v Leang Ah Kan [1983] 1 MLJ 351 HC Page 40 of 42	56,170	Tika 2.6.0
WA-22NCC-256-07/2016	PLAINTIF Preferred Synergy Sdn Bhd DEFENDAN Beta Tegap Sdn Bhd	null	29/09/2017	YA DATUK LAU BEE LAN	https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=fe3e4085-786a-4080-9e74-edd1ac3d0575&Inline=true	DALAM MAHKAMAH TINGGI MALAYA DI MUAR 1 DALAM MAHKAMAH TINGGI MALAYA DI KUALA LUMPUR 5 (BAHAGIAN DAGANG) GUAMAN SIVIL NO: WA-22NCC-256-07/2016 ANTARA 10 PREFERRED SYNERGY SDN BHD … PLAINTIF (No. Syarikat : 1004631-X) DAN 15 BETA TEGAP SDN BHD … DEFENDAN (No. Syarikat : 641484-A) 20 GROUNDS OF DECISION [1] The present appeals have been brought by the Plaintiff in light of my decision in dismissing their application under O.14 of the Rules of Court 2012 (‘ROC 2012’) (encl. 4) and allowing the 25 Defendant’s applications under O.18 r.19 (encl. 12) as well as under O. 81 (encl. 27) of the ROC 2012 on 13/1/2017. [2] The crucial background facts are: (i) The Government of Malaysia awarded a contract to the 30 Defendant to monitor and capture images of traffic offences (‘AES Contract’) for a period of 66 months with effect from 1/3/2012. Subsequently, on 14/8/2012, the Plaintiff and Defendant entered into the Agreement for the purported 2 purpose of leasing and management of vehicles titled 5 “Agreement between Preferred Synergy Sdn Bhd (‘the Company’) and Beta Tegap Sdn Bhd (‘the Operator’) for the leasing and management of vehicles for Beta Tegap Sdn Bhd’s contract for the automated enforcement system (‘AES’) (‘the Agreement’) (Exh.A-1, pp.1-24, Affidavit of the 10 Defendant affirmed by Zairuddy Zainal on 9/9/2016). The vehicles were to be used by the Defendant for the purpose of performance of its obligations under the AES Contract. The Agreement was prepared by the solicitors of the Plaintiff. (ii) The Agreement also contained, inter alia, the following 15 representations by the Plaintiff which materially induced the Defendant to enter into the Agreement: (a) The Plaintiff is the legal and beneficial owner of the vehicles purportedly to be leased to the Defendant; (b) The Plaintiff has the right, title and ownership to 20 the vehicles purportedly to be leased to the Defendant; (c) The Plaintiff has the power and the capacity to execute, deliver and perform the terms of the Agreement, including the purported leasing of the 25 vehicles and the granting of the Transfer Options. By the Transfer Options, the Defendant, at the end of the term of the Agreement, has an option to either own (i.e. purchase) the vehicles or return the vehicles to the Plaintiff in which case the 30 3 Defendant will be entitled to a rebate. If the 5 Defendant decides to purchase the vehicles, ownership of the vehicles will be transferred from the Plaintiff to the Defendant; (d) The execution, delivery and performance of the Agreement will not exceed the powers of the 10 Plaintiff or violate any provisions of the law. (‘Representations’) (iii) Pursuant to the Agreement, the Defendant has taken delivery of 39 vehicles (‘Vehicles’) out of 115 vehicles stated in the Agreement. 15 (iv) In or around December 2012, the Government of Malaysia suspended the implementation of the AES Contract. (v) On 5/7/2016, the Plaintiff commenced this action against the Defendant to enforce the Agreement and claims the following damages from the Defendant: 20 (a) RM3,525,717.60 being the purported outstanding monthly lease charges for the vehicles, strobe light and windscreen cover; (b) RM346,897.50 being interest on the purported outstanding monthly lease charge; 25 (c) RM18,791,556.04 being purported loss of profits allegedly caused by the Defendant’s alleged failure to take lease of the remaining 112 units of the vehicles; (d) RM2,900.00 being the purported outstanding traffic 30 4 summonses for the Vehicles. 5 Defendant’s arguments [3] The Defendant contended that: (i) The Agreement is voidable as the Plaintiff has defrauded and/or misrepresented to the Defendant of the 10 Representations contained in the Agreement; (ii) The objects and considerations of the Agreement is unlawful and the Agreement is therefore void; (iii) The Agreement is in reality not a leasing agreement but a hire-purchase agreement governed by the Hire Purchase Act 15 1967(‘Hire Purchase Act’). The Agreement is not in compliance with the Hire Purchase Act and is therefore void; (iv) Even if the Agreement is valid, the parties are discharged from the Agreement as it has been frustrated by reason of suspension of the AES Contract. 20 [4] The Defendant’s Re-Amended Counterclaim against the Plaintiff is for, inter alia, (a) Rescission of the Agreement for reasons of fraud and/or misrepresentation; 25 (b) Declaration that the Agreement is null and void ab initio for the reasons set out in paras 3(ii) and (iii) above; (c) Declaration that the Agreement was frustrated and the parties be discharged from the Agreement from January 2013 onwards. 30 5 5 Findings Plaintiff’s application under O.14 of the ROC 2012 (encl.4) [5] Vide a Notice of Application dated 27/7/2016 (encl.4) the Plaintiff applied for summary judgment pursuant to O.14 of the ROC 10 2012 against the Defendant for the relief reproduced in para 2v(a), (b) and (d) above. The Defendant opposed the Plaintiff’s summary judgment application on grounds contained in para 3(i) to (iv) above. [6] For the purpose of this application, I am satisfied the 15 preliminary requirements have been complied with ie, (i) the defendant has entered appearance; (ii) the statement of claim must have been served on the defendant; and (iii) the affidavit in support of the application must comply with the requirements of r. 2 of O.14 of the ROC 2012. Upon these considerations being satisfied, the 20 plaintiff will have established a prima facie case and it comes entitled to judgment and the burden shifts to the defendant to satisfy the Court why judgment should not be given against him (per George Seah FJ in National Company For Foreign Trade v. Kayu Raya Sdn. Bhd. [1984] 1 CLJ (Rep) 283 at p.285 e-f). 25 [7] It is also trite law that in a claim for summary judgment the burden is on the defendant to raise triable issues though a complete defence need not be shown; the determination of whether an issue is triable or not must necessarily depend on the facts or the law 30 arising in each case as disclosed in the affidavit evidence before the javascript:DispAct=window.open('/Members/DisplayAct.aspx?CaseActCode=MY_FS_PUA_2012_205&ActSectionNo=14.&SearchId=7mkl','_DisplayAct','');DispAct.focus() javascript:DispAct=window.open('/Members/DisplayAct.aspx?CaseActCode=MY_FS_PUA_2012_205&ActSectionNo=14.&SearchId=7mkl','_DisplayAct','');DispAct.focus() javascript:DispAct=window.open('/Members/DisplayAct.aspx?CaseActCode=MY_FS_PUA_2012_205&ActSectionNo=14.&SearchId=7mkl','_DisplayAct','');DispAct.focus() javascript:DispAct=window.open('/Members/DisplayAct.aspx?CaseActCode=MY_FS_PUA_2012_205&ActSectionNo=14.&SearchId=7mkl','_DisplayAct','');DispAct.focus() javascript:DispCase=window.open('/Members/DisplayCase.aspx?CaseId=2262761986&SearchId=7mkl','_DisplayCase','');DispCase.focus() javascript:DispCase=window.open('/Members/DisplayCase.aspx?CaseId=2262761986&SearchId=7mkl','_DisplayCase','');DispCase.focus() 6 Court (per Mohamed Azmi SCJ in Bank Negara Malaysia v Mohd 5 Ismail & Ors [1992] 2 CLJ Rep 186; [1992] 1 MLJ 400 at p.408 A- B and further on the same page E-F, the Supreme Court held - "Where such assertion, denial or dispute is equivocal, or lacking in precision or is inconsistent with undisputed contemporary documents or other statements by the same deponent, or is inherently improbable in 10 itself, then the judge has a duty to reject such assertion or denial, thereby rendering the issue not triable". [8] In the present case before me, it is pertinent to take note of important milestones which are significant in the determination of 15 the 3 applications before the Court namely - (i) From the exchange of affidavits for the summary application (encl.4) and the striking out application (encl.12), on 2/9/2016, the Plaintiff disclosed for the first time that the Vehicles were procured by the Plaintiff on hire purchase: 38 20 Toyota Hilux from BMW Credit (Malaysia) Sdn Bhd (‘BMW’) and 1 Toyota Hiace Van from Affin Bank Berhad (‘Affin’). (ii) On 21/9/2016, the Defendant requested for a copy of the hire purchase agreements entered between the Plaintiff, BMW and Affin which the Plaintiff did not furnish. 25 (iii) On 24/10/2016 the Defendant filed the discovery application for production and inspection of copies of the same. (iv) On 2/11/2016, the Plaintiff furnished the Defendant a copy of the 38 hire purchase agreements (‘BMW HPAs’) for 30 the 38 Toyota Hilux and the hire purchase agreement entered between the Plaintiff and Affin (‘Affin HPA’) for 1 Toyota Hiace Van. javascript:DispCase=window.open('/Members/DisplayCase.aspx?CaseId=2394098177&SearchId=7mkl','_DisplayCase','');DispCase.focus() javascript:DispCase=window.open('/Members/DisplayCase.aspx?CaseId=2394098177&SearchId=7mkl','_DisplayCase','');DispCase.focus() 7 (v) Due to the production of copies of the BMW HPAs and 5 the Affin HPA, the Defendant on 3/11/2016 withdrew its application for discovery. [9] The BMW HPAs provide, inter alia, as follows: (a) The owner of the vehicles is BMW who has let the 10 vehicles to the Plaintiff as hirer (cl.1 of the BMW HPAs, exhs.A-8 & A-9 pp.22-678, Affidavit of the Defendant affirmed by Zairuddy Zainal on 14/11/2016). (b) Unless and until the payments under the BMW HPAs have been made and the option to purchase has been 15 exercised, the vehicles shall remain the absolute property of BMW and the Plaintiff shall not have any right or interest in the vehicles other than of a bailee (cl.14). (c) As the bailee, the Plaintiff is prohibited from, inter alia, selling, transferring, disposing of or encumbering the 20 vehicles or any right, title or interest therein or sub- letting or parting with possession of the vehicles or attempting, purporting or agreeing to do so and if the Plaintiff breaches this prohibition, the hiring under the BMW HPAs automatically terminates and the Plaintiff 25 shall no longer be in lawful possession of the vehicles (cl.8.1). (d) The schedules of payment in the BMW HPAs also show that the Plaintiff has not fully paid the instalments required under the BMW HPAs (Schedule). 30 (‘HP Prohibitions’) 8 5 [10] The Affin HPA also contains similar HP Prohibitions as set out in para 9 above in favour of Affin. The schedules of payment in the Affin HPA also show that the Plaintiff has not fully paid the instalments under the Affin HPA. 10 [11] In respect of the Representations in para 2(ii)(a) and (b) above, the Plaintiff submitted the Defendant’s complaint on ownership is a technicality as “It is commonplace when people buy cars under hire- purchase to claim to be “owners” of the cars, although technically in 15 law, the owners are the hire-purchase companies.” [12] In respect of the Representation in para 2(ii)(c) above, the Plaintiff submitted - “The Plaintiff did perform the Agreement by delivering the 39 vehicles 20 which were used uninterrupted by the Defendant. Any complaints about the Transfer Option is academic because the Transfer Option is not even applicable until the end of the Term, and in any event, by then the hire- purchase would have expired anyway”. 25 [13] In respect of the Representation in para 2(ii)(d) above, the Plaintiff submitted - “There is NOTHING in the Plaintiff’s Memorandum and Articles that prevent the execution, delivery and performance of the Agreement. The Defendant has shown NO OBJECTIONS by BMW or Affin, neither 30 has the Defendant complained about any interruption to its possession and use of the vehicles throughout”. [14] With respect I am of the view that it is not a technical argument nor can the Plaintiff’s other contentions in paras 12 and 13 above be 35 9 sustained for the following reasons: 5 (i) The Plaintiff’s contention that BMW and Affin do not have objections to the Agreement between the Plaintiff and the Defendant is a bare allegation unsubstantiated by any evidence which is insufficient to raise a triable issue warranting the grant of leave to defend (see Microsoft Corporation v Yong Wai Hong [2008] 3 10 MLJ 309 (CA) at 319[10]; Welfare Printed Circuits Board Co. Ltd v Bumicircuit Technologies (M) Sdn Bhd [2012] MLJU 414 at para 10). (ii) I agreed with the Defendant’s submission that the fact that the Defendant had the possession of the Vehicles without the consent 15 of BMW and Affin exposed the Defendant to the tort of conversion. I draw support from the case of R. H. Willis And Son v. British Car Auctions Ltd. [1978] 1 W. L.R.438 (English Court of Appeal) where the issue turns on whether the plaintiff owners (second hand car dealers) or the auctioneers is to suffer the loss caused by a hirer who 20 purchased the second hand car from the plaintiff owners on hire purchase but who later put the car on auction to the auctioneers claiming that it was his own car despite a warning in the hire purchase agreement that “The goods will not become your property until you have made all the payments. You must not sell them before 25 then”. Lord Denning (as he then was) at pp.441-442 held - “In answering that question in cases such as this, the common law has always acted on the maxim nemo dat quod non habet. It has protected the property rights of the true owner. It has enforced them strictly as against anyone who deals with the goods inconsistently with the 30 dominion of the true owner. Even though the true owner may have been very negligent and the defendant may have acted in complete innocence, nevertheless the common law held him liable in conversion. Both the “innocent acquirer” and the “innocent handler” have been hit hard”. 35 10 5 (iii) Furthermore it is an undisputed fact that the Affin HPA and 32 of the BMW HPAs were executed after the Agreement was executed by the Plaintiff and Defendant. In my judgment there is merit in the Defendant’s submission that if the Plaintiff’s allegation that BMW and Affin were aware of the Agreement and they do not 10 have objections to it is true, it would be reasonable to expect the HP Prohibitions to be omitted from the BMW HPAs and the Affin HPA. However the undisputed contemporaneous documentary evidence of the inclusion of the HP Prohibitions in the BMW HPAs and Affin HPA put to naught the Plaintiff’s contention that the BMW and Affin 15 are aware of the Agreement and consented to the leasing of the Vehicles by the Plaintiff to the Defendant. I reject the Plaintiff’s assertion rendering the issue not triable. (iv) The Plaintiff contended the Defendant is estopped from relying on the issue of Plaintiff’s misrepresentation is 2 fold. 20 Firstly, the Plaintiff argued under the exception under s.19(1)(a) of the Contracts Act 1950 (‘Contracts Act’), the contract is not voidable as the Defendant had the means of discovering the fact of the hire purchase by ordinary diligence. S.19(1) and the exception thereunder read as follows: 25 “(1) When consent to an agreement is caused by coercion, fraud, or misrepresentation, the agreement is a contract voidable at the option of the party whose consent was so caused. … 30 Exception - If such consent was caused by misrepresentation or by silence, fraudulent within the meaning of section 17, the contract, nevertheless, is not voidable, if the party whose consent was so caused had the means of discovering the truth with ordinary 35 diligence”. 11 5 With respect in my judgment the Plaintiff’s argument is untenable. It is my considered opinion based on the case of Admiral Cove Development Sdn Bhd v Balakrishnan a/l Devaraj & Anor [2011] 5 MLJ 309, the material time to consider whether there is misrepresentation is at the time of execution of 10 the Agreement and not thereafter. The question of law before the Federal Court is “What relief is applicable in a case of innocent misrepresentation?” At 321[23] and [27] Mohd Ghazali FCJ (as he then was) (delivering the judgment of the Court) opined - “[23] In the instant appeal, it is a case of a contract for the purchase 15 and sale of property and the contract was completed when the purchaser, ie, the respondents received an executed conveyance and made payment for the purchase price. Since the conveyance has been properly executed by both the appellant and the respondents, we do not think that the latter can recover the purchase monies. Further, there was 20 a delay of more than four years before the respondents decided to pursue the action for rescission”. … [27] We do not think that the sale and purchase agreement for the property in the instant appeal can be set aside for innocent 25 misrepresentation after it has been completed by conveyance and payment of the purchase money. On the part of the appellant as vendor, it had conveyed the property with a good title and has delivered up actual possession or enjoyment thereof. The respondents as purchasers had accepted the conveyance of the property by taking possession and 30 paying the price. Innocent misrepresentation is no ground for setting aside an executed contract. What has been performed is what was agreed to be performed”. Reverting to the factual matrix of this present case, it is 35 undisputed that (i) the Vehicles’ registration cards were given to the Defendant at the earliest on 30/8/2012 which was after the execution of the Agreement (i.e 14/8/2012); (ii) the Plaintiff only furnished copies of the BMW HPAs and the Affin HPA to the 12 Defendant for the first time on 2/11/2016. Thus the Defendant 5 would not have known of the HO prohibitions prior to 2/11/2016. It is not for the Defendant to verify the ownership by BMW and Affin by conducting a ‘simple search’ as at 30/8/2012 as the Plaintiff suggested as there is no obligation of the Defendant to do so in the light of the Representations made by the Plaintiff. 10 Further, I find that the Plaintiff’s claim that the Defendant is aware of the BMW HPAs and the Affin HPA is but an afterthought for the reasons submitted by the Defendant - “(a) By the Defendant’s solicitors’ letter dated 21/9/2016, the Defendant, in requesting for copies of the BMW HPAs and Affin 15 HPA, stated that prior to the receipt of the Plaintiff’s affidavit on 2/9/2016 and Amended Defence and Defence to Counterclaim on 15/9/2016, the Defendant was not aware that the Vehicles were obtained by the Plaintiff on hire-purchase. 20 (b) By the Plaintiff’s solicitors’ response in a letter dated 22/9/2016, the Plaintiff did not deny Defendant’s position that they were not aware that the Vehicles were obtained by the Plaintiff on hire-purchase prior to 2/9/2016. 25 (c) Upon receiving copies of the BMW HPAs and Affin HPA after filing of the discovery application, the Defendant, by a Notice of Rescission dated 14/11/2016 issued by their solicitors, rescinded the Agreement for reason of misrepresentation. The Plaintiff only alleged for the first time on 5/12/2016 that the Defendant was 30 aware of the BMW HPAs and Affin HPA in their affidavit after the issuance of the Notice of Rescission”. (Emphasis added) Therefore I agreed with the Defendant’s submission that - “(a) The Defendant, like any other reasonable person, was clearly 35 induced to entering into the Agreement based on the Representations. The Representations also are not for trivial matters. They are essential and fundamental for every leasing or hire-purchase of vehicles without which the lessee or hirer would not be able to lawfully enjoy and possess the Vehicles – 40 Museprime Properties Ltd v Adhill Properties Ltd, HC (UK). (b) Also, the Plaintiff could not have granted the title and rights set out 13 in the Agreement to the Defendant when it did not have the title 5 and rights in the first place. This is in accord with the settled principle of nemo dat quod non habet - Simpang Empat Plantation v Ali Tan Sri Abdul Kadir, CA”. (v) Secondly, the Defendant argued that the Defendant is 10 estopped because it has elected to affirm the Agreement and continued with the use and possession of the Vehicles for 4 years 3 months and 5 days. To bolster its position, the Defendant relied on - Travelsight (M) Sdn Bhd & Anor v. Atlas Corp Sdn Bhd [2003] 15 6 MLJ 658 at p.665 A-B - “According to the case of Clough v London and North Western Rly Co (1871) LR 7 Ex 26 at p 35 that once an election is unequivocally made, be it in favour of affirmation or of rescission, then the matter comes to an end forever. The election remains put and it cannot be revived since, in 20 law, there is no such thing as partial rescission (see Segar Oil Palm Estate Sdn Bhd v Tay Tho Bok)”. Admiral Cove Development (supra) - “Held … (5) The conduct of the respondents … showed an election to 25 affirm the agreement. The long lapse of time without complaint showed an intention to affirm the contract and was a strong indication that they were not really induced by whatever was said … to enter into the agreement … (6) There was a delay of more than four years before the respondents decided to pursue the action for rescission. Such delay 30 could be fatal. It was difficult, if not impossible, to affirm the Court of Appeal's ruling that the respondents' delay in pursuing the action for rescission was not fatal …”. I find there is no merit in the Plaintiff’s aforesaid contention. In 35 Peyman v Lanjani and others [1984] 3 All ER 703 at p.725j and p.726b-d, the English Court of Appeal followed the Australian case of Coastal Estates Pty Ltd v Melevende [1965] VR 433 in which is found support for the view that knowledge of the legal right to 14 elect to avoid a contract is required for affirmation of it. 5 Stephenson LJ quoted from the judgment of Herring CJ (at 436) as follows: “The first thing to consider is the nature of the conduct of the plaintiff that is relied upon. It is conduct no doubt that could have properly been put forward as evidence that the plaintiff had resolved to affirm, if he had 10 known that he had a right of election. But of course in the present case his conduct has to be looked at on the basis that he did not have any such knowledge. And so looked at it would not appear conduct of such an unequivocal character as to preclude the plaintiff from exercising his right to rescind. By paying the instalments and interest payable under the 15 contract and the rates that the contract required him to pay, the plaintiff was doing nothing inconsistent with disaffirmance. He was doing no more than fulfilling his own obligations under the contract. He was not seeking to exercise rights under the contract adverse to the defendant as vendor, nor was he seeking to gain advantaves for himself. He did not do 20 anything that unequivocally involved an affirmance of the contract, as is the case where a landlord for example with a right to forfeit a lease accepts rent from his tenant. This course the landlord can only justify on the basis that the lease is still on foot”. 25 At p.734 g-j, Slade LJ stated - “Lord Blackburn in Kendall v Hamilton (1879) 4 App Cas 504 at 542, [1874-80] All ER Rep 932 at 950 said: ‘… there cannot be election until there is knowledge of the right to elect.’ For the reasons given by Stephenson and May LJJ, I am of the opinion that this statement, which 30 was cited by Lord Porter in Young v Bristol Aeroplane Co Ltd [1946] 1 All ER 98 at 110, [1946] AC 163 at 186 as being the foundation of the principle of election, still correctly represents the law. With Stephenson and May LJJ, I do not think that a person (such as Mr Peyman in the present case) can be held to have made the irrevocable choice between 35 rescission and affirmation which election involves unless he had knowledge of his legal right to choose and actually chose with that knowledge. I would like to make a few observations as to the practical consequences of this court’s decision on this point, as I see them. If A 40 wishes to allege that B, having had a right of rescission, has elected to affirm a contract, he should in his pleadings, so it seems to me, expressly allege B’s knowledge of the relevant right to rescind, since such knowledge will be an essential fact on which he relies”. 45 Turning to the context of this present case, on the face of the registration card on 30/8/2012, it does not set out the HPA 15 Prohibitions and given my finding that the Defendant prior to 5 2/9/2012 did not know about the HPA Prohibitions, I am of the view the Defendant could not have made any election to affirm the contract. [15] To conclude, I find that the Defendant has shown there is 10 the triable issue that the Plaintiff had fraudulently misrepresented or at the very least, innocently misrepresented to the Defendant of the Representations. For the foregoing reasons, having considered the submissions of the parties, the Court dismissed the Plaintiff's application (encl.4) with costs of RM5,000.00. 15 Defendant’s application under O.18 r.19(1)(b) and/or (d) of the ROC 2012 (encl.12) [16] Vide its Notice of Application dated 9/9/2016, the Defendant is essentially seeking to strike out the Plaintiff's Writ of Summons 20 dated 5/7/2016 and Ameded Statement of Claim dated 23/8/2016 pursuant to O.18 r.19(1)(b) or (d) ROC 2012 and/or the inherent jurisdiction of the Court (encl. 12). The sole ground relied on by the Defendant for striking out is the Plaintiff has frauddulently and/or innocently misrepresented to the Defendant of the representations 25 referred in para 3(i) above. The Defendant has in abundance of caution reserved its right to rely on other defences and counterclaim if a full trial is required. [17] In the oft cited case of Bandar Builder Sdn. Bhd. & 2 Ors. v. 30 United Malayan Banking Corporation Bhd. [1993] 4 CLJ 7, the javascript:DispAct=window.open('/Members/DisplayAct.aspx?CaseActCode=MY_FS_PUA_2012_205&ActSectionNo=18.&SearchId=8mkl','_DisplayAct','');DispAct.focus() javascript:DispCase=window.open('/Members/DisplayCase.aspx?CaseId=2477851138&SearchId=8mkl','_DisplayCase','');DispCase.focus() javascript:DispCase=window.open('/Members/DisplayCase.aspx?CaseId=2477851138&SearchId=8mkl','_DisplayCase','');DispCase.focus() 16 respondent's claim against the appellants is for the recovery of the 5 amount due and owing under various banking facilities. The appellants sought to strike the respondent's reply and defence to counterclaim whilst the respondent sought to strike out the appellant's counterclaim. The Registrar refused both applications and on appeal the learned Judge dismissed both appeals. The 10 parties appealed further. In dismissing both the appeals, the Supreme Court opined - (a) “The principles upon which the Court acts in exercising its power under any of the four limbs of O.18 r.19(1) Rules of the High Court are well settled. It is only in plain and obvious cases that 15 recourse should be had to the summary process under this rule (per Lindley M.R. in Hubbuck v. Wilkinson [1899] 1 QB 86, p.91), and this summary procedure can only be adopted when it can be clearly seen that a claim or answer is on the face of it "obviously unsustainable" (Attorney-General of Duchy of Lancaster v. L. & 20 N.W. Ry. Co. [1892] 3 Ch.274, CA). It cannot be exercised by a minute examination of the documents and facts of the case, in order to see whether the party has a cause of action or a defence (Wenlock v. Moloney [1965] 1 WLR 1238; [1965] 2 All ER 871, CA.). ... The Court must be satisfied that there is no reasonable 25 cause of action or that the claims are frivolous or vexatious or that the defences raised are not arguable". (p.11 e-h left column); and (b) "It has been said that so long as the pleadings disclose some 30 cause of action or raise some question fit to be decided by the Judge, the mere fact that the case is weak and not likely to succeed at the trial is no ground for the pleadings to be struck out (Moore v. Lawson [1915] 31 TLR 418 CA); (Wenlock v. Moloney) (supra)." 35 [18] In the light of my finding that the Defendant has shown that the Plaintiff had fraudulently misrepresented or at the very least, innocently misrepresented to the Defendant of the Representations, the Plaintiff’s action is obviously unsustainable and ought to be 40 struck out. javascript:DispAct=window.open('/Members/DisplayAct.aspx?CaseActCode=MY_FS_PUA_2012_205&ActSectionNo=18.&SearchId=8mkl','_DisplayAct','');DispAct.focus() javascript:DispAct=window.open('/Members/DisplayAct.aspx?CaseActCode=MY_FS_PUA_2012_205&ActSectionNo=18.&SearchId=8mkl','_DisplayAct','');DispAct.focus() 17 5 [19] In the circumstances the Court allowed the Defendant's application (encl.12) with costs of RM5,000.00. Defendant’s application under O. 81 of the ROC 2012 (encl. 27) [20] Vide its Notice of Application dated 15/11/2016 (encl.27), the 10 Defendant applied to enter summary judgment against the Plaintiff as follows: “(1) Penamatan (rescission) Perjanjian yang bertajuk Agreement between Preferred Synergy Sdn Bhd (“the Company”) and Beta Tegap Sdn Bhd (“the Operator”) for the leasing and management 15 of vehicles for Beta Tegap Sdn Bhd’s contract for the automated enforcement system (“AES”) bertarikh 14.8.2012 (“Perjanjian”) ab initio; (2) Deklarasi bahawa Perjanjian tersebut adalah tidak sah dan 20 terbatal (null and void) ab initio; (3) Perintah bahawa Plaintif hendaklah memulangkan jumlah RM1,644,514.30 ataupun RM1,590,168.30 kepada Defendan bersama dengan faedah pada kadar 5% setahun daripada 25 18.8.2015 sehingga tarikh penyelesaian penuh; (4) Secara alternatif, jumlah wang yang perlu dipulangkan oleh Plaintif kepada Defendan ditaksir bersama dengan faedah pada kadar 5% setahun; 30 (5) Kos”. [21] In an application under O.81 ROC 2012, the principles governing summary judgment under O.14 ROC 2012 are applicable. 35 In Woolley Development Sdn Bhd v Mikien Sdn Bhd [2008] 2 CLJ 303; [2008] 1 MLJ 585, the Court of Appeal held that: "[45] This application was made under O 81 of the RHC. Order 81 r 3 of the RHC states that: Unless on the hearing of an application under rule 1 either the 40 court dismisses the application or the defendant satisfies the court javascript:DispAct=window.open('/Members/DisplayAct.aspx?CaseActCode=MY_FS_PUA_2012_205&ActSectionNo=81.&SearchId=9mkl','_DisplayAct','');DispAct.focus() javascript:DispAct=window.open('/Members/DisplayAct.aspx?CaseActCode=MY_FS_PUA_2012_205&ActSectionNo=14.&SearchId=9mkl','_DisplayAct','');DispAct.focus() javascript:DispCase=window.open('/Members/DisplayCase.aspx?CaseId=2820342785&SearchId=9mkl','_DisplayCase','');DispCase.focus() javascript:DispCase=window.open('/Members/DisplayCase.aspx?CaseId=2820342785&SearchId=9mkl','_DisplayCase','');DispCase.focus() javascript:DispAct=window.open('/Members/DisplayAct.aspx?CaseActCode=MY_FS_PUA_1980_050&ActSectionNo=81.&SearchId=9mkl','_DisplayAct','');DispAct.focus() javascript:DispAct=window.open('/Members/DisplayAct.aspx?CaseActCode=MY_FS_PUA_1980_050&ActSectionNo=81.&SearchId=9mkl','_DisplayAct','');DispAct.focus() javascript:DispAct=window.open('/Members/DisplayAct.aspx?CaseActCode=MY_FS_PUA_1980_050&ActSectionNo=81.&SearchId=9mkl','_DisplayAct','');DispAct.focus() 18 that there is an issue or question in dispute which ought to be tried 5 or that there ought for some other reason to be a trial of the action, the court may give judgment for the plaintiff in the action. [46] The plaintiff in a summary judgment application first needs to establish and (sic) prima facie case that 'he is entitled to judgment'. The 10 burden then shifts to the defendant to satisfy the court why judgment should not be given against him (see National Company For Foreign Trade v. Kayu Raya Sdn Bhd [1984] 2 MLJ 302 per Seah FJ). 'Ought' in O. 81 r. 3, is an expression of a strong probability. In other words, the issue in dispute must be critically investigated as genuine. This is what a 15 defendant needs to prove to be entitled to a trial of that disputed issue". [22] In addressing the present application of the Defendant, I adopt all that I have alluded to on the issue of whether there is misrepresentation by the Plaintiff which I referred to when dealing 20 with the Plaintiff’s application for summary judgment in encl.4 above. [23] In the context of the instant case the burden is then shifted to the Plaintiff to satisfy the Court why Judgment should not be entered against them. I find the Plaintiff had not discharged this burden as it 25 is plain that the Plaintiff has no bona fide defence to the Defendant’s Re-Amended Counterclaim for misrepresentation and there are no triable issues raised in this regard. [24] The Defendant had exercised its right of rescission vide a 30 Notice of Rescission dated 14/11/2016 issued by the Defendant’s solicitors rescinding the Agreement. Having made a finding that there is misrepresentation by the Plaintiff, I allowed the Defendant’s Re-Amended Counterclaim for rescission of the Agreement ab initio in accordance with prayers 1 and 2 in encl.27. I draw support from 35 the following authorities: javascript:DispAct=window.open('/Members/DisplayAct.aspx?CaseActCode=MY_FS_PUA_1980_050&ActSectionNo=81.&SearchId=9mkl','_DisplayAct','');DispAct.focus() 19 Admiral Cove Development Sdn Bhd (supra)(FC) at 320[21] and 5 [22] - “[21] The question of law posed in the instant appeal is 'what relief is applicable in a case of innocent misrepresentation'. We would echo the words of the learned judge in Sim Thong Realty Sdn Bhd that the legal position in Malaysia is that a representee who has been induced by an 10 innocent misrepresentation may sue for rescission and consequent restitution. But we would also add that a representee in such circumstances may only rescind the contract if it is still executory and if all parties can be restored to their original position. 15 … [22] We would reiterate that the legal position in Malaysia is that a representee who has been induced by an innocent misrepresentation may sue for rescission and consequent restitution”. Sim Thong Realty Sdn Bhd v. Teh Kim Dar @ Tee Kim [2003] 3 20 MLJ 460 (CA) at p.471 citing a passage in Dunbar Bank plc v Nadeem [1998] 3 All ER 876 (at p.886) - “The matter was put clearly by Bowen LJ in Newbigging v Adam (1886) 34 Ch D 582 at 592 where he said: '… when you come to consider what is the exact relief to which a 25 person is entitled in a case of misrepresentation it seems to me to be this, and nothing more, that he is entitled to have the contract rescinded, and is entitled accordingly to all the incidents and consequences of such rescission. It is said that the injured party is entitled to be replaced in statu quo. It seems to me that when you are 30 dealing with innocent misrepresentation you must understand that proposition that he is to be replaced in statu quo with this limitation— that he is not to be replaced in exactly the same position in all respects, otherwise he would be entitled to recover damages, but is to be replaced in his position so far as regards the rights and 35 obligations which have been created by the contract into which he has been induced to enter. … 'There ought, as it appears to me, to be a giving back and a taking back on both sides, including the giving back and taking back of the 40 obligations which the contract has created, as well as the giving back and the taking back of the advantages.'”. 20 (per Bowen LJ at p.595) 5 Berjaya Times Squares Sdn Bhd (formerly known as Berjaya Ditan Sdn Bhd) v M Concept Sdn Bhd [2010] 1 MLJ 597 at 608 [16] - “[16] The hallmark of the equitable remedy of rescission is that it is only available to set aside contracts that are voidable by reason of the 10 ingredient of free consent, which is the sine qua non in the making of a contract, having been vitiated by an element external to the contract. Examples of elements that vitiate free consent are fraud, misrepresentation, duress, undue influence and a breach of fiduciary duty”. 15 [25] As a matter of law, upon rescission of the Agreement, any person who has received any advantage under the Agreement or contract is bound to restore any advantage which he had received to the person from whom he received it. In support of this position I 20 relied on s.66 Contracts Act 1950; Yong Mok Hin v. United Malay States Sugar Industries Ltd. [1967] 2 MLJ 9 (FC); Jong Chuk v. Chong Tung Sang & Ors (No 5) [1999] 8 CLJ 268 (HC) and the dicta of Bowen LJ in Newbigging v Adam (supra) at p.595 quoted in para 25 above. 25 [26] Referring to prayer 3 in encl.27, the Defendant submitted the sum of RM1,644,514.30 relates to the possession of vehicle until November whilst RM1,590,168.30 took into account the rental payable till December and the difference between the sum paid by 30 the Defendant to the Plaintiff for the supply of the Vehicles and the actual costs incurred by the Plaintiff in procuring the Vehicles from BMW and Affin. 21 5 [27] Learned Plaintiff Counsel highlighted that prayers 3 and 4 in encl.27 are alternative reliefs which relate to the computation of value or benefit and submitted the more appropiate relief would be prayer 4, i.e the actual computation be sent for assessment. [28] In the premise, I allowed the Defendant’s application in encl.27 10 for summary judgment in terms of prayers 1, 2, 4 and 5, being costs of RM5,000.00. Dated: 29/9/2017 15 SGD. (LAU BEE LAN) 20 Judge Counsel for the Plaintiff: Encik Chan Kheng Hoe together with 25 Cik Yang Lee Yuen and Encik Daryl Khor Tet Woei Messrs Kheng Hoe Advocates & Solicitors A3-3-3A, Block A3, Solaris Dutamas No.1, Jalan Dutamas 1 30 50480 Kuala Lumpur 35 22 5 Counsel for the Defendant: Encik Mong Chung Seng together with Cik Lee Yi Ting Messrs Lee Hishammuddin Allen & Gledhill 10 Advocates & Solicitors Level 6, Menara 1 Dutamas (formerly known as Menara Sapura Kencana Petroleum) Solaris Dutamas No.1, Jalan Dutamas 1 15 50480 Kuala Lumpur	39,417	Tika 2.6.0
WA-22C-12-02/2016	PLAINTIF Madu Jaya Development Sdn Bhd DEFENDAN Kosbina Konsult (K) Sdn Bhd	Construction contract - whether the Plaintiff had done all the Works under the Letter of Agreement between the Plaintiff and the Defendant such that all the Works of the Defendant under their Main Contract with the Government of Malaysia were done by the Plaintiff - whether the Plaintiff has proved its claim under unjust enrichment - whether the Plaintiff has proved breach of constructive trust with respect to the sum payable under the Arbitral Award - whether the Plaintiff’s claim for unjust enrichment is barred by limitation - whether the Plaintiff’s action in constructive trust is barred by limitation - whether the Plaintiff’s claim for unjust enrichment is a claim for special damages that have to be specifically pleaded - whether the Plaintiff’s claim for unjust enrichment is a claim for special damages that have to be specifically pleaded - whether laches apply to bar the Plaintiff’s claim in unjust enrichment and constructive trust - Limitation Act 1953 [Act 254], section 22(1) & (2), 32; Rules of Court 2012, Order 59 rule 24.	29/09/2017	YA DATO' LEE SWEE SENG	https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=c8356c8f-f859-4c42-93cb-37b2600bbba2&Inline=true	1 IN THE HIGH COURT OF MALAYA AT KUALA LUMPUR IN THE STATE OF WILAYAH PERSEKUTUAN, MALAYSIA (CIVIL DIVISION) SUIT NO: WA-22C-12-02/2016 BETWEEN MADU JAYA DEVELOPMENT SDN BHD ... PLAINTIFF (Company No: 191073-V) AND KOSBINA KONSULT (K) SDN BHD (Company No: 209512-A) ... DEFENDANT JUDGMENT OF Y.A. LEE SWEE SENG [1] This is a case that started off with the Defendant awarding a Subcontract for the upgrading of a certain stretch of highway from the junction entering the North-South Highway to Bandar Baru (Km 42-Km 50) (“the Project”) in Kedah to a company related to the Plaintiff, called Madu Jaya Enterprise Sdn Bhd (“MJE”). The Plaintiff is Madu Jaya Development Sdn Bhd (“MJD”). The Defendant had in turn been appointed as the Main 2 Contractor by the Government of Malaysia for the upgrading of the stretch of highway. [2] The key term in the Letter of Agreement dated 20.1.2005 prepared by the Defendant in favour of the MJE stated that MJE would be carrying out the works for the Project and that the Defendant’s only interest and entitlement would be the 8% commission of all the payments received from the Government of Malaysia with the balance 92% to be paid to MJE (the 92:8 Sharing Formula). Previous Proceedings [3] Along the way and realistically on the ground, the work was done by MJD and a previous Court had held that a new contract had been entered into between MJD and the Defendant such that for all practical purposes, though the original contract had been signed between the Defendant and MJE, yet the contracting parties for the purpose of claims under the Subcontract would be between MJD and the Defendant as the effective parties under the Subcontract. In that earlier Suit, MJE had sued the Plaintiff for an amount due under the various Certificates of Payment. MJE failed as the High Court had held inter alia that the proper party to sue should have been the Plaintiff here. 3 [4] This Court is of the same view having regard to the evidence adduced. This Court would go further and say that both the Plaintiff and the Defendant had corresponded with each other and had assumed by conduct and through correspondence that the terms of the Subcontract Agreement (“Letter of Agreement”) between MJE and the Defendant are now applicable to the Plaintiff MJD and the Defendant. [5] One such letter can be seen at page 3 PBOD 1 where Clause 15 of the Letter of Agreement is specifically referred to which provides that in the event of a legal action by JKR or third parties then all expenses and legal fees in relation to the Project shall be borne by the Subcontractor. Problem [6] However an event not covered by the said Letter of Agreement happened. The Government of Malaysia terminated on 21.2.2007 the Main Contract with the Defendant and the party that could proceed to Arbitration was the Defendant who had a contract with the Government under the standard form JKR Standard Form of Contract 203A (1983 Revised). [7] Both the Plaintiff and the Defendant could not agree on the fees for Arbitration and so the Defendant proceeded on its own steam. 4 [8] The Plaintiff was then kept out of the picture. Eventually an award was delivered in favour of the Defendant in the Arbitration between the Defendant and the Government of Malaysia. There was an Interim Award of RM6,376,702.12 (“Interim Award”) and a Final Award of the Arbitration dated 10.10.2012 where the Defendant was awarded a further sum of RM13,797,007.68 (“Final Award”) as full and final settlement for the claims and counterclaims of the Project. Accordingly after making the necessary adjustments for the Counterclaim of the Government of Malaysia, the Defendant was awarded a total of RM20,173,709.80. [9] In the meanwhile MJE has sued the Defendant in Suit No. 22C-25- 05/2014 in the Kuala Lumpur Construction Court (“the 2014 Suit”) for the amount due under various Certificates of Payments and under the 92:8 Sharing Formula. [10] The 2014 Suit was dismissed on 26.6.2015 with costs as the High Court through Justice Mary Lim J (now JCA) held that the proper party to sue is MJD, amongst other reasons. It was a finding of fact by her Ladyship that the Subcontract between the Defendant and MJE had been replaced by a separate agreement between the Plaintiff and the Defendant given that the works were undertaken by the Plaintiff. MJE’s appeal to the Court of Appeal was dismissed with costs on 12.1.2016. 5 Pleadings [11] The Plaintiff here is now suing under the common law action of unjust enrichment and further or in the alternative, under a breach of constructive trust. Under paragraph 16, 17 and 18 of the Amended Statement of Claim, the Plaintiff pleaded as follows: “THE AWARDS-UNJUST ENRICHMENT OF DEFENDANT 16. Pursuant to the Interim Award and the Final Award, the total value of Works done and also costs incurred by and attributable to the Plaintiff in respect of the Project was RM11,420,791.73. 17. The Defendant has therefore received benefits at the expense of the Plaintiff from the value of Works done and also costs incurred for the Project which formed the basis of the Interim Award and the Final Award. 18. The Defendant has been unjustly enriched at the expense of the Plaintiff.” [12] The Plaintiff also pleaded constructive trust in paragraph 19 of the Amended Statement of as follow suit: “CONSTRUCTIVE TRUST 6 19. Further and/or in the alternative, by reason of the matters set out above, the Plaintiff will contend that the Defendant is holding or otherwise accountable to the Plaintiff to the extent of RM11,420,791.73 as a constructive trustee to the Plaintiff.” Prayers [13] The Plaintiff had prayed for inter alia the following: (a) a Declaration that the Defendant is holding RM11,420,791.73 on constructive trust for the Plaintiff; (b) a Declaration that the Defendant has been unjustly enriched for the amount of RM11,420,471.73 at the expense of the Plaintiff or such other sum or sums as the Court shall deem fair, just and reasonable; (c) the Defendant do pay to the Plaintiff the amount found due on the taking of account; (d) an Order that the Defendant do restore the benefit of RM11,420,791.73 received in the Interim Award and Final Award, to the Plaintiff or such other sum or sums as the Court shall deem fair, just and reasonable; 7 (e) Interest at such rate and on such amount and for such period as the Court deems just, fair and reasonable; (f) costs; In the alternative - (g) an order that the Defendant do restore the benefit received in the Interim Award and Final Award to the Plaintiff less 8% being the Defendant’s fees. Principles [14] It is for the Plaintiff to formulate their claim as either based on breach of contract or as in this case, a claim founded on unjust enrichment or further and in the alternative, breach of constructive trust with respect to the proceeds from the Arbitral Award. The previous 2014 Suit brought in the name of MJE was dismissed on inter alia that limitation has set in with respect to their claim in contract where the cause of action is said to have arisen upon the date of termination of the contract by the Government of Malaysia. The date of Notice of Termination was on 21.2.2007 and the 2014 Suit was filed only in 2014. 8 [15] The question is whether the Plaintiff has a valid claim under unjust enrichment or breach of constructive trust. [16] Unjust enrichment is a specie of cause of action which gives rise to a restitutionary relief and it is independent from other causes of action. The learned authors Goff & Jones in their treatise “The Law of Unjust Enrichment” Eighth Edition, Sweet & Maxwell, at page 62, paragraph 3-45 opined that: “...The law of unjust enrichment is independent of the law of contract, and there is no reason why the different bases on which liability arises should yield the same outcome. Unlike the situation when damages for breach of contract might be formulated in terms of expectation or reliance loss, there is no compelling policy reason why a claimant in such circumstances should not be able to avail himself of the law of unjust enrichment in order to escape from a bad bargain.” (emphasis added) [17] See Woolwich Equitable Building Society v Inland Revenue Commission [1992] 3 All ER 737 (HL). By the same token, even if a cause of action in contract has expired because of limitation having set in, it does 9 not prevent a claimant from pursuing his claim in unjust enrichment if that cause of action is still subsisting. [18] The pre-requisites of this cause of action are the following: a) that the Defendant has been enriched; b) that the enrichment is gained at the expense of the Plaintiff and c) this enrichment is unjust. See BP Exploration Co (Libya) Ltd v Hunt (No 2) [1982] 1 All ER 925. [19] It was held in Davis Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353 at 378-9;109 ALR 57 that unjust enrichment is a benefit for which the recipient is required to make restitution to the person at whose expense it was obtained. An enrichment is unjust if for example, the enrichment was provided by mistake, under duress or undue influence, or the enrichment was obtained as a result of breach of fiduciary duty. [20] Little wonder that the cause of action in unjust enrichment is often discussed in the context of a breach of constructive trust. http://www.lexisnexis.com/my/legal/search/runRemoteLink.do?A=0.4318768266922891&bct=A&service=citation&risb=21_T26597282645&langcountry=MY&linkInfo=F%23CA%23CLR%23vol%25175%25sel1%251992%25page%25353%25year%251992%25sel2%25175%25 http://www.lexisnexis.com/my/legal/search/runRemoteLink.do?A=0.5516273500458317&bct=A&service=citation&risb=21_T26597282645&langcountry=MY&linkInfo=F%23CA%23CLR%23vol%25175%25sel1%251992%25page%25353%25year%251992%25tpage%25378%25sel2%25175%25 10 [21] The Federal Court in the decision of Dream Property Sdn Bhd v Atlas Housing Sdn Bhd [2015] 2 MLJ 441, has expounded on the ingredients for the cause of action in unjust enrichment and the nature of the remedy in restitution where it was inter alia held as follows: “[117] The above passages from the judgments of the House of Lords are instructive and are significant contribution to the development of law of unjust enrichment. The principle underlying the cases of Banque Financiere de la Cite v Parc (Battersea) Ltd and Sempra Metals Ltd (formerly Metallgesellschaft Ltd) v IRC is that, in the context of the present case, a cause of action in unjust enrichment can give rise to a right to restitution where it can be established that: (a) the plaintiff must have been enriched; (b) the enrichment must be gained at the defendant's expense; (c) that the retention of the benefit by the plaintiff was unjust; and (d) there must be no defence available to extinguish or reduce the plaintiff's liability to make restitution. [118] Nearer home, there is now no longer any question that unjust enrichment law is a new developing area of law which is recognised 11 by our courts. That the principle of unjust enrichment is the basis to justify an award of restitutionary relief can be seen in Sediperak Sdn Bhd v Baboo Chowdhury [1999] 5 MLJ 229 and in Air Express International (M) Sdn Bhd v MISC Agencies Sdn Bhd [2012] 4 MLJ 59. Nevertheless, it has to be said that despite the increase in judicial reference to the expression of unjust enrichment to justify an award of restitutionary reliefs, the law of unjust enrichment is still in its formative stage in our jurisdiction (see article entitled 'An Introduction to the Law of Unjust Enrichment' [2013] 5 MLJ i by Alvin W-L See). In our view, the time has come for this court to recognise the law of unjust enrichment by which justice is done in a range factual circumstances, and that the restitutionary remedy is at all times so applied to attain justice. [119] Applying those principles, we now turn to consider whether the defendant has made out a cause of action in unjust enrichment: the plaintiff has been enriched, that this enrichment was gained at the defendant's expense, that the plaintiff's enrichment at the defendant's expense was unjust, and whether there are any special defences to the claim.” (emphasis added) 12 [22] Learned counsel for the Plaintiff referred to a more recent decision of the UK Supreme Court in Benedetti v Sawiris and others [2014] AC 938 where the Court had occasion to deal with the quantification of the award to be made in a claim for unjust enrichment. In that case too, there was an initial agreement which parties then abandoned but the plaintiff had nevertheless proceeded to render valuable services to the defendant. The Judgment of Lord Reed JSC at paragraph 85 and 86 page 979 of the decision is reproduced as follows: “86. There is no doubt that Mr. Sawiris was enriched by the provision of Mr. Benedetti’s services; that the enrichment was at the expense of Mr. Benedetti, in the sense that he expended his labour to provide those services, and his labour was a marketable commodity; and that, in the absence of some reward for those services, the circumstances called for restitution by Mr. Sawiris, since he accepted Mr. Benedetti’s services in the knowledge that Mr. Benedetti expected to be rewarded for providing them. There was, on that footing, what is sometimes described as a failure of consideration (not using that term in its strict contractual sense): the services were provided on the basis that arrangements would be agreed for 13 Mr. Benedetti to be rewarded, but no such arrangements eventuated.” [23] As for constructive trust, the learned authors Robert Pearce, John Stevens & William Barr in “The Law of Trusts and Equitable Obligations” Fifth a Edition, 2010, Oxford University Press, at page 299 explained as follows: “(a) The ‘institutional’ constructive trust. An institutional constructive trust is a trust that is brought into being on the occurrence of specified events, without the need for the intervention of the court. The trust comes into being if the facts that are necessary to give rise to it are proved to have occurred. It exists from the time the relevant events occurred. The court does not impose the trust, but rather recognizes that the beneficiary enjoys a pre-existing proprietary interest in the trust property. The court has no discretion to decide whether or not the property should be subject to a trust. Since an institutional constructive trust does not arise from the judgment of the court, it is capable of gaining priority over any interests acquired by third parties in the trust property during the 14 period between the creation of the trust and its recognition by the court.” [24] The learned authors went on to explain the relationship between what is called ‘remedial’ constructive trust and unjust enrichment as follows at page 299: “(b) The ‘remedial’ constructive trust In contrast to the ‘institutional’ constructive trust, some other jurisdictions have come to regard constructive trusts as one of a range of remedies to facilitate restitution where a defendant has been unjustly enriched at the expense of a plaintiff. Having found that there has been an unjust enrichment, the court can, in its discretion, impose a constructive trust over assets representing any remaining enrichment in the hands of the defendant if appropriate, or alternatively award a monetary sum. A remedial constructive trust is imposed by the court, which does not merely recognize a pre-existing proprietary right. The trust arises from the date of the court’s judgment and it will not therefore gain automatic priority over the rights of third parties...” 15 Whether the Plaintiff had done all the Works under the Letter of Agreement between the Plaintiff and the Defendant such that all the Works of the Defendant under their Main Contract with the Government of Malaysia were done by the Plaintiff [25] The Subcontract between the Defendant and the Plaintiff is in local parlance a “total-sub” where the Defendant as Main Contractor in Clause 1 of the said Letter of Agreement agreed to appoint the Plaintiff as a Subcontractor to execute the Works until completion for the sum of RM48,325,771.65 which is the same contract sum as in the PWD 203A Contract between the Defendant and the Government of Malaysia. [26] As stated though the Letter of Agreement was with MJE, for all practical purposes it is now read as referring to the Plaintiff as the Plaintiff was in effect the party carrying out the Works, as can be seen in the finding of facts of the High Court in the 2014 Suit which finding was affirmed in the Court of Appeal. [27] Clause 2 of the Letter of Agreement is thus clear on the commission in that the Defendant’s entitlement is 8% of the sums paid by the Government of Malaysia under the Main Contract with the Defendant and the payments shall be deducted from the Progress Payments and Final 16 Payment made by the Government of Malaysia to the Defendant as the Main Contractor. [28] It cannot be seriously disputed that the Plaintiff is the party which executed the Works for the Project. The Defendant had not contended otherwise and neither had the Defendant led any evidence with respect to any Works not done by the Plaintiff or done by some other Subcontractors. Learned counsel for the Defendant had also not asserted otherwise throughout his Submission. In fact, learned counsel for the Defendant submitted that the Defendant is not disputing that the ingredients of the Arbitral Award are the input of the Plaintiff in that it was the Plaintiff who did the Works. [29] I can believe the Plaintiff’s explanation by its Managing Director PW 2 Madam Angie Ng that the arrangement on the ground, consistent with the said Letter of Agreement, essentially mirrored the express terms of the said Letter of Agreement particularly in relation to the sharing of the payments received from the Government of Malaysia. Her evidence on this point was not challenged under cross-examination. She said in paragraph 1 of her witness statement as follows: 17 “The arrangement with the Defendant was that we would carry out all the works leaving the Defendant as the main contractor on record dealing with the Government of Malaysia. For their role, they would retain 8% of all payments received from the Government of Malaysia”. [30] To a question from the Court, she clarified that what happened was that the Plaintiff was only paid when the Defendant had received payment from the Government of Malaysia and, later on, from Ambank pursuant to the factoring arrangement that the Defendant had in due course, entered into to ease cashflow. [31] On the balance of probabilities cash flow, I had held that the Plaintiff had proved that they had executed all the Works required of them in the Main Contract between the Government of Malaysia and the Defendant which the Defendant had totally Subcontracted to the Plaintiff for the same contract sum and accepting 8% only of the contract sum as their commission. [32] Indeed, in the grounds of judgment of Justice Mary Lim J (now JCA) found at pages 244 to 285 of the Plaintiff’s Core Bundle of Documents(“PCBOD”), her Ladyship found that the initial Subcontract 18 between MJE and the Defendant was “abandoned by both parties and a new agreement for the execution of the works under the Project was entered into between MJD [i.e. the Plaintiff in this case] and Kosbina [i.e. the Defendant in this case]”. [33] Her Ladyship also found that the actual Works in respect of the Project were done by the Plaintiff at paragraphs 49 and 55 of her Grounds of Decision. Whether the Plaintiff has proved its claim under unjust enrichment [34] There was an event not expressly addressed and was not provided for in the 92:8 Sharing Formula in the said Letter of Agreement. What had happened was that the Government of Malaysia terminated the Main Contract with the Defendant on ground of the failure of the Defendant to carry out the Works regularly and diligently. Frankly I do not see how having been terminated by the Government of Malaysia and having to pursue Arbitration to realize the sums due for the Works done can substantially change the underlying basis of the 92:8 Formula Sharing that would have applied had the Main Contract be carried out to completion and the Government of Malaysia had paid all the sums due under the Main Contract to the Defendant. 19 [35] I am satisfied that after the said termination, it was at the instance and initial initiative of PW2, that the legal firm of DW2 was approached for advice on formulating the claim against the Government of Malaysia for unlawful termination. The 1st meeting in this regard was between PW2 and her sister, on the one hand, and DW 2 Mr Ong Chin Siong, the solicitor approached by the Plaintiff, on the other hand, at the latter’s office. According to PW2 it was this meeting that DW2 pointed out that since the Plaintiff was the Subcontractor, it was not in the position to advance any claim against the Government of Malaysia for unlawful termination and that the proper party to do so would be the Defendant (see: Q&A 2 of PW2- WS). A subsequent meeting was then arranged with DW2 where PW2 brought along DW1 together with Encik Fauzi, who was the Managing Director of the Defendant and the brother of DW1. [36] As the Works were carried out by the Plaintiff, it would appear that the fault would be that of the Plaintiff if indeed it was true that the Defendant had vis-a-vis the Government of Malaysia failed to carry out the Works regularly and diligently such that the Government of Malaysia would justify the termination of the Main Contract. [37] If the Plaintiff and the Defendant had agreed to together pursue in arbitration to claim for the amount outstanding to the Defendant in the 20 Progress Certificates, the Variation Works and related claims for the Works done as well as the losses arising from what they said is unlawful termination, this and the 2014 Suit would probably not have been filed. [38] If they had obtained an Arbitral Award in their favour then there is no doubt that the proceeds of the Arbitral Award would be divided according to the 92:8 Sharing Formula with the Plaintiff footing the fees, costs and expenses of the Arbitration and recovering whatever fees, costs and expenses they could in the event that costs were awarded to them in the event of an Award in favour of the Defendant. [39] Be that as it may, the initial understanding manifested by both the Plaintiff and the Defendant, consistent with the overall scheme of the said Letter of Agreement, was that the Plaintiff would be footing the bill where the fees, costs and expenses of the Arbitration is concerned. The evidence before the Court was that in the light of the problem arising from the termination of the Main Contract by the Government of Malaysia, both the Plaintiff and the Defendant shall cooperate to formulate and pursue their common claim against the Government of Malaysia; united in a common opposition against the Government of Malaysia where the consequences flowing from the unlawful termination is concerned. 21 [40] The evidence for this is overwhelming at pages 73 – 74 of the Notes of Proceedings for 11.10.2016 even from the testimony of DW 1 himself. Learned counsel for the Plaintiff had summarized it as follows: (a) as evidenced by the correspondence, upon the Defendant receiving a request for payment, whether in terms of legal fees or fees for the Arbitration centre, the KLRCA, the Defendant, acting through DW1 would simply forward such requests to the Plaintiff for the Plaintiff to effect the necessary payments (see: for example the letter from the Defendant to the Plaintiff dated 22.5.2007 at pages 27 to 28 of PCBOD); (b) the Defendant reinforced its position that the responsibility for such payments was squarely upon the shoulders of the Plaintiff by going so far as to informing the Plaintiff that should the Plaintiff fail to make payment, the Defendant will then make such payment and the amount deducted from the Project sum (“…kami tiada pilihan terpaksa membuat bayaran terus dan jumlah tersebut akan dipotong dari projek puan.”) (see: letter from Defendant dated 4.6.2007 at page 31 of PCBOD); 22 (c) at the outset, DW2 had asked for an initial fee of RM10,000.00 “to account of our initial fees and disbursements prior to the issue of the said notice” (the said notice being the Notice of Arbitration) (see: page 28 of PCBOD) but was then paid a reduced amount of RM5,000.00 by the Plaintiff after PW2 had spoken to DW2 (see: page 32 of PCBOD) being the Plaintiff’s letter dated 6.6.2007 addressed to the DW2’s firm and which letter described the payment “being initial disbursement for the above legal fee as agreed by your good self”. The letter went on to remind DW2 to keep the Plaintiff informed of the development of the arbitration however, as it turned out, this was not done with DW2, not even taking the trouble to respond to the Plaintiff (see: page 32 of PCBOD); (d) the issue of the payments to be made by the Plaintiff came to a head when subsequently, more than a year later after the initial meeting, DW2 through his firm by letter dated 22.9.2008 made the following fee “quote”, which the Plaintiff perceived as more like a demand, for the conduct of the Arbitration (see: page 64 of PCBOD): (i) RM600,000.00 in the event of settlement being reached; 23 (ii) in the event the matter proceeded to arbitration the fees would be RM1.5 million of which RM200,000.00 was to be paid before 26.3.2009. (e) the Defendant then “requested” for the Plaintiff to make the payment as demanded in DW2 said letter of 22.9.2008 (see: pages 63A to 64 of PCBOD). (f) as a result of what the Plaintiff considered to be a very exorbitant fee quote (see: line 25 at page 5 to line 18 at page 7 of Notes of Proceedings for 1.12.2016), the Plaintiff was naturally alarmed and called for a meeting to discuss the matter. However the meeting was not at all as the Plaintiff had expected. This is how PW2 described the meeting: “The conduct of Mr. Ong Chin Siong shocked me. He said at the very beginning of the meeting that I had to give him a clear answer as to the payments to be made to the KL Regional Center and also, in particular, his legal fees. He said that unless I agree to the payments then there was nothing further to discuss. He wanted an answer there and then. I said in reply that I wanted to know what was 24 his strategy and that since he was asking me to pay such a substantial amount of money, I was entitled to have more information from him. However, Mr. Ong Chin Siong said that I had to agree to the payment first and then the rest can be discussed”. (g) It was following this meeting that the Plaintiff wrote the letter dated 13.11.2008 at pages 65 to 66 of PCBOD with reference to the meeting of 22.10.2008 where, inter alia, the Plaintiff reiterated its willingness to continue working with the Defendant on the Arbitration. [41] Learned counsel for the Plaintiff pointed out that after the Plaintiff’s letter of 13.11.2008, there was no direct response from either the Defendant nor the DW2 as solicitors. As DW1 confirmed, at no time did the Defendant write to the Plaintiff to inform the Plaintiff that the co-operation between the Plaintiff and the Defendant was at an end (see: from line 12 at page 23, line 1 to 36 of page 24 Notes of Proceedings for 14.11.2016) or, more importantly, that the Plaintiff had somehow forfeited their entitlement to the payment for Works done in respect of the Project. [42] On the contrary, the Defendant wrote the following 2 letters: 25 (a) a letter dated 20.11.2008 to the Plaintiff reminding the Plaintiff that the Plaintiff was allegedly in breach of the terms of the agreement which stated that any costs were that of the responsibility of the Plaintiff (see: page 67 of PCBOD); (b) the letter dated 24.11.2008 to the Plaintiff and copied to DW2’s firm as well as the Plaintiff’s then solicitors placing the responsibility to meet the damages purportedly arising from the termination in respect of the Main Contract in the event that the termination was lawful (see: pages 67A to 67G of PCBOD). [43] Indeed it is provided in Clause 8 of the Letter of Agreement that in the event the Subcontractor shall fail to complete the Project then all Payments and Claims shall be borne by the Subcontractor and any damages claim shall be paid by the Subcontractor. Further in Clause 13 thereof the Subcontractor agreed to be the guarantor to the Main Contractor for all that is required of the Main Contractor in relation to the said Project. [44] Very unfortunately, both the Plaintiff and Defendant could not agree on the way forward with respect to commencing Arbitration against the Government of Malaysia where the solicitors to be acting for them are concerned and their fees are concerned. The Plaintiff could not agree on 26 the initial deposit to the fees for Arbitration and the quotation as to the overall fees for the Arbitration as requested by the solicitors Messrs Siong & Rita that both parties had met with respect to pursuing Arbitration to claim for all outstanding sums due and losses arising out of the unlawful termination of the Main Contract by the Government of Malaysia. [45] Any Arbitration against the Government of Malaysia has to be in the name of the Defendant for they are the contracting party with the Government of Malaysia under the Main Contract that suffered termination by the Government of Malaysia. There was no irrevocable Power of Attorney given by the Defendant to the Plaintiff to commence Arbitration in the name of and on behalf of the Defendant against the Government of Malaysia. [46] Without such a facility and device the Plaintiff could only at best wait by the sideline or finishing line to see what the outcome of the Arbitration would be. [47] The Defendant decided to proceed on its own steam and resources with the Arbitration. They decided not to involve the Plaintiff at all, much less to keep them informed as to the progress and outcome. In fact the way things proceeded, the Defendant was bent on axing the Plaintiff altogether 27 from the Arbitration and certainly from any participation in the proceeds from eventual Award if given in their favour. The Defendant chose not to disclose whether they had received the payments from the Government of Malaysia after the latter‘s unsuccessful challenge to set aside the Arbitral Award which was dismissed with costs of RM20,000.00 on 19.9.2013 by the Kuala Lumpur High Court in 24NCC(ARB)–57–12/2012. [48] They also chose not to disclose the fees, costs and expenses spent in the Arbitration and in opposing the setting aside of the Arbitral Award in the High Court by the Government of Malaysia. DW 1, Encik Nasron bin Md Noor, the Project Manager of the Defendant and the brother of the Managing Director of the Defendant, said he was not familiar where matters of legal fees of Arbitration and Court proceedings were concerned. DW 2 Mr Ong Chin Siong, learned counsel for the Defendant in the Arbitration relied on solicitor-client privilege with respect to non-disclosure of the legal fees paid in the Arbitration. The case of Rex v Chhoa Mui Sai (1937) 1 MLJ 236 was cited as authority for the above proposition. [49] Encik Fauzi Bin Md Noor, the Managing Director of the Defendant, who was present throughout this trial in Court, chose not to give evidence. 28 [50] I am quite certain that if the Defendant had allowed the Plaintiff to be in the driving seat of the Arbitration against the Government of Malaysia, the Plaintiff would still be proceeding with the funding of the Arbitration and the further cooperation with the Defendant in preparing for the Arbitration and presenting the evidence through a firm solicitors with whom they could agree on the fees. [51] I cannot imagine why anyone in the position of the Plaintiff, faced as it is with Certificates of Payment not paid and Works done and not certified and a Termination that is said to be unlawful, would not want to pursue and proceed with Arbitration to claim what is fairly and justly what one had worked for and the losses arising out of an unlawful termination of the Contract. [52] I can understand that any further advance of fees towards Arbitration would further stretch the financial resources of the Plaintiff but that is the harsh reality of all contractors when assailed with an unlawful termination. [53] I can appreciate the Plaintiff’s concerns where the further outlay of fees for Arbitration is concerned. DW 2 had quoted a sum of RM1.5 million as his fees for the Arbitration and a sum of RM600,000.00 if the matter is settled. There was also the initial deposit of another RM200,000.00 by 29 26.3.2009 before proceeding with the Arbitration on top of the initial deposit of RM5,000.00 already paid by the Plaintiff. [54] The Plaintiff’s resources for further outlay of legal fees was doubtless constrained by the exasperation expressed at times when they raised numerous complaints to the Defendant as to both the delays in the payments made to the Plaintiff as well as to the amounts of such payment being less than what the Plaintiff was entitled to pursuant to the 92:8 Sharing Formula. See from line 18 at pages 12 to line 17 of page 16 of Notes of proceedings dated 11.10.2016 and pages 8, 9 11 to 18 and 22 of PCBOD. [55] As highlighted by the Plaintiff, while the Defendant had been paid RM36,091,119.00 until Progress Payment No. 48, the payments made to the Plaintiff for the corresponding work done were only RM27,797,529.00. See the Final Award at paragraph 2.2.5.21 of page 110 of PCBOD. [56] Learned counsel for the Plaintiff would castigate the current conduct of the Defendant in refusing to pay to the Plaintiff the undisputed work done by the Plaintiff as an extension of the recalcitrant behaviour that the Defendant had demonstrated throughout the currency of the Project. 30 [57] As stated, the Managing Director of the Defendant had deployed his brother DW 1 to testify on behalf of the Defendant. DW1’s knowledge of the Project with respect to the amount outstanding to the Plaintiff is either limited or that he was not candid in his testimony. He asserted that no sums were due from the Defendant to the Plaintiff (See: pages 25-26 of the Notes of Proceedings for 14.11.2016). [58] DW1’s evidence flies in the face of the evidence of PW3, Encik Ahmad Rani bin Mohd Noor, the auditor who confirmed that on the books of the Defendant, a sum of RM1,355,778.00 was as at 31.12.2007 owed to the Plaintiff by the Defendant (see: pages 62 to 63 of PCBOD and from line 4 of page 32 to line 29 of page 33 of Notes of Proceedings for 11.10.2016). This amount was still captured in the 2010 audited accounts of the Defendant (See: PBOD 5 and from line 15 of page 50 to line 32 of page 51 of Notes of Proceedings for 11.10.2016). [59] I agree that such a substantial amount could easily have been applied by the Defendant to pay off even the fee quoted from DW2 and at the very least the initial deposit of RM200,000.00. [60] Given the stand as expressed by the Defendant in its letter dated 4.6.2007 (see: page 31 of PCBOD), it would be perfectly understandable if 31 the Defendant were to proceed to deduct all fees incurred from the Defendant’s Account with the Plaintiff which included this sum of RM1,355,778.00 standing in favour of the Plaintiff as being owing by the Defendant to the Plaintiff. By the said letter of 4.6.2007 the Defendant had given an ultimatum to the Plaintiff that if the legal fees were not paid within 3 days from the date of the said letter, then the Defendant would have no alternative but to make payment of the fees direct to the solicitors and the said sum paid shall be deducted from the Plaintiff’s Project. [61] Whilst cashflow is every contractor’s problem, it impinges in this case more the Plaintiff as Subcontractor where they are both out of pocket for Works done as at termination and suffering a shortfall for not having been paid by the Defendant in full in accordance with the 92:8 Sharing Formula, not forgetting to mention the further sum of RM1,355,778.00 still owing by the Defendant to the Plaintiff since 2007. [62] Whilst this matter of the sum of RM1,355,778.00 still owing from the Defendant to the Plaintiff since 2007 was not pleaded by the Plaintiff, I would still be able to have regard to it as relevant evidence to be considered when evaluating the respective conduct of the parties and in assessing their gumption in proceeding with the Arbitration with respect to their respective appetite for risk in any Arbitration or Litigation. 32 [63] In a very real sense the Defendant was less out of pocket compared to the Plaintiff who had incurred costs and expenses in finishing the Works and still have not been fully paid compared to the Defendant who would get a clean commission of 8% without the need to fund the Project. It would not be unfair to say that should the Defendant fail in the Arbitration they would say the fault is with the Plaintiff who must have been guilty of failing to proceed regularly and diligently with the Works for that was the ground for the Government of Malaysia terminating the Main Contract. They would as already indicated by them in their letter of 20.11.2008 at page 67 of PCBOD look to the Plaintiff for all fees, costs and expenses incurred in the Arbitration should they fail in getting an Award in their favour. More importantly in the event that the Defendant is made to pay the Government of Malaysia damages for their default in failing to proceed regularly and diligent with the Works, they will again look to the Plaintiff to pay as warned by them in their letter to the Plaintiff dated 24.11.2008 at pages 67A-67G of PCBOD. [64] Fortunately for the Defendant and correspondingly for the Plaintiff as the Plaintiff was the party that performed the Works, their stand of unlawful termination by the Government of Malaysia was vindicated by the Arbitrator when he held that the Main Contract had been substantially performed and 33 that the termination was premature and unlawful. It was also a finding of the learned Arbitrator that 93% of the Works had been completed when the termination was effected. [65] The initial Award was for RM6,376,702.12 (see: paragraph 4.2.1 at page 87 PCBOD) and a further final Award of RM13,797,007.68 (see: paragraph 4.5 of page 193 PBCOB) which together give the total Award Sum of RM20,173,709.80. This amount of RM20,173,709.80 was arrived at after deducting the limited counterclaim by the Government of Malaysia which was allowed by the learned Arbitrator for remedial works amounting to RM295,000.00. [66] Here is where the problem began! Having obtained an Award in its favour and a very substantial one at that even though the entire Works were done by the Plaintiff as Subcontractor, the Defendant was bent on excluding the Plaintiff altogether from any share in the proceeds of the Award. Such an audacious argument has arisen more out of avarice than a breakdown in the Letter of Agreement. Not unlike Adam and Eve in the Garden of Eden after having partaken of the forbidden fruit, the Defendant’s eyes were “opened” to the prospects of keeping the whole sum of the Award, and by no means a small sum, of RM20,173,709.80 to themselves! The Malay proverbial expression of an “avalanche of durians” 34 or “durian runtuh” in the original language would aptly describe what the Defendant is avid about. [67] The Defendant had justified it on a few grounds. It was argued by the Defendant that the Award is their proprietary right and that the 92:8 Sharing Formula has fallen through as the Plaintiff did not pursue with the funding of the Arbitration and the preparation and pursuing of the claim in Arbitration. The Plaintiff was in breach of the Letter of Agreement as they did not agree to the fees quoted by the said solicitors DW 2 and did not pay the said fees to proceed with the Arbitration. It is akin to arguing that the payment of the solicitors’ fees for the Arbitration was a condition precedent to the Letter of Agreement such that if that is not complied with, the whole of the 92:8 Sharing Formula would crumble with it. [68] It was further argued that there is no partnership or joint venture agreement to justify any proceeds of Award sharing under the 92:8 Sharing Formula or any Formula for that matter! It was obvious, according to the Defendant, that the Plaintiff contributed nothing to the Arbitration as they were not required to and did not give any evidence at all. The Arbitration was all the sweat of their brow and toil under the noonday sun so to speak and so they alone should eat the bread thereof! 35 [69] We must give credit where it is due. The Works were properly and diligently performed by the Plaintiff for if not, the Defendant would not be able to subsequently mount a substantial claim for both wrongful termination and also for the Works done against the Government of Malaysia culminating in a substantial favourable Arbitral Award totalling RM20,173,709.80 which the Defendant secured against the Government of Malaysia (see: pages 93 to 234 of the PCBOD for the Arbitral Award. [70] It would be totally unconscionable and grossly unfair and most unreasonable to have the Defendant keeping the whole of the Award sum to themselves in complete disregard of the expressed intention of the 92:8 Sharing Formula. [71] The law governing unjust enrichment is such that the Court maintains that flexibility of making the necessary adjustment such that so much as may be considered as unjust enrichment needs to be coughed out to meet the demands of fairness, reasonableness, justice and equity. [72] Human nature being what it is, both the Plaintiff and the Defendant seem to be suffering from some myopic disability in not looking at the big picture in focus the moment they see the many zeros behind the Award 36 Sum of RM20,000,000.00 plus. It is only too true that money has a way of changing the colour of things and the character of those who behold it. [73] Now the Plaintiff had pleaded that they could still insist on their entitlement to 92% of the Award Sum with the Defendant keeping the balance 8% in line with the agreed arrangement as reflected in the said Letter of Agreement. I do not think that would be fair in a claim for unjust enrichment as some premium must be given to the Defendant who launched ahead with the Arbitration, taking in its wake the risks that come with every Arbitration and Litigation. [74] Whilst it is true that the Defendant could look to the Plaintiff should they fail in the Arbitration and ending up bearing the fees, costs and expenses of the Arbitration and the liability of paying the Government of Malaysia should it be found that the Government had rightly and lawfully terminated the Main Contract, the Defendant would still have to face the initial brunt and burden of the Award against it before they could seek an indemnity from the Plaintiff and in the event the Plaintiff is unable to pay, the indemnity would be of no practical benefit to the Defendant. [75] Granted the said Letter of Agreement did not refer to what the Sharing Formula would be like if the Defendant had to proceed with 37 Arbitration to recover the sums owing and the damages arising out of an unlawful termination by the Government of Malaysia. However the need to proceed with Arbitration should not be an excuse to discard the whole of the 92:8 Sharing Formula. Clause 15 of the Letter of Agreement alluded to a case where legal action by JKR or third parties is commenced against the Defendant, then all expenses and legal fees in relation to the Project shall be borne by the Subcontractor. A Counterclaim in the Arbitration proceedings is surely within the meaning of a legal action by JKR. One cannot be so pedantic as saying then that the 92:8 Sharing Formula crumbles completely once the Defendant has to commence Arbitration against the Employer, the Government of Malaysia. [76] One must put in proper perspective the relevant factor of the risks that the Defendant had to assume in proceeding with Arbitration. As we all know any Court proceedings or Arbitral proceedings is such that no one can guarantee the outcome. [77] A premium must be placed on the Defendant for proceeding with the risks in that should the Award be against the Defendant and the Defendant is held liable to pay the Government of Malaysia, then the Defendant would still have to pay first before looking to the Plaintiff for recovery of the sums paid. 38 [78] Looking at the circumstances of this case, here is a situation where the Plaintiff would not be able to talk of a claim on a share of the Arbitral Award if not for the Defendant assuming the risks and proceeding with Arbitration to success. [79] Conversely the Defendant would not have succeeded if not for the fact that the underlying Works which is the subject matter of the Arbitration was undeniably the Works done by the Plaintiff and properly and diligently executed to completion such that the termination on ground of a failure to proceed with the Works regularly and diligently was held to be wrongful and unlawful in the circumstances of the case. [80] The Defendant now says that it could keep the whole Award to itself as the Award is its proprietary right. It is a new creature altogether and as the Plaintiff had not sued in contract within limitation, they had lost their rights altogether for their cause of action arose from the date of unlawful termination on 21.2.2007 and this Suit was only commenced in 2016. [81] This Court is uncomfortable with this proposition as it cannot be denied that it was the Plaintiff who did the Works under an original 92:8 Sharing Formula of the monies to be received from the Government of Malaysia. 39 [82] No doubt material circumstances might have changed in the termination of the Main Contract by the Government of Malaysia and the need to go for Arbitration and also limitation setting where the Plaintiff‘s contractual rights are concerned. [83] This is where the flexibility and with it the beauty of the concept and common law claim of unjust enrichment comes into play. The law would not allow a party to keep that to himself if to do so would result in that party being unjustly enriched at the expense of another that has some legal relationship with the party enriched in that the other party now claiming has made a substantial contribution to the party enriched. [84] The question now is what is a fair portion that the Defendant should not keep for themselves but that should be disgorged and paid over to the Plaintiff. [85] Looking at the overall circumstances of this case it would be fair, reasonable and just for the Defendant to be able to retain 50% of the Arbitral Award and balance 50% is to be released to the Plaintiff. [86] A further adjustment will have to be made to 2 items that ought to be deducted from the 50:50 sharing formula. There are the items on Head Office expenses of RM1,720,422.00 and the revocation of CIDB license of 40 RM1,732,941.00 which are incurred purely by the Defendant and they together amounted to RM3,453,363.00. [87] This is to be deducted from the total principal sum of Interim Award and Final Award combined sum of RM20,173,709.80 giving a balance RM16,720,346.80. [88] This sum subject to the 50:50 formula yielding a sum of RM8,360,173.40 which sum this Court grants judgment in favour of the Plaintiff against the Defendant under a claim for unjust enrichment. Whether the Plaintiff has proved breach of constructive trust with respect to the sum payable under the Arbitral Award [89] There is basis also for the Plaintiff to assert that a constructive trust has come into being where the Arbitral Award is concerned as it would be unjust and unconscionable for the Defendant to keep the whole proceeds from the Award to itself to the exclusion of the Plaintiff. [90] The fact that the cooperation between the Plaintiff and the Defendant broke down does not negate the incontrovertible truth that the Works done which form the stratum of the successful Award obtained by the Defendant are that of the Plaintiff. The Plaintiff did not do the Works gratuitously. They expected to be paid and the payment was captured and contained in the 41 92:8 Sharing Formula from the proceeds that the Defendant as Main Contractor would receive from the Government of Malaysia as the Employer. [91] Here the proceeds had been obtained, though via a more circuitous and convoluted route of having to proceed with Arbitration with its attendant expenditure of time, energy and money. The law would not allow the Defendant to keep the whole of the proceeds from the Award to themselves as it would be unconscionable, unfair and unjust to do so especially bearing in mind that it was the Plaintiff who had effectively “funded” the Project from the supply of labour, equipment, machinery and material to the completion of the various Progress Payment Claims until they were terminated unlawfully; at which point 93% of the Works had been completed as found by the learned Arbitrator. [92] A constructive trust arises by operation of law, whenever the circumstances are such that it is unconscionable for a party to assert beneficial rights over property and in the course of it, to deny beneficial rights of the rightful party. See: The Federal Court’s decision in Malaysian International Trading Corporation Sdn Bhd v RHB Bank Bhd [2016] 2 CLJ 717 at paragraph 79. 42 [93] It has also been held by the Federal Court in the case of CIMB Bank Bhd v Maybank Trustees Bhd [2014] 3 MLJ 169 at paragraph 129 that constructive trust is a trust imposed by equity in order to demand justice and good conscience, without reference to any express or presumed intention of the parties: “[129] In the circumstances, this court must intervene by imputing a constructive trust upon Murnina (as well as Rafie) for her role in misapplying the trust monies. Constructive trust is 'a trust which is imposed by equity in order to satisfy the demands of justice and good conscience, without reference to any express or presumed intention of the parties' (per Arifin Zakaria Chief Justice in Hassan bin Kadir & Ors v Mohamed Moidu bin Mohamad & Anor [2011] 4 MLJ 190; [2011] 4 AMR 677). Equity therefore demands that Murnina (and Rafie) must not be allowed to keep those monies and in the process unjustly enrich herself (see Fernrite Sdn Bhd v Perbadanan Nasional Bhd [2012] 1 MLJ 1; [2012] 5 MLRA 421).” (emphasis added) See also: Takako Sakao (f) v Ng Pek Yuen (f) & Anor (No. 3) [2009] 6 MLJ 751. http://www.lexisnexis.com/my/legal/search/runRemoteLink.do?A=0.6057056186078497&bct=A&service=citation&risb=21_T25425343891&langcountry=MY&linkInfo=F%2523MY%2523MLJ%2523vol%25254%2525sel1%25252011%2525page%2525190%2525year%25252011%2525sel2%25254%2525 http://www.lexisnexis.com/my/legal/search/runRemoteLink.do?A=0.6057056186078497&bct=A&service=citation&risb=21_T25425343891&langcountry=MY&linkInfo=F%2523MY%2523MLJ%2523vol%25254%2525sel1%25252011%2525page%2525190%2525year%25252011%2525sel2%25254%2525 http://www.lexisnexis.com/my/legal/search/runRemoteLink.do?A=0.9754295323831932&bct=A&service=citation&risb=21_T25425343891&langcountry=MY&linkInfo=F%2523MY%2523MLJ%2523vol%25251%2525sel1%25252012%2525page%25251%2525year%25252012%2525sel2%25251%2525 43 [94] Taking into consideration the risk assumed by the Defendant in proceeding with Arbitration and also the time, effort, energy and costs involved and also that the Award would not have been a reality if not for the work done by the Plaintiff, this Court would lean on the principle that equity tends towards equality. [95] I would order the same minor adjustments for the same reasons when addressing a claim for unjust enrichment. [96] The Plaintiff’s claim in constructive trust is quintessentially a claim in equity. According to Millets J in Lonrho Plc v Fayed and others (No. 2) [1991] 4 All ER 962, equity must retain its inherent flexibility and capacity to adjust to new situations: “Equity must retain what has been called its 'inherent flexibility and capacity to adjust to new situations by reference to mainsprings of the equitable jurisdiction': see Meagher, Gummow and Lehane Equity: Doctrines and Remedies (2nd edn, 1984) para 1207. All courts of justice proceed by analogy, but a court of equity must never be deterred by the absence of a precise analogy, provided that the principle invoked is sound. As long 44 ago as 1838 Lord Cottenham LC remarked in Taylor v Salmon 4 My & Cr 134 at 141–142, 41 ER 53 at 56: 'I have before taken occasion to observe that I thought it the duty of this Court to adapt its practice and course of proceeding as far as possible to the existing state of society, and to apply its jurisdiction to all those new cases which, from the progress daily making in the affairs of men, must continually arise, and not, from too strict an adherence to forms and rules established under very different circumstances, decline to administer justice, and to enforce rights for which there is no other remedy'. [97] Our Court of Appeal has observed in Sinar Wang Sdn Bhd v Ng Kee Seng [2005] 2 MLJ 42, inter alia, held as follows: “Equitable remedies and doctrines are therefore flexible and adaptable to particular circumstances. The Court of Equity may therefore mould the relief that is to be granted on particular facts”. [98] Therefore the fact that the Defendant had refused to disclose the fees, costs and expenses incurred in pursuing and proceeding with the 45 Arbitration and getting an Award in its favour does not prevent this Court from moulding a relief that would meet the demands of justice and equity. [99] Learned counsel for the Plaintiff referred to the English Court of Appeal in Banner Homes Group plc v Luff Developments Ltd and another [2000] 2 All ER 117 which made reference to the case of Chattock v Muller (1878) 8 Ch.D 177. The Court of Appeal held that when there was any uncertainty, the court may resolve the dispute by referring to the earlier arrangement that the parties have agreed upon. It observed as follows: “In a case like this, where the Defendant has acquired the estate or part of it by a fraud on the Plaintiff, I think that the Court would be bound, if possible, to overcome all technical difficulties in order to defeat the unfair course of dealing of the Defendant, and I should not, in my opinion, be going too far if I compel the Defendant to give the whole estate to the Plaintiff at the price given for it, rather than that he should succeed in retaining it on account of any uncertainty as to the part which the Plaintiff is entitled to have. But I think the memorandum in the handwriting of the Defendant, which was given 46 to the Plaintiff at the interview of the 20th of June, relieves the Court in this case from any difficulty.” [100] In some jurisdictions their Legislature has deemed and designated this amount that has been carved out by a Main Contractor or Subcontractor for work done as trust money when the money should have been received by the Employer or the Main Contractor as the case may be. It is a statutory trust recognized by the relevant statute. [101] In Ontario, Canada, there is the Construction Lien Act, R.S.O. 1990, c. C.30 which recognizes the following situations of trust in their section 7 for Main Contractor and section 8 for Subcontractors as follows: “7. (1) All amounts received by an owner, other than the Crown or a municipality, that are to be used in the financing of the improvement, including any amount that is to be used in the payment of the purchase price of the land and the payment of prior encumbrances, constitute, subject to the payment of the purchase price of the land and prior encumbrances, a trust fund for the benefit of the contractor. R.S.O. 1990, c. C.30, s. 7 (1). Amounts certified as payable 47 (2) Where amounts become payable under a contract to a contractor by the owner on a certificate of a payment certifier, an amount that is equal to an amount so certified that is in the owner’s hands or received by the owner at any time thereafter constitutes a trust fund for the benefit of the contractor. R.S.O. 1990, c. C.30, s. 7 (2). Where substantial performance certified (3) Where the substantial performance of a contract has been certified, or has been declared by the court, an amount that is equal to the unpaid price of the substantially performed portion of the contract that is in the owner’s hands or is received by the owner at any time thereafter constitutes a trust fund for the benefit of the contractor. R.S.O. 1990, c. C.30, s. 7 (3). Obligations as trustee (4) The owner is the trustee of the trust fund created by subsection (1), (2) or (3), and the owner shall not appropriate or convert any part of a fund to the owner’s own use or to any use inconsistent with the trust until the contractor is paid all amounts related to the improvement owed to the contractor by the owner. R.S.O. 1990, c. C.30, s. 7 (4). 48 Contractor’s and subcontractor’s trust Amounts received a trust 8. (1) All amounts, (a) owing to a contractor or subcontractor, whether or not due or payable; or (b) received by a contractor or subcontractor, on account of the contract or subcontract price of an improvement constitute a trust fund for the benefit of the subcontractors and other persons who have supplied services or materials to the improvement who are owed amounts by the contractor or subcontractor. R.S.O. 1990, c. C.30, s. 8 (1). Obligations as trustee (2) The contractor or subcontractor is the trustee of the trust fund created by subsection (1) and the contractor or subcontractor shall not appropriate or convert any part of the fund to the contractor’s or subcontractor’s own use or to any use inconsistent with the trust until all subcontractors and other persons who supply services or materials to the improvement are paid all amounts related to the improvement owed to them by the contractor or subcontractor. R.S.O. 1990, c. C.30, s. 8 (2).” (emphasis added) 49 [102] Norms of fairness, justice and equity are fairly universal and more so with countries that share an English common law base unless local peculiarities and customs have modified it. [103] One can draw by way of analogy from the true character of retention sums held by an employer in the Court of Appeal case of Qimonda Malaysia Sdn Bhd v Sediabena Sdn Bhd & Anor [2011] 8 CLJ 269. Retention sums like certified progress claims are carved out and consigned for payment to honour one’s commitment to pay to the rightful person. [104] I agree that the test remains that of the intention of the parties, which has to be assessed in the context of the relevant relationship as opined by the learned authors Mohsin Hingun and Wan Azlan Ahmad in Equity and Trusts in Malaysia (Second Edition) at [2.021]-[2.027] of page 28-31. [105] The “retention sum” as explained in Qimonda case (supra) is for the specific purpose viz. for making good the defects only and the parties’ clear intention to create “trust” is manifested from the outset the contractor is the beneficial owner of the “retention sum”: “[18] The purpose of the deduction is to make provision for making good the defects only. If they are not applied for that purpose, it was 50 understood that they would be returned to the contractor after the expiry of the defect liability period. The usage of the word "deduction" for the creation of the retention monies from the certified sum under cl. 22 of the contract further support the fact that the parties recognized that the retention monies are contractor's monies. All the requisites of a valid trust were present and the parties had manifested a clear intention to create a trust since from the outset, the whole purpose of what had been done had been to ensure that the monies remained in the beneficial ownership of the respondents; and a trust is the obvious means of achieving this. As such the retention monies held by the appellant (employer) do not belong to the appellant (employer).” (emphasis added) [106] I fail to understand how that, just because the Defendant chose not to keep the identified 92% for release to the Plaintiff as agreed in the Letter of Agreement but to seek to keep the whole 100% to themselves, can change the character of the certified sums received from the Government of Malaysia and later received pursuant to a successful Award in their favour. The intention is clear and the sums identifiable and the purpose is clearly to pay the Plaintiff as the Defendant’s Subcontractor for the Works done. There is no good reason here why a trust should only be confined to 51 retention sum which may be used to set off costs of rectification works and not to certified progress claims sums or sums in the Arbitral Award which is quantified, final and binding. [107] Bearing in mind the risk involved in pursuing with Arbitration and the fact that the Plaintiff had been excluded from this exercise by the Defendent and considering it is the Plaintiff’s Works that form the stratum and subject matter of the Defendant’s claim against the Government of Malaysia, I would apply the equitable maxim of equity tends towards equality where the Sharing Formula is concerned and I would order an equal sharing of the total proceeds of the Award save for the 2 items identified above for the Head Office expenses and the loss of the CIDB License. The Defendant should further be allowed to keep the costs and expenses awarded in the Arbitration for themselves as the Plaintiff did not make any contribution towards that. [108] Admittedly both sides naturally gravitated towards downplaying, if not denying the role of the other altogether in the run up towards a successful Award in favour of the Defendant. The Defendant argued that the Plaintiff did not have to testify at all and was spared the rigors of preparation for the Arbitration and if I may the heat of cross-examination. However we all know that where construction work is concerned, most of the important items 52 would have been minuted in Site Daily Report, Minutes of Progress Meetings, Progress Claims submitted with supporting documents, certified claims, Variation Orders instructed and SO’s instructions and the like. If the Plaintiff’s documentations for the Works done had been lacking or not complete, it is doubtful if the Defendant could have succeeded. [109] In fact in a construction dispute arbitration, there should be little reliance on oral testimony and most of the key issues would have been reduced into writing. [110] On the other hand the Plaintiff’s insistence on the original 92:8 Sharing Formula would be unrealistic as it is the Defendant here that would have to spend hours preparing the documentations for the Arbitration and the general preparation with the solicitors in answering the Counterclaim of the Government of Malaysia and its justification that the termination had been lawful. Coupled with this is the risk that the Defendant has to take by way of a first line of payment should they fail with the corresponding consequence of having to pay the Government of Malaysia for the loss arising out of having to engage another contractor to complete the Works and the loss and expense arising out of the delay. 53 [111] I agree with the Plaintiff that in a constructive trust, a trust is imposed by equity in order to satisfy the demands of justice and conscience. As such, the intention of the parties and the terms in the trust relationship is immaterial though in this case the Court will hold the parties to the terms they originally bargained for as closely as possible bearing in mind always the different parameters that the parties are now assailed by. [112] Weighing the respective factors taken together as a whole, an equal apportionment of the proceeds of the Arbitral Award would tend towards meeting the demands of reasonableness, fairness, justice and equity. [113] The claim under constructive trust should yield a result no different from that under unjust enrichment where a further refinement to meet the demands of fairness and equity is concerned. The final fine-tuning of the reliefs shall be considered at the end of this judgment. Whether the Plaintiff’s claim for Unjust Enrichment is barred by Limitation. [114] The cause of action in unjust enrichment would arise differently from that of a breach of contract. In a case of a breach of contract the cause of action would have arisen from the date of breach of contract. 54 [115] The cause of action in unjust enrichment would arise from the date the Defendant here is enriched. See BP Exploration Co (Libya) Ltd v Hunt (No 2) [1982] 1 All ER 925. To insist that a cause of action in unjust enrichment must arise from the date of the breach of the Letter of Agreement or the termination of the Main Contract by the Government of Malaysia on 21.2.2007 would be both unrealistic and unfair not only on the Plaintiff but also on the Defendant. [116] Given the particular factual matrix of this case, the Defendant would not be having an Award in its favour until they proceeded with Arbitration and obtained the Interim Award and Final Award on 6.7.2011 and 10.10.2012 respectively and successfully resisted the Government of Malaysia’s application to set it aside. [117] This action brought in February 2016 was well within the 6 years period of limitation. [118] Until then, the Defendant cannot realistically and justifiably be said to be unjustly enriched. To require the Defendant to make payments to the Plaintiff before it receives the Award sum would be grossly unfair for at the point of termination and during the period running from that point in time, 55 not only had the Government of Malaysia not paid up any further sums due for Works done but they also had a Counterclaim against the Defendant. [119] In fact even if the Plaintiff’s action had been founded on contract, which in this case is not, it would be open to the Plaintiff to argue that the implied term of the Letter of Agreement was that in the event the Plaintiff had to pursue Arbitration with the cooperation of and in the name of the Defendant against the Government of Malaysia, the Defendant would only need to pay the Plaintiff upon receipt of payments from the Government of Malaysia. [120] Likewise if there is no Award in its favour and instead the whole of the Counterclaim of the Government of Malaysia is allowed, then there would be no cause of action in unjust enrichment but only the Defendant’s action against the Plaintiff for all the losses they have to suffer and pay the Government of Malaysia. [121] The learned author Low Weng Tchung in his book “The Law of Restitution and Unjust Enrichment in Malaysia” from whom learned counsel for the Defendant had taken the liberty to quote copiously, also opined as follows at paragraph [12.16] as follows: 56 “The better view is that a claim for restitution accrues at the date when the enrichment is received or the date the ground of restitution is established, whichever is the later.” [122] I am aware that in the Federal Court case of Globe Engineering Sdn Bhd v Bina Jati Sdn Bhd [2014] 7 CLJ 1, where there was “pay when paid” clause, it was held: “[33] ...But with termination of the sub-contract, the work thereunder would not progress any further. Given that work under the sub- contract would not progress any further, there was no further purpose for stage payments to finance work that had ceased and would not progress further, such that the purpose of para. 14 and cl. 11(b), indeed all provisions to do with interim certificates, had no further application, as the facts on the ground had moved beyond the purview of those provisions, which were spent and passe, to the stage of cl. 19. If the liability of the respondent were contingent, cl. 19 would reflect that. Contingent liability was not reflected. Clause 19 merely provided that upon termination of the appellant's employment, the appellant would be paid the value of the sub- contracted works completed at the date of termination. Effect must be given thereto.” (emphasis added) 57 [123] I do not read Globe Engineering (supra) as prohibiting both parties from agreeing to a scheme where even if there has been termination of the Main Contract by the Employer, as between the Main Contractor and the Subcontractor, they can have the understanding that the Subcontractor would not demand for payment until the Main Contractor is paid at the end of a successful Arbitration. Whether the Plaintiff’s action in Constructive Trust is barred by Limitation [124] As for constructive trust, the trust relationship only arises at the earliest after the Interim Award was given to the Defendant on 6.7.2011 when the Defendant has unconscionably asserted its right to the whole of the monies which had been awarded for Works done in the Project by the Arbitrator. It arises from the time when the Defendant deprived the right of the Plaintiff as the beneficial owner to a share of the Award Sum. The decision to deprive the Plaintiff of his just entitlement to the Award Sum is clearly seen in the avowed intention to refuse to keep the Plaintiff posted on the progress of the Arbitration and to conceal from the Plaintiff’s knowledge the fact of the Interim and Final Award having been made in favour of the Defendant and even right up to the end of the trial, in refusing 58 to disclose when the Award Sum was paid or what were the legal fees, costs and expenses that were incurred by the Defendant in the Arbitration. [125] At no material time have the Defendants denied that they have come into the possession of the Award Sum which the Plaintiff asserted in held in trust for the Plaintiff for a part of it. [126] Section 22 (1) of the Limitation Act 1953 provides: “Limitation of actions in respect of trust property. (1) No period of limitation prescribed by this Act shall apply to an action by a beneficiary under a trust, being an action— (a) in respect of any fraud or fraudulent breach of trust to which the trustee was a party or privy; or (b) to recover from the trustee trust property or the proceeds thereof in the possession of the trustee, or previously received by the trustee and converted to his use. (2) Subject as aforesaid, an action by a beneficiary to recover trust property or in respect of any breach of trust, not being an action for which a period of limitation is prescribed by any other 59 provision of this Act, shall not be brought after the expiration of six years from the date on which the right of action accrued: Provided that the right of action shall not be deemed to have accrued to any beneficiary entitled to a future interest in the trust property, until the interest fell into possession. (3) No beneficiary as against whom there would be a good defence under this Act shall derive any greater or other benefit from a judgment or order obtained by any other beneficiary than he could have obtained if he had brought the action and this Act had been pleaded in defence." (emphasis added) [127] The following passage in the judgment of her Ladyship Nallini Pathmanathan J (now JCA) in Abdul Razak Sheikh Mahmood & Anor v Bhupinder Singh s/o Avtar Singh & 7 Ors [2012] 2 AMR 129 is both instructive and illuminating: "[34] The plaintiffs here in like manner seek to rely on s 22(1)(b) of the Limitation Act 1953 which prescribes that no limitation period is stipulated in the Act for the recovery of trust property from a trustee. Extrapolated to the present context, the plaintiffs argue that D1–D6 and D7 and/or D8 are the trustees who hold the Fabrika Technology 60 Sdn Bhd shares and the shop house on trust for them as beneficiaries. Accordingly they contend that the limitation period prescribed in s 6 does not apply to preclude their claim as they fall neatly within s 22(1)(b). The textbook Lewin on Trusts (18th edn) in the opening passages of chapter 44 on Limitation of Actions states, in relation to the policy of the English Limitation Act 1980 which has sections equipollent to the Limitation Act 1953 in Malaysia, and is therefore arguably applicable here, as follows: … Very broadly, the policy of the Act is to accord special treatment to cases in two categories: first, no protection is to be given for a fraudulent breach of trust and, secondly, a trustee is never to be allowed to keep trust property for himself. The Act therefore provides that no period of limitation prescribed by it should apply to claims in either category, which are left subject to no limitation period at all. In other cases, there is a six year time limit for bringing an action … [35] As s 22(1)(b) is pari materia with s 21(1)(b) of the English Act, the foregoing reasoning as to the policy behind the statute appears entirely cogent. In the instant case therefore the plaintiffs maintain that they have founded their claim essentially on the existence of a 61 trust whereby the defendants have in their possession trust property belonging to the plaintiffs as beneficial owners. There is, therefore, no limitation period prescribed they maintain, for the recovery of their own property held in trust for their benefit." (emphasis added) [128] I agree that section 22(2) of the Limitation Act 1953 is inapplicable for cases of constructive trust. Assuming for a moment that it is applicable, the constructive trust in the present claim only commence after the Interim Award and Final Award was given on 6.7.2011 and on 10.10.2012. The present suit is filed on 16.2.2016. As such, the Plaintiff’s claim is still within time. [129] Learned counsel for the Defendant also drew the Court’s attention to the decision of In Re Robinson; Mclaren v Public Trustee [1911] 1 Ch. 502 that limitation period is not applicable in three (3) situations provided that there is no improper on the part of the claimant: (a) if there are funds belonging to the person who has been overpaid, the Court may so adjust the rights as to rectify the overpayment; 62 (b) a person has received a trust fund, and it is still in his hands, and still impressed with a trust, and of course he holds it as trustee and is bound to transfer it to the proper person; (c) where the trust funds or the proceeds of the trust funds have been received by a person with knowledge that they are wrongly paid to him; there, even though the funds do not remain in his hands, he must at all events be treated as a constructive trustee and liable to repay the value of the trust funds wrongly paid to him [130] In the present claim, the limitation bar ought not to be applicable because the unconscionable act of withholding monies belonging to the Plaintiff only occurred after the Interim Award was given on 6.7.2011 and the Final Award was given on 10.10.2012. [131] The Plaintiff had been taking steps to recover such monies, albeit wrongly, in the MJE suit and this suit was immediately filed after the Court of Appeal dismissed the Plaintiff’s appeal on 13.1.2016. [132] I would therefore hold that the Plaintiff’s action under Constructive trust is not barred by limitation. 63 Whether the Plaintiff’s claim for unjust enrichment is a claim for special damages that have to be specifically pleaded [133] Learned counsel for the Defendant submitted that the Plaintiff’s specific claim of RM11,420,791.73 falls squarely under the head of Special Damages. Hence, it ought to be pleaded specifically and strictly proved (See Ong Ah Long v Dr S Underwood [1983] CLJ Rep 300). Learned counsel further highlighted that the particulars of the sum claimed of RM11,420,791.73, however is completely omitted in the pleadings. [134] Learned counsel for the Defendant further relied on the commentary at page 334 of “Malaysian Rules of Court 2012- An Annotation 1” by LexisNexis with respect to particulars which must be pleaded pursuant to Order 18 rule 12(3) of Rules of Court 2012 (“ROC 2012”): “(5) Special damages: (a) Evidence of special damage cannot be led at the trial unless it is specifically pleaded: see Hayward v Pullinger & Partners [1950]1 All ER 581; cf general damages in MGG Pillai v Tan Sri Dato Vincent Tan Chee Yioun [1995] 2 MLJ 493; 64 (b) even if pleaded, it must be adequately particularised: Ilkiw Samuels [1963] 1 WLR 991; in accident cases, particulars must be given so that the defendant is able to identify the accident and to know what case he has to answer: Pang Kim Guan v Lee Cheng Liam [1968] 2 MLJ 132; Gwee Kim Bock v Singapore Glass Manufacturers Co Ltd [1966] 2 MLJ 292; (c) particulars of facts which make the calculation of damages possible should also be pleaded: Perestrello E Companhia Limitada v United Paint Co Ltd, Same v Same [1969] 1 WLR 576; and (d) where the facts relied on do not support the claim for damages, the claim may be struck out: AB v South West Water Services Ltd [1993] 1 All ER 609, [1993] 1 QB 507; see also Rookes v Barnard [1964] AC 1129…” (emphasis added) [135] I have no quarrel with the above principle for cases of a claim for special damages. However the Plaintiff is not suing under tort and they are not seeking damages either in tort or contract. 65 [136] I agree with learned counsel for the Plaintiff that a claim for unjust enrichment is qualitatively different from that of damages. The Federal Court in Dream Property (supra) insightfully clarified through his Lordship Azahar Mohamed FCJ what is often mistakenly asserted as a claim for compensation or damages as follows: “[106] The passage above raises some vexed issues. On this, we have two observations. The first is that the majority of the Court of Appeal used the term 'compensation' in relation to the relief granted to the defendant. With respect, that term is inaccurate in the context of the right to restitution based on the law of unjust enrichment. As stated by Goff & Jones on The Law of Unjust Enrichment (8th Ed), (para 4- 01), 'the law of unjust enrichment is concerned with transfers of value between claimants and defendants, and a claim in unjust enrichment is 'not a claim for compensation for loss, but for recovery of a benefit unjustly gained by a defendant at the expense of the claimant''. In this way, the usage of the term 'restitution' should be contrasted with the term 'compensation'...” (emphasis added) 66 [137] Further the Federal Court in Dream Property (supra) cited with approval a passage taken from Goff & Jones where it was specifically stated that “the remedy of restitution differs from that of damages” as follows: “[132] The following critical question then arises: what proper remedy should be awarded to the defendant? On the remedy issue, it is instructive to refer again to Goff & Jones on The Law of Unjust Enrichment para 36-02, where it is stated: In every case where a defendant is unjustly enriched at a claimant's expense, English law gives the claimant a right to restitution from the defendant. The courts sometimes use the word 'restitution' to describe a measure of compensation for civil wrongdoing, and when it is used in this sense the word means 'restoring the claimant to the position he occupied before he was caused a loss by the defendant's wrong'. In this context, however, the word 'restitution' means something different, namely 'restoring the value received by the defendant to the claimant'. There is an obvious danger of confusion here, and these two meanings of the word must be kept separate. As Lord Hope said in Sempra Metals Ltd v IRC, 'the law of restitution is the 67 law of gain-based recovery, just as the law of compensation is the law of loss-based recovery' and 'the remedy of restitution differs from that of damages. It is the gain that needs to be measured, not the loss to the claimant. The gain needs to be reversed if the claimant is to make good his remedy'. (emphasis added) [138] At any rate the Plaintiff’s Claim is crafted broadly enough for the Court to mould a relief that would accord with and accommodate the justice of the case as follows in prayer (b) of their Amended Statement of Claim as follows: “(b) a Declaration that the Defendant has been unjustly enriched for the amount of RM11,420,471.73 at the expense of the Plaintiff or such other sum or sums as the Court shall deem fair, just and reasonable; ... In the alternative: (j) an order that the Defendant do restore the benefit received in the Interim Award and Final Award to the Plaintiff less 8% being the Defendant’s fees.” (emphasis added) 68 [139] I am further satisfied that the Plaintiff has explained how the sum of RM11,420,471.73 had been arrived at based on the various heads of claim as allowed by the learned Arbitrator. At any rate it has not been shown how the apportionment of the various heads of claims as allowed by the learned Arbitrator has prejudiced the Defendant in terms of being taken by surprise either by the application of the 92:8 Sharing Formula and an equal division from a so-called common pool heads of claims as allowed. [140] Since this claim of RM11,420,471.73 is not allowed for the reasons already given, I shall not labour on it any further. Whether laches apply to bar the Plaintiff’s claim in unjust enrichment and constructive trust. [141] Section 32 of the Limitation Act 1953 provides as follows: “Acquiescence 32. Nothing in this Act shall affect any equitable jurisdiction to refuse relief on the ground of acquiescence, laches or otherwise.” [142] I find no merits in the Defendant’s submission that laches apply to bar the Plaintiff’s Claim. In the first place, the Plaintiff’s causes of action 69 accrued only on 6.7.2011, at the earliest and given PW2’s evidence that she only learned of the Arbitration Award during the trial of the previous suit in 2015, then clearly there was no delay on the part of the Plaintiff in filing this action in 2016 (see: Q&A 8 to 15 PW – 2 DW, line 29 to 30 of page 30 and line 15 to 18 at page 33 of Notes of Proceedings for 20.9.2016). Hence, I would agree with the Plaintiff that there is no inaction or lack of action on the part of the Plaintiff as alleged. [143] In any event, the law is that delay by itself is never sufficient and more so when by all counts the Plaintiff’s cause of action is not time barred as argued above. I recall the case of Cheah Kim Tong & Anor v Taro Kaur [1989] 3 MLJ 252 at page 254 where it was observed as follows: “The word 'laches' is one of the most over-worked words in legal arguments before the courts and it does not seem to have been fully appreciated for its nature. It means definitely something more than a mere delay; it means such delay amounting to acquiescence. Here the word acquiescence is not quite the same acquiescence as used in equitable estoppel, where, generally a plaintiff stands by watching a violation of his right in progress and keeping silent, but here, there is a completed violation of a right and a plaintiff has become aware of it. He either assents to it, or his delay in asserting his right has been so long 70 as to give rise to an inference of such assent. Regard must be had to the change in a defendant's position which has resulted from a plaintiff's delay in bringing an action. On the facts in the instant case the plaintiffs had not been guilty of laches in the sense just stated, though I had a suspicion that counsel was speaking merely of mere inordinate delay. However, in this case, the court also observed that there was a provision of a statutory bar, i.e. s 9 of the Limitation Act 1953, and the defence of laches would not have applied in any event for the plaintiffs should be entitled to the full statutory period before their claim became unenforceable. Please see Re Pauling's Settlement Trusts, Younghusband v Coutts & Co [1962] 1 WLR 86 at p 115 and Tan Tuan Kiat & Anor v Pritam Singh Brar [1987] 1 MLJ 276.” (emphasis added) [144] In the case of Abdul Razak Sheikh Mahmood & Anor v Bhupinder Singh s/o Avtar Singh & Ors [2012] 3 MLJ 348 it was held that even where there had been considerable delay, the Court must still determine whether such delay had detrimentally affected the Defendant. “[71] While considerably more is said on this subject in the learned treatise, suffice to say that since the 19th century laches has been determined by applying the test put forward in the Lindsay Petroleum http://www.lexisnexis.com/my/legal/search/runRemoteLink.do?A=0.040359267114227104&bct=A&service=citation&risb=21_T26599733621&langcountry=MY&linkInfo=F%23MY%23USM_PA%23act%25254%25section%259%25 http://www.lexisnexis.com/my/legal/search/runRemoteLink.do?A=0.23530755376928336&bct=A&service=citation&risb=21_T26599733621&langcountry=MY&linkInfo=F%23MY%23USM_PA%23act%25254%25 http://www.lexisnexis.com/my/legal/search/runRemoteLink.do?A=0.2892024235742853&bct=A&service=citation&risb=21_T26599733621&langcountry=MY&linkInfo=F%23GB%23WLR%23vol%251%25sel1%251962%25page%2586%25year%251962%25tpage%25115%25sel2%251%25 http://www.lexisnexis.com/my/legal/search/runRemoteLink.do?A=0.40328402307960654&bct=A&service=citation&risb=21_T26599733621&langcountry=MY&linkInfo=F%23MY%23MLJ%23vol%251%25sel1%251987%25page%25276%25year%251987%25sel2%251%25 71 Co v Hurd (1874) LR PC 221 (above) case by Lord Selborne as enunciated above. Applied to this case while there is indeed considerable delay amounting to about 13 years, the crucial factor is to determine whether such delay has resulted in any acts which detrimentally affect particularly the defendant. This in turn will determine where the balance of justice lies. On the facts of this case, and based on the evidence before this court, particularly the audited annual reports of D7 where a clear notation is made that the subject property is held on trust, it appears that no steps have been taken by the defendant to deal with the property. There was no evidence of any disposition to a third party. In fact such evidence as there is discloses that the property to date is still held by D8 as the legal registered owner. All requisite taxes have been paid and it would appear that the shop house has been utilised for by D7 and/or D8 throughout the years since the execution of the second agreement. To that extent it is the sums of monies paid out by D7 in respect of the property that disclose any such 'detriment' or pecuniary loss suffered by D7 and/or D8.” (emphasis added) 72 [145] I note that the Defendant did not plead or lead any evidence of detriment arising from the delay alleged so that the allegation of laches remain mere allegation. [146] If at all the delay, if any, has allowed the Defendant an extended period to enjoy the whole of the Award Sum to the exclusion of the Plaintiff. This is clearly not a fit case to apply the equitable principle of laches to cause injustice to the Plaintiff and to bar them of their claim altogether. Pronouncement [147] For all the reasons given above the Defendant cannot claim and keep the whole of the Award Sum to themselves. That would cause them to be unjustly enriched at the expense of the Plaintiff who did the whole of the Works under the Project. [148] I have stated that this is a fit and proper case where I may apply the principle that equity tends towards equality in deciding on the extent of restitutionary relief and the amount held in constructive trust. [149] There are, however, 2 items that ought to be deducted from the 50:50 sharing formula. These are the items on Head Office expenses of RM1,720,422.00 and the revocation of the Defendant’s CIDB license of RM1,732,941.00 which together amounts to RM3,453,363.00. 73 [150] This is to be deducted from the total principal sum of interim award and final award combined Award Sum of RM20,173,709.80 giving a balance RM16,720,346.80. [151] This sum subject to the 50:50 formula yielding a sum of RM8,360,173.40 which sum this Court grants judgment in favour of the Plaintiff against the Defendant under unjust enrichment or alternatively under breach of constructive trust. [152] This Court has left untouched the Costs of the Award and the Arbitration as these are that incurred by the Defendant who had borne the costs and expenses of Arbitration. As the Defendant had chosen not to give any evidence with respect to their solicitors’ fees, this Court would not be in a position to assist the Defendant further other than allowing it to keep for itself the Costs of the Award and the Arbitration Costs as ordered by the learned Arbitrator. [153] The said sum shall carry interest at 5% per annum from the date of the Statement of Claim i.e.16.2.2016 to date of realization. [154] After hearing the parties and looking at the days of trial and the documents submitted, the Court has granted costs of RM50,000.00 to be paid by the Defendant to the Plaintiff. Under the Rules of Court 2012, 74 interest shall run at the rate of 5% per annum on costs from the date of judgment to date of realization. (O59 r 24 ROC 2012) Dated: 29 September 2017. Sgd Y.A. LEE SWEE SENG Judge Construction Court High Court Malaya For the Plaintiff : Michael Chow and CK Foong (Messrs Foong & Tan) For the 1st Defendant : Liow Si Khoon together with Teo Ming Ho (Messrs Liow & Co.) Date of decision: 19 April 2017	92,922	Tika 2.6.0
WA-22NCC-256-07/2016	PLAINTIF Preferred Synergy Sdn Bhd DEFENDAN Beta Tegap Sdn Bhd	null	29/09/2017	YA DATUK LAU BEE LAN	https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=fe3e4085-786a-4080-9e74-edd1ac3d0575&Inline=true	DALAM MAHKAMAH TINGGI MALAYA DI MUAR 1 DALAM MAHKAMAH TINGGI MALAYA DI KUALA LUMPUR 5 (BAHAGIAN DAGANG) GUAMAN SIVIL NO: WA-22NCC-256-07/2016 ANTARA 10 PREFERRED SYNERGY SDN BHD … PLAINTIF (No. Syarikat : 1004631-X) DAN 15 BETA TEGAP SDN BHD … DEFENDAN (No. Syarikat : 641484-A) 20 GROUNDS OF DECISION [1] The present appeals have been brought by the Plaintiff in light of my decision in dismissing their application under O.14 of the Rules of Court 2012 (‘ROC 2012’) (encl. 4) and allowing the 25 Defendant’s applications under O.18 r.19 (encl. 12) as well as under O. 81 (encl. 27) of the ROC 2012 on 13/1/2017. [2] The crucial background facts are: (i) The Government of Malaysia awarded a contract to the 30 Defendant to monitor and capture images of traffic offences (‘AES Contract’) for a period of 66 months with effect from 1/3/2012. Subsequently, on 14/8/2012, the Plaintiff and Defendant entered into the Agreement for the purported 2 purpose of leasing and management of vehicles titled 5 “Agreement between Preferred Synergy Sdn Bhd (‘the Company’) and Beta Tegap Sdn Bhd (‘the Operator’) for the leasing and management of vehicles for Beta Tegap Sdn Bhd’s contract for the automated enforcement system (‘AES’) (‘the Agreement’) (Exh.A-1, pp.1-24, Affidavit of the 10 Defendant affirmed by Zairuddy Zainal on 9/9/2016). The vehicles were to be used by the Defendant for the purpose of performance of its obligations under the AES Contract. The Agreement was prepared by the solicitors of the Plaintiff. (ii) The Agreement also contained, inter alia, the following 15 representations by the Plaintiff which materially induced the Defendant to enter into the Agreement: (a) The Plaintiff is the legal and beneficial owner of the vehicles purportedly to be leased to the Defendant; (b) The Plaintiff has the right, title and ownership to 20 the vehicles purportedly to be leased to the Defendant; (c) The Plaintiff has the power and the capacity to execute, deliver and perform the terms of the Agreement, including the purported leasing of the 25 vehicles and the granting of the Transfer Options. By the Transfer Options, the Defendant, at the end of the term of the Agreement, has an option to either own (i.e. purchase) the vehicles or return the vehicles to the Plaintiff in which case the 30 3 Defendant will be entitled to a rebate. If the 5 Defendant decides to purchase the vehicles, ownership of the vehicles will be transferred from the Plaintiff to the Defendant; (d) The execution, delivery and performance of the Agreement will not exceed the powers of the 10 Plaintiff or violate any provisions of the law. (‘Representations’) (iii) Pursuant to the Agreement, the Defendant has taken delivery of 39 vehicles (‘Vehicles’) out of 115 vehicles stated in the Agreement. 15 (iv) In or around December 2012, the Government of Malaysia suspended the implementation of the AES Contract. (v) On 5/7/2016, the Plaintiff commenced this action against the Defendant to enforce the Agreement and claims the following damages from the Defendant: 20 (a) RM3,525,717.60 being the purported outstanding monthly lease charges for the vehicles, strobe light and windscreen cover; (b) RM346,897.50 being interest on the purported outstanding monthly lease charge; 25 (c) RM18,791,556.04 being purported loss of profits allegedly caused by the Defendant’s alleged failure to take lease of the remaining 112 units of the vehicles; (d) RM2,900.00 being the purported outstanding traffic 30 4 summonses for the Vehicles. 5 Defendant’s arguments [3] The Defendant contended that: (i) The Agreement is voidable as the Plaintiff has defrauded and/or misrepresented to the Defendant of the 10 Representations contained in the Agreement; (ii) The objects and considerations of the Agreement is unlawful and the Agreement is therefore void; (iii) The Agreement is in reality not a leasing agreement but a hire-purchase agreement governed by the Hire Purchase Act 15 1967(‘Hire Purchase Act’). The Agreement is not in compliance with the Hire Purchase Act and is therefore void; (iv) Even if the Agreement is valid, the parties are discharged from the Agreement as it has been frustrated by reason of suspension of the AES Contract. 20 [4] The Defendant’s Re-Amended Counterclaim against the Plaintiff is for, inter alia, (a) Rescission of the Agreement for reasons of fraud and/or misrepresentation; 25 (b) Declaration that the Agreement is null and void ab initio for the reasons set out in paras 3(ii) and (iii) above; (c) Declaration that the Agreement was frustrated and the parties be discharged from the Agreement from January 2013 onwards. 30 5 5 Findings Plaintiff’s application under O.14 of the ROC 2012 (encl.4) [5] Vide a Notice of Application dated 27/7/2016 (encl.4) the Plaintiff applied for summary judgment pursuant to O.14 of the ROC 10 2012 against the Defendant for the relief reproduced in para 2v(a), (b) and (d) above. The Defendant opposed the Plaintiff’s summary judgment application on grounds contained in para 3(i) to (iv) above. [6] For the purpose of this application, I am satisfied the 15 preliminary requirements have been complied with ie, (i) the defendant has entered appearance; (ii) the statement of claim must have been served on the defendant; and (iii) the affidavit in support of the application must comply with the requirements of r. 2 of O.14 of the ROC 2012. Upon these considerations being satisfied, the 20 plaintiff will have established a prima facie case and it comes entitled to judgment and the burden shifts to the defendant to satisfy the Court why judgment should not be given against him (per George Seah FJ in National Company For Foreign Trade v. Kayu Raya Sdn. Bhd. [1984] 1 CLJ (Rep) 283 at p.285 e-f). 25 [7] It is also trite law that in a claim for summary judgment the burden is on the defendant to raise triable issues though a complete defence need not be shown; the determination of whether an issue is triable or not must necessarily depend on the facts or the law 30 arising in each case as disclosed in the affidavit evidence before the javascript:DispAct=window.open('/Members/DisplayAct.aspx?CaseActCode=MY_FS_PUA_2012_205&ActSectionNo=14.&SearchId=7mkl','_DisplayAct','');DispAct.focus() javascript:DispAct=window.open('/Members/DisplayAct.aspx?CaseActCode=MY_FS_PUA_2012_205&ActSectionNo=14.&SearchId=7mkl','_DisplayAct','');DispAct.focus() javascript:DispAct=window.open('/Members/DisplayAct.aspx?CaseActCode=MY_FS_PUA_2012_205&ActSectionNo=14.&SearchId=7mkl','_DisplayAct','');DispAct.focus() javascript:DispAct=window.open('/Members/DisplayAct.aspx?CaseActCode=MY_FS_PUA_2012_205&ActSectionNo=14.&SearchId=7mkl','_DisplayAct','');DispAct.focus() javascript:DispCase=window.open('/Members/DisplayCase.aspx?CaseId=2262761986&SearchId=7mkl','_DisplayCase','');DispCase.focus() javascript:DispCase=window.open('/Members/DisplayCase.aspx?CaseId=2262761986&SearchId=7mkl','_DisplayCase','');DispCase.focus() 6 Court (per Mohamed Azmi SCJ in Bank Negara Malaysia v Mohd 5 Ismail & Ors [1992] 2 CLJ Rep 186; [1992] 1 MLJ 400 at p.408 A- B and further on the same page E-F, the Supreme Court held - "Where such assertion, denial or dispute is equivocal, or lacking in precision or is inconsistent with undisputed contemporary documents or other statements by the same deponent, or is inherently improbable in 10 itself, then the judge has a duty to reject such assertion or denial, thereby rendering the issue not triable". [8] In the present case before me, it is pertinent to take note of important milestones which are significant in the determination of 15 the 3 applications before the Court namely - (i) From the exchange of affidavits for the summary application (encl.4) and the striking out application (encl.12), on 2/9/2016, the Plaintiff disclosed for the first time that the Vehicles were procured by the Plaintiff on hire purchase: 38 20 Toyota Hilux from BMW Credit (Malaysia) Sdn Bhd (‘BMW’) and 1 Toyota Hiace Van from Affin Bank Berhad (‘Affin’). (ii) On 21/9/2016, the Defendant requested for a copy of the hire purchase agreements entered between the Plaintiff, BMW and Affin which the Plaintiff did not furnish. 25 (iii) On 24/10/2016 the Defendant filed the discovery application for production and inspection of copies of the same. (iv) On 2/11/2016, the Plaintiff furnished the Defendant a copy of the 38 hire purchase agreements (‘BMW HPAs’) for 30 the 38 Toyota Hilux and the hire purchase agreement entered between the Plaintiff and Affin (‘Affin HPA’) for 1 Toyota Hiace Van. javascript:DispCase=window.open('/Members/DisplayCase.aspx?CaseId=2394098177&SearchId=7mkl','_DisplayCase','');DispCase.focus() javascript:DispCase=window.open('/Members/DisplayCase.aspx?CaseId=2394098177&SearchId=7mkl','_DisplayCase','');DispCase.focus() 7 (v) Due to the production of copies of the BMW HPAs and 5 the Affin HPA, the Defendant on 3/11/2016 withdrew its application for discovery. [9] The BMW HPAs provide, inter alia, as follows: (a) The owner of the vehicles is BMW who has let the 10 vehicles to the Plaintiff as hirer (cl.1 of the BMW HPAs, exhs.A-8 & A-9 pp.22-678, Affidavit of the Defendant affirmed by Zairuddy Zainal on 14/11/2016). (b) Unless and until the payments under the BMW HPAs have been made and the option to purchase has been 15 exercised, the vehicles shall remain the absolute property of BMW and the Plaintiff shall not have any right or interest in the vehicles other than of a bailee (cl.14). (c) As the bailee, the Plaintiff is prohibited from, inter alia, selling, transferring, disposing of or encumbering the 20 vehicles or any right, title or interest therein or sub- letting or parting with possession of the vehicles or attempting, purporting or agreeing to do so and if the Plaintiff breaches this prohibition, the hiring under the BMW HPAs automatically terminates and the Plaintiff 25 shall no longer be in lawful possession of the vehicles (cl.8.1). (d) The schedules of payment in the BMW HPAs also show that the Plaintiff has not fully paid the instalments required under the BMW HPAs (Schedule). 30 (‘HP Prohibitions’) 8 5 [10] The Affin HPA also contains similar HP Prohibitions as set out in para 9 above in favour of Affin. The schedules of payment in the Affin HPA also show that the Plaintiff has not fully paid the instalments under the Affin HPA. 10 [11] In respect of the Representations in para 2(ii)(a) and (b) above, the Plaintiff submitted the Defendant’s complaint on ownership is a technicality as “It is commonplace when people buy cars under hire- purchase to claim to be “owners” of the cars, although technically in 15 law, the owners are the hire-purchase companies.” [12] In respect of the Representation in para 2(ii)(c) above, the Plaintiff submitted - “The Plaintiff did perform the Agreement by delivering the 39 vehicles 20 which were used uninterrupted by the Defendant. Any complaints about the Transfer Option is academic because the Transfer Option is not even applicable until the end of the Term, and in any event, by then the hire- purchase would have expired anyway”. 25 [13] In respect of the Representation in para 2(ii)(d) above, the Plaintiff submitted - “There is NOTHING in the Plaintiff’s Memorandum and Articles that prevent the execution, delivery and performance of the Agreement. The Defendant has shown NO OBJECTIONS by BMW or Affin, neither 30 has the Defendant complained about any interruption to its possession and use of the vehicles throughout”. [14] With respect I am of the view that it is not a technical argument nor can the Plaintiff’s other contentions in paras 12 and 13 above be 35 9 sustained for the following reasons: 5 (i) The Plaintiff’s contention that BMW and Affin do not have objections to the Agreement between the Plaintiff and the Defendant is a bare allegation unsubstantiated by any evidence which is insufficient to raise a triable issue warranting the grant of leave to defend (see Microsoft Corporation v Yong Wai Hong [2008] 3 10 MLJ 309 (CA) at 319[10]; Welfare Printed Circuits Board Co. Ltd v Bumicircuit Technologies (M) Sdn Bhd [2012] MLJU 414 at para 10). (ii) I agreed with the Defendant’s submission that the fact that the Defendant had the possession of the Vehicles without the consent 15 of BMW and Affin exposed the Defendant to the tort of conversion. I draw support from the case of R. H. Willis And Son v. British Car Auctions Ltd. [1978] 1 W. L.R.438 (English Court of Appeal) where the issue turns on whether the plaintiff owners (second hand car dealers) or the auctioneers is to suffer the loss caused by a hirer who 20 purchased the second hand car from the plaintiff owners on hire purchase but who later put the car on auction to the auctioneers claiming that it was his own car despite a warning in the hire purchase agreement that “The goods will not become your property until you have made all the payments. You must not sell them before 25 then”. Lord Denning (as he then was) at pp.441-442 held - “In answering that question in cases such as this, the common law has always acted on the maxim nemo dat quod non habet. It has protected the property rights of the true owner. It has enforced them strictly as against anyone who deals with the goods inconsistently with the 30 dominion of the true owner. Even though the true owner may have been very negligent and the defendant may have acted in complete innocence, nevertheless the common law held him liable in conversion. Both the “innocent acquirer” and the “innocent handler” have been hit hard”. 35 10 5 (iii) Furthermore it is an undisputed fact that the Affin HPA and 32 of the BMW HPAs were executed after the Agreement was executed by the Plaintiff and Defendant. In my judgment there is merit in the Defendant’s submission that if the Plaintiff’s allegation that BMW and Affin were aware of the Agreement and they do not 10 have objections to it is true, it would be reasonable to expect the HP Prohibitions to be omitted from the BMW HPAs and the Affin HPA. However the undisputed contemporaneous documentary evidence of the inclusion of the HP Prohibitions in the BMW HPAs and Affin HPA put to naught the Plaintiff’s contention that the BMW and Affin 15 are aware of the Agreement and consented to the leasing of the Vehicles by the Plaintiff to the Defendant. I reject the Plaintiff’s assertion rendering the issue not triable. (iv) The Plaintiff contended the Defendant is estopped from relying on the issue of Plaintiff’s misrepresentation is 2 fold. 20 Firstly, the Plaintiff argued under the exception under s.19(1)(a) of the Contracts Act 1950 (‘Contracts Act’), the contract is not voidable as the Defendant had the means of discovering the fact of the hire purchase by ordinary diligence. S.19(1) and the exception thereunder read as follows: 25 “(1) When consent to an agreement is caused by coercion, fraud, or misrepresentation, the agreement is a contract voidable at the option of the party whose consent was so caused. … 30 Exception - If such consent was caused by misrepresentation or by silence, fraudulent within the meaning of section 17, the contract, nevertheless, is not voidable, if the party whose consent was so caused had the means of discovering the truth with ordinary 35 diligence”. 11 5 With respect in my judgment the Plaintiff’s argument is untenable. It is my considered opinion based on the case of Admiral Cove Development Sdn Bhd v Balakrishnan a/l Devaraj & Anor [2011] 5 MLJ 309, the material time to consider whether there is misrepresentation is at the time of execution of 10 the Agreement and not thereafter. The question of law before the Federal Court is “What relief is applicable in a case of innocent misrepresentation?” At 321[23] and [27] Mohd Ghazali FCJ (as he then was) (delivering the judgment of the Court) opined - “[23] In the instant appeal, it is a case of a contract for the purchase 15 and sale of property and the contract was completed when the purchaser, ie, the respondents received an executed conveyance and made payment for the purchase price. Since the conveyance has been properly executed by both the appellant and the respondents, we do not think that the latter can recover the purchase monies. Further, there was 20 a delay of more than four years before the respondents decided to pursue the action for rescission”. … [27] We do not think that the sale and purchase agreement for the property in the instant appeal can be set aside for innocent 25 misrepresentation after it has been completed by conveyance and payment of the purchase money. On the part of the appellant as vendor, it had conveyed the property with a good title and has delivered up actual possession or enjoyment thereof. The respondents as purchasers had accepted the conveyance of the property by taking possession and 30 paying the price. Innocent misrepresentation is no ground for setting aside an executed contract. What has been performed is what was agreed to be performed”. Reverting to the factual matrix of this present case, it is 35 undisputed that (i) the Vehicles’ registration cards were given to the Defendant at the earliest on 30/8/2012 which was after the execution of the Agreement (i.e 14/8/2012); (ii) the Plaintiff only furnished copies of the BMW HPAs and the Affin HPA to the 12 Defendant for the first time on 2/11/2016. Thus the Defendant 5 would not have known of the HO prohibitions prior to 2/11/2016. It is not for the Defendant to verify the ownership by BMW and Affin by conducting a ‘simple search’ as at 30/8/2012 as the Plaintiff suggested as there is no obligation of the Defendant to do so in the light of the Representations made by the Plaintiff. 10 Further, I find that the Plaintiff’s claim that the Defendant is aware of the BMW HPAs and the Affin HPA is but an afterthought for the reasons submitted by the Defendant - “(a) By the Defendant’s solicitors’ letter dated 21/9/2016, the Defendant, in requesting for copies of the BMW HPAs and Affin 15 HPA, stated that prior to the receipt of the Plaintiff’s affidavit on 2/9/2016 and Amended Defence and Defence to Counterclaim on 15/9/2016, the Defendant was not aware that the Vehicles were obtained by the Plaintiff on hire-purchase. 20 (b) By the Plaintiff’s solicitors’ response in a letter dated 22/9/2016, the Plaintiff did not deny Defendant’s position that they were not aware that the Vehicles were obtained by the Plaintiff on hire-purchase prior to 2/9/2016. 25 (c) Upon receiving copies of the BMW HPAs and Affin HPA after filing of the discovery application, the Defendant, by a Notice of Rescission dated 14/11/2016 issued by their solicitors, rescinded the Agreement for reason of misrepresentation. The Plaintiff only alleged for the first time on 5/12/2016 that the Defendant was 30 aware of the BMW HPAs and Affin HPA in their affidavit after the issuance of the Notice of Rescission”. (Emphasis added) Therefore I agreed with the Defendant’s submission that - “(a) The Defendant, like any other reasonable person, was clearly 35 induced to entering into the Agreement based on the Representations. The Representations also are not for trivial matters. They are essential and fundamental for every leasing or hire-purchase of vehicles without which the lessee or hirer would not be able to lawfully enjoy and possess the Vehicles – 40 Museprime Properties Ltd v Adhill Properties Ltd, HC (UK). (b) Also, the Plaintiff could not have granted the title and rights set out 13 in the Agreement to the Defendant when it did not have the title 5 and rights in the first place. This is in accord with the settled principle of nemo dat quod non habet - Simpang Empat Plantation v Ali Tan Sri Abdul Kadir, CA”. (v) Secondly, the Defendant argued that the Defendant is 10 estopped because it has elected to affirm the Agreement and continued with the use and possession of the Vehicles for 4 years 3 months and 5 days. To bolster its position, the Defendant relied on - Travelsight (M) Sdn Bhd & Anor v. Atlas Corp Sdn Bhd [2003] 15 6 MLJ 658 at p.665 A-B - “According to the case of Clough v London and North Western Rly Co (1871) LR 7 Ex 26 at p 35 that once an election is unequivocally made, be it in favour of affirmation or of rescission, then the matter comes to an end forever. The election remains put and it cannot be revived since, in 20 law, there is no such thing as partial rescission (see Segar Oil Palm Estate Sdn Bhd v Tay Tho Bok)”. Admiral Cove Development (supra) - “Held … (5) The conduct of the respondents … showed an election to 25 affirm the agreement. The long lapse of time without complaint showed an intention to affirm the contract and was a strong indication that they were not really induced by whatever was said … to enter into the agreement … (6) There was a delay of more than four years before the respondents decided to pursue the action for rescission. Such delay 30 could be fatal. It was difficult, if not impossible, to affirm the Court of Appeal's ruling that the respondents' delay in pursuing the action for rescission was not fatal …”. I find there is no merit in the Plaintiff’s aforesaid contention. In 35 Peyman v Lanjani and others [1984] 3 All ER 703 at p.725j and p.726b-d, the English Court of Appeal followed the Australian case of Coastal Estates Pty Ltd v Melevende [1965] VR 433 in which is found support for the view that knowledge of the legal right to 14 elect to avoid a contract is required for affirmation of it. 5 Stephenson LJ quoted from the judgment of Herring CJ (at 436) as follows: “The first thing to consider is the nature of the conduct of the plaintiff that is relied upon. It is conduct no doubt that could have properly been put forward as evidence that the plaintiff had resolved to affirm, if he had 10 known that he had a right of election. But of course in the present case his conduct has to be looked at on the basis that he did not have any such knowledge. And so looked at it would not appear conduct of such an unequivocal character as to preclude the plaintiff from exercising his right to rescind. By paying the instalments and interest payable under the 15 contract and the rates that the contract required him to pay, the plaintiff was doing nothing inconsistent with disaffirmance. He was doing no more than fulfilling his own obligations under the contract. He was not seeking to exercise rights under the contract adverse to the defendant as vendor, nor was he seeking to gain advantaves for himself. He did not do 20 anything that unequivocally involved an affirmance of the contract, as is the case where a landlord for example with a right to forfeit a lease accepts rent from his tenant. This course the landlord can only justify on the basis that the lease is still on foot”. 25 At p.734 g-j, Slade LJ stated - “Lord Blackburn in Kendall v Hamilton (1879) 4 App Cas 504 at 542, [1874-80] All ER Rep 932 at 950 said: ‘… there cannot be election until there is knowledge of the right to elect.’ For the reasons given by Stephenson and May LJJ, I am of the opinion that this statement, which 30 was cited by Lord Porter in Young v Bristol Aeroplane Co Ltd [1946] 1 All ER 98 at 110, [1946] AC 163 at 186 as being the foundation of the principle of election, still correctly represents the law. With Stephenson and May LJJ, I do not think that a person (such as Mr Peyman in the present case) can be held to have made the irrevocable choice between 35 rescission and affirmation which election involves unless he had knowledge of his legal right to choose and actually chose with that knowledge. I would like to make a few observations as to the practical consequences of this court’s decision on this point, as I see them. If A 40 wishes to allege that B, having had a right of rescission, has elected to affirm a contract, he should in his pleadings, so it seems to me, expressly allege B’s knowledge of the relevant right to rescind, since such knowledge will be an essential fact on which he relies”. 45 Turning to the context of this present case, on the face of the registration card on 30/8/2012, it does not set out the HPA 15 Prohibitions and given my finding that the Defendant prior to 5 2/9/2012 did not know about the HPA Prohibitions, I am of the view the Defendant could not have made any election to affirm the contract. [15] To conclude, I find that the Defendant has shown there is 10 the triable issue that the Plaintiff had fraudulently misrepresented or at the very least, innocently misrepresented to the Defendant of the Representations. For the foregoing reasons, having considered the submissions of the parties, the Court dismissed the Plaintiff's application (encl.4) with costs of RM5,000.00. 15 Defendant’s application under O.18 r.19(1)(b) and/or (d) of the ROC 2012 (encl.12) [16] Vide its Notice of Application dated 9/9/2016, the Defendant is essentially seeking to strike out the Plaintiff's Writ of Summons 20 dated 5/7/2016 and Ameded Statement of Claim dated 23/8/2016 pursuant to O.18 r.19(1)(b) or (d) ROC 2012 and/or the inherent jurisdiction of the Court (encl. 12). The sole ground relied on by the Defendant for striking out is the Plaintiff has frauddulently and/or innocently misrepresented to the Defendant of the representations 25 referred in para 3(i) above. The Defendant has in abundance of caution reserved its right to rely on other defences and counterclaim if a full trial is required. [17] In the oft cited case of Bandar Builder Sdn. Bhd. & 2 Ors. v. 30 United Malayan Banking Corporation Bhd. [1993] 4 CLJ 7, the javascript:DispAct=window.open('/Members/DisplayAct.aspx?CaseActCode=MY_FS_PUA_2012_205&ActSectionNo=18.&SearchId=8mkl','_DisplayAct','');DispAct.focus() javascript:DispCase=window.open('/Members/DisplayCase.aspx?CaseId=2477851138&SearchId=8mkl','_DisplayCase','');DispCase.focus() javascript:DispCase=window.open('/Members/DisplayCase.aspx?CaseId=2477851138&SearchId=8mkl','_DisplayCase','');DispCase.focus() 16 respondent's claim against the appellants is for the recovery of the 5 amount due and owing under various banking facilities. The appellants sought to strike the respondent's reply and defence to counterclaim whilst the respondent sought to strike out the appellant's counterclaim. The Registrar refused both applications and on appeal the learned Judge dismissed both appeals. The 10 parties appealed further. In dismissing both the appeals, the Supreme Court opined - (a) “The principles upon which the Court acts in exercising its power under any of the four limbs of O.18 r.19(1) Rules of the High Court are well settled. It is only in plain and obvious cases that 15 recourse should be had to the summary process under this rule (per Lindley M.R. in Hubbuck v. Wilkinson [1899] 1 QB 86, p.91), and this summary procedure can only be adopted when it can be clearly seen that a claim or answer is on the face of it "obviously unsustainable" (Attorney-General of Duchy of Lancaster v. L. & 20 N.W. Ry. Co. [1892] 3 Ch.274, CA). It cannot be exercised by a minute examination of the documents and facts of the case, in order to see whether the party has a cause of action or a defence (Wenlock v. Moloney [1965] 1 WLR 1238; [1965] 2 All ER 871, CA.). ... The Court must be satisfied that there is no reasonable 25 cause of action or that the claims are frivolous or vexatious or that the defences raised are not arguable". (p.11 e-h left column); and (b) "It has been said that so long as the pleadings disclose some 30 cause of action or raise some question fit to be decided by the Judge, the mere fact that the case is weak and not likely to succeed at the trial is no ground for the pleadings to be struck out (Moore v. Lawson [1915] 31 TLR 418 CA); (Wenlock v. Moloney) (supra)." 35 [18] In the light of my finding that the Defendant has shown that the Plaintiff had fraudulently misrepresented or at the very least, innocently misrepresented to the Defendant of the Representations, the Plaintiff’s action is obviously unsustainable and ought to be 40 struck out. javascript:DispAct=window.open('/Members/DisplayAct.aspx?CaseActCode=MY_FS_PUA_2012_205&ActSectionNo=18.&SearchId=8mkl','_DisplayAct','');DispAct.focus() javascript:DispAct=window.open('/Members/DisplayAct.aspx?CaseActCode=MY_FS_PUA_2012_205&ActSectionNo=18.&SearchId=8mkl','_DisplayAct','');DispAct.focus() 17 5 [19] In the circumstances the Court allowed the Defendant's application (encl.12) with costs of RM5,000.00. Defendant’s application under O. 81 of the ROC 2012 (encl. 27) [20] Vide its Notice of Application dated 15/11/2016 (encl.27), the 10 Defendant applied to enter summary judgment against the Plaintiff as follows: “(1) Penamatan (rescission) Perjanjian yang bertajuk Agreement between Preferred Synergy Sdn Bhd (“the Company”) and Beta Tegap Sdn Bhd (“the Operator”) for the leasing and management 15 of vehicles for Beta Tegap Sdn Bhd’s contract for the automated enforcement system (“AES”) bertarikh 14.8.2012 (“Perjanjian”) ab initio; (2) Deklarasi bahawa Perjanjian tersebut adalah tidak sah dan 20 terbatal (null and void) ab initio; (3) Perintah bahawa Plaintif hendaklah memulangkan jumlah RM1,644,514.30 ataupun RM1,590,168.30 kepada Defendan bersama dengan faedah pada kadar 5% setahun daripada 25 18.8.2015 sehingga tarikh penyelesaian penuh; (4) Secara alternatif, jumlah wang yang perlu dipulangkan oleh Plaintif kepada Defendan ditaksir bersama dengan faedah pada kadar 5% setahun; 30 (5) Kos”. [21] In an application under O.81 ROC 2012, the principles governing summary judgment under O.14 ROC 2012 are applicable. 35 In Woolley Development Sdn Bhd v Mikien Sdn Bhd [2008] 2 CLJ 303; [2008] 1 MLJ 585, the Court of Appeal held that: "[45] This application was made under O 81 of the RHC. Order 81 r 3 of the RHC states that: Unless on the hearing of an application under rule 1 either the 40 court dismisses the application or the defendant satisfies the court javascript:DispAct=window.open('/Members/DisplayAct.aspx?CaseActCode=MY_FS_PUA_2012_205&ActSectionNo=81.&SearchId=9mkl','_DisplayAct','');DispAct.focus() javascript:DispAct=window.open('/Members/DisplayAct.aspx?CaseActCode=MY_FS_PUA_2012_205&ActSectionNo=14.&SearchId=9mkl','_DisplayAct','');DispAct.focus() javascript:DispCase=window.open('/Members/DisplayCase.aspx?CaseId=2820342785&SearchId=9mkl','_DisplayCase','');DispCase.focus() javascript:DispCase=window.open('/Members/DisplayCase.aspx?CaseId=2820342785&SearchId=9mkl','_DisplayCase','');DispCase.focus() javascript:DispAct=window.open('/Members/DisplayAct.aspx?CaseActCode=MY_FS_PUA_1980_050&ActSectionNo=81.&SearchId=9mkl','_DisplayAct','');DispAct.focus() javascript:DispAct=window.open('/Members/DisplayAct.aspx?CaseActCode=MY_FS_PUA_1980_050&ActSectionNo=81.&SearchId=9mkl','_DisplayAct','');DispAct.focus() javascript:DispAct=window.open('/Members/DisplayAct.aspx?CaseActCode=MY_FS_PUA_1980_050&ActSectionNo=81.&SearchId=9mkl','_DisplayAct','');DispAct.focus() 18 that there is an issue or question in dispute which ought to be tried 5 or that there ought for some other reason to be a trial of the action, the court may give judgment for the plaintiff in the action. [46] The plaintiff in a summary judgment application first needs to establish and (sic) prima facie case that 'he is entitled to judgment'. The 10 burden then shifts to the defendant to satisfy the court why judgment should not be given against him (see National Company For Foreign Trade v. Kayu Raya Sdn Bhd [1984] 2 MLJ 302 per Seah FJ). 'Ought' in O. 81 r. 3, is an expression of a strong probability. In other words, the issue in dispute must be critically investigated as genuine. This is what a 15 defendant needs to prove to be entitled to a trial of that disputed issue". [22] In addressing the present application of the Defendant, I adopt all that I have alluded to on the issue of whether there is misrepresentation by the Plaintiff which I referred to when dealing 20 with the Plaintiff’s application for summary judgment in encl.4 above. [23] In the context of the instant case the burden is then shifted to the Plaintiff to satisfy the Court why Judgment should not be entered against them. I find the Plaintiff had not discharged this burden as it 25 is plain that the Plaintiff has no bona fide defence to the Defendant’s Re-Amended Counterclaim for misrepresentation and there are no triable issues raised in this regard. [24] The Defendant had exercised its right of rescission vide a 30 Notice of Rescission dated 14/11/2016 issued by the Defendant’s solicitors rescinding the Agreement. Having made a finding that there is misrepresentation by the Plaintiff, I allowed the Defendant’s Re-Amended Counterclaim for rescission of the Agreement ab initio in accordance with prayers 1 and 2 in encl.27. I draw support from 35 the following authorities: javascript:DispAct=window.open('/Members/DisplayAct.aspx?CaseActCode=MY_FS_PUA_1980_050&ActSectionNo=81.&SearchId=9mkl','_DisplayAct','');DispAct.focus() 19 Admiral Cove Development Sdn Bhd (supra)(FC) at 320[21] and 5 [22] - “[21] The question of law posed in the instant appeal is 'what relief is applicable in a case of innocent misrepresentation'. We would echo the words of the learned judge in Sim Thong Realty Sdn Bhd that the legal position in Malaysia is that a representee who has been induced by an 10 innocent misrepresentation may sue for rescission and consequent restitution. But we would also add that a representee in such circumstances may only rescind the contract if it is still executory and if all parties can be restored to their original position. 15 … [22] We would reiterate that the legal position in Malaysia is that a representee who has been induced by an innocent misrepresentation may sue for rescission and consequent restitution”. Sim Thong Realty Sdn Bhd v. Teh Kim Dar @ Tee Kim [2003] 3 20 MLJ 460 (CA) at p.471 citing a passage in Dunbar Bank plc v Nadeem [1998] 3 All ER 876 (at p.886) - “The matter was put clearly by Bowen LJ in Newbigging v Adam (1886) 34 Ch D 582 at 592 where he said: '… when you come to consider what is the exact relief to which a 25 person is entitled in a case of misrepresentation it seems to me to be this, and nothing more, that he is entitled to have the contract rescinded, and is entitled accordingly to all the incidents and consequences of such rescission. It is said that the injured party is entitled to be replaced in statu quo. It seems to me that when you are 30 dealing with innocent misrepresentation you must understand that proposition that he is to be replaced in statu quo with this limitation— that he is not to be replaced in exactly the same position in all respects, otherwise he would be entitled to recover damages, but is to be replaced in his position so far as regards the rights and 35 obligations which have been created by the contract into which he has been induced to enter. … 'There ought, as it appears to me, to be a giving back and a taking back on both sides, including the giving back and taking back of the 40 obligations which the contract has created, as well as the giving back and the taking back of the advantages.'”. 20 (per Bowen LJ at p.595) 5 Berjaya Times Squares Sdn Bhd (formerly known as Berjaya Ditan Sdn Bhd) v M Concept Sdn Bhd [2010] 1 MLJ 597 at 608 [16] - “[16] The hallmark of the equitable remedy of rescission is that it is only available to set aside contracts that are voidable by reason of the 10 ingredient of free consent, which is the sine qua non in the making of a contract, having been vitiated by an element external to the contract. Examples of elements that vitiate free consent are fraud, misrepresentation, duress, undue influence and a breach of fiduciary duty”. 15 [25] As a matter of law, upon rescission of the Agreement, any person who has received any advantage under the Agreement or contract is bound to restore any advantage which he had received to the person from whom he received it. In support of this position I 20 relied on s.66 Contracts Act 1950; Yong Mok Hin v. United Malay States Sugar Industries Ltd. [1967] 2 MLJ 9 (FC); Jong Chuk v. Chong Tung Sang & Ors (No 5) [1999] 8 CLJ 268 (HC) and the dicta of Bowen LJ in Newbigging v Adam (supra) at p.595 quoted in para 25 above. 25 [26] Referring to prayer 3 in encl.27, the Defendant submitted the sum of RM1,644,514.30 relates to the possession of vehicle until November whilst RM1,590,168.30 took into account the rental payable till December and the difference between the sum paid by 30 the Defendant to the Plaintiff for the supply of the Vehicles and the actual costs incurred by the Plaintiff in procuring the Vehicles from BMW and Affin. 21 5 [27] Learned Plaintiff Counsel highlighted that prayers 3 and 4 in encl.27 are alternative reliefs which relate to the computation of value or benefit and submitted the more appropiate relief would be prayer 4, i.e the actual computation be sent for assessment. [28] In the premise, I allowed the Defendant’s application in encl.27 10 for summary judgment in terms of prayers 1, 2, 4 and 5, being costs of RM5,000.00. Dated: 29/9/2017 15 SGD. (LAU BEE LAN) 20 Judge Counsel for the Plaintiff: Encik Chan Kheng Hoe together with 25 Cik Yang Lee Yuen and Encik Daryl Khor Tet Woei Messrs Kheng Hoe Advocates & Solicitors A3-3-3A, Block A3, Solaris Dutamas No.1, Jalan Dutamas 1 30 50480 Kuala Lumpur 35 22 5 Counsel for the Defendant: Encik Mong Chung Seng together with Cik Lee Yi Ting Messrs Lee Hishammuddin Allen & Gledhill 10 Advocates & Solicitors Level 6, Menara 1 Dutamas (formerly known as Menara Sapura Kencana Petroleum) Solaris Dutamas No.1, Jalan Dutamas 1 15 50480 Kuala Lumpur	39,417	Tika 2.6.0
A72NCC-2045-11-2016	PLAINTIF Pn. Serena Isabelle binti Azizuddin Bersama Pn. Zainab Hanis binti Zulkifli (Pelatih Dalam Kamar) Tetuan Shearn Delamore & Co, Kuala Lumpur. DEFENDAN En. Ong Siew Wan Tetuan Andrew David Wong & Ong Kuantan, Pahang.	null	29/09/2017	PN NURUNAIM BINTI ABDULLAH	https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=f872ccc2-760a-4d7e-aa97-db0696e827a9&Inline=true	1 DALAM PERKARA MAHKAMAH MAJISTRET DI KUANTAN DALAM NEGERI PAHANG DARUL MAKMUR KES SIVIL NO: A72NCC-2045-11-2016 ANTARA CARLSBERG MARKETING SDN BHD (NO. SYARIKAT : 140534-M) …PLAINTIF DAN 1. FANTASTIC THAI CUISINE (NO. PENDAFTARAN : CA0202241-H) 2. TAN KIM FONG (NO. K/P BARU: 761224-06-5230) …DEFENDAN ALASAN PENGHAKIMAN 2 FAKTA KES [ 1 ] Plaintif merupakan sebuah syarikat yang terlibat dalam perniagaan pemasaran dan pengedaran minuman (arak dan bukan arak) dan Defendan Pertama merupakan pernigaan hak milik tunggal. Defendan Kedua, seorang individu yang merupakan pemilik tunggal perniagaan Defendan Pertama. [ 2 ] Plaintif dan Defendan Pertama telah memasuki satu perjanjian Saluran Jualan ( Outlet Agreement) (“perjanjian” tersebut) bertarikh 1hb Oktober 2013 (ID 1) untuk Defendan Pertama membeli produk bir Plaintif dan menjualnya di tempat perniagaan Defendan Pertama. Manakala, satu Surat Jaminan Dan Tanggung Rugi bertarikh 1hb OKtober 2013 (“Surat Jaminan” tersebut) (ID 2) telah diberikan oleh Defendan Kedua kepada Plaintif untuk menjamin Defendan Pertama. [ 3 ] Selaras dengan perjanjian tersebut, Plaintif telah mendahulukan wang perbelanjaan sebanyak RM 50, 000.00 kepada Defendan Pertama sebagai tawaran perdagangan dan perbelanjaan. 3 [ 4 ] Antara terma perjanjian adalah Defendan Pertama hendaklah memastikan sasaran jualan bulanan dan jumlah sasaran jualan dicapai mengikut Seksyen B, Jadual 2 Perjanjian tersebut. Walau bagaimanapun, Defendan Pertama telah gagal mencapai Sasaran Jualan yang dikehendaki dalam perjanjian tersebut. [ 5 ] Oleh yang demikian, Plaintif menuntut daripada Defendan-Defendan secara bersesama dan berasingan wang sejumah RM 50, 000.00 bersama faedah ke atasnya pada kadar 5% setahun dari tarikh penghakiman hingga tarikh penyelesaian penuh beserta kos. [ 6 ] Penghakiman Ingkar Kehadiran telah dimasukkan terhadap Defendan Pertama dan kini perbicaraan dijalankan terhadap Defendan Kedua. Perbicaraan dijalankan dengan 5 orang saksi Plaintif dan 4 orang saksi Defendan. [ 7 ] Di akhir kes, atas imbangan kebarangkalian, Mahkamah menolak tuntutan Plaintif dengan kos. Plaintif telah tidak berpuas hati dengan keputusan Mahkamah dan mengemukakan rayun ini. 4 KES PLAINTIF. Satu Perjanjian telah dimasuki antara Plaintif dan Defendan-Defendan untuk Defendan-Defendan membeli produk bir Plaintif seterusnya dijual di premis Defendan Pertama. Sebagai balasan, Plaintif bersetuju untuk memberikan kepada Defendan Pertama tawaran perdagangan, sokongan, promosi dan perbelanjaan. Atas sebab itu, Plaintif memberikan wang sebanyak RM 50, 000.00 sebagai wang pendahuluan dengan syarat Defendan Pertama perlu mencapai sasaran jualan yang dipersetujui di dalam perjanjian tersebut. Barang-barang Plaintif juga telah turut dihantar ke premis Defendan Pertama. Plaintif menghujahkan juga bahawa perjanjian tersebut telah ditandatangani oleh Defendan Pertama dan Surat Jaminan ditandatangani oleh Defendan Kedua. Carian Suruhanjaya Syarikat Malaysia (SSM) telah menunjukkan bahawa Defendan Kedua adalah pemilik tunggal Defendan Pertama. Maka, Plaintif menuntut sejumlah wang RM 50, 000.00 daripada Defendan Pertama dan Kedua yang telah menandatangani perjanjian dan Surat Jaminan tersebut. 5 KES DEFENDAN Defendan menghujahkan bahawa Plaintif telah gagal membawa masuk bukti Perjanjian dan Surat Jaminan yang ditandatangani oleh Defendan Kedua sebagai ekshibit sebaliknya ia kekal sebagai ID sehingga kes Plaintif ditutup. Tambahan pula, tandatangan dalam perjanjian tersebut bukanlah tandatangan Defendan Kedua. Maka, Defendan menghujahkan bahawa tuntutan Plaintif patut ditolak dengan kos. ISU-ISU 1. Sama ada Defendan Kedua ada menandatangani Surat Jaminan dan Tanggung Rugi bertarikh 1hb Oktober 2013. 2. Sama ada produk Plaintif telah dihantar kepada Defendan Pertama sewaktu Defendan Kedua menjadi pemilik tunggal Defendan Pertama. 3. Sama ada Defendan Kedua bertanggungan membayar kepada Plaintif jumlah wang sebanyak RM 50,000.00 di bawah Surat Jaminan dan Tanggung Rugi bertarikh 1hb Oktober 2013. 6 Isu pertama: Sama ada Defendan Kedua ada menandatangani Surat Jaminan dan Tanggung Rugi bertarikh 1hb Oktober 2013. [ 1 ] Plaintif menghujahkan bahawa Penghakiman Ingkar Kehadiran telah direkodkan ke atas Defendan Pertama. Maka, Defendan Kedua sebagai pemilik tunggal perniagaan Defendan Pertama juga adalah bertanggungan bersama dengan Defendan Pertama. [ 2 ] Bukti bahawa Defendan Kedua adalah pemilik tunggal Defendan Pertama ditunjukkan melalui hasil carian SSM bertarikh 21hb Februari 2017 (D5). Berdasarkan rekod carian SSM ini juga menunjukkan bahawa Defendan Kedua adalah individu yang telah mendaftarkan perniagaan Defendan Pertama. [ 3 ] Selaras dengan peruntukan seksyen 6(1) Akta Pendaftaran Perniagaan 1956, memandangkan nama Defendan kedua yang direkodkan di dalam SSM, maka Defendan Kedua selaku penjamin kepada Defendan Pertama adalah bertanggungan membayar kepada Plaintif (Salim Investment Pte Ltd v Sutrasegi Sdn Bhd & Ors [2016] 10 MLJ 496). 7 [ 4 ] Peguamcara Plaintif juga menghujahkan bahawa tarikh Perjanjian dan Surat Jaminan bertarikh 1hb Oktober 2013 adalah Perjanjian yang telah diundur tarikh (‘backdated’) dan Defendan Pertama didaftarkan di SSM pada tarikh 7hb Oktober 2013. Perkara ini telah dijelaskan oleh SP-2 bahawa setiap perjanjian akan bertarikh awal bulan bulan. Namun perkara ini tidak dicabar oleh Peguamcara Defendan dan ia boleh dianggap benar dan diterima oleh Plaintif (Wong Swee Chin v PP [1981] 1 MLJ 212). [ 5 ] Tambahan pula, butir-butir yang dinyatakan di dalam Surat Jaminan tersebut adalah butir-butir nama penuh dan nombor kad pengenalan Defendan Kedua. Ia juga adalah butir-butir yang sama yang turut terdapat di dalam carian SSM. Maka, Peguamcara Plaintif menghujahkan bahawa Defendan Kedua telah memberikan butir-butir peribadinya kepada Plaintif bagi tujuan Perjanjian dan Surat Jaminan tersebut. [ 6 ] Selanjutnya, Peguamcara Plaintif menghujahkan bahawa SP-2 telah menyaksikan Defendan Kedua menandatangani Perjanjian dan Surat Jaminan tersebut. SP-2 juga telah berjumpa dengan Defendan Kedua sebelum Perjanjian tersebut ditandatangani untuk membincangkan 8 syarat-syarat Perjanjian dan Surat Jaminan tersebut. Kini, Defendan Kedua seharusnya tidak dibenarkan untuk menafikan bahawa Defendan kedua telah menandatangani Perjanjian dan Surat Jaminan tersebut. [ 7 ] Fakta bahawa tandatangan di dalam surat jaminan bukan tandatangan Defendan Kedua, Plaintif menghujahkan bahawa tandatangan yang berbeza tidak semestinya menunjukkan adanya bukti pemalsuan (McLaren Saksama (M) Sdn Bhd v Hong Leong Bank Bhd [2014] 7 MLJ 104). Tambahan pula, Defendan tidak kemukakan laporan pakar tandatangan bagi membezakan tandatangan Defendan Kedua yang sebenar dengan tandatangan yang terdapat dalam Perjanjian dan Surat Jaminan tersebut. [ 8 ] Kegagalan Defendan Kedua mengemukakan laporan pakar menjadikan kes Defendan fatal (RHB Bank Bhd v Yap Ping Kon & Anor [2007] 2 MLJ 65); Mohamed Sam bin Sailan v SYKT Asal Construction Sdn Bhd [2014] 10 MLJ 239). Plaintif juga bergantung kepada ‘circumstantial evidence’ yang menunjukkan bahawa Defendan Kedua telah menandatangani Perjanjian dan Surat Jaminan tersebut (Dato Mokhtar bin Hashim & Anor v Public Prosecutor [1983] 2 MLJ 232). 9 [ 9 ] Maka dengan itu menurut Peguamcara Plaintif, Defendan Kedua masih bertanggungan membayar kepada Plaintif wang sejumlah RM 50, 000.00 tersebut. [ 10 ] Defendan menghujahkan bahawa asas kepada tuntutan Plaintif ini adalah bergantung kepada Surat Jaminan dan Tanggung Rugi bertarikh 1hb Oktober 2013 yang ditandatangani antara Plaintif dan Defendan Kedua. Walau bagaimanapun, Surat jaminan ini telah gagal dibawa masuk sebagai bukti dan kekal sebagai “ID” iaitu “ID6” sehingga tamat perbicaraan. [ 11 ] Maka, Defendan menghujahkan bahawa Mahkamah tidak perlu mengambilkira Surat Jaminan sebagai bukti kerana ianya hanya untuk ‘identification document’ sahaja dan tidak dimasukkan sebagai ekshibit (Joseph Thambirajah v Bank Buruh (M) Bhd (now known as BSN Commercial Bank (M) Bhd) (2008) 2 MLJ 773) dan dokumen yang ditandakan sebagai ID kekal ‘inadmissible’ (Soo Hong & Leong Kew Moi v UMBC (1997) 1 MLJ 690). 10 [ 12 ] Tambahan pula, “ID6” tidak dimatikan setem. Menurut peruntukan seksyen 52(1) Akta Stem 1949, tiada mana-mana dokumen boleh diterima sebagai bukti melainkan ianya telah dimati setem. Dalam kes ini, “ID6” telah ditempatkan di dalam Ikatan Dokumen Bahagian C iaitu kewujudan dan keesahan dokumen dipertikai. Sehingga tamat perbicaraan, “ID6” kekal sebagai “ID” dan tuntutan Plaintif yang bergantung kepada Surat Jaminan ini harus ditolak oleh Mahkamah ini. [ 13 ] Peguamcara Defendan menghujahkan lagi bahawa Defendan Pertama didaftarkan pada 7hb Oktober 2013 sedangkan Perjanjian dan Surat Jaminan tersebut telah ditandatangani pada 1hb Oktober 2013. Ini menujukkan bahawa Perjanjian dan Surat Jaminan tersebut telah ditandatangani lebih awal daripada Defendan pertama didaftarkan dan diwujudkan. Menurut Peguamcara Defendan, dokumen ini adalah satu ‘fabricated document’ memandangkan Defendan Pertama belum wujud dan belum didaftarakan perniagaannya. [ 14 ] Berkenaan isu perbezaan tandatangan, Defendan menghujahkan bahawa berdasarkan peruntukan seksyen 73(1) Akta Keterangan 1950, Mahkamah mempunyai kuasa untuk membuat perbezaan tandatangan . 11 Ini boleh dilakukan dengan cara Mahkamah membuat perbandingan tandatangan dengan bukti material (Syed Abu Bakar bin Ahmad v Public Prosecutor (1984) 2 MLJ 19 FC; Siaw Kim Seong v Siew Swee Yin (f) & Anor (2009) 1 MLJ 349). Maka dengan itu, terdapat perbezaan tandatangan Defendan Kedua yang sebenar dengan tandatangan di dalam Surat Jaminan tersebut. [ 15 ] Atas sebab itu, Peguamcara Defendan menghujahkan bahawa tuntutan Plaintif harus ditolak dengan kos. Dapatan Mahkamah. [ 16 ] Mahkamah merujuk kepada perkara asas kes ini. Secara keseluruhannya, asas kes ini adalah terletak kepada keesahan Surat Jaminan yang mengikat Defendan Kedua selaku penjamin kepada Defendan Pertama untuk transaksi bernilai RM 50, 000.00 yang wujud antara Defendan Pertama dan Plaintif. Hubungan Defendan Pertama dan Defendan Kedua. [ 17 ] Pertama, Mahkamah merujuk kepada hubungan antara Defendan Pertama dan Defendan Kedua. Sebagaimana hujahan Plaintif, Defendan 12 Kedua merupakan pemilik tunggal Defendan Pertama berdasarkan kepada carian SSM bertarikh 21hb Feb 2017. Mahkamah bersetuju dengan hal ini memandangkan carian SSM adalah ‘conclusive evidence’ (Nadin Properties Sdn Bhd v Bostonweb Academy Sdn Bhd [2015] MLJU 672) bagi menunjukkan hubungan antara Defendan Pertama dan Kedua. [ 18 ] Kedua, Mahkamah mendengar keterangan Defendan Kedua dalam hal hubungan Defendan Kedua dengan Defendan Pertama. Defendan Kedua memberikan keterangan bahawa Defendan Kedua mendaftarkan Defendan Pertama kerana ingin mencuba perniagaan dan kerja baru atas cadangan seorang bernama Liang Siew Choi. Alamat dan premis tempat perniagaan Defendan Pertama ini telah diberikan oleh penama Liang Siew Choi bagi tujuan pendaftaran SSM. Walau bagaimanapun, Defendan Kedua menyatakan bahawa perniagaan ini tidak pernah dimulakan selepas ianya didaftarkan. [ 19 ] Saksi Plaintif SP-5 juga memberikan keterangan bahawa di dalam setiap invoice penghantaran produk Plaintif kepada Defendan Pertama, https://www.lexisnexis.com/my/legal/search/runRemoteLink.do?A=0.10694250474704958&bct=A&service=citation&risb=21_T26478183727&langcountry=MY&linkInfo=F%23MY%23MLJU%23sel1%252015%25page%25672%25year%252015%25 https://www.lexisnexis.com/my/legal/search/runRemoteLink.do?A=0.10694250474704958&bct=A&service=citation&risb=21_T26478183727&langcountry=MY&linkInfo=F%23MY%23MLJU%23sel1%252015%25page%25672%25year%252015%25 13 terdapat nombor telefon seorang bernama Liang Siew Choi atau turut dikenali sebagai Sam. [ 20 ] Pada hemat Mahkamah, carian SSM telah menunjukkan hubungan Defendan Pertama dan Kedua . Ia juga adalah bukti ‘Prima Facie’ (IBIG @ David Rampas & Anor v Terisah Bahan & Ors [2016] MLJU 368) bahawa Defendan Kedua adalah pemilik tunggal kepada Defendan Pertama. Tetapi bukti ini bukanlah ‘the only indicators’ yang boleh menunjukkan bahawa transaksi ini diuruskan oleh Defendan Kedua apabila SP-5 sendiri mengesahkan bahawa dalam setiap invoice, terdapat nombor telefon seseorang yang dikenali sebagai Sam yang turut terlibat dalam transaksi penghantaran produk bir Plaintif kepada Defendan Pertama. Tarikh Perjanjian [ 21 ] Carian SSM juga bukanlah ‘the only indicators’ yang boleh menunjukkan bahawa transaksi ini telah berlaku apabila amat mustahil untuk Mahkamah menerima suatu perjanjian yang ditandatangani sebelum perniagaan Defendan Pertama ditubuhkan atau dimulakan. 14 [ 22 ] Berpandukan kepada carian SSM, kini Mahkamah focus kepada tarikh Defendan Pertama didaftarakan. Berdasarkan kepada carian SSM bertarikh 21hb Februari 2017 telah menunjukkan bahawa perniagaan Defendan Pertama didaftarkan pada 7hb Oktober 2013 manakala perjanjian tersebut ditandatangani pada 1hb Oktober 2013. [ 23 ] Ini bermakna perjanjian ditandatangani lebih awal sebelum perniagaan Defendan Pertama didaftarkan. [ 24 ] Kemudian, Mahkamah merujuk kepada keterangan saksi plaintif iaitu SP-2. SP-2 di dalam keterangannya menjelaskan bahawa perjanjian bertarikh 1hb Oktober 2013 adalah perjanjian yang diundur tarikh ‘backdated’ kerana semua perjanjian akan diberi tarikh awal bulan. [ 25 ] Daripada carian SSM dan keterangan SP-2 ini telah menunjukkan bahawa perjanjian tersebut telah ditandatangani untuk satu obligasi dan tanggungjawab Defendan Pertama yang belum wujud. Bukan sahaja obligasi dan tanggungjawab, malah entity Defendan Pertama juga belum wujud sewaktu perjanjian ini ditandatangani. 15 [ 26 ] Begitu juga dengan Surat Jaminan. Defendan Kedua dikatakan menandatangai Surat Jaminan pada 1hb Oktober 2013 untuk menjamin Defendan Pertama iaitu satu entity dan obligasi yang belum wujud pada tarikh 1hb Oktober 2013. [ 27 ] Maka, adalah jelas di sisi undang-undang bahawa perjanjian yang ditandatangani untuk satu entity yang belum wujud merupakan satu perjanjian yang ‘bad in law’. Malahan, tindakan Plaintif yang menyatakan bahawa perjanjian tersebut telah diundur tarikh adalah bertentangan dengan perinsip undang-undang (Inter Heritage (M) Sdn Bhd v Asa Sport Sdn Bhd (2009) 2 CLJ 221) dan sesuatu yang bertentangan dengan undang-undang ‘illegal’ tidak akan memberi kesan yang ‘legal’ kepada pihak-pihak yang mengingkarinya. [ 28 ] Begitu juga Perjanjian dan Surat Jaminan dalam kes ini yang telah diundur tarikh, akhirnya akan menjadi ‘void’ (Trengganu Forest Products Sdn Bhd v. Cosco Container Lines Company Ltd & Anor [2009] 7 CLJ 573). 16 Surat Jaminan sebagai “ID” [ 29 ] Kini Mahkamah berpindah kepada isu yang lebih penting dalam kes ini iaitu Surat Jaminan kekal ditandakan sebagai “ID” sehingga kes Plaintif ditutup. [ 30 ] Plaintif menghujahkan bahawa Surat Jaminan seharusnya ditandakan sebagai ekshibit kerana berpandukan kepada seksyen 73A Akta Keterangan 1950, Plaintif telah kemukakan perjanjian asal melalui saksi SP-3 dan SP-3 juga telah menandatangani Perjanjian tersebut. [ 31 ] Begitu juga dengan Surat Jaminan. Plaintif telah kemukakan Surat Jaminan yang asal melalui SP-2 iaitu saksi kepada Surat Jaminan tersebut. [ 32 ] Mahkamah merujuk kepada keterangan saksi-saksi plaintif untuk menilai saksi yang benar-benar telah mempunyai pengetahuan berkenaan dengan Perjanjian dan Surat Jaminan tersebut. Seterusnya Mahkamah boleh menerima masuk dokumen-dokumen ini sebagai ekshibit Mahkamah. 17 [ 33 ] Merujuk kepada keterangan saksi SP-1 selaku ‘Plaintiff’s Credit Control Manager and also Manager for Sales Accounting of the Finance Department’. SP-1 menyatakan semasa pemeriksaan balas bahawa SP-1 tidak pernah berurusan sendiri dengan Defendan Kedua, tidak tahu siapa menandatangani Perjanjian tersebut juga tidak tahu sama ada transaksi tersebut sebenarnya telah berlaku atau tidak. [ 34 ] SP-1 tahu siapa ‘person in charge’ transaksi ini iaitu Michael Leow. Tetapi Michael Leow tidak dipanggil ke Mahkamah sebagai saksi bagi membuktikan transaksi benar-benar berlaku atau tidak. [ 35 ] SP-1 kemudian menyatakan bahawa SP-1 memberikan keterangan berdasarkan rekod yang ada di dalam simpanan SP-1 sahaja. Ini kerana SP-1 mula bekerja bersama Plaintif pada Disember 2016 sedangkan transaksi ini berlaku pada Oktober 2013. Kesannya, keterangan SP-1 ini hanya memberi ‘little probative value’ dalam kes Plaintif (Kepala Batas Bihun Sdn Bhd v TNB [2016] 10 CLJ 68 18 [ 36 ] Pada hemat Mahkamah, memandangkan SP-1 bukan pembuat dokumen perjanjian tersebut dan keterangan SP-1 semuanya berdasarkan rekod yang ada dalam simpanan Plaintif, ia bukan pengetahuan peribadi SP-1, ditambah dengan keadaan SP-1 yang dan tidak tahu sama ada transaksi ini benar-benar telah berlaku atau tidak dan SP-1 tidak berurusan secara terus dengan Defendan Kedua untuk tandatangani perjanjian dan Surat Jaminan ini menjadikan kes Plaintif melalui keterangan SP-1 sebagai ‘hearsay evidence’ (Santhimathy A/p T Venugopal v Kumara Sakravarthia/l S Thirupathi & Ors And Tetuan Sabri Nazli Lana & Azizan – Third Party [2010] MLJU 1762) dan dokumen yang dirujuk bagi menyokong keterangan SP-1 menjadi ‘inadmissible’ (Tempil Perkakas Sdn Bbhd v Foo Sex Hong (T/A Agrodrive Engineering [1996] 5 MLJ 542). [ 37 ] Mahkamah merujuk pula kepada keterangan SP-2 selaku ‘Plaintiff’s Factory Manager’ . SP-2 juga merupakan saksi Surat Jaminan tersebut sebagaimana wujudnya tandatangan SP-2 di bahagian bawah Surat Jaminan tersebut. 19 [ 38 ] Peguamcara Plaintif menghujahkan bahawa fakta Surat Jaminan kekal sebagai ID selepas perbicaraan tidak bermakna bukti ini tidak perlu diambil kira oleh Mahkamah kerana cubaan untuk mengemukakannya telah dibuat oleh Peguamcara Plaintif namun tidak diterima oleh Mahkamah ini (Bank of Tokyo-Mitsubishi (Malaysia) Berhad v Sim Lim Holdings Berhad & Ors [2001] 2 CLJ 474). Rujukan dibuat kepada seksyen 73A Akta Keterangan 1950 dan salinan asal Surat Jaminan telah dikemukan melalui saksi ini. [ 39 ] Peguamcara Defendan menghujahkan bahawa pembuat dokumen perlu dipanggil untuk membuktikan dokumen dan kebenaran fakta yang terkandung di dalamnya (Allied (Malaysia) Bhd v Yau Jiok Hua (1998) 6 MLJ 1). [ 40 ] Mahkamah bezakan kes hari ini dengan kes Bank of Tokyo-Mitsubishi (Malaysia) Berhad v Sim Lim Holdings Berhad & Ors [2001] 2 CLJ 474 yang dirujuk oleh Peguamcara Plaintif. Ini kerana dalam kes yang dirujuk oleh Peguamcara Plaintif ini, dokumen ‘ID’ tersebut diterima sebagai ‘P’ dan ‘admissible’ apabila pembuat dokumen telah tidak dapat dikesan 20 dan jika tidak berbuat demikian akan menyebabkan ‘undue delay and expenses’ kepada kes Plaintif. [ 41 ] Padahal dalam kes ini, tiada bukti bahawa pembuat dokumen telah tidak dapat dikesan. Malah keterangan mengenai pembuat dokumen atau usaha mencari pembuat dokumen itu juga tidak ada bagi memuskan hati Mahkamah bahawa situasi dalam kes ini akan menyebabkan ‘undue delay or expenses’. Maka kes yang dirujuk oleh Peguamcara Plaintif adalah berbeza dengan fakta kes ini. [ 42 ] Tambahan pula, di peringkat pemeriksaan balas, semasa SP-2 disoal bahawa Defendan Kedua tidak menandatangani perjanjian tersebut, SP- 2 memberikan jawapan “tidak tahu”. [ 43 ] Ini menunjukkan bahawa sekalipun SP-2 adalah saksi perjanjian (atas kertas) dan melalui SP-2 juga Peguamcara Plaintif mengemukan Surat Jaminan yang asal, namun SP-2 gagal menegaskan kepada Mahkamah bahawa tandatangan yang terdapat dalam Surat Jaminan tersebut adalah tandatangan Defendan Kedua. SP-2 gagal menjelaskan bahawa SP-2 menyaksikan dengan jelas Defendan Kedua hadir bersama-sama 21 untuk menurunkan tandatangannya dalam Surat Jaminan tersebut (Santhimathy A/p T Venugopal v Kumara Sakravarthi A/l S Thirupathi & Ors And Tetuan Sabri Nazli Lana & Azizan – Third Party [2010] MLJU 1762). [ 44 ] Lebih daripada itu, hampir keseluruhan maklumat dan jawapan SP-2 adalah diperolehi daripada ‘ex-colleague’. SP-2 mengesahkan bahawa SP-2 berbincang jawapan dengan ‘ex-collegue’ tentang bagaimana cara menjawab dengan betul berkenaan kes ini. [ 45 ] Pada hemat Mahkamah, pengetahuan SP-2 sangat terhad berkenaan Surat Jaminan tersebut. SP-2 juga tidak tahu bahawa tandatangan yang terdapat dalam Surat Jaminan tersebut adalah tandatangan Defendan Kedua. Ini menjadikan keterangan SP-2 adalah sangat ‘not reliable’. [ 46 ] Plaintif telah mengemukakan Perjanjian dan Surat Jaminan asal, yang mana tiada dalam simpanan Mahkamah. Paling ketara Perjanjian dan Surat Jaminan asal yang dikemukakan telah dimati setem sedangkan salinan photopy yang ditempatkan di Bahagian C Ikatan Dokumen Plaintif yang turut dirujuk dan digunakan sepanjang prosiding telah tidak 22 dimati setem. Maka, apa yang dikemukakan ke Mahkamah sebagai ‘salinan asal’ bukanlah apa yang terkandung di dalam Bahagian C Ikatan Dokumen Plaintif. [ 47 ] Memandangkan pembuat dokumen tidak dipanggil memberikan keterangan, SP-2 selaku saksi Surat Jaminan juga tidak boleh sahkan tandatangan dalam Surat Jaminan adalah milik Defendan Kedua, maka rujukan plaintif kepada seksyen 73A(2) Akta Keterangan 1950 menjadi gagal. [ 48 ] Selanjutnya, rujukan dibuat kepada keterangan SP-3 selaku ‘Retail Sales Manager’ . Melalui SP-3, Plaintif mengemukakan salinan Perjanjian asal dan SP-3 juga merupakan saksi Perjanjian tersebut dengan menurunkan tandatangan di bahagian bawah perjanjian tersebut. [ 49 ] Walau bagaimanapun, di peringkat pemeriksaan balas, SP-3 menyatakan bahwa SP-3 tidak berurusan secara langsung dengan Defendan Kedua dan SP-3 tidak tahu sama ada tandatangan dalam Perjanjian tersebut merupakan tandatangan Defendan Kedua atau tidak. 23 [ 50 ] Walaupun Plaintif menghujahkan bahawa salinana sal perjanjian telah dikemukakan melalui saksi SP-3 ini tetapi SP-3 sendiri tidak boleh mengesahkan tandatangan dalam perjanjian tersebut adalah tandatangan milik Defedan Kedua. Keterangan SP-3 juga tidak membantu Mahkamah, ‘not reliable’ dan usaha untuk menjadikan Perjanjian ini sebagai ekshibit dan ‘admissible’ melalui seksyen 73A Akta Keterangan 1950 juga gagal. [ 51 ] Rujukan selanjutnya dibuat kepada keterangan SP-4 iaitu ‘Plaintiff’s Senior Sales Manager’ . Keterangan SP-4 menunjukkan bahawa SP-4 tidak secara langsung berurusan dengan Defendan Kedua. Keterangan saksi Plaintif ini amat tidak membantu kes plaintif. [ 52 ] Melalui semua keterangan saksi-saksi plaintif, tiada seorang pun yang boleh mengesahkan bahawa Defendan Kedua ada menurunkan dan menandatangani Perjanjian dan Surat Jaminan tersebut. Keterangan yang ada hanyalah daripada SP-2 dan SP-3 sebagai saksi perjanjian tapi tidak boleh mengesahkan bahawa SP-2 dan SP-3 berurusan secara langsung dengan Defendan Kedua berkaitan hal tandatangan dalam Perjanjian dan Surat Jaminan tersebut. 24 [ 53 ] Maka, pada hemat Mahkamah, Plaintif masih belum melepaskan beban pembuktian menurut peruntukan seksyen 101 dan 103 Akta Keterangan 1950 iaitu Plaintif telah gagal mengemukakan bukti bagi menyokong tuntutan Plaintif. [ 54 ] Memandangkan Plaintif gagal membuktikan kesnya dan dokumen ‘ID’ kekal sebagai ‘inadmissible’ dokumen, maka kes Plaintif yang sepatutnya bergantung kepada Perjanjian dan Surat Jaminan tersebut menjadi gagal. Tandatangan Defendan Kedua [ 55 ] Selain daripada saksi-saksi Plaintif ini, tiada mana-mana saksi atau dokumen yang boleh mengesahkan bahawa Defendan Kedua telah menurunkan tandatangannya di dalam Perjanjian dan Surat Jaminan tersebut. Defendan Kedua telah meletakkan saksi SD-2 hingga SD-4 iaitu pegawai bank dan mengesahkan bahawa tandatangan Defendan Kedua adalah sebagaimana di dalam dokumen mereka (D9 – D13). Maka, hujahan Defendan Kedua adalah Defendan Kedua tidak menandatangani Perjanjian dan Surat Jaminan tersebut. 25 [ 56 ] Mahkamah merujuk kepada seksyen 73(1) Akta Keterangan 1950. Berdasarkan kepada peruntukan, Mahkamah diberi kuasa untuk membuat perbandingan bukti tandatangan. Defendan Kedua telah kemukakan kepada Mahkamah bukti tandatangan Defendan Kedua melalui saksi bank iaitu SD-1 hingga SD-4. Berdasarkan kepada penelitian Mahkamah, ianya ‘self-explanatory’ menunjukkan bahawa tandatangan di dalam Surat Jaminan dengan tandatangan yang terdapat di dalam dokumen bank milik Defendan Kedua adalah berbeza. [ 57 ] Walaupun tiada laporan pakar dikemukakan dalam kes ini, pada hemat Mahkamah, ianya cukup memadai jika Mahkamah bandingkan tandatangan dalam Surat Jaminan dan bukti dikemukakan oleh Defendan Kedua adalah amat ketara perbezaannya. [ 58 ] Maka, dalam keadaan tiada saksi yang melihat Defendan Kedua menurunkan tandatangan di dalam Perjanjian mahupun Surat Jaminan maka Mahkamah tidak dengan mudahnya menerima dokumen- dokumen ini sebagai dokumen tulin. Juga perbezaan tandatangan ini 26 menunjukkan bahawa Defendan Kedua bukan individu yang telah menurunkan tandatangannya di dalam dokumen-dokumen tersebut. Isu kedua: Sama ada produk Plaintif telah dihantar kepada Defendan Pertama sewaktu Defendan Kedua menjadi pemilik tunggal Defendan Pertama. [ 59 ] Plaintif menghujahkan Defedan Kedua adalah pemilik tunggal Defendan Pertama. Ini kerana Syarikat Pengedar Plaintif, Cheam Seng Trading Sdn Bhd (“Cheam Seng”) telah menghantar produk-produk bir kepada Defendan Pertama mulai Oktober 2013 hingga November 2014 iaitu semasa Defendan Kedua masih merupakan pemilik tunggal Defendan Pertama. [ 60 ] Bukti penghantaran barang-barang produk Plaintif ini disahkan melalui invois-invois daripada Cheam Seng kepada Defendan Pertama dengan setiap invois dicop dan diakui terima oleh Defendan Pertama. [ 61 ] Defendan Kedua hanya menarik diri sebagai pemilik tunggal Defendan Pertama pada 20hb Mac 2014 iaitu selama lebih kurang 6 bulan dari tarikh Defendan Pertama didaftarkan. Maka, Plaintif menghujahkan 27 bahawa wang sebanyak RM50, 000.00 iaitu wang pendahuluan yang dibayar kepada Defendan Pertama menggunakan kredit nota bertarikh 19hb Disember 2013 adalah sebenarnya dibayar sewaktu Defendan Kedua merupakan pemilik tunggal Defendan Pertama. [ 62 ] Memandangkan Defendan Pertama telah dimasukkan penghakiman ingkar, Mahkamah tidak akan sentuh mengenai Defendan Pertama. Apa yang menjadi persoalan kini adalah, adakah produk Plaintif dihantar kepada Defendan Pertama semasa Defendan Kedua menjadi pemilik tuggal kepada Defendan Pertama. Sekaligus penyerahan wang sebanyak RM50, 000.00 tersebut dilakukan semasa Defendan Kedua menjadi pemilik tunggal Defendan Pertama. [ 63 ] Merujuk kepada keterangan saksi-saksi Plaintif, keseluruhan keterangan saksi-saksi ini tidak dapat mengesahkan bahawa Defendan Kedua ada menandatangani Perjanjian dan Surat Jaminan yang meletakkan liabiliti membayar RM50 ,000.00 itu kepada Defendan Kedua. [ 64 ] Jikalaupun adanya SSM atas nama Defedan Kedua, tapi keseluruhan saksi Plaintif mengesahkan bahawa Perjanjian ditandatangani sebelum 28 perniagaan Defendan Pertama ini wujud dan didaftarkan. Maka, ke manakah sebenarnya produk plaintif di hantar jika pada tarikh perjanjian tersebut ditandatangani, perniagaan Defendan Pertama belum wujud? [ 65 ] Ditambah dengan keterangan SP-5 iaitu iaitu ‘sales manager Chiam Seng Trading’ yang tidak dapat mengesahkan bahawa produk Plaintif ada dihantar ke Defendan Pertama. SP-5 juga gagal sahkan bahawa SP-5 berurusan dengan Defendan Kedua melalui telefon atau secara langsung bagi penghantaran produk Plaintif ke premis Defendan Pertama. [ 66 ] Kesemua keterangan saksi Plaintif terutamannya saksi SP-5 amat negative untuk membuktikan tuntutan Plaintif melibatkan produk yang dihantar ke premis Defendan Pertama dan Defendan Kedua menjamin untuk jumlah wang sebanyak RM50, 000.00. Maka, dapatan Mahkamah adalah tuntutan Plaintif telah sekali lagi gagal dibuktikan. 29 Isu ketiga: Sama ada Defendan Kedua bertanggungan membayar kepada Plaintif jumlah sebanyak RM50, 000.00 di bawah Surat Jaminan dan Tanggung Rugi bertarikh 1hb Oktober 2013. [ 67 ] Memandangkan saksi plaintif gagal mengesahkan Defendan Kedua menandatangani Perjanjian dan Surat Jaminan tersebut, maka tanggungjawab di bawah Perjanjian dan Surat Jaminan tersebut bukanlah terletak kepada Defedan Kedua. [ 68 ] Plaintif juga gagal menunjukkan bahawa wang sebanyak RM 50 000.00 itu diserahkan kepada Defendan Pertama semasa Defedan Kedua sebagai pemilik tunggal Defendan Pertama. Apa yang lebih penting adalah penyerahan wang sebanyak RM 50, 000.00 itu yang dikatakan telah dilakukan bagi tujuan sokongan perniagaan Defendan Pertama, ianya telah diserahkan sewaktu perniagaan Defendan Pertama belum wujud lagi. [ 69 ] Atas sebab itu, tiada tanggungjawab kepada Defendan Kedua untuk membayar balik wang sokongan perniagaan Defendan Pertama ini. 30 KESIMPULAN Mahkamah mendapati bahawa Plaintif telah gagal melepaskan beban pembuktian pada tahap imbangan kebarangkalian bahawa wujudnya perjanjian dan jaminan antara Plaintif dan Defendan Kedua. Atas alasan dinyatakan, Mahkamah percaya keputusan yang diberikan dalam menolak tuntutan Plaintif dengan kos adalah adil dan munasabah di sisi undang-undang pada tahap imbangan kebarangkalian. Disediakan oleh : t.t NURUNAIM BINTI ABDULLAH Majistret, Mahkamah Majistret Kuala Terengganu. Tarikh: 29 September 2017. Pn. Serena Isabelle Azizuddin Bersama Pn. Zainab Hanis Zulkifli (PDK) Tetuan Shearn Delamore & Co, Kuala Lumpur. …bagi pihak Plaintif. En. Ong Siew Wan Tetuan Andrew David Wong & Ong Kuantan, Pahang. …bagi pihak Defendan	31,239	Tika 2.6.0
B-05(M)-264-07/2016	PENDAKWARAYATPR Pn. Norinna Bahadun PERAYU Ekene Boniface Achiada	Dangerous drugs — Trafficking — Appeal — Appeal against conviction and sentence — Appellant found guilty on charge for trafficking in 371.8 grams of methamphetamine — Whether there was a proven prima facie case against the appellant — Whether learned trial judge failed to consider the appellant’s cautioned statement —Dangerous Drugs Act 1952 [Act 234], s 2, s 37(d), s 39B(1)(a) & (2)	27/09/2017	YA TAN SRI IDRUS BIN HARUNKorumYA DATUK SERI HAJI MOHD ZAWAWI BIN SALLEHYA TAN SRI IDRUS BIN HARUNYA DATUK KAMARDIN BIN HASHIM	https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=87f8d55b-e005-4bff-a67c-638e068ae154&Inline=true	Microsoft Word - AP - (59) EKENE BONIFACE OCHIADA IN THE COURT OF APPEAL MALAYSIA AT PUTRAJAYA (APPELATE JURISDICTION) CRIMINAL APPEAL NO : B-05(M)-264-07/2016 BETWEEN EKENE BONIFACE OCHIADA … APPELLANT AND PUBLIC PROSECUTOR … RESPONDENT [In The Matter Of High Court Of Malaya At Shah Alam Criminal Trial No: 45A-96-05-2012 Between Public Prosecutor And Ekene Boniface Ochiada] CORAM MOHD. ZAWAWI BIN SALLEH, JCA IDRUS BIN HARUN, JCA KAMARDIN BIN HASHIM, JCA 2 GROUNDS OF JUDGMENT [1] The appellant in the appeal before us is appealing against the decision of the High Court which convicted and sentenced him to death for an offence of trafficking in dangerous drug under section 39B(1)(a) of the Dangerous Drugs Act 1952 (Act 234). The charge against the appellant reads as follows: “Bahawa kamu pada 21.10.2011 jam lebih kurang 12.45 pagi, bertempat di Aras 3, Bangunan MTB KLIA, di dalam Daerah Sepang, di dalam Negeri Selangor Darul Ehsan, telah didapati memperedarkan dadah berbahaya iaitu seberat 371.8 gram methamphetamine dan dengan itu kamu telah melakukan suatu kesalahan di bawah seksyen 39B(1)(a) Akta Dadah Berbahaya 1952 yang boleh dihukum di bawah seksyen 39B(2) Akta yang sama.” [2] The facts of the case appear sufficiently and clearly in the grounds of judgment of the learned trial judge. We shall state relevantly the facts which the learned judge had garnered from the evidence. On 21.10.2011 at about 12.00 midnight, Sergeant Zulkefli bin Hj. Zainal (PW4) was with a team of policemen observing passengers and luggage bags at level 3, MTB, Kuala Lumpur International Airport (KLIA), Sepang. Sometimes at about 12.45 am, PW4 saw the appellant walking out of the Baggage Claim (Loss and Found) office pushing a trolley with two luggage bags on it. The accused was also seen holding a sling bag on his shoulder. Together with Lance Corporal Keneth Khana, Lance Corporal Rasmayasin and Lance Corporal Fadli, PW4 approached the appellant and identified himself as police to the appellant. PW4 then examined the passport of the accused and after identifying the accused, PW4 and his police team brought the accused to the Narcotics Investigation Office located on the same level 3, MTB, KLIA for further examination. The 3 appellant brought along all his bags with the use of the trolley. In the said office, Lance Corporal Keneth Khana did a physical examination on the appellant but did not find anything incriminating on him. Thereafter, PW4 instructed the appellant to open the first luggage bag of “ECHOLACC” brand (Exhibit P26) with a tag bearing number QR 671614 and name Ochiada. The appellant took out three keys from his sling bag and used one of them to open the said luggage bag. When the luggage bag was opened, PW4 found some clothings and two pairs of shoes in it. He then took out the clothings and shoes and proceeded to examine the said luggage bag. PW4 examined the metal handle of the said luggage bag by tapping it and felt that there was something inside the metal handle. PW4 used a screw driver to remove the metal handle from the luggage bag. After it was removed from the luggage bag, PW4 used a wire to probe inside the metal handle. When PW4 did it, he felt there was something inside the metal handle and he proceeded to pull out the object from inside it by using the said wire. SP4 managed to pull the object out which turned out to be transparent plastic containing white powdery substances. However, when PW4 removed the transparent plastic from the metal handle, it had broken into pieces. PW4 then removed the white powdery substances from the plastic and placed them in a plastic packet obtained from the Narcotics Investigation Office. PW4 subsequently weighed the white powdery substances with a digital weighing machine of his office and the weight was 250 grammes. [3] After marking these exhibits, PW4 instructed the appellant to open the second luggage bag of “ECHOLACC” brand (Exhibit P38) with a tag bearing number QR 671615 and name Ochiada. PW4 took out a different set of keys from his sling bag and opened the said luggage bag with one of the keys. PW4 examined the luggage bag and found a few black 4 plastic bags containing food stuffs. PW4 took out the plastic bags from the luggage bag and proceeded to check the metal handle of the luggage bag. Using the same method used for the first luggage bag, PW4 used a screw driver to dismantle the metal handle of the second luggage bag. PW4 then used the same wire to probe inside the metal handle. As a result, PW4 was able to remove several transparent plastics containing white powdery substances from the metal handle which had also broken into pieces. PW4 therefore removed the white powdery substances from all the plastic pieces and placed them into a plastic packet obtained from the Narcotics Investigation Office. He proceeded to weigh the said substances and the weight was 260 grammes. The exhibits were next marked by PW4. The sling bag of the accused was also examined by PW4 from which he found some personal documents of the accused, two mobile telephones and money. [4] A search list was prepared by PW4 in the Narcotics Investigation Office and the accused signed it. After lodging a police report, PW4 and his police team brought the appellant and all the exhibits to Sepang Police Station (IPD Sepang) whereupon PW4 handed over the appellant and the exhibits to the investigating officer, Inspector Mohd Zulkifli bin Rasid (PW5). Both PW4 and PW5 signed a handing over list of exhibits as proof that the exhibits were handed over by PW4 to PW5. PW5 marked the two plastic packets containing white powdery substances which were initially marked as ZZ(A) and ZZ(B) by PW4 as B1 and B2 respectively. Thereafter PW5 kept all the said exhibits in his office steel cabinet under lock and key. [5] On 8.11.2011, PW5 packed the two plastic packets B1 and B2 into an envelope which he marked as “ZL” and sealed it. At about 2.55 pm on 5 the same day, PW5 sent the drug exhibits to the government chemist, Dr. Vanitha Kunalan (PW2) for analysis of the contents of B1 and B2. PW2 on analysis, found the contents of the plastic packets B1 and B2 to contain 371.8 grammes of methamphetamine. PW2 confirmed that methamphetamine is listed in the First Schedule of Act 234. PW2 prepared a chemist report (Exhibit P13) dated 14.2.2012. On 2.3.2012, PW5 received the drug exhibits in the envelope “ZL” and a chemist report from PW2. PW5 then kept the drug exhibits in his office steel cabinet under lock and key. On 5.3.2012, PW5 sent the said drug exhibits in the envelope “ZL” to the police exhibits store, IPD Sepang. [6] At the close of case for the prosecution, the learned judge accepted PW2’s evidence that the powdery substances she had analysed consisted of 371.8 grammes of methamphetamine which was listed in the First Schedule to Act 234 and as such it is dangerous drug as defined in section 2 of the same Act. This evidence was not disputed. Accordingly, the learned judge held that the first element of the offence of trafficking in dangerous drug was proved by the prosecution. [7] As regards the element of possession of the impugned drugs, being the second essential element of the offence, the learned judge found that from the evidence of PW4, the appellant was seen pushing the trolley with the 2 luggage bags on it and walking out of the Baggage Claim (Lost and Found) office all alone. This evidence, according to His Lordship, was more than sufficient to prove that the appellant had custody and control of the 2 luggage bags which contained the impugned drugs in their metal handles. The learned judge also considered the evidence that the bags were opened by the appellant using the keys (Exhibits P28 and P40) which he took out from his sling bag when he was instructed by PW4 to open the 6 said bags and that there was a luggage tag (Exhibits P27 and P39) on each luggage bag in the appellant’s name ‘Ochiada’ bearing the flight details which tallied with the details in the appellant’s flight ticket (Exhibit P46) found from him. The overwhelming evidence showed that the appellant was caught red handed having custody and control of the 2 luggage bags containing the illicit drugs. The learned judge therefore held that the presumption in section 37(d) of Act 234 applied and the appellant was deemed to have in his possession of such drugs and to have known the nature of the drugs until the contrary was proved. [8] The learned judge also held that since the appellant was transporting or carrying the drugs, the prosecution had proven direct trafficking as defined under section 2 of Act 234. It could be discerned from the evidence that the appellant had flown from Doha, Qatar to KLIA on the material date which according to the learned judge meant that the appellant was clearly and consciously carrying or transporting the drugs from Qatar to Malaysia by flight. On arrival at the KLIA, when the appellant collected and carried the 2 luggage bags, he was trafficking in the impugned drugs. [9] His Lordship also drew an inference from the fact that the drugs were concealed in the metal handles of the said luggage bags stating that it was so concealed for the sole purpose of evading detection from the authorities. If PW4 and his officers were not alert enough, the learned judge emphasised, the impugned drugs so well hidden in the metal handles of the bags would not have been detected and would in the result have passed through the customs at the arrival hall of the KLIA. Hence, the learned judge held, the act of the appellant in carrying or transporting the drugs in the luggage bags on an international flight from Qatar to 7 Malaysia concealed carefully in such a manner, was an overt act which went beyond passive possession. [10] With regard to the issue of the chain of evidence in connection with the custody and identity of the illicit drugs, the learned judge was satisfied that the prosecution had proven overwhelmingly the continuous link of the evidence from the time of the recovery of the drugs by PW4 to the time it was finally produced in the High Court as evidence. [11] Accordingly, after undertaking a maximum evaluation of the evidence adduced by the prosecution, the learned judge was satisfied on a prima facie basis, that the prosecution had proven the ingredient of possession with the utilisation of the presumption under section 37(d) of Act 234 and direct trafficking under section 2 thereof against the appellant of the impugned drugs specified in the charge whereupon the appellant was ordered to enter his defence on the charge preferred against him. [12] The appellant in his defence tendered himself as a witness. Save for the appellant, no other witnesses were called to testify on behalf of the defence. On the facts of the defence evidence, the position adopted for the appellant is clearly described by the learned judge in his grounds of judgment. The appellant arrived in Malaysia on 21.10.2011. He flew from Lagos, Nigeria on 19.10.2011 to Doha, Qatar and from Doha to KLIA. But on 18.10.2011, one Okechu called and asked the appellant to meet him at Isni Hotel in Lagos. There, Okechu requested the appellant to bring the two luggage bags to be given to Okechu’s friend Ikye in Malaysia. Okechu asked the appellant to take out his clothes from his small bag and put them into the second bag which had clothes inside it. The first bag had African food stuffs. It was Okechu who gave him the two bags. Okechu gave the 8 appellant a Malaysian sim card and USD 2,000 to be given to Ikye in Malaysia. The appellant himself had USD 2,000. Okechu told the appellant to call him when the appellant arrived in Malaysia and Okechu would contact Ikye who would then call the appellant to pick him up and collect the bags at the airport. When the appellant arrived at KLIA, he contacted Okechu. After a short while, Ikye called the appellant and told him that Okechu asked him to call the appellant to collect the two bags. Ikye told the appellant that he was waiting for him at the KLIA. The appellant came to Malaysia to survey on higher education (in particular Segi College) in Malaysia. It was his first trip here and Okechu had promised that Ikye would help the appellant while he was in Malaysia. The appellant said he knew Okechu about two weeks before his trip and Okechu was his cousin’s friend adding that he helped Okechu to carry the bags because his cousin and Okechu were nice people. [13] When he arrived at KLIA and having passed through the immigration control, he went to look for his two bags at the luggage carousel. Since he was unable to find his two bags there, he was taken by the security to the Loss and Found Department. In the Loss and Found Department, the appellant saw PW4 and an Indian man by the name of Keneth. The appellant told the people there that he had lost his bags and wanted to check whether his bags were there. The appellant searched around but did not see his bags there. He claimed that the police then brought out two bags and forced him to take them since the luggage tags had his name. [14] Further, in his testimony the appellant told the court that he could not recognise the two bags as each had sellotape fastened around it. The two bags were milky white and not his two black bags. The appellant denied 9 that when he was detained by the police he was pushing the trolley on which were the two bags. He said he was detained in the Loss and Found Department. The appellant was then taken to another room and he was told by the police to bring along the two bags. The appellant carried the two bags without using the trolley. In the said room, Keneth search the appellant’s body but found nothing incriminating. PW4 then used a cutter to cut the sellotape fastened around the bags and asked the appellant to open the bags. The appellant used his keys to open the two bags. [15] When the appellant opened the clothes bag first, there were clothes of Ikye and the appellant. PW4 checked inside the bag and found nothing unlawful inside it. PW4 then dismantled the handle of the bag and found one plastic inside the metal rod and inside the plastic he found white powder. The plastic was torn when PW4 dug it. PW4 then took the white powder from the plastic and transferred it to another plastic. For the second bag, the same process was repeated by PW4 and white powder was found by PW4 from the handle of the bag in the same manner as the first bag. PW4 then took the white powder from the plastic and transferred it to another plastic. As for the sling bag, PW4 found some personal documents and monies of the accused. [16] According to the appellant, when PW4 was checking his bags, there were calls coming to his mobile telephone from Ikye who was supposed to take the bags from him and the appellant had told PW4 to answer the call and to follow the appellant to go out and meet Ikye in the arrival hall waiting to collect the bags. The appellant said that the police never allowed him to answer the call or to follow him out there to arrest Ikye and that he was very shocked when he saw PW4 take out the white powder because he did not take the drugs and did not know that the drugs were 10 hidden in the bags. The appellant further stated that he did not know that Okechu “was doing drugs”. He asserted that he did not know there were drugs in the handles of the bags and denied that he was involved in drugs trafficking. [17] The learned judge found that it was not disputed by the defence that the 2 luggage bags seized by the police were the same luggage bags carried by the appellant although the appellant had initially denied they were the same bags because of the sellotape which was proven not to be true when the court examined the bags and found no traces of any sellotape on the bags. His Lordship then considered the appellant’s defence that he was innocently carrying the 2 bags for one Okechu and to deliver them to Ikye in Malaysia and observed that the appellant only knew Okechu about 2 weeks before the trip yet he trusted Okechu absolutely when he agreed to carry the bags for him to be delivered to Ikye whom the appellant did not know. The bags contained some clothes, shoes and African food stuff which did not appear to be of much value or valuable enough to be carried all the way from Lagos, Nigeria to Doha, Qatar enroute to KLIA. The learned judge also noted that despite claiming that it was his own initiative to travel to Malaysia to survey on further education, the appellant did not have with him any travelling bags but undertook to carry the 2 bags given to him by Okechu complete with the contents. [18] It was most suspicious that the appellant took a long journey merely to carry the two bags containing items that were hardly valuable given to him by Okechu whom he hardly knew to be handed over to Ikye in Malaysia. There were suspicious circumstances which should have alerted the appellant to the risk involved in carrying the bags for an almost complete stranger and to hand them over to another complete stranger. The learned 11 judge therefore rejected the story line given by the appellant as devoid of common sense for a reasonable person would not do it without any possible reason. An inference which could be drawn from these suspicious circumstances, the learned judge emphasised, was that the appellant knew what he was carrying, that is, the drugs in the metal handles of the bags and that he was involved in trafficking of the said drugs. [19] The learned judge also found that the purpose of the appellant’s visit to Malaysia to survey further education was doubtful. He did not even have a document relating to his educational background which could prove that he was interested in further education or lend credence to his assertion that he was interested to survey further education here. [20] On the alleged failure on the part of the police for not trying to investigate the existence of Okechu and Ikye, the learned judge dismissed the appellant’s complaint as baseless and misconceived since the appellant did not supply sufficient information to the police. The learned judge also dismissed the appellant’s complaint that the police should have answered the incoming calls from Ikye to his mobile telephone after he was arrested as it could lead to the arrest of Ikye as an afterthought. This is because the defence failed to cross-examine PW4 and PW5 on the alleged telephone calls. The learned judge therefore held that the defence had failed to rebut the presumption under section 37(d) of Act 234 on the balance of probabilities and raised a reasonable doubt in the prosecution’s case. On the other hand the prosecution had succeeded in proving its case against the appellant beyond any reasonable doubt. The appellant was accordingly found guilty as charged and sentenced to death. 12 [21] The appeal brings to a focus the principal grounds urged on behalf of the appellant that the learned judge had erred on the facts and in law when His Lordship – a. found that there was proven a prima facie case against the appellant; and b. failed to consider the appellant’s cautioned statement IDD52. [22] Taking the first ground, we will endeavour to confine our deliberation to the issue raised by learned counsel in his oral and written submissions. That brings us to the argument that at the conclusion of the prosecution’s case it would be incumbent on the part of the learned trial judge to undertake a maximum evaluation of all evidence adduced by the prosecution including all assumptions or inferences which arose from the evidence of the prosecution’s witnesses. Learned counsel cited the Federal Court’s decision in the case of Balachandran v PP [2005] 1 CLJ 85 in support of this argument. It was urged for the appellant that firstly, the impugned drugs were concealed in such a manner that it was impossible for anyone to know what was hidden in the metal handles of both bags without having to prise it and secondly, the learned judge ought not to have invoked the presumption under section 37(d) of Act 234 in an arbitrary manner where there was evidence available in the prosecution’s case and that evidence could be gleaned from the appellant’s cautioned statement IDD52. We were accordingly invited to hold that the learned judge erroneously held that a prima facie case had been proven against the appellant. [23] The pertinent question therefore is whether the learned judge correctly invoked the presumption under section 37(d) of Act 234. We 13 would start off by stating that based on the proven facts that could be discerned from the evidence of PW4, it is abundantly clear that the appellant had in his custody or under his control the two luggage bags (Exhibits P26 and P38) at that material time. Needless to say, custody or control of the said bags from which the dangerous drugs were found is an essential element and a primary or basic fact that the prosecution is required to prove before the appellant could be deemed to have been in possession of such drugs and to have known the nature of the same under section 37(d) of Act 234 [Muhammed bin Hassan v Public Prosecutor [1998] 2 MLJ 273]. The use of the word ‘found’ in the opening phrase of section 37(d) suggests that the trial court has to make an express affirmative finding of this basic or primary fact before the presumption can be relied upon. The learned trial judge in this regard had undertaken a maximum evaluation of the prosecution’s evidence and accepted the following evidence which proved the primary or basic facts of custody or control: (a) the appellant was seen walking alone whilst carrying the 2 luggage bags of ECHOLAC brand on a trolley which he was pushing when he was stopped by PW4; (b) the bags in question each having a luggage tag (Exhibit P27 and P39) with the name of the appellant printed thereon; (c) the bag marked as Exhibit P26 was opened by the appellant using one of the keys (Exhibit P28) which he took out from his sling bag; (d) PW4 found the impugned drugs which were concealed inside the metal handle of the said bag; (e) the bag marked as Exhibit P38 was opened by the appellant using another key (Exhibit P40) which he took out from his sling bag; (f) PW4 found the impugned drugs concealed inside the metal 14 handle of the said bag; and (g) the boarding pass (Exhibit P18) and the luggage tags (Exhibits P27 and P39) showed that the appellant had flown from Doha, Qatar to Malaysia carrying the 2 luggage bags. [24] The above evidence clearly showed that the appellant had the 2 luggage bags in the custody or under his control at that point of time. The facts that we gleaned from the evidence of PW4 during cross-examination patently showed that the above evidence was not disputed by the defence. There was, moreover, not even a suggestion made to PW4 that when the drugs were found the appellant denied that the 2 bags and the drugs did not belong to him or that it belonged to Okechu or Ikye. Based on the above evidence, there can be no doubt whatsoever that the learned judge’s finding that the appellant had the bags in his custody or under his control was not a perverse decision. We fully endorse and are indeed in full agreement with the said finding which the learned judge so firmly expressed in the grounds of judgment. [25] One thing is extremely clear, that is that, upon proof of the element of custody or control of the 2 bags, the appellant was, pursuant to section 37(d) of Act 234, deemed to be in possession of the drugs concealed in its metal handles and thus was also deemed to have known the nature of such drugs. We have no reasons whatsoever to disagree with these findings and the invocation by the learned judge of the presumption under section 37(d) of Act 234 as it is well-established and trite principle that the said presumption applies where the essential elements that could activate such presumption have been proven and once this is fulfilled, it behoves the defence to rebut it on the balance of probabilities. We now quote the Privy 15 Council’s decision in the case of Public Prosecutor v Yuvaraj [1969] 2 MLJ 89 which lucidly explained the law as follows: “Generally speaking, no onus lies upon a defendant in criminal proceedings to prove or disprove any fact: it is sufficient for his acquittal if any of the facts which if they existed would constitute the offence with which he is charged are “not proved”. But exceptionally, as in the present case, an enactment creating an offence expressly provides that if other facts are proved, a particular fact, the existence of which is a necessary factual ingredient of the offence, shall be presumed or deemed to exist “unless the contrary is proved”. In such a case the consequence of finding that that particular fact is “disproved” will be an acquittal, whereas the absence of such a finding will have the consequence of a conviction. Where this is the consequence of a fact’s being “disproved” there can be no grounds in public policy for requiring that exceptional degree of certainty as excludes all reasonable doubt that that fact does not exist. In their Lordships’ opinion the general rule applies in such a case and it is sufficient if the court considers that upon the evidence before it it is more likely than not that the fact does not exist. The test is the same as that applied in civil proceedings: the balance of probabilities. This was the test which was approved by the Court of Criminal Appeal in R. v. Carr-Briant [1943] KB 607 a case upon a provision in an English statute in similar terms to that contained in section 14 of the Malaysian Prevention of Corruption Act 1961. For the reasons already indicated their Lordships do not think that, at any rate where such a provision is contained in an enactment, the definitions of “proved” and “disproved” contained in the Evidence Ordinance make any difference between Malaysian law and English law in this respect.” [26] Our conclusion is sufficient to dispose of this issue. Nevertheless, we would go further to say that even if the presumption of knowledge under section 37(d) of Act 234 is not relied on, the manner in which the drugs were carefully and cleverly concealed in this case would not in the absence of a plausible explanation, deny the existence of knowledge on 16 the part of the appellant of the drugs in question. It instead patently indicated as it were the appellant’s mental state of knowledge that the powdery substances concealed in the metal handles of the 2 bags were indeed prohibited items which must be hidden at all costs in order to avoid detection by the authorities. The concealment of the impugned drugs, we would confidently say, certainly did not reflect an innocent mind on the part of the appellant. The Federal Court in Public Prosecutor v Abdul Rahman Akif [2007] 5 MLJ 1 adopted the approach that the fact that an incriminating article was found concealed is no ground for saying that an inference of knowledge of the drug could not be drawn against the respondent. The Federal Court on this point said – “[17] Therefore, the presence of the three packages in the car without a plausible explanation from the respondent could give rise to a strong inference that he had knowledge that the packages contained drug or things of similar nature (see also Lim Beng Soon v Public Prosecutor [2000] 4 SLR 589). We further agree with the prosecution that the fact that the drug was found wrapped in newspaper is no ground for saying that an inference could not be drawn against the respondent that he had the requisite knowledge. In this regard it is pertinent to refer to the observation of the Singapore Court of Appeal Zulfikar bin Mustaffah v Public Prosecutor [2001] 1 SLR 633, at p 639: 21. For the element of ‘possession’ (within the meaning of s 17 of the Misuse of Drugs Act) to be established, it must not only be shown that the accused had physical control of the drugs at the relevant time; the prosecution must also prove that the accused possessed the requisite knowledge as the contents of what he was carrying: see Warmer v Metropolitan Police Commissioner [1969] 2 AC 256; Tan Ah Tee & Anor v PP [1978-1979] SLR 211; [1980] 1 MLJ 49. In the course of the appeal before us, counsel for the appellant relied heavily on the fact that the contents of the bundles were securely wrapped in newspaper and could 17 not be identified. We were accordingly invited to draw the inference that the appellant had no knowledge of the contents of the bundles. 22. We were unable to accede to this request. While the fact that the contents of the bundles were hidden from view may have been relevant in determining whether the requisite knowledge was absent, this factor should still not be given too much weight. Otherwise, drug peddlers could escape liability simply by ensuring that any drugs coming into their possession are first securely sealed in opaque wrappings. Rather, the court must appraise the entire facts of the case to see if the accused’s claim to ignorance is credible. As Yong Pung How CJ remarked in PP v Hla Win [1995] 2 SLR 424 (at p 438): In the end, the finding of the mental state of knowledge, or the rebuttal of it, is an inference to be drawn by a trial judge from all the facts and circumstances of the particular case, giving due weight to the credibility of the witnesses.” [27] References in this connection may also be made to the case of Teh Hock Leong v PP [2008] 4 CLJ 764 where the Court of Appeal there said – “[8] Turning to the facts of the present instance, we agree with the learned trial judge that the method employed to bring the drugs in question from Thailand into Malaysia was done in most cunning fashion to escape detection by the authorities. The method employed to convey or transport a drug may sometimes furnish evidence of knowledge. For example, an attempt to carefully conceal a drug may indicate an intention to avoid detection and thereby point to knowledge. Of course it all depends on the facts of each individual case.” [28] As earlier stated, the defence did not suggest to PW4 that the appellant denied at the initial stage of the discovery of the drugs that the 18 bags and the drugs found inside its metal handles did not belong to him. It could be inferred that without such denial at the earliest opportunity, the appellant actually knew about the drugs in question. Besides, at that early stage there was no suggestion by the defence that the appellant informed PW4 about Okechu or Ikye. If it is indeed true that the bags were given to him by Okechu and to be subsequently delivered to Ikye, and that the appellant had no knowledge about the illicit drugs, we would be inclined to say that the logical thing for the appellant to do, upon the discovery of the drugs, was to have told PW4 at that time that the same did not belong to him and he had no knowledge about it. We would go further to say on this aspect that the failure of the appellant to inform PW4 about these 2 persons at the time of his arrest goes some way to support the prosecution’s case and that on the contrary it merely goes to show that less weight ought to be attached to the appellant’s defence which therefore entitled the learned judge to disbelieve the appellant. The Federal Court in Teng Howe Sing v. PP [2009] 3 CLJ 733 alluded to the decision in Public Prosecutor v Badrulsham bin Baharom [1988] 2 MLJ 585 on this issue and said – “[30] With regard to the above contention of the appellant it is our judgement that it is misconceived. By commenting on the failure of the appellant to provide all relevant information regarding “Ho Seng” to the police at the time of his arrest or when his cautioned statement (D2) was recorded five days after his arrest does not mean that the learned trial Judge had imposed on the appellant a duty a speak/disclose them in his cautioned statement nor did he draw any adverse inference against the appellant. The learned trial judge’s comments on the late disclosure of the real identity of “Ho Seng” at the defence stage merely goes to show the weight that the court attached to the appellant’s defence which is permitted by the law. On this point we 19 would like to refer to the case of PP v. Badrulsham bin Baharom [1988] 2 MLJ 585, wherein Lim Beng Choon J at p. 591 said that: … So we are left with nothing more than the bare oral assertion of the accused that it was Noor Azlan who asked him to collect the bag on behalf of the former and that the accused himself had no knowledge of the contents of P3. If that be the case, one would hardly imagine that he would not have told either PW3 or PW5 at the railway station at Alor Setar at the time of his arrest that P3 belonged to Noor Azlan instead of saying that there was nothing in P3.” [31] In Badrulsham’s case, the court was of the view that the failure of the accused to inform the raiding officers that the white plastic bag belonged to Noor Azlan at the time of his arrest and only revealing this information during the interrogation two hours after his arrest, goes some way to support the case for the prosecution. [32] Applying the principle in Badrulsham’s case to the facts of the instant case, the learned trial Judge was correct to conclude that the appellant had two opportunities to provide information about “Ho Seng”, ie, at the time of his arrest and five days later during recording of his cautioned statement but he failed to do so. We are therefore of the view that in the circumstances, the appellant’s failure to provide relevant information about “Ho Seng” for the police to carry out a thorough investigation into the probability of his defence, entitled the learned trial judge to disbelieve him.” [our emphasis] [29] It was strenuously contended for the appellant that the learned judge failed to consider PW4’s evidence that if anyone inspected the 2 bags he would not have known about the drugs. With this evidence, learned counsel submitted, it was impossible for anyone to know about the drugs unless the metal handles were prised using the screw driver in order to remove it from the bags as was done by PW4. In our judgement in this appeal, whether this argument could succeed to draw a salutary 20 effect that could convince us to accept that the appellant had no knowledge about the drugs would require the prosecution’s evidence and in particular PW4’s testimony to be considered in its entirety, not just that part of PW4’s testimony which learned counsel had highlighted above. It ought to be emphasised that the defence never suggested to PW4 that the appellant was shocked or showed other reaction when the drug was discovered that would indicate that he did not know about the drugs. The appellant only made this bare assertion that he was shocked when he gave his evidence during the trial. Such assertion ought, in our opinion, to be dismissed as an afterthought. In any event, we have already stated earlier that the fact that the drugs were concealed in that manner affords no ground for saying that an inference of knowledge of the drug could not be made. The learned judge had also correctly held that, once the element of custody or control of the 2 bags had been proved, the presumption of possession and knowledge of the drugs could be raised. Possession and knowledge are therefore presumed. It is for the defence to rebut the presumption on the balance of probabilities. This question must fall, ergo, is no longer an issue. [30] It is necessary to draw attention to one significant aspect of the prosecution’s case which the learned judge had dealt in his grounds of judgement. The learned judge in this regard, having invoked the presumption under section 37(d) of Act 234 proceeded to consider the element of trafficking wherein His Lordship held that the prosecution had successfully proven direct trafficking within the definition of the word trafficking under section 2 thereof. His Lordship’s finding was premised on the evidence that it was the appellant who transported and carried the drug from Qatar to Malaysia by flight. 21 [31] There was without question, sufficient and clear evidence to support the above finding. The prosecution in fact led irrefragable evidence to show that the appellant had taken the flight from Lagos, Nigeria and stopped in Doha, Qatar, enroute to Malaysia. This evidence could be gleaned from the electronic air ticket issued to the appellant (Exhibit P46) which tallied with the luggage tags issued for the 2 bags (Exhibits P27 and P39). The appellant was seen by PW4 carrying the 2 bags from which the drugs were found cunningly and carefully concealed inside its metal handles which, in our opinion had evinced by this act an intention to avoid detection by the authorities. If PW4 was not vigilant or alert in carrying out this duty in particular whilst inspecting the 2 bags, the impugned drugs would have passed through customs check and therefore avoided detection at the arrival hall of the KLIA. Furthermore, the quantity of the impugned drugs could be said to be much larger than was likely needed for the appellant’s personal consumption. An irresistible inference could therefore be made that when the appellant was caught in the act of transporting and carrying the drugs in quantity much larger than was needed for his personal consumption, he did so for the purpose of trafficking in it unless he could offer a plausible explanation. Such inference could be made even if there is no statutory presumption of trafficking in Act 234. The law as explained by the Privy Council in the case of Ong Ah Chuan v Public Prosecutor [1981] 1 MLJ 64 allows such inference of trafficking to be made where the quantity of drugs involved is large. Lord Diplock in that case said – “Proof the purpose for which an act is done, where such purpose is a necessary ingredient of the offence with which an accused is charged, presents a problem with which criminal courts are very familiar. Generally, in the absence of an express admission by the accused, the purpose with which he did an act 22 is a matter of inference from what he did. Thus, in the case of an accused caught in the act of conveying from one place to another controlled drugs in a quantity much larger than is likely to be needed for his own consumption the inference that he was transporting them for the purpose of trafficking in them would, in the absence of any plausible explanation by him, be irresistible – even if there were no statutory presumption such as is contained in section 15 of the Drugs Act. As a matter of common sense the larger the quantity of drugs involved the stronger the inference that they were not intended for the personal consumption of the person carrying them, and the more convincing the evidence needed to rebut it.” [our emphasis] [32] On the facts of the prosecution case, we accept that the act of the appellant in transporting and carrying the drugs in the 2 bags on an international flight from one country to another, carefully concealed as it were, was indeed an overt and not an innocent act. The learned judge had made a correct finding in this regard. We find support to this conclusion in the decision of this Court in the case of Wjchai Onprom v PP [2006] 3 CLJ 724 – “… Here the appellant was caught conveying a very large quantity of cannabis from Thailand to Malaysia. In view of the amount involved, it is safe to infer that the drug was intended for a third person or persons, known or unknown. That other person or persons may, to borrow Lord Diplock’s words, be “the actual consumer or a distributor or another dealer”. So this is not a case of mere passive possession. There were overt acts done by the appellant, namely the active concealment of the drug on his person followed by its conveyance from Thailand into Malaysia which reasonably supports the existence of criminal purpose proscribed by the Act. We may add that the very same facts also give rise to a strong inference that the appellant was aware of his possession, knew the nature of the drug possessed and had the 23 power of disposal over it. So much for the prima facie proof of actual trafficking.” [our emphasis] [33] It would be useful to remember that the law must now be taken to be well-settled that the court is perfectly entitled to invoke a presumption under section 37(d) of Act 234 while at the same time making a finding of direct trafficking based on any of the acts which constitutes the act of trafficking as specified in the definition of the word trafficking in section 2 thereof. This is in order to avoid contravening the bar against the use of double presumptions following the case of Muhammed Hassan v Public Prosecutor [1998] 2 CLJ 170. We would rely on the Federal Court’s decision in the case of PP v Lim Hock Boon [2009] 3 CLJ 430 on this question – “[33] A good example where the definition of trafficking in s. 2 of the Act was invoked is in the case of Public Prosecutor v. Abdul Manaf Muhamad Hassan [2006] 2 CLJ 129. There the Federal Court, in order to avoid contravening the bar against the use of double presumptions following the case of Muhammed Hassan v. Public Prosecutor [1998] 2 CLJ 170, substituted the presumption of trafficking under s. 37(da) of the Act relied on by the trial court, to find trafficking in the dangerous drugs by carrying under s. 2 of the Act. The Federal Court ruled that the Court of Appeal ought to have applied the proviso to s. 60(1) of the Courts of Judicature Act 1964 and upheld the conviction and sentence notwithstanding the misdirection by the learned trial judge in applying the double presumptions under s. 37(d) and (da) of the Act to convict the accused. [34] It is worthy of note that there is only one offence of trafficking under the Act. However, there are several acts that may constitute the offence. If the prosecution is not able to bring its case within one of the acts (see Ong Ah Chuan v. Public Prosecutor [1980] 1 LNS 181) under s. 2 of the Act, but is nevertheless able to established the existence of primary facts that draw the 24 presumption under the Act, then the court is enjoined to draw those presumptions, subject of course to the bar as set out by Muhammed Hassan, supra.” [our emphasis] [34] It ought to be mentioned, before leaving the first ground of appeal, that the learned judge evaluated the credibility of the evidence adduced by the prosecution witnesses and was satisfied that all of them, in particular PW4 and PW5, were witnesses of truth and reliable. We have no reasons whatsoever to disagree with the assessment made by the learned judge in regard to the witnesses credibility as His Lordship without doubt had audio visual advantage of watching their demeanour and listening to their testimony whilst giving their evidence. The whole argument of learned counsel on the first ground in the end in no way leaves any margin of doubt in our minds that it is unsustainable, devoid of any merit and therefore must be rejected. [35] The second ground taken in this appeal before this Court, which is the remaining issue for our determination, concerns the argument that the learned judge failed to consider the appellant’s cautioned statement. Before we embark upon a detailed consideration of this ground, there is a preliminary matter which at this juncture, requires our attention. Learned counsel complained that the appellant’s cautioned statement should have been admitted as defence exhibit. The appellant’s cautioned statement was instead marked by the learned judge as IDD52 through PW5, the investigating officer. It is apparent, on our perusal of the notes of evidence, that there was no request made by the defence to tender the cautioned statement as an exhibit. We therefore hold that the learned judge was right when His Lordship merely marked the cautioned statement as identified document. Even so, in our view, when the 25 defence was called, the defence could still seek to admit IDD52 in evidence through the appellant so that the same could be marked as defence exhibit. The defence failed to do so though, and as such IDD52 remained as identified document only and not as evidence. Thus, even if it is true that the learned judge did not consider IDD52, His Lordship was justified in ignoring it. Nevertheless, since the defence sought to show that the learned judge had erred in not considering IDD52, we shall endeavour to consider this document as if it was tendered by the defence as evidence. With this preliminary observation, we shall proceed to consider the second ground in the contention of learned counsel. [36] We begin in dealing with this issue, by reiterating our earlier view that so far as the evidence showed, the appellant did not make any denial at the earliest time possible which was at the point when he was arrested by PW4 on 21.10.2011 upon the discovery of the drugs, that the 2 bags and drugs found concealed inside its metal handles belonged to him. Neither did he disclose to PW4 about Okechu and Ikye. The appellant only offered his version circa 3½ days after his arrest when the cautioned statement was recorded from him. It could therefore reasonably be said that he had ample time to think of his invention that he had narrated in IDD52. Be that as it may, it is clear to us that the appellant did not say in IDD52 that he had informed PW4 about these 2 fictitious characters. Under the circumstances, this version of the appellant’s defence was never more than a concoction which could consequently be dismissed as an afterthought or an idea occurring later. [37] Morever, our perusal of IDD52 showed that the contents thereof were identical to the appellant’s narrative when he gave his evidence during the defence stage as highlighted earlier in this judgment. In fact, 26 Okechu was mentioned in both IDD52 and the appellant’s testimony as the person who gave the 2 bags to the appellant to be given to one Ikye in Malaysia. The law, we apprehend, is that where the trial judge did not consider and expressly make a specific finding in rejecting the contents of the cautioned statement, but the contents thereof are more or less the same as his oral testimony and such testimony was rejected by the learned judge, it is implicit that he must in the event be taken to have rejected the contents of the cautioned statement as well. We would in this regard adopt the law as explained by this Court in Sainal Abidin bin Mading v Public Prosecutor [1999] 4 MLJ 497 where in that case, as here, the defence tendered DI during the prosecution case and hence marked as defence exhibit, Haidar JCA (as His Lordship then was) said at page 507 – “Though the learned judge in his judgment did not expressly made specific finding of rejecting the contents of the cautioned statement since they are more or less the same as his oral evidence and such defence was rejected by him for the reasons stated by him and that he accepted the evidence of PW 4 and PW 5, it is implicit that he must in the circumstances have rejected the contents of the cautioned statement as well.” [38] In this appeal, although the learned judge did not specifically consider IDD52, it is very clear in the grounds of judgment that His Lordship had considered the appellant’s testimony including his evidence relating to Okechu and Ikye and rejected the same for the reasons His Lordship had given. The cautioned statement we find, did not state more than what was raised by the appellant in his narrative and throughout the trial. In Kwok Weng Fatt v PP [2013] 1 LNS 1304, it was – 27 “[18] In our view, although the learned trial Judge did not elaborate on the cautioned statements in his judgment, we find no error to be of no consequence to the facts of the present case. We say so because the cautioned statements do not state more than what was raised by the appellants throughout the trial.” For these reasons, the argument of learned counsel urged for the appellant on the second ground must therefore fail. [39] The remaining question which arose out of the cautioned statement concerns the defence argument that PW5 did not carry out any investigation on Okechu and Ikye. But may it be remembered that these 2 names were only mentioned 3½ days after the appellant’s arrest when IDD52 was recorded from him. He did not inform such vital information to PW4 at the time of his arrest. In his defence, the appellant testified that Ikye telephoned him at the time of his arrest, however, no such question was put to PW4 when he was under cross-examination. We are convinced that the reasons why the appellant did not inform PW4 of these 2 persons and that PW4 was not cross-examined on this issue was because they were in actuality fictitious characters. Furthermore, PW5 in his evidence told the court that the appellant did not furnish details regarding Okechu and Ikye such as their full names, telephone numbers, addresses and the place where he was supposed to deliver the bags to Ikye. [40] The defence contention begs the question whether the appellant’s evidence concerning these 2 names constituted a good and sufficient ‘Alcontara Notice’ which upon such notice being given, the police would be obliged to track down Okechu and Ikye. It is a well-established principle that for the Alcontara Notice to apply, the appellant must provide sufficient and good particulars in the right perspective, not insufficient or vague notice where the prosecution in the result would not be able to carry out 28 investigation to rebut the defence story. Having considered the above relevant evidence, we are satisfied that the relevant information regarding these persons such as their addresses were not provided by the appellant as such the appellant failed to provide a good Alcontara Notice. A bad Alcontara Notice did not help the appellant at all but imposed an obligation on him to lead evidence in relation to his story to rebut the evidence of trafficking against him [Rengarajan Thangavelu v PP [2015] 1 CLJ 993; Phiri Mailesi (Zambian) v Public Prosecutor [2013] 1 LNS 391, [2013] 5 MLJ 780; Marimuthu Seringan v PP [2016] 1 LNS 64]. This obligation to rebut the presumption of trafficking on the balance of probabilities had not been discharged by the defence. We would add, in any event, that the omission on the part of the police to investigate where the information given by the appellant smacks of details is not fatal to the prosecution’s case, on the other hand any reliance by the defence on such inadequate and vague information would make their argument thereon not palatable at all. We would not hesitate to also hold, on the authority of Teng Howe Sing, supra, that such failure entitled the learned judge to disbelieve the appellant. [41] The learned judge had adequately and judicially considered the defence evidence and found that the defence had failed to rebut the presumption under section 37(d) of Act 234 on the balance of probabilities. The appellant’s defence in essence is that he was an innocent carrier. However the learned judge, as we have mentioned earlier, found that the appellant was not an innocent carrier, instead he was guilty of willful blindness. His Lordship’s finding is in our judgment in line with the decision of this Court in Hoh Bon Tong v PP [2010] 5 CLJ 240 where at page 272, Abdul Malik Ishak JCA dealt with the issue of wilful blindness as follows: 29 “[72] In the context of possession of dangerous drug, in order to prove the element of guilty knowledge or mens rea the duty of the prosecution is to prove that the accused knew the nature of the particular dangerous drug that he was in possession of as a dangerous drug or as a prohibited drug. There is no necessity for the prosecution to also prove knowledge pertaining to the name, type or exact qualities of the dangerous drug. Here, the prosecution has done just that and we cannot find any fault in that. [73] The defence on innocent carrier must necessarily bring into the picture the concept of willful blindness. And according to Yong Pung How CJ (Singapore) in Public Prosecutor v. Hla Win (supra) at p. 438, “the concept of wilful blindness qualifies the requirement of knowledge.” And his Lordship continued further by saying (at the same page): As Professor Glanville Williams aptly remarked in his Textbook on Criminal Law, at p. 125: … the strict requirement of knowledge is qualified by the doctrine of wilful blindness. This is meant to deal with those whose philosophy is: ‘Where ignorance is bliss, ‘tis folly to be wise’. To argue away inconvenient truths is a human failing. If a person deliberately ‘shuts his eyes’ to the obvious, because he ‘doesn’t want to know,’ he is taken to know.’ [74] Continuing at the same page, his Lordship said: In Ubaka v. PP [1995] 1 SLR 267, the principles laid down in Warner v. Metropolitan Police Commissioner [1968] 2 All ER 356; [1968] 2 WLR 1303 and modified in Tan Ah Tee v. PP [1980] 1 MLJ 46 were applied by the trial judge. In its grounds of judgment, this court quoted the following passage by the trial judge: 30 Ignorance is a defence when there is no reason for suspicion and no right and opportunity of examination, and ignorance simpliciter is not enough. [75] Here, we have evidence that the drugs were placed inside transparent plastic packets and the contents can be seen from outside. It was mere folly on the part of the accused not to examine what he carried in his pockets. It is a classic case of willful blindness.” [42] One of the defences adopted by the appellant was that he came to Malaysia to survey the education opportunity which according to the learned judge was suspicious as there was not even a document found on him or his bags that could prove his interest to further his education in Malaysia. The appellant was allegedly interested to further his study in Segi College however, there were no documents or phamplets on that college recovered from him despite saying that he had researched on the educational facilities in Malaysia whilst he was in Nigeria. Besides, the appellant only carried the 2 bags for Okechu. The journey taken by the appellant was a long one and it was most suspicious that he did not carry any travelling bag of his own, instead he was merely carrying the 2 bags containing items which according to the learned judge “were hardly valuable to be handed over to Ikye”. We agree with the learned judge that such documents would lend credence to the appellant’s assertion that he was interested to further his study in Malaysia, in particular, at Segi College. [43] Additionally, the fact that the appellant could easily agree to carry the 2 bags for Okechu to be delivered to Ikye both of whom were complete strangers to the appellant had also reasonably aroused the court’s suspicion. We accept the learned judge’s finding that the reason 31 given by the appellant that he carried the bags for Okechu was because he was a nice man was not acceptable as a plausible reason. These suspicious circumstances should have alerted the appellant to the risk involved in carrying the bags which contained items that were hardly valuable for someone he hardly knew to be delivered to another person whom he completely did not know. The defence of innocent carrier adopted by the appellant ought to be considered in the light of the doctrine of wilful blindness. The appellant had obviously shut his eyes to and completely ignored the surrounding circumstance under which he was asked to carry the 2 bags which to our minds should have aroused his suspicion rather than trusting Okechu shortly or to be exact 2 weeks after he knew Okechu when he agreed to carry the bags to be given to Ikye in Malaysia. The appellant’s story on how he came about carrying the 2 bags given by Okechu to Malaysia which the appellant was visiting for the first time for a dubious reason of conducting the alleged survey on educational opportunity is utter nonsense as a person in the right frame of mind would not have done it without any satisfactory reason. The logical conclusion which could be drawn from these suspicious circumstances was that the appellant did not to come to Malaysia for the purpose of education but it was merely an excuse to cover up his unlawful activity of trafficking in the impugned drugs and that he knew that he was carrying the impugned drugs in the metal handles of the bag for the said purpose. [44] For the reasons that we have already indicated, we find no difficulty whatsoever in holding on the strength of the prosecution’s evidence considered in the light of the defence testimony and the well recognised legal principles, that the findings of the learned trial judge that the defence failed to rebut the presumption of possession and knowledge of the drugs 32 under section 37(d) of Act 234 and raised a reasonable doubt in the prosecution’s case, is unassailable. We are satisfied that the prosecution had successfully proved the charge against the appellant beyond reasonable doubt. The conviction and sentence by the High Court is consequently affirmed and the appeal is dismissed. Signed ( IDRUS BIN HARUN ) Judge Court of Appeal, Malaysia Putrajaya Dated: 27 September 2017 1. Solicitor For The Appellant - Dato’ Ahmad Zaidi bin Zainal Ahmad Zaidi & Partners J-1-10, Block J, Jalan PJU 1A/1 Taipan 2 Damansara Ara Damansara 47301 Petaling Jaya 2. Solicitor For The Respondent - Puan Norinna binti Bahadun Timbalan Pendakwa Raya Unit Perbicaraan Jabatan Peguam Negara No. 45, Persiaran Perdana Presint 4 62100 Putrajaya	60,190	Tika 2.6.0
WA-22NCVC-832-12/2016	PLAINTIF CROSS BORDER TRAVEL & TOURS SDN BHD DEFENDAN AMAR TRAVEL & TOURS SDN BHDPIHAK KETIGASRI LANKAN AIRLINES LIMITED	null	27/09/2017	YA DATUK S. NANTHA BALAN	https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=81161583-3dee-457e-9c09-b23a0f0ab42b&Inline=true	I).\I.\M.\L\1n< \M \H TIr<(;<;I DI KUALA I,UI\\|PUR D-u_»\.\I.\IEGI=.Iu \vII \v \H PFI<sJ'-KUIIVAN \L’&I.A\’$I:\ 16 cRoss BORDER TRAVEL 81 TOURS SDN BHD .'rn.\'n 93nn5.\I) ...PLMNTlF DAN AMAR TRAVEL 54 TOURS SDN BHD (Cu Nu cmossmx; ...DEl-‘ENDANT DAN Slu LANKAN AIRLINES LIMITED ...l’Il-[AK KETIGA GRouNI)s QE [1 ZDGMEXT (bmhmrz 1:»; Inlroducliun 1. -I'm».; are my grounds of magmem m Iespczt of an apphcauon by me -rlma Pam (Enclnsurc 16 under Order In mm 19{1)(nj.(\|:) (L) m (d/ o\|'Il\e1lu1r.~ nf Court 201: and/or Urdu 92 Ru]: (M, of my Run» of mm 2012 and/or (mm 1:. Rul: 1, of me Ruins of Cnun ZW12,tu act mag :11: l)L~\|'cmlaIIL} Nuuct or Kcquusl fut mg Issuanu of Z 'J1ImJ Pm} Noucc ducd 17 I-ebruarv gm ma Noucc fa) Dnrtzuom m u 11.! the Tlurzl Pmnv, dated 5 April 201" Page I M u Backgmund 2 The munnrr and Defendant uz. Lvozh zravcl zgcms and Lhcxr area of focus is me [la] umls and Umrah mm packagt: m Mecca. 'l11z'ilmd Pmy hex: xs Sn Lnnkan Anrlmcs Lumncd, whmh is the nauonzl mdmc at Sr: unka. 3 The "ﬂmd Party desznbcs the Defendant as me cmml Sales Agent (“csm fur the sn wk.“ .\xrlmcx, Bur, the Dc-fcndnm Hales um an, “em ncvu xhc cm for Sn Lnnk:m Aux...“ me am n W A: \V/olld \')\c:uLm Sdn and [“ASWV") who mm the GS-\ for 5.1 mm Auhnes uuul 25 February 2m. 1: has been suggested by mg Tl-nxd Party um despite. an uuslmcc of ASWV as GSA. dtahngs wet: always belwetn an mm: Party and me Dcfendznt only x« was polntzd out can me Defzndam and ASWV shit: the sum dirtcton 4. m any nut, n is nut m dlspul: rhnl mus: nsvw were sull lhv: GSA [or .511 mm Anrhncs, my n::c..d.m mud: [hghz Imoknngs for block seals rm my zom, jun: 2016. November 2m and Dcccmlmt 2010.11.25: mgm bookings wag made on 10 Febmm 2016 ma were fox (alum mgr“; from Kualz Lurnpux Intemanonal Azrpon ("mu") (0 jeddzh‘ s/ma; mm. uuezmu 26. Isllunyly nu: yvu .9 but .. .....a n... W»... .n.. mm mm‘: nvﬂcnd WI“! ..x p......... ....... and wt ampm a wnlrm an 4:“... r........1 By ............. wnur um... ....-.. ,».... ... a. r... ...m..... .1. mm... <.....m.. n...........g mm M157» by 111...... .....u...... .1 un. ﬁn! m...-... um nu... .......a an... -.m. 3.. u....... »...«................ Me 1.... been ...r.»....ea by me xub ms... lhal me. are no \|....g=. a...c.e..e.. .. .»...=...... ..... .. ....e........ M... ..» ....a In.’ ,.... us a. .......< ..r.. vmbulvl: \|1w.x\ul n....i.. aw. W! m nill n....a..\| .u.. y... will kkcp yonlr pm n! an ......m. .7. x.......... .. .-. ..... I «run when-by ........r.......... 4...... "mm u. .4... ...\|. .. s............zm ‘A: wnnld nu. .. .9. .. ........,.. md .. ..... ........ ...- Mc ... war mu y... mawnuld 1.... mm» m. ............ St” .. .e..;..................... buyers - [:1nphaxL< added] 11.. Defendant 5:... anothu amul a.-«ca I5 August 2016 on a.. .........~...r... of ..m— Kznns and conditions and cxpnsxsed when r.............. 1.. rvxpnnxc. am -n...a pm. replied m email dared 22 August 2016 and nxd:- wm. ..r.......= .. ,.u. .......s 4...... is ,x..,..... ions. ... mfeuence ... Ummh mm mm ., Ami: rum far N.../ac. a:,......... Plane mg m Amnr ]m\=\| .. ma... um Mal: r... Nuwmbcr ....1 am sul: Fm .......». .1 Dxcrmhcr mm Aﬂrr ..... mlrnu] a...:......... w..r. HQ. V-0 nmnzgesl ... mu...“ .1...“ .0 mum. .... cumnl Ummh YTL awmv ng .. ,..... .......... rn. 5.... n... 1.. .. lmm .... ........ ..r lb: .«.....e...=... .5 hf Inday ,\..,...c.... .r..... muld Iekan .1. .........a 3.... .1 that .5 ......=.......: u. [urn WK haung .k......a .'...)..s.....=.~- mgmm F... am part, ...= x).re..4.... 5.... ... crnad ama (. Scprunbcr 20.5 and ........ed am. .0... dnsansfntdon w.... m. 5.... of am... F1xu\|1y,\|>\/leztudnzcd 19 November zone, the Dcfend.Im's sohutun, Messrs mm. A. co, wrote .0 mg Thad Pauy and smzd as follmvs . 0.. 4.... ........... .. u... .. .. .......... ... .w ..r........, 20.. yam ...m. .. .,....a... . ...... .. me u....... .~,..,.,.....,.a. ..... (um. .,...c...... 2.. ....... .......... ...s...s. .... .. Om clmu awrs mu mp.» . a...mm ug.ee...:... me... ma yau. mm y.... on ....b.... (M 11" M» zone ma. ...;.....1 loour:\|\|rM.unvIlI:l'.1l\|) and ........... ...s. Lam: ..... um... ms... wnhdrew Ih: Inowxd mo 11...... (“n.u........="»-w...; (mph. ...k:u»w..r. Immxdvalrcﬂzcl Vwr mum ... .....a..... .. ».um..v..... nu ..uoc....a me u....... (“y.1gnnuF"\ seals mm... ..cms) wm. .......=1n.= tffccl Ila: ka .. .7... clxnl usued wllh . N...“ of Drvlund [mm m... Igml um. um... Tnvrl ma 1...... sa..m.a oINu 7A. \' ﬂux. nu... ram. Fmcinl x. mm .>.......y., Malaysia Asa .;.......ry..... nmgxngxhengkmnenxbelwcen ..... ............ ,.......... .1...“ u... M. Ihmwn ....... ......... nfhnhnllly AH .......,,., ....... .._. our clmm .. cumin: you .. vuonxuier your rkcrslon has been .. V... 0... cu... ............. u... .1. nmzs 01:) md . v-lid ...4 ma... ........... ml)! ya! ...a W!!! =.......a .. ...,. nu .n..w.....<. w.» nuw Whlh w. .7... y.... .. name n... .. the tV¢I1llVWC\|l9lIIll ...... w (h: sud Cmsx Bonk: Trnvrl .....1 Trans Sdnﬁld .....=\|.:... zn mu. .. a.......... .............e.... .....u puny ,..m.......,...g...... ).... As mcnuancd carlml. tho n...d Parry‘: p..n=.p..I ....d only reason for .55....-.g [hut cnuul on 17 my mm .s or appear: to 1.: the Dete..d....x an ofcmcdlmg me Umzzh nckzu [or my ma J“... 2016. we mm 30. S\gn\ﬁ:and}'. mm Is no mcmmn u. the ‘mud Pa , . emu of 17 May mm or a ;..1m 1:; an Defendant .0 ndhm: [0 an Sn Lankm mung, Group Turns nnd Condsuonc 2015 whzzcby Lhe Defendant As rzquilcd to pay 3 sum of mum par pzx (non— xefundablc drposu) for me new L'mn.h nckcxs whsch wet: bauktd for the peak pmod of Norcmber/Dnccmber 2016. The not mu: .5 what.“ me Thud Parry \\~.\s enmkd m mslsr am lhc Dcfmdnnt had an ply a non-rcillndzble 4:110“. of 25% am..- pm of u:m.,b,~ 21 1...“ 2mm According to me Dcfcndnm, I]-us mm WAS \mLI2IL-ally xrnpoxcd by me Thud Pmy and W15 21 vnolndon of am ﬁm comm bmvacn me Defendant and ma Thad vam- According (0 an Dafendznr. (ha m7n—r<fundnble dnposu [ox uavcl m No\'eml>er/Drscembcr 2016 was only payable in September 2015. 11...; mg Dcfcndnnt mzlntzms am the Thud Party was not adhering m -‘mum placate" (mum If .m.; 13 Max phmc) m rams of when 111:: ....mer....a.\|.1= «pm .5 m 1.: pmd m an anhxns 1.. m, event, the Defgndam allegcs am the Thnrd Pam applied different standards mu. other Lmvd agents and was unfairly vncnmiznng and oppxessmg me Defendant by imposing umeisonable deadlines for paymtnr of nun—x:E\\|ndabIe dcposils‘ me mm Anulynil and concluuion 32. The Jssuv; now Is whevlxcz m light oz an mm: mm: nunuvc md ngunst dun bmdmp or I11: alltganons and counteraﬂegnuans bung mad: by Lhe Defendant and ma Yaxty agmnst each ndlu, nus com should mm: m an nma Pany’s present zpplicsuon and st! aside me Nouc: uflssuznce ofTh1rd Party Noucc and (h: Nonce for Dnrcuons ngxlnsi (ht Thxrd Panv. Essmmlly, me (mm... 5 whcrhu me mm: Parry mu fu\|fi.Il::d my burden Ur snusfylng dus Court Ihm mas .5 1 clear ma ubwous us: for smlung out 0. mung nsxdc or whcmex (as contended by the Dcizndznt) mm are dlspnzcd Issues ma. W-mm 3 ma or am zcuon. In mu xcgard, I hm’: carefully read me zfﬁdavus of ma pztucs ma hzw: duly consldexed me sublnl mm: of counsrl. The conclusion am 1 am mam: In so far as the Tlnrd T’nny’x apphcilioll (Enclusun: m) I: am dcspllr the apparcnz luck of any an-mm: m the Dticncn ducd 1 Fcbxuzry 2017 :0 me Tlmd Fury’: many 01 responsIbLl\|Iy mm: cancellznon of the mac Umnh uckcu whuch resulted m Lh.\s sun bung Eukd zgnmst mg Defendant, an afﬁdavlls um weir am by the pnrues plzxnly discloses dm there are scvtrzd asqyuma Issucs bezwccn mg Third may and me Dcfcndam concemmg me lawfulness of mg T1-nzd Pmy's cancellzunn or purported release of the man Umrah uckcts which had bccn bookcd on m Fcbmnq zone. nu; umu 34 wuhmn making any ﬁrm conclusions onc ‘lay at the mhcr. I wuuld my 1. dm stag: am ,»m.._ﬂm,, amongst :11: mm um would warnm an uwcsugnuon at . um am:— 34.1 34.2 343 344 whether Lhe sh Lankzn .-mums Gmup Terms ma Condxuuns zone was applicable :0 due Dciendmu and if so, whcthcr u was mnndalury for the Dr.-Izndnnt m pay the Tlnzd rm, Rl\[l0O,DD Pu pnx as a nnmrciundalzle dcposnr for me I080 Ummh mus? \)¢’hzd1:r Lb: Thud Paxty was mum. us cmuuctunl nglus m cancel and release the I050 L'mnh nckels whnch had bccn booked by an: Dcfcndanv. on 10 February 2015, plcmncd iulclg an :hc Dcrcndms tanmllaunn of the ummh uclms whnrh had hm booked for Mar andjnne 2016? Whethcx as 3 mm: of fan. the Dtfcndanfs Cintculuon oithc Umrah nckcls for my zndjunt 2015 ms Jun to am: months bung : low scnsun for {he Umnh and wxmhu mm WCKC only lumzcd V1525 chm wm m..hh1c and whtrhev uh: Thind Pmy's pnung of the nckcts was mgh, such am me would be a low Mk: up of mm Umrah uckcts: \Y/hethez m Au Lh: cucumsuumes. the Dcfcndnm was yuxuﬁcd ... cnncelhng II-m Max ma jun: zom unmh «chm; Dane 15 nlu 34.5 34.6 34.7 34.3 34:: wllulm ch: Dcfcndzlm cancelled the May and jun: Umral-l ucms m rttallarlml fox uh: cnnccllauon of ASWV as du: GSA for Sn Lankan Anhnes: Wlmlm the Third Pany was enutled m Inslst (pct it: €l'nEl.l dated 7 June 2015) dull 25% of me lllghl an» R): the lam Umlzll nckels bc pnld by 21 June 1016: \Vhezhc1 any nnn—xel'un-inlzle deposn for umh uckets [ox November/Dtccmbcr zone was only payable In Szptzmbrr 2016; Whetl-lu Lhe Tluxd Parry lud ma conuuy m :11: wlms and v0nd\|u(ms ofils contractual arnngcmcm wuh nu: Dcfcndanr or cnnnrary m the sn»:alIed “mzrkel pumice" and X5 lhcxeforc huh]: to lndemmfy me Dcfmdant rm th: losszs (allegedly) suffcxed by an rlmllfc and wluch IS lmng claimed npinst mg mrmdm Wherllcr me Thlxd Furry’! «me put Its :mn1 dated 22 Angus; 2011.. mlung um um, m holding man Um:-ah nclus for November and Deccmbrx 2015 and mm prepaxed :9 mm to me former terms and condmons of conuzu, was a belated and meffecnml attempt at undoing Lhe effccl of ma ember cnncdlauun/purported mm: or me lose Ummh ucku.-> me um u 37 1. was argucd fax the mud rm, am the Defendant does not em. an Lmlrclad case against the Thud Party ma ilxt chum agaznsl mg Thuxd Parly xs (nvolcn: A. this stage, 1 mum m conclude um um Dcfcndanfs dnm against an 'l'hnd Pan) xs fnvolous. 1: may wdl be weak. but 1 calmer say dun: .5 frivolous. A: any rate, u 15 um law elm me rm um me Defmdanﬂs claim is weak is nnrofnsclfsufﬂcxcnr m yusufy a summary disposal ofrhs Dvfcndanfs claim against me rm: vmy. Hence. for the «mm ns ammlnmd abm, 1 am br the vurw um mm are issucs which need to b: mvcsugzzcd a! a um and mac .» \\|\|uc[u1c no men: m an Thud Patty's Applimuon Hmcc, Enclosux: 16 AS hereby msmsm mm costs of msmn on (sulnccc (D 4% allocatar) to be paid by Ihe'1‘hud Puty (0 me Defendant. mac. muxmngx, 27 Sqalcmhcr 20:7 / WM 5. Nzntl-:2 Bnlan / J“dE‘ ‘ « Hlgh Cuun ‘ Km. Lumpur Paul1nHl Cnunlelz M. 5 Surcndnn (Mcrlvr Kdmga, Yugzmoun z- Xnrmdnmj for the Plamnff .\[1. Gulrhnnn Smgh (Mum R4//If t- Cu) {or [he Dcrendmz. M1. lswthet Slngh (Mum But V»: vA:mm) for (11: Thud Pmy. smmm ()rdzr18 Rule 19(1)(a).('b) (c) at (d) Rules of Court 2012 Order 92 mg (4) Rules ofCoun 2012 Urdu m Ru]: 5 Rules oA'Cmm201l use n at u 3 I cl-ml] collecuvdy «fer to .11: mgm banking: as “the Umull Iirskeu". Thc pnznculax black n: Lfmxah uckcu whxzh n :11: sul)\|cc1 mauu of sh: prestm ma. by -11: vlmurr ngmnsx ch: Dgfcndnnr .5 me block of 1030 Umrah uclcets for Nomnhu 2016 and December 2016. Plaimiﬁ’s case 5. Accunimg to the Defendant, Lhey had plnced bookings mm the Thnxd I-am; for man Umxah rickus for November and Dccembcr 20m and [hm upon thcse Ummh uckcrs bung allncatcd In :11: Dcfcndnm, Lhcy wuc subsequently zsslgmd at Dfftlkd to then sulraguul, (he mnnm '11.: Plamuffs cast n (has on 1 March 2016, mg l’ImnuffacrAp[ad an Defmdmfs arm M1080 Ummh uckrts wluch wax: nuocam: on boaxd me sn Lankan Aidmes fox navel [mm KLXA Ia jeddzh, Snudi Axabu during an peak Umrah season m Novgmbn and December 2016 7 Ema on this set of nnm. nckcls um wcm allncncd for Nnvcmhcr mu Decembu zmn, nu Plaintiff «am to pnrpnrc an Umnh pmzkagc rm ml: to Its customers. The plckug: included an: ﬂxght uckets, accommodation and ground nxmngcmuus .n Sand: Ambii fax Lhe pound ofNDvu'nbe1 and Decembu 2016. ya... a m u 10 vow}: me Plzmuff WIS in .11: pxocns of mark;-ung .hc Urnrnh package to m (Lmmncu, lhc mm....rz rccmvrd ... cmzd darcd 23 Ma}. 2016 from cm Defendam by which (he Dcfznduu cnncclled an 1080 lﬁmuh uckels which had been prcvmllsly ztllomtnd (0 (J1: Plaxnuff. :\ccozd.\.ng (0 me Plan-mIT, the canczllauon of the 1030 Umuh ucktts was contrary m me agtcnnmt which ms concluded on 1 Mud. 2015 Tm rcnsnn g1\'cn by -he Defendant rm .11: canccllauon of (ht mm L71-nnh mm W1! lhar (hare W some msunammnamg between the Dcfendam and Sn Lmka Auhnca and as 2 msulv. Sn Lankan Axum ma cancelled (1.: umm. Lickcts allocaumx. And. mum of mu cancellation u[ an Ummh uckus, mg Plamuff could not sell me Ummh packages (0 an custumexs. Cansrqumdy, mg Plmurr suffcred loss of proﬁts which me, xnmuld haw Icccivcd ma thry sold me Umnh packages tn Ihm cunumcnu Th: Plnnuff comma. am the D:fundnm'.< amen: m unccllsng Lhn: I080 Umnh uckum waﬁ in breach of S111: agreement bclwccn me Plnmiff and Defendant and as a result, me Plmnuff suffeud loss which 15 csumztcd n RM 1.1sa,ooo.oo. The Plnmufi 3150 nlltgndly suff:I:d our of pack“ :x‘p:ns:s of mzo,ooo.oo hung the cost of prtpnring the brochures for the Ummh mckagc and othcn [chutd cons. -"emu Dercndann can 11. 13. In so [at .5 :11: Dcfcndunl .3 concuncd, nu ma: Defunct dmcd 1 Ftbxuuy 201' an posmcm any nook mm xesptct In :11: cancellzuon of me 1030 Emmh uckcts A: an: (hue wax: ccztmn polmal dzvelopments am had mm place m Sn Lnnka and changtt xnnrhm the management or Sn Lam :\\|rlxn:x m 5:3 mm and am mm was :1 dumcnve for all bulk bookings m be cancellzd (rte: par4_gvn¢h.r: 9, 10 mi 11 qf//hr D5/mt! 44/:4 1 Fr/vmag 2017)‘ llowcver, dcspur. not lzymg my blamt un the Thad Party ... Lheu Dtfenct, mu Defendant puxzecded 10 mm but dnxd pm,- pxoccednngs nymsl Sri Lmkzn Anhnes 1..a Essennally, by way of um am: part} pmceed.Ings, the Defendant has now zlmbuted the mute blame or nsponubilﬂy so; am Plnnnffs pmdxcamcnl. on m: mm mm. A:(md.Ing m m: Dclcmlam. thc Tlurd Fury ma wmngfujly canrcllcd the banking: for the 1080 Umuh ucktu and H’ was because of ma mm Fury‘: zcuon whldx tesulred In an Def:nda.u( commumcnung to me Plmurrm mm: and 2:» Mav 2016 and cancellzng um Umuh tickets, whnch was pmmsly buokcd by Lhe Defendant and thereafter assigned m m: Plamu'f£ lagesnul 14. The Flzunnffn-spnnded. bx‘ my 01' mm mm amt 23 Ma, 2016 to me Defzndnm and mud - ~wm. xdcnncc w your :m:4\| am 2: M2) mm noixfyuu l)w t2nu]Vauonolumn4hsc.:Ln1n Sn Lunkan Alrlmzs Km Imml dulmg mnnm u[Nn\:mh<r E. Decunbcr mm. we we exlmmcly dixnwumlcd mm nu M um a..«\|m.c,.. has mm. pllu mu um we have signed . .m.um.m ngvezmem mcrpt vg tlmsucnxs mm ... Ht: um: ml: “.1 mnﬁrmauan no slknlhuu beencnrwcllcd .. . Yum naxml Fm canndling Ihe man an: Io Sn mm /mum umvnmg lb: same 1: wlzlly uluwrpllblz sum: 1% hm bun gw:-n n. mx mnﬁmuuun 2 manila up wnh .. 9.9.1.“: dvpvnl dual»: to ...y I11: depnms Plmve vzfn to am conmcl \| ameemtvu am: 1 mm. mm bzluwvw A...» Tnv:l .2 Cmn Bordrr Indnclaung lheaﬂuxnd mcrpuanpe uﬂhn: nbm: m:m\|rmnd xeslx This vnll crulc Imlslvtpmblnn mm In In nurchzvu Mme me am am, cmIu\|\iII:dIh:se smmgmupsw nurbllam. This vnll alsa mu: hug: unnme mm fa! ux smot wc have ml mm sun wxlh ...y mm mluk Mme w: m ulrndy gm canﬁnnnlmn fmm yvu r:\|',I)d\ng Sn Lankan mum Gwen um muannn M hm: nu chum: hm I» pursue kpl .....m ....‘..a Sn Lmhn mrlnrs and Amu ‘rum mm-n:,\.v ‘laxlncxly msmrumrxghls ' The Defcndzm contcndzd um they placed a boolung mm (H: Thud Pang‘ for eh: man L'mm.h rickets pursuant to an ayumem dared no Frbnnry 2m(. and covusequtndy mm Ummh tickets we nllonrd m (11: Defcndzru. -n1: Defendant conmnds am the num Party had unfrurly, uxxlnwfullgr. unnumny and without any nousc, mnccllcd um honlungs ...d xcltzscd an 1030 Umnh uckels. wsmu In And L11: Thud Parry’: cznccllaumi/rule:-r at the man Ummlu mus 5:1! mm mouan 2\| suhscqucnl cancellation: by the Defcmhm uf us nsugnmcm of mg Umuh uckcrs no the Plamziff. wma. zesulted m me Plmnuff ﬁlmg me man. sun for daxnagcs and loss and expcnsns mcurmd Third Fart)’: position 11 r\ccm'd1n\|; m the mud Pmy, them is no contract beau-cn zhcmu-Ives and m: Der.-"dam Allcmnjvcly. mum is A contract, um. um ma Parry clnms um die Defendant ma not rumum ccnann cnncn] pnymanl terms and condmon: Speuﬁczlly, \v\|Lh aspect to me “booking dtposil", d1:Thnd Pxxty made refutnc: (0 me Sn Lznkzn Anhnes Gzcup zom Tums and Ccrndmons which mds as:— “Y4on—nlu~dIM< dtwuiv ul mama Iver m ‘-1 he tvlluded n W m. .:...u... givm upun rx gm wnlirru ... Agzmx will be yrspmlsihlc m nvmulnl and Fallow-up an um: hnnxsfnalrlz u,.:.._- m UL ..m ...,. .¢...x...4 Hf :...m.,u., .,.. .....¢ m,.,y....A.m,.m Mme: rlc smxa was 5; cancelled due «. maam by «mu. ,»...;...;.m ..r wk wnl he ,..b,m m .v..u,.u... cf mu [or II»: me ,...«~ [unphasis added] menm I8. [9, Thux. If WI! zugued for the Tlmd rm, than the Dcfexudanx did 110! mm p:\ym:m cf the booking dcpnslk 2: pm‘ .l..: 511 Lwnkan Anlmcs Group zum Terms and cunalnom. Hcncc, that has I:-can ;. mm on .11: Defendant’: pm An A'u.Ui.I.Lmg in mlponant payrntul tm-n of the Contact Howzvrz. I! IS clcar From rhc Thlrd l>m;'s mml damd 17 May :01!-, am (hr: xtamng pom! 0) czmlysr in am episode \§ Khc zancdlannn by m: mrenanm of the Un'\n\h Llckcts whlch wax: booked for May we June 2011. The crmccllaunn npprucndy caused losses to 5.. Lmkm AArLlncs.The'lh11d Parry asserts -lm rhc cnncnllauon om. Ummh uckets for May and June 2016 W35 slum: In (hi! regard, me Thlrd Pun‘ ml the posmon um (hr Dtfcndznr dcllbemlely cancelled the hrmklng for ms Ummh uckcri for May and June 201:» as a m. anon for me Icmunauun ntuxlzvx appcinlnltnl as Ill: G. .-\. Hawcrcr. mu Dcfcndzntk posluon 1. am the U-ml. u:k:r: rm May and June wet: crancellcd hzczuse me month uf May and _]ul-Ac 2016 we law pcnods ml the am: paces oﬂclcd by Sn Ludrzn Anllnes at am ume were very lug). and mm were dnfﬁculdes m obmnlng nsas for pilgrims (3 travel m Jcddah. Siudl Anbia (see: pmgmym 24 nffwra/KaI4r'r «Wall: qyvmm .1. 24 M47 2017, Enr/«mm 79 «num- -m 23 /\nd m, the pxnblem m m rm .1; {hr preulll sun a. cnnccnwd. “ma whcn Lhc’n1u‘d Fnrrv issued In mm: am: :7 May 201 1. to mu Defcndml It mas ms- "Dear Seem/Amu. win. Ivgudl mm hluclu .....:.v..m Sn mu... Mrines to JED lvr m. .......n.. n! Mny ...x m....., 1. In) bun Mghllghlzd um mm was . hug: nnmber ..r mm um Ixmn .m.....: u, u w...-1.:/A..." n...\|». Ax my nu rvllxlkd in . nm :1! rcvanue u. the mine. giving .... xnllinhul mu :0 men uni In-.1 uued . w..u ..n..- lmenhzry The mmngvmenl hm ......u Hm panmulnr mum vny $er1m§Yy.s)m'zI\|I1as us; mstllad m the mvrmolv mun}.-1 mum hung deumd Fmtsvzmg . xmuhl uulnnme fnr vmmm and December, u an clvmpclkd and mu, mused m mum .n mm. mm. m mnfktl Wu» m\lI\:dvnl:=ﬁ::l. As mm as M art gmrm for H1: busuwss vmm-cad ... Ah: pm. (It: menl -ulmnun m oompzmun In the mm mm have am. well mm nsussnry rwuirnnrms ‘~ [tmphnﬂs added] On 17 M ~ 2016. an Defendant Lespondcd and atlempled [O yusufy rhc canccllanon of the Ma}/jun: Ummh uckcls and «ma Third I-my: cancelling/lclcasmg am man Umnh mum rm Nuvcmbcr and us oh}=clInn re the umlareul act of December 2015. um mm-am pm uf um Dcfmdmz 5 emu mm; 35., A, you know L711: hummus .< very mm» and :1 mm many a.nmz rm.» m mm: Mnnuv Ur May/Jun Lmmll mmrmrm ... Malnma mmn mm nyulicamly m cnmyuruan MM: Im W Hzncz. um,..m um sell Khrkuh uml ... mum ;u..ma.M4.~,...a.. fm mm...“ meann- 24 2%. v.. leglulﬁ mg... .. Nov/Dc: IIIM pm 1.... ma .... wrilmg an... m .... ufseau cnnﬁnned mgcther w..>. .... am... 4......‘ which 1 ..... w\|I\|m5 m ......n. hm .. '. .....my .v..e..... .. mlrnc .. Plus: .e...m hack mu mm 1.5. yw vtlforvmmc: for line same .n....... cf Nm.Dxi 2015 whereby W1 Mm uhlucd um lhux x» r...... the Kill) me Flux: yen yaur sale: uffm do 3...... hmmwmk on u.....:. ....u.z. s........... befmu s<...:...g..m.e.....\|.. lhcrnfnve fmlmg m do so mu yo... 9... .» rm... II» m...........=... ginm m ,........r ... wrllmg. 1.... ......,xu.¢ ... mu: .1... ‘SW 4.. cm... mf llw mm Ming .5... ... me anrlinecommunnly/BAR and run.» nnvel ................ nu. uu. .. .u.......g ............... hn_un:s;p1ueuc:s" On 7 1.... mm, the Time 12.... ..s....a me folluwlng em...1 .0 the Dzfendzm which ma. ...;. --n... ... .... Lu‘: ......b.. abut: us... rvln.-ed Ivy Amlr Tnlvtl/As w...m 1... me ........ at Nlny ...n .1...“ mm mm s... .....:..¢ a.. I... of ..».....e .. an. Alrlmn I«)1..s.cucmdu.c ¢........ Tl. (‘S I... ..u u... .. grlwps 1... me wmuls ask for Nov/Dcc mo deptnures . Tn e....... us-/. m....a.\|.u..... r......= .......... ufNuv/Dec 2m :....u gmup: mm 2,, ,womc. b. 15% Nm-w ...x n. 2.. ...:..«.a r... .n u. muﬁnlud ......,. ........z.-.....m.s w. ,,,,....... ,.... .....-..........g ..... ,..... ....,,m.... .. ..., M . . Cc [nrnphasls .aa:a\| The Defendant obyccltd .n .1.c ....po........ of ..e.. K...» and mndmons and m an ¢...a.1 dmcd 21 _[....c mm, the dcfcndnnl wm. . ~~w.... Minx-m:: m an: ......._......g .......c.. we .:..¢....: n... W: ...e Indy lu vmeccd wuh an ..g==....... mm ;.....:zy .7. .1... angina! .r..... ma .»...1.......; ........ bcfule ngrczd ...-W... .5 mg m ..r n	21,447	Pytesseract-0.3.10
M-01(NCVC)(W)-140-05/2015	PERAYU ABDUL MANAN BIN HASSAN … APPELLANT RESPONDEN HASSAN BIN MARSOM & 6 OTHERS … RESPONDEN TS	Civil Procedure — Liability — Appellant was suspected to be involved in the fight— Appellant detained under order of a Magistrate — Appellant suffered injuries during detention — Trial court disallowed claim for false imprisonment even when parties had agreed on the issue of liability for false imprisonment —Whether appellant entitled to claim for false imprisonment	27/09/2017	YA DATO' ABDUL RAHMAN BIN SEBLIKorumYAA TUN TENGKU MAIMUN BINTI TUAN MATYA DATO' ABDUL RAHMAN BIN SEBLIYA PUAN SRI DATO' ZALEHA BINTI YUSOF	https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=bc0bcf38-e385-48e0-aa8e-403d9acbf29f&Inline=true	1 IN THE COURT OF APPEAL OF MALAYSIA (APPELLATE CIVIL JURISDICTION) CIVIL APPEAL NO: M-01(NCVC)(W)-140-05/2015 BETWEEN ABDUL MANAN BIN HASSAN … APPELLANT AND HASSAN BIN MARSOM & 6 OTHERS … RESPONDENTS [In the matter of Melaka High Court Civil Suit No: 21 NCVC-6-11 of 2011 Between Abdul Manan bin Hassan … Plaintiff And Hassan bin Marsom & 6 Others … Defendants] CORAM TENGKU MAIMUN TUAN MAT, JCA ABDUL RAHMAN SEBLI, JCA ZALEHA YUSOF, JCA JUDGMENT OF THE COURT [1] This appeal by the appellant was confined to the issue of liability for false imprisonment. The relevant facts are as follows. In the early hours of 22.11.2008, the appellant and one Mohd Hady were arrested and brought to the Melaka Police Headquarters to assist in police investigation into a fight that took place at Zubaidah Restaurant, MITC Melaka on 21.11.2008 at about 11.45 p.m. [2] The fight was between some members of the public and a policeman. The appellant was suspected to be involved in the fight. The 2 information that the police had on the appellant was that he was the gang leader of a secret society code-named “Geng 77”. [3] Thereafter the appellant and Mohd Hady were remanded in police custody for a total period of 14 days on the order of a Magistrate. Subsequently they brought separate civil suits against the respondents for assault and false imprisonment. [4] The appellant alleged that after his arrest, he was blindfolded and subjected to violent physical assault by 10 policemen in civilian clothes on the night of 21.11.2008 and in the morning of 22.11.2008, resulting in serious injuries to him. He was in handcuffs when they assaulted him. [5] Medical evidence showed that the appellant suffered from ‘Bilateral periorbital haematoma with right subconjunctival haemorrhage’ and ‘Acute renal failure secondary to rhabdomyolysis’. An expert medical witness who was called to give evidence at the trial testified that the injuries could result in death if left untreated. That was how serious the injuries were. [6] Before the commencement of the trial between the appellant and the respondents, it was agreed between them that the decision of the High Court in the Mohd Hady suit, which was heard first, would bind them on the issue of liability for false imprisonment. This is recorded at page 31- 32 of the supplementary appeal record dated 28.11.2014, which we now reproduce for ease of reference: “P. Plaintif: Kedua-dua pihak ingin memaklumkan Mahkamah bahawa pada 18.9.2013, kedua-dua pihak telah bersetuju bahawa liabiliti dalam kes 3 Mohd Hady, 21NCVC-5-11/2011 di Mahkamah Tinggi Melaka dan Mahkamah Rayuan, M01 (NCVC) (W)-17-01-2014) akan mengikat liabiliti dalam kes ini. Berdasarkan persetujuan awal, kedua-dua pihak ingin memaklumkan bahawa kita akan teruskan kes Manan hanya berhubung dengan kuantum tetapi rakan bijaksana, Peguam Persekutuan akan memelihara haknya berhubung dengan liabiliti, false imprisonment (pemenjaraan salah) di mana mereka akan membuat rayuan kepada Mahkamah Persekutuan. Kedua-dua pihak akan terikat dengan keputusan Mahkamah Persekutuan sekiranya kebenaran diberi akan terikat, jika tidak diberi, keputusan Mahkamah Rayuan akan mengikat kedua-dua pihak. Mahkamah: Jika kebenaran diberikan dan keputusan rayuan dibuat. P. Plaintif: Oleh itu kami akan menumpukan keterangan berdasarkan hanya kuantum sahaja. Yang penting juga, pihak-pihak diberikan kebenaran untuk apply to the Court of Appeal kerana bergantung kepada keputusan Mahkamah Persekutuan. SFC: Sahkan.” [7] At the conclusion of the trial of the suit brought by Mohd Hady, the learned trial judge allowed his claim for assault but disallowed his claim for false imprisonment. On appeal however, this court overturned the High Court’s decision and allowed Mohd Hady’s appeal for false imprisonment and maintained the judgment for assault. [8] This is the decision of this court that is under appeal to the Federal Court and which the parties agreed (paragraph 6 above) they would abide by whichever way the Federal Court were to decide on the issue of false imprisonment. Given this agreement by the parties, and pending the 4 decision of the Federal Court, this court’s decision in the Mohd Hady appeal should bind the respondents on the issue of liability for false imprisonment in the suit brought by the appellant. [9] The learned judge however did not allow the appellant’s claim for false imprisonment. He only allowed the appellant’s claim for assault and awarded general damages in the sum of RM80,000.00, in addition to RM50,000.00 for aggravated damages and another RM50,000.00 for exemplary damages, making a grand total of RM180,000.00. [10] The learned judge gave the following reasons for not awarding damages to the appellant for false imprisonment: “6. Bagaimanapun saya tidak akan memberikan apa-apa award untuk penahanan dan penangkapan yang didakwa salah kerana saya dapati dan memutuskan bahawa penangkapan dan penahanan Plaintif oleh pihak polis adalah sah dan mematuhi kehendak undang-undang. Disinilah perbezaanya dengan kes Mohd Hady kerana di sini saya dapati Plaintif sememangnya telah dipanggil untuk tujuan disiasat penglibatannya dalam satu pergaduhan di Restoran Zubaidah, MITC Melaka. Manakala Mohd Hady pula didapati sekadar mengikuti Plaintif sahaja. Namun begitu, saya telah memutuskan Mohd Hady masih tidak layak untuk mendapat pengisytiharan dan tuntutan atas dasar penahanan salah yang didakwanya.” [11] The basis for the reasoning was that since the remand order was issued by a Magistrate, any police officer acting in obedience to such order was immune from liability for the appellant’s detention, citing the decision of this court in Ketua Polis Daerah Johor Bahru, Johor & Ors v Ngui Tek Choi [2013] 4 CLJ 47; [2013] 1 LNS 130. [12] The learned judge was aware that his decision to disallow Mohd Hady’s claim for false imprisonment was reversed by this court, but 5 distinguished the facts from the facts of the appellant’s case. We reproduce below what the learned judge said: “7. Walaupun saya difahamkan keputusan saya berkenaan penahanan salah dalam kes Mohd Hady telah diketepikan oleh Mahkamah Rayuan, saya masih berpendapat bahawa kedudukan Mohd Hady jauh berbeza dengan kes Plaintif di sini. Dengan itu, saya memutuskan Plaintif tidak layak diberikan apa-apa pampasan ganti rugi bagi penahanan tersebut.” [13] It was against this decision that the appellant filed the present appeal before us. After hearing arguments by both sides, we unanimously allowed the appellant’s appeal and set aside the High Court’s decision. These briefly are our grounds for allowing the appeal. [14] The appellant’s contention was that the learned judge was wrong in disallowing his claim for false imprisonment as parties had agreed on the issue of liability for false imprisonment. Reliance was placed on the Federal Court case of Tan Geok Lan v La Kuan @ Lian Kuan [2004] 3 MLJ 465 where it was held at page 474: “With due respect, we do not agree because to our mind, if the parties had chosen and agreed as to the manner of resolving the dispute between them they will have to bear with whatever is the outcome. The threshold question is whether there was a binding agreement between the parties to settle the dispute in that manner? For the answer to this question, the learned trial judge will have to conduct the proceedings as aforesaid. And if the agreement is found to be binding, the dispute can be solved in the manner as agreed to by the parties and the case can be disposed of expeditiously; thus, saving time and costs.” (emphasis added) [15] This decision binds us. We were therefore constrained to agree with learned counsel for the appellant that the learned judge was wrong in 6 disallowing the appellant’s claim for damages for false imprisonment. Having agreed to be bound by the court’s decision on liability in the Mohd Hady suit, the respondents are estopped from denying liability for the wrongful detention of the appellant. Thus, although the learned judge was not bound by the decision of this court in the Mohd Hady case on the issue of liability for false imprisonment, the parties are bound by the agreement between themselves. [16] The respondents cannot approbate and reprobate, nor can they choose to accept the court’s decision only if it favoured them. That will be an abuse of process. Their agreement to be bound by the court’s decision on liability for false imprisonment in the Mohd Hady case must override and supersede their pleaded defence that the appellant’s detention was lawful, unless it could be shown that the agreement was repugnant to any law, which they failed to do. [17] Since the respondents in the Mohd Hady suit had been found to be liable for false imprisonment by this court, it must follow, until the decision is reversed by the Federal Court, that the respondents are also liable to the appellant for false imprisonment. They agreed to be bound by the decision and they must abide by it. ABDUL RAHMAN SEBLI Judge Court of Appeal Malaysia Dated: 27 September 2017. 7 For the Appellant: J Amardas of Messrs K P Ng & Amardas. For the Respondents: Teh Li Siew, Senior Federal Counsel of the Attorney General’s Chambers and Yusliza Awal of the State Legal Advisor’s Office Melaka.	9,865	Tika 2.6.0
02(f)-100-12/2014(S)	PERAYU DATUK HARRIS MOHD SALLEH … APPELLANT RESPONDEN 1. DATUK YONG TECK LEE (Sued in his personal capacity and as an officer of the 2nd Respondent) 2. SABAH PROGRESSIVE PARTY … RESPONDEN T	Tort — Defamation — Libel in newspaper — Plaintiff a politician — Publication of defamatory statements in two news articles — Whether statements referred to plaintiff — Whether words in news articles were defamatory of plaintiff — Whether defendants establish the Reynolds privilege defence — Defences — Whether defendants could rely on defences of qualified privilege and fair comment —Damages— Assessment of damages Quantum of — Whether seriousness of libel and recklessness in its publication were relevant factors in determining quantum — Defamation Act 1957 [Act 286], s 12 & Schedule Part 2	26/09/2017	YAA TAN SRI DATO' SRI AHMAD BIN HAJI MAAROPKorumYAA TUN MD RAUS BIN SHARIFYAA TAN SRI DATO' SRI AHMAD BIN HAJI MAAROPYA TAN SRI HASAN BIN LAHYA TAN SRI DATO' SRI ABU SAMAH BIN NORDINYA TAN SRI DATO' WIRA AZIAH BINTI ALI	https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=8a3b8902-6b0c-4c7c-8fd8-014f9fc55df3&Inline=true	1 IN THE FEDERAL COURT OF MALAYSIA (APPELLATE JURISDICTION) CIVIL APPEAL NO. 02(f)-100-12/2014(S) BETWEEN 5 DATUK HARRIS MOHD SALLEH … APPELLANT AND 10 1. DATUK YONG TECK LEE (Sued in his personal capacity and as an officer of the 2nd Respondent) 2. SABAH PROGRESSIVE PARTY … RESPONDENTS 15 [IN THE MATTER OF THE COURT OF APPEAL OF MALAYSIA 20 CIVIL APPEAL NO. S-02-691-03/2012 Between 1. DATUK YONG TECK LEE … 1ST APPELLANT 25 (Sued in his personal capacity and as an officer of the 2nd Respondent) 2. SABAH PROGRESSIVE PARTY … 2ND APPELLANT 30 AND DATUK HARRIS MOHD SALLEH … RESPONDENT] 35 2 IN THE HIGH COURT IN SABAH AND SARAWAK AT KOTA KINABALU SUIT NO. K22-128 OF 2010-1 5 BETWEEN DATUK HARRIS MOHD SALLEH … PLAINTIFF AND 10 1. DATUK YONG TECK LEE … 1ST DEFENDANT 2. SABAH PROGRESSIVE PARTY … 2ND DEFENDANT 15 CORAM: 20 RAUS SHARIF, CJ AHMAD BIN HAJI MAAROP, CJM HASAN BIN LAH, FCJ ABU SAMAH BIN NORDIN, FCJ 25 AZIAH BINTI ALI, FCJ 30 3 GROUNDS OF JUDGMENT [1] In this judgment the parties will be referred to as they were in the proceeding in the High Court. 5 [2] This case concerns the Plaintiff’s appeal against the decision of the Court of Appeal on 18.11.2013 reversing the decision of the High Court which had, on 29.2.2012 allowed the Plaintiff’s claim for libel against the Defendants, and awarded the Plaintiff a global sum of RM1 million for compensatory, aggrieved and exemplary damages. 10 [3] The leave to appeal to this Court was granted on the following question: “Whether the defence of qualified privilege can be invoked by 15 the 1st Respondent against any person who relied on information which truthfulness or accuracy is doubted and/or which is already known to the public.” [4] The background facts leading to the present appeal are these. Both 20 the Plaintiff and the First Defendant are the former Chief Ministers of Sabah. The Second Defendant is a political party. The suit which is the subject matter of this appeal was triggered by a speech delivered by 4 Tengku Razaleigh Hamzah (“Tengku Razaleigh”) at the Hongkod Koisan KDCA Penampang, Sabah on 2.4.2010. The speech was published in the Daily Express on 4.4.2010 with the caption “Invite saved my life: Razaleigh”. The topic of the speech was “Minyak Sabah Untuk Siapa?”. The relevant parts of the speech are as follows: 5 “Apabila cakap hal minyak dan Sabah, tak dapat tiada saya mesti mengingat kembali peristiwa yang amat sedih yang berlaku di sini yang menimpa rakyat Sabah dan negeri Sabah terutama sekali. Saya ingat dalam bulan Jun tahun 76, satu kemalangan besar 10 berlaku di Sabah. Umur saya panjang, orang kenalan saya yang saya sanjung tinggi umurnya pendek. Allahyarham Yang Amat Berhormat Tun Fuad Stephens dan anaknya sekali dengan pemimpin-pemimpin yang lain dari negeri Sabah dan juga pegawai-pegawai dari negeri Sabah dan dari kerajaan pusat 15 bersekali dengan setiausaha sulit saya telah menjadi mangsa nahas apabila jatuhnya kapal terbang yang dinaiki mereka. Saya sendiri sudahpun menaiki pesawat berkenaan bersekali dengan Tun Rahman Yaakob dan bersama-sama dengan saya melawat Labuan dan juga Sabah ketika itu dan dengan Almarhum Tengku 20 Arif Bendahara Pahang. Kita semua sudah "strapped" dah pakai tali pinggang kapalterbang. Saya duduk di belakang Allahyarham Tun Fuad Stephens, sebelah kanan saya Tun Rahman Yaakob, sebelah belakang saya Tengku Arif Bendahara Pahang. Tiba-tiba Datuk Harris yang pada masa itu menjadi Timbalan Ketua Menteri 25 Sabah mengajak saya keluar dari kapalterbang, kerana dia kata elok kita ke Pulau Banggi melihat rancangan belaan sapi dari Australia di Pulau Banggi. Saya pun ajak Tun Rahman Yaakob dan Tengku Arif Bendahara bersama dengan saya turun kerana saya 5 kata elok juga kita ikut Datuk Harris ke Pulau Banggi kerana saya nak tengok rancangan bela sapi, kita panggil lembu, di Pulau Banggi. Jadi kita pun ikut Datuk Harris ikut kapal terbang jenis yang sama Nomad, kita pergi ke Pulau Banggi.” 5 [5] In this regard, it is common ground that the First Defendant made two statements on 4.4.2010 and 9.4.2010 respectively [“the impugned statements”] in the context of the revelation by Tengku Razaleigh that minutes before the Nomad aircraft was due to take off from the Labuan airport, and when he was already strapped to his seat, the Plaintiff came 10 over and invited him to visit Pulau Banggi, Kudat to see a cattle farm project. The aircraft later crashed near Sembulan, Kota Kinabalu, killing all on board including the newly appointed Chief Minister, the late Tun Fuad Stephens and more than half of the Berjaya Cabinet Ministers. As the tragedy occurred on 6.6.1976, some call it double six tragedy and 15 some others call it triple six tragedy. In the trial in the High Court and in the judgment of High Court, the learned trial judge referred to it as the double six tragedy. After the passing of Tun Fuad Stephens, the Plaintiff, who was then the Deputy Chief Minister of Sabah, took over as the Chief Minister, the post of which he held on until his Berjaya Party was defeated 20 in the Sabah State Election in 1985. 6 [6] Latching on to the speech by Tengku Razaleigh, the First Defendant issued a statement on 4.4.2010 which was published in the Daily Express on 5.4.2010 under the caption “SAPP WANTS FILE ON TRIPLE SIX TRAGEDY PROBE REOPENED” [“the first statement”]. The statement reads: 5 “The opposition Sabah Progressive Party (SAPP) has called for the investigation file on the June 6, 1976 Nomad air crash that claimed the lives of leading Sabah politicians including newly-elected Chief Minister Tun Fuad Stephens to be re-opened to remove all doubts 10 about the true causes. Its President Datuk Yong Teck Lee said Tengku Razaleigh Hamzah's first hand account of how he left the ill-fated aircraft at the very last moment that saved his life also opens up old 15 speculation of how the plane crashed in Sembulan. How we remember the past shapes how we look at today's Sabah. It is for this reason that SAPP repeats our call for the lifting of the ban on the book 'Golden Son of the Kadazan' about a prominent 20 victim in the crash, Datuk Peter Mojuntin. It is also time to reopen the investigation in the June 6, 1976 air crash so that all doubt about the true causes of the crash are removed. 25 Prior to Razaleigh's revelation he said the people in Sabah had relied on word of mouth and other indirect sources. He said the 1976 book "The Politics of Federalism, Syed Kechik in East 7 Malaysia" had described Razaleigh as the "point man" in engineering and funding the defeat of Usno Alliance by Party Berjaya in 1976. Syed Kechik (now deceased) had, in the book, said that the late 5 Tun Mustapha felt that future generations of Sabahans might later criticize his surrender of the State's wealth to the Federal Government, and he wanted the clause "in perpetuity" be removed from the petroleum agreement. 10 Now that this fact has been reliably corroborated by a surviving, credible leader (Razaleigh) of the time, Sabahans will gain a better understanding of the political and economic relationship between Sabah and the Federal Government, he said.” 15 [7] On 7.4.2010, the Plaintiff issued a press statement of his own disputing the accuracy of the accounts given by Tengku Razaleigh, and challenged the Defendants to repeat their remarks and accusation more specifically and openly. The First Defendant accepted the challenge by causing to be published in the same newspaper a second statement 20 captioned “BASIS TO REOPEN DUE TO NEW INFO: YONG” dated 9.4.2010 [“the second statement”]. The statement reads: “Sabah Progressive Party (SAPP) President Datuk Yong Teck Lee said it is to be expected that the people will want to re-examine 25 the June 6, 1976 air crash in light of Tengku Razaleigh Hamzah's memory of the tragedy. 8 Responding to former Chief Minister Datuk Harris Salleh’s response to his call to re-open the investigation, Yong said Razaleigh was trying to tell the people something from the past in view of his revelation on the moment before the Nomad aircraft 5 took off from Labuan. Normally, it is proper to re-open an investigation into an old incident if new information surface. In this case, the new information is Razaleigh's version of event that has been put on public record for 10 the first time. Maybe nothing new will come out of the re-investigation. Or maybe something big and explosive will surface from the depths of history. 15 Yong said historians and forensic scientists regularly re-examine past accidents, crime and unexplained incidents. Issues like the Kennedy, Martin Luther King and Benazir Bhutto assassinations and the Lady Diana death and many other cases 20 are the subject of continuous study, he said.” [8] The Plaintiff testified that he was embarrassed and distressed when the First Defendant issued the second statement which to the Plaintiff meant that the First Defendant disbelieved his version of events. The 25 Plaintiff contended that the first statement and the second statement could be understood to mean that he must be investigated because he had conspired with others: 9 (1) to assassinate the late Tun Fuad Stephens who was then the Chief Minister of Sabah and other State Ministers and officials who were then travelling with him; 5 (2) to grab power and become the Chief Minister of Sabah himself after the demise of the late Tun Fuad Stephens; (3) to replace the then Chief Minister by way of assassination of Tun Fuad Stephens; 10 (4) to facilitate the signing of a Petroleum Agreement between the Sabah State Government and the Federal Government; and (5) to hand over the petroleum wealth of the State of Sabah to 15 Petronas and/or the Federal Government. The Plaintiff claimed not less than RM50 million for what he contended to be character assassination. The Defendants on the other hand, contended that the Plaintiff was being ultra sensitive and that it was only 20 a figment of his imagination that the call for re-investigation was defamatory of him. 10 [9] The High Court found that the statements referred to the Plaintiff. The High Court also found that the First Defendant caused the statements to be published. This is what it said: “Whether Defendants Responsible For Publication (Third 5 Issue) It is the defendants' pleaded case that they were not responsible for the publication of the two statements. At the trial however the 1st defendant in no uncertain terms admitted that he knew or expected his press statements to be published by the press. His 10 evidence in cross-examination is as follows: Q : Did you make a press conference or press release regarding your statement to call for re-investigation of the air crash incident on 6.6.1976? 15 A : There was a press release issued on 4.4.2010 and I think another one day later. Q : Do you agree that at all material times you actually intended 20 your statement to call for re-investigation on the air crash tragedy to be printed and published in the newspapers? A : Whenever we issue a press release, obviously we leave it to the newspapers whether to publish it without editing or 25 censorship.” [10] The High Court also found that the statements were defamatory of the Plaintiff. The learned trial judge found that on the surface, the two 11 statements looked innocent and harmless – they merely call for a re- investigation of the double tragedy. However, he found that “the sting lay beneath the surface”. He held that read between the lines, and in the context of the speech by Tengku Razaleigh, the First Defendant’s call for re-investigation was in pith and substance a call to investigate the Plaintiff 5 for a possible involvement in a criminal act. According to the learned trial judge, although there was nothing wrong for the First Defendant to call for a re-investigation of the double tragedy, when he insinuated that the Plaintiff had blood in his hand without making any attempt to verify the truth of the alleged new information revealed by Tengku Razaleigh, the 10 First Defendant had crossed the line separating fair comment and malice aforethought. This is what the learned trial judge of the High Court said in his judgment: “Are the two statements defamatory of the plaintiff? Do they have 15 a tendency to lower him in the estimation of others? On the surface the statements look innocent and harmless. They merely call for a re-investigation of the double six tragedy. But the sting lies beneath the surface. Read between the lines and in the context of the speech by Tengku Razaleigh the 1st defendant's call for re-20 investigation was in pith and substance a call to investigate the plaintiff for a possible involvement in a criminal act. There is nothing wrong for the 1st defendant to call for a re-investigation of the double six tragedy but when he insinuated that the plaintiff had blood on his hand without making any attempt to verify the truth of 25 12 the alleged new information revealed by Tengku Razaleigh, the 1st defendant had crossed the line separating fair comment and malice aforethought. There is no mistaking the undercurrent, the undertone and the 5 underpinning of the two statements. Each of them, in particular the second statement provoked speculation that the plaintiff knew in advance that something sinister was going to happen to the Nomad aircraft and that he had left the late Tun Fuad Stephens to die so that he could take over as Chief Minister of Sabah. The use of the 10 words "crime" and "assassinations" albeit in reference to the assassinations of John F Kennedy, Martin Luther King and Benazir Bhutto was calculated to give maximum impact to the insinuation of conspiracy to assassinate. An indirect accusation is as potent, if not more potent than a direct one. 15 The pleading itself reveals the defendants' real motive in calling for a re-investigation. By paragraph 19(b) of the statement of defence the defendants expressly pleaded that the public want to know why the plaintiff did not board the same plane. It is not an innocent 20 question. It is pregnant with insinuation that the plaintiff knew that the plane would crash and the reason why he did not board the plane was because he did not want to die. Viewed objectively and applying the reasonableness test the 25 statements are clearly defamatory of the plaintiff. A conspiracy to assassinate is a capital offence punishable with death under s. 120B(1) of the Penal Code. The statements are therefore defamatory without proof of special damage: Webb v. Beavan [1883] 11 QBD 609; Hellwig v. Mitchell [1910] 1 KB 609; Gray v. 30 Jones [1939] 1 All ER 798. 13 Learned counsel for the defendants relied on the decision of the House of Lords in Lewis v. Daily Telegraph Ltd [1962] 3 WLR 50 to press home the point that an ordinary man would not infer guilt merely from the 1st defendant's call for a re-investigation of the air 5 crash. That is true but only if the 1st defendant, in calling for a re- investigation had not insinuated anything sinister against the plaintiff. The 1st defendant in his testimony claimed that his comment on 10 the incident was neutral because he used the words "May be nothing new will come out of the re-investigation". But the sentence that followed nullifies the neutrality of the words when he said "or may be something big and explosive will surface from the depths of history" and then spicing it up by referring to the assassinations 15 of John F Kennedy, Martin Luther King and Benazir Bhutto. Thus, while the call for re-investigation was in itself perfectly neutral the insinuation that the plaintiff should be investigated for a possible criminal act took away whatever neutrality there was to the call for re-investigation. 20 A statement that is motivated by a desire to impute someone with a disgraceful act is prima facie defamatory.” [11] The Defendants abandoned the defence of justification, and instead 25 relied on the defence of qualified privilege and fair comment. The learned trial judge ruled against the Defendants in respect of the defence of qualified privilege and fair comment, resulting in their being found liable to the Plaintiff. 14 [12] The Court of Appeal accepted the correctness of the High Court’s ruling that the statements were defamatory and that the defence of justification did not avail the Defendants. However, the Court of Appeal allowed the Defendants’ appeal because it found that the defence of 5 qualified privilege was not properly considered by the learned trial judge and that the law on the subject of qualified privilege was not properly applied by the learned trial judge to the facts of this case. [13] At the outset there is one preliminary point which must be dealt with 10 in this appeal. In his Memorandum of Appeal, the Plaintiff raised the following complaints: (i) The learned judges of the Court of Appeal erred in law and in fact when their Lordships ruled that the learned trial judge had 15 incorrectly applied the law on the defence of qualified privilege to the facts of the case and/or that the Defendants were not actuated by malice in making the defamatory statements despite the clear evidence and/or history of bad blood between the parties; and 20 15 (ii) The learned judges of the Court of Appeal failed to consider properly or at all whether the defence of qualified privilege can be invoked by the First Defendant against any person who relied on information which truthfulness or accuracy is doubted and/or which is already known to the public. 5 [14] In his submission, referring to the complaints in the Memorandum of Appeal, the learned counsel for the Defendants submitted that this Court had granted leave to appeal only on one question relating to the defence of qualified privilege. It was therefore contended that the Plaintiff 10 should be estopped from raising and arguing on the purported issue of malice before this Court, as that issue was never allowed by this Court in the application for leave. For the Plaintiff, it was submitted that this Court had the discretion to allow arguments or submission on the issue which was outside the scope of the question in respect of which leave to appeal 15 was granted, in order to avoid miscarriage of justice. Menteri Sumber Manusia v. Association Of Bank Officers, Peninsular Malaysia [1999] 2 MLJ 337 was cited in support. We agree. In Menteri Sumber Manusia, dealing with similar point raised, this Court ruled that: 20 “…the Federal Court has the power and therefore the discretion to permit an appellant to argue a ground which falls outside the scope 16 of the questions regarding which leave to appeal had been granted in order to avoid a miscarriage of justice.” [15] Indeed, the appellate panel is not prevented from granting leave to amend the question allowed by the leave panel or to even add in new 5 question in order to achieve the ends of justice (see Terengganu Forest Products Sdn Bhd v. Cosco Container Lines Co Ltd & Anor and Other Application [2011] 1 MLJ 25, per Zaki Azmi CJ page 45). THE PLAINTIFF’s SUBMISSION 10 [16] Learned counsel for the Plaintiff submitted that the defence pleaded by the Defendants was the conventional qualified privilege and not the Reynolds privilege, which was relied upon by the Defendants in submission to escape the test of malice which, according to the learned 15 counsel for the Plaintiff, was inherent within the scope of the conventional qualified privilege, and in this regard the evidence of malice against them was clear. According to the learned counsel for the Plaintiff, the Defendants must not be allowed to depart from their pleaded defence. He contended that the Court of Appeal erred in law and in fact in allowing the 20 Defendants’ appeal based on the Reynolds privilege. Alternatively, he submitted that if this Court were to hold that the Defendants could rely on the Reynolds defence, then he contended that the Court of Appeal had 17 misdirected itself on the Reynolds privilege defence. To invoke that defence, the First Defendant must satisfy the Court that he had fulfilled the element of responsible journalism which, according to the learned counsel, mean the Defendants must satisfy the Court that they had taken reasonable steps to verify the accuracy of the new information and/or the 5 impugned statements. Elaborating on his submission, learned counsel for the Plaintiff argued that the First Defendant’s call for reinvestigation of the incident based on the new information did not make any contribution to the public interest element. Reynolds v Times Newspapers Ltd [1999] 4 All ER 609, was cited in support. The First Defendant did not verify with 10 Tengku Razaleigh the truth of the new information. In fact the First Defendant ignored the Plaintiff’s explanation. The First Defendant even ignored his own knowledge on the background of the new information from the two books which he admitted as his reference books on the incident. It was contended that since the truth and accuracy of the new 15 information was doubted, and that the serious allegations of criminal act were presented as statements of fact by the First Defendant, but shorn of any mention about the Plaintiff’s explanation on the matter, the impugned statements were not information which the public had a right or ought to know. Moreover, according to the learned counsel, the new information 20 was reported widely in the local newspapers and was already public knowledge. The second statement was published by the First Defendant 18 after the Plaintiff made a press statement disputing the new information. Despite this, the First Defendant still did not seek verification with Tengku Razaleigh, which according to the learned counsel, was unfair, unreasonable and was malicious. The First Defendant knew that the accounts of events given by Tengku Razaleigh in his speech on 2.4.2010 5 was doubtful because it differed from his accounts as recorded in the two books, and which accounts the First Defendant was aware as the two books were his reference books. This, learned counsel argued clearly showed that the First Defendant was not honest and/or had improper motive in publishing the impugned statements. 10 [17] Learned counsel further submitted that there was a clear misdirection in the law on the part of the Court of Appeal when it said in paragraph 16 of its judgment that the fact that the statements is in fact untrue and defamatory does not preclude the defence of qualified privilege 15 from availing the Defendants. [18] Responding to the submission made on behalf of the First Defendant that he was entitled to invoke qualified privilege so long as he had acted responsibly in checking that Tengku Razaleigh actually made 20 the statement revealing the new information and that the First Defendant had no burden to investigate its accuracy, and that the truthfulness of 19 Tengku Razaleigh’s speech was a non-issue or irrelevant, the learned counsel for the Plaintiff submitted that the rationale of the said submission was that [as held by the Court of Appeal] the factual basis on the facts of this case was not whether the revelation of Tengku Razaleigh were true, but whether it was true that he made the revelations. Learned counsel 5 submitted that the aforesaid submission was misconceived. He argued that if the First Defendant could invoke the defence of qualified privilege without making verification on the truth of the statement by Tengku Razaleigh, rumour mongering will flourish, and reputation or dignity of human being will be without any protection in this country. 10 [19] It was also submitted that in the context of the Statement of Claim and the Statement of Defence, the particulars of the qualified privilege stated under paragraph 19(b) of the Statement of Defence constitute specific insinuation the truth of which the law requires the Defendants to 15 prove. Thus, the issue in this appeal is whether it was reasonable and prudent for the First Defendant to repeat and rely on the new information without verification with Tengku Razaleigh, having regards to the First Defendant’s knowledge of the contents of the two books and the Plaintiff’s press statement on the event prior to the incident. It was submitted that 20 the notion that the Defendants could rely on the defence of qualified privilege just because the First Defendant had purportedly acted 20 responsibly by checking that Tengku Razaleigh had actually made the statement, but without verifying the truth of the new information directly with Tengku Razaleigh, is legally devoid of merit. [20] Elaborating on responsible journalism, the learned counsel for the 5 Plaintiff submitted that the Defendants had not acted responsibly in accordance with the ten factors listed by Lord Nicholls in his judgment in Reynolds. It was submitted that the First Defendant cannot avail himself of the Reynolds defence of qualified privilege because not only had he failed to take responsible and fair steps to verify the impugned statements, 10 all the other factors listed by Lord Nicholls were also against him. [21] It was submitted that the Court of Appeal misdirected itself when it stated that the learned trial judge’s ruling that the Defendants’ failure to verify with Tengku Razaleigh directly, the truth of the revelation he made 15 was evidence of the First Defendant’s malice did not represent the law on qualified privilege. On the duty to verify, the learned counsel cited paragraph 80 in the judgment of Lord Phillips of Worth Matravers PSC in Flood v. Times Newspapers Ltd [2012] 2 AC 273, at page 300: 20 “What did the duty of verification involve? There is authority at the level of the Court of Appeal that to justify a Chase Level 2 allegation a defendant has to adduce evidence of primary facts that 21 constituted reasonable grounds for the suspicion alleged. These will normally relate to the conduct of the claimant. Allegations made by others cannot be relied upon.” [22] Learned counsel for the Plaintiff also relied on the Privy Council 5 case of Pinard-Bryne v Lennox Linton [2015] UKPC 41 where the Court held at paragraph 38, that there must be a public interest in the publication of the details of the allegation of crime or professional misconduct and there must be verification because the need for verification provides real protection for the individual concerned. 10 THE DEFENDANTS’ SUBMISSION [23] In his submission in reply the learned counsel for the Defendants submitted at length in support of his contention that the words in the 15 impugned statements was not defamatory. Elaborating on this contention, learned counsel for the Defendants submitted as follows: (1) On 4th April 2010, the “Daily Express” reported, under the headline “Invite saved my life: Razaleigh” a speech in which 20 Tengku Razaleigh revealed for the first time that he was already strapped in his seat in the doomed plane, when the Plaintiff invited him to inspect his cattle property. There was no dispute at trial, or on appeal, that this revelation had been 22 made by Tengku Razaleigh and accurately reported by the “Daily Express”. The transcript of the speech of Tengku Razaleigh was agreed to be admitted as exhibit after the video chip containing Tengku Razaleigh’s speech was played in open court at trial. 5 (2) On 5th April, under the heading “Yong: Re-open investigation on the air crash of June 6, 1976” “The Express” reported the First Defendant as saying that this revelation by Tengku Razaleigh:- 10 “opens up old speculation of how the plane crashed in Sembulan. How we remember the past shapes how we look at Sabah … It is also time to re-open the investigation into the June 6 air crash so that all 15 doubts about the true causes of the crash are removed” (3) This was not a defamatory statement, and could not rationally be regarded as defamatory in any country which 20 has a modicum of respect for free speech. It was simply a call to re-open an investigation to remove doubts about the cause of a crash that had been discussed for over thirty years, after an "open verdict" had been recorded by the 23 Coroner. Nonetheless, it was the Plaintiff who first spoke out to attack the First Defendant. On the front page of the "Daily Express" of 7th April, headed "Harris Dares Yong, Jeffrey'', the Plaintiff was reported as having issued a statement about the call for an enquiry: "It is mischievous 5 and directed to ridicule and defame me". He challenged the First Defendant to repeat his remark and allegation "openly and in public". The Plaintiff gave his own account of the matter, claiming that Tengku Razaleigh was never booked on the fatal flight. 10 (4) Several important matters arise from Plaintiff's challenge: First, it was a case of voluntary assumption of risk - the Plaintiff incited the First Defendant to repeat the inquiry call, having identified himself as a person who would be 15 defamed by the repetition. Second, Plaintiff's statement was defamatory of the First Defendant, describing him as mischievous and as a defamer. Under Adam v Ward privilege, First Defendant was entitled to defame his attacker when answering back. The Plaintiff had put his account on the 20 public record, and there was subsequently no need for the 24 First Defendant to repeat Plaintiff's version - it would be fresh in the minds of readers of the "Daily Express". (5) The First Defendant responded, as he was fully entitled to do, and his response was carried in "Daily Express" of 9 5 April, under the heading "Basis to re-open due to New Info: Yong". It was plainly a response by the First Defendant to the Plaintiff's attack on him for being mischievous. He said that people would want to reexamine the crash in view of the new revelation. 10 (6) The second statement was incited by the Plaintiff, and merely set out the First Defendant's argument for a new investigation because new information had come to light. He did not imply that the crash was the result of crime - 15 he spoke also of "accidents" and "unexplained incidents". His examples of Kennedy and King were examples of cases that are constantly being re-investigated, and did not imply that the crash was to be considered as an assassination: Princess Diana's death was also mentioned, and that had 20 been proved to have been an accident. Although the First Defendant asked for the incident to be re-investigated, he did 25 not actually ask for the Plaintiff to be investigated. There is a world of difference between the two statements. (7) It is submitted that the learned trial judge's finding that the words of both articles were defamatory, insinuating that 5 Plaintiff had "blood on his hands" and was an assassin, was not rational and did not properly apply the "ordinary reader" test for defamation. The three articles must be taken together and the question is whether the ordinary reader - not unduly suspicious and not avid for scandal - would think that 10 the First Defendant was accusing the Plaintiff of being a mass murderer. The ordinary reader would find no such accusation in the words calling for an inquiry. There was no insinuation that the Plaintiff was, or might be, guilty of sabotage. 15 (8) The Court of Appeal did not find it necessary to deal with whether the words really were defamatory. The Defendants contended that the words are not defamatory, but if they are, they are of the lowest level, namely, level 4 – the Plaintiff might conceivably be involved in a crime related to the 20 crash of the plane. 26 Level 4 would be the only possible level on which the First Defendant's statements might be said to defame the Plaintiff. And it is a most far-fetched level, given the eight different causes that have been advanced as responsible for the crash, including overcrowding, pilot error, pilot 5 suicide, deficiency of the plane and foul play. Public Interest [24] On the issue of public interest, the learned counsel for the Defendants 10 submitted that in the application of Reynolds privilege, the low level of seriousness of the allegation is a factor to be weighed in support of the contrary right to speak out on an issue of public interest. There could hardly be anything more momentous in the history of a state and its people than a tragedy that took the lives of its newly elected government and Chief 15 Minister. The tragedy is solemnly commemorated on 6 June every year. Yet it has never been properly investigated or subjected to any authoritative public inquiry. There could be no more legitimate public interest than in calling, when a new revelation comes out, for an inquiry into these deaths. The Coroner returned an open verdict, which means that there is a 20 continuing legal duty to establish their cause. The First Defendant was 27 acting in accordance with that duty when, on new information emerging, he called for the inquiry to be re-opened. [25] It was contended that the Court of Appeal decided in paragraph 11 of its judgment that the public interest in having such an inquiry was 5 overwhelming. It was therefore submitted that the publication by the First Defendant of his call for an inquiry in light of fresh evidence was protected by Reynolds (or 'public interest') privilege, which could be lost only if he behaved irresponsibly. The protected publication was: 10 (1) a statement of fact (uncontested at trial) that Tengku Razaleigh had made the revelation; (2) a further fact (uncontested at trial) that it was new information – i.e. a genuine revelation; and (3) a comment, that the above facts called for or justified a re-15 opening of the case. [26] On the submission made on behalf of the Plaintiff that Reynolds privilege does not apply to facts already known to the public, the learned counsel for the Defendants submitted that, that is not correct. 20 Reynolds privilege applies to any statement made where there is "some real public interest in having the information in the public 28 domain". Flood v. Times Newspapers Ltd [2012] 2 AC 273 was cited in support. According to the learned counsel for the First Defendant, the latter was leader of a political party - President of SAPP with two members of parliament and two state assemblymen. The information that he put in the public domain was not a repetition of Tengku 5 Razaleigh’s revelation, but the comment that it was new and deserving of further inquiry. [27] On the issue of responsible journalism, the learned counsel for the Defendants submitted that given the public interest in the First 10 Defendant's call for an inquiry, this call attracted "Reynolds" common law privilege which could be lost only through "irresponsible journalism" - a shorthand for a blameworthy failure to check the basic facts. In this case, as the Court of Appeal held, the basic fact that he was under a duty to check was that Tengku Razaleigh had actually made the revelation. The 15 uncontested evidence was that he did so check, and established that Tengku Razaleigh had made the revelation at lunch when he came to Sabah on 2.4.2010, and had repeated it to the shock and surprise of 1,000 people in his speech that evening. There was no dispute about this. The First Defendant had checked to ensure that the revelation was made, and 20 knew from his own reading of books about the incident that it had never been made before. Moreover, the First Defendant knew that it was at 29 least credible – one does not readily forget the moment one’s life was saved; and was newsworthy – the “Daily Express” had published it prominently, as it subsequently published his call for an inquiry. [28] Thus, it was submitted that the First Defendant had made all the 5 checks that were necessary to justify his call for an inquiry. He had checked that the revelation had been made and that it was new. Obviously he did not have to establish whether the revelation was true, because that would be the job of the very inquiry for which he was calling. On the Plaintiff’s claim that the First Defendant should have made a 10 police report, this is absurd, because the First Defendant was not accusing anyone of a crime. The First Defendant was asking for the inquiry to be "re-opened". The Coroner's verdict was still "open" and the First Defendant did not know where it would lead. The First Defendant did check with those present at the forum where Tengku 15 Razaleigh delivered his speech. He did not immediately proceed to issue the statement. He chose to be prudent and waited until after the publication of the Daily Express; a clear display of responsible journalism on the First Defendant's part. 20 [29] On the issue of malice, it was submitted that it (malice) is now subsumed under “responsible journalism” in cases of Reynolds privilege. 30 There is no evidence that the First Defendant set out to lie about Tengku Razaleigh’s revelation, or that he was indifferent to its truth. On the contrary, the First Defendant wanted it investigated. Nor was there evidence that a legal dispute with the Plaintiff, eleven years before, had so poisoned the First Defendant's mind that he would make false 5 allegations against the Plaintiff. The only issue is whether t he First Defendant checked the factual foundation for his call for an inquiry - and he did. [30] It was submitted that in this case, the fact that was relevant was 10 that Tengku Razaleigh had actually made the revelations, and that it was new. The First Defendant did not merely rely on the "Daily Express" report, he made further enquiries to ensure that the report was accurate and the revelation was made, and that it had not been published in either of the books about the incident. That was all he had to do for 15 what was, at most, a level 4 "defamation by implication”. Flood v Times Newspapers was cited in support. The implied defamation in the circumstances entitled the First Defendant to the protection of the Reynolds privilege. 20 [31] On the sole question in respect of which the leave to appeal was granted, it was submitted that if the question is read as asking whether 31 Reynolds privilege protects information subsequently found to be inaccurate or untruthful, the answer is in the affirmative, if the two conditions (public interest and responsible journalism) are met. It was precisely to protect such information which could not be proved true (i.e. could not be defended by a plea of justification) that Reynolds was 5 developed. If the question refers to information which is doubtful or questionable at the time it is published, the answer will also be in the affirmative, so long as there have been responsible checks made which have not shown in the information to be false. In this case, the information had the ring of credibility (a man is not likely to forget the circumstances 10 in which his life was saved) and although Tengku Razaleigh’s recollection was called into question by the Plaintiff’s recollection, as published on the 7.4.2010, the point of calling for an inquiry was that the inquiry itself could resolve this dispute. Thus, Reynolds privilege can protect statements of fact that are themselves open to question if the gist of the publication is to 15 call for an inquiry into whether they are true. [32] In respect of information which is already known, statements may be protected by Reynolds privilege even though information in them is already known to the public, so long as they are of public interest and 20 made responsibly. In this case the issue does not arise, because although Tengku Razaleigh’s revelation was reported by the “Daily Express” on 32 4.4.2010, the ‘information’ that was published by the First Defendant on 5.4.2010 and 9.4.2010 was not mere repetition – it was information that Tengku Razaleigh’s revelation was new and justified an inquiry, and that an inquiry had been called for by the First Defendant, who was the leader of a political party. These elements had obviously not been known to the 5 public until the First Defendant’s two press statements. [33] On the Reynolds ten point tests suggested by Lord Nicholls, it was submitted that the tests were met. The submission made is as follows: 10 1. Seriousness. If it was defamatory at all, this was a level 4 case, of defamation by implication. The Plaintiff had identified himself and had assumed the risk when he defamed the First Defendant and challenged him to repeat a non-defamatory call for an inquiry. There was no allegation of mass murder or 15 that the Plaintiff had “blood on his hands”. 2. The extent to which the subject matter was of public concern. To a very great extent, still, in Sabah, the deaths of its Chief Minister and many of his cabinet are still of public 20 concern. 33 3. Source. There could be no suggestion that the original source, Tengku Razaleigh, had an axe to grind. Nor did the “Daily Express”, in publishing on 4.4.2010 the report of Tengku Razaleigh’s revelation. 5 4. Steps Taken to Verify. The Court of Appeal was satisfied that the First Defendant had made enquiries to verify that Tengku Razaleigh had made the revelation. 5. Status of the Information. It was fresh evidence, and had 10 never been investigated. It came from a credible person – Tengku Razaleigh. 6. Urgency. News is perishable, and the First Defendant as a political leader was right to comment as soon as possible. He 15 was, moreover, incited and provoked by the Plaintiff’s attack on him on 7.4.2010 to make his second press statement. 7. Whether comment was sought from the Plaintiff. This was unnecessary because the Plaintiff had given his version of 20 events on 7.4.2010. No approach was necessary. 34 8. Did it contain the gist of the Plaintiff’s story? The answer is in the affirmative because the four articles – on 4.4.2010, 5.4.2010, 7.4.2010 and 9.4.2010 must be considered together. The Plaintiff gave his story in detail on 7.4.2010. 5 9. Tone. Here, Lord Nicholls plainly indicated that Reynolds protected calls for an investigation – and that was exactly what the First Defendant called for. 10. Circumstances. This would include the continuing public 10 doubts and rumours about causes of the crash; the dramatic and sudden nature of Tengku Razaleigh’s revelation; the First Defendant’s political role as President of a party with elected representatives in calling for a measure of good government, and of course the fact that the First Defendant’s first statement 15 was non-defamatory and he issued his second only after being defamed by the Plaintiff and incited to repeat his call.” OUR DECISION 20 [34] First, the question is whether the Reynolds privilege defence was pleaded by the Defendants. As a starting point, we refer to Syarikat Bekalan Air Selangor Sdn Bhd v. Tony Pua Kiam Wee [2015] 8 CLJ 35 477, where in its judgment this Court referred to the House of Lords’ judgment in Reynolds concerning the development of qualified privilege for publication of defamatory statements in the public interest. This is what Azahar Mohamed FCJ, speaking for the Court said: 5 “[23] This then brings us into sharp focus the very important English House of Lords case of Reynolds v. Times Newspapers Ltd (supra) concerning qualified privilege for publication of defamatory statements in the public interest. This much quoted case provides a good starting point. It is worth to set out the essential background 10 facts. In that case, Mr Reynolds had been the Prime Minister of Ireland, until a political crisis in 1994. He began proceedings for defamation against the Times, the publisher of an article contained in the British mainland edition of a national newspaper. The publication related to an article to the effect that Mr Reynolds had 15 misled the Irish Parliament. Mr Reynolds claimed that the words complained of bore the meaning that he had deliberately and dishonestly misled the Parliament and his cabinet colleagues. The Times pleaded, inter alia, the defence of qualified privilege at common law. At the trial the jury returned a verdict in Mr Reynolds's 20 favour and he was awarded damages. The Court of Appeal set aside the jury's verdict and ordered a retrial on the ground of misdirection to the jury. The court also ruled that the publication was not covered by qualified privilege. The Times appealed, contending that the courts should recognise a generic qualified 25 privilege encompassing the publication by a newspaper of political matters affecting the people of the United Kingdom. 36 [24] The House of Lords rejected this contention and held that the common law should not develop a new subject matter category of qualified privilege whereby the publication of all political information would attract qualified privilege whatever the circumstances, since that would fail to provide adequate protection 5 for reputation. It was held that it would be unsound in principle to distinguish political information from other matters of public concern. The House of Lords agreed that the traditional ambit of qualified privilege should be extended somewhat and that it was available in respect of political information upon application of the 10 established common law test of whether there had been a duty to publish the material to the intended recipients and whether they had had an interest in receiving it. The decision marked a decisive departure from the traditional pro-reputation orientation of defamation law in England and was quickly recognised as a 15 "media-friendly development" (see Grant v. Torstar Corp 2009 SCC 61). As a result of Reynolds v. Times Newspapers Ltd (supra) there is now a much more extensive protection for publications to the world at large where the matter is of sufficient public concern. This is known as Reynolds privilege. Lord Hoffman in Jameel And 20 Another v. Wall Street Journal Europe [2007] 1 AC 359, on the other hand said it might be more appropriately be called Reynolds public interest defence.” [35] Lord Hoffmann in his judgment in Jameel And Another v. Wall 25 Street Journal Europe [2007] 1 AC 359, described this defence as the Reynolds public interest defence. Under this defence there is no question of the privilege being defeated by proof of malice because the propriety of 37 the conduct of the Defendant is built into the conditions under which the material is privileged and the burden is on the Defendant to prove the requirements of the defence are satisfied: “[46] Although Lord Nicholls uses the word “privilege”, it is clearly 5 not being used in the old sense. It is the material which is privileged, not the occasion on which it is published. There is no question of the privilege being defeated by proof of malice because the propriety of the conduct of the Defendant is built into the conditions under which the material is privileged. The burden is 10 upon the Defendant to prove that those conditions are satisfied. I therefore agree with the opinion of the Court of Appeal in Loutchansky v Times Newspapers Ltd (No 2) [2001] EWCA Civ 1805 at [35], [2002] 1 All ER 652 at [35], sub nom Loutchansky v Times Newspapers Ltd (Nos 2, 3 and 5) [2002] QB 783 that 15 ‘Reynolds privilege’ is ‘a different jurisprudential creature from the traditional form of privilege from which it sprang’. It might more appropriately be called the Reynolds public interest defence rather than privilege.” 20 [36] In Syarikat Bekalan Air Selangor, following Jameel and Seaga v Harper [2008] 1 All ER 965, this Court held that, the public interest defence should by no means synonymous with journalists or media publications. On the ground of public interests, the defence should in the same way be extended to anyone who publishes or discloses material of 25 public interest in any medium to assist the public better comprehend and make an informed decision on matters of public interests which affect their https://www.lexisnexis.com/my/legal/search/runRemoteLink.do?A=0.025426870694752357&bct=A&service=citation&risb=21_T26227519608&langcountry=GB&linkInfo=F%23GB%23EWCACIV%23sel1%252001%25page%251805%25year%252001%25 https://www.lexisnexis.com/my/legal/search/runRemoteLink.do?A=0.025426870694752357&bct=A&service=citation&risb=21_T26227519608&langcountry=GB&linkInfo=F%23GB%23EWCACIV%23sel1%252001%25page%251805%25year%252001%25 https://www.lexisnexis.com/my/legal/search/runRemoteLink.do?A=0.8224581173348318&bct=A&service=citation&risb=21_T26227519608&langcountry=GB&linkInfo=F%23GB%23QB%23sel1%252002%25page%25783%25year%252002%25 38 lives. To safeguard the extension of this privilege, so that it is not abused, as a necessary balance, it is the duty of the Court to robustly ensure that anyone accorded with the privilege meet the test of responsible journalism. This, underpins the significance of protecting the right of freedom of expression on the matter of public interests, whilst at the same 5 time providing adequate protection for reputation. Freedom of expression is not absolute. [37] Reverting to the appeal before us, we are unable to accept the Plaintiff’s contention that the Defendants could not invoke the Reynolds 10 public interest defence. In their pleading, the Defendants contended that the impugned statements were made on a matter of public interests, namely the investigation into the real cause of the plane crash on 6.6.1976 which took the lives of the late Tun Fuad Stephens and other State Ministers and officials who were then travelling with him. The Defendants 15 averred that the public would like to know, inter alia, why the Plaintiff did not board the plane; whether it was the Plaintiff who at the very last moment requested Tengku Razaleigh and two others to leave the plane and if so, why? Further, the Defendants contended that the First Defendant being a responsible politician, was under a legal, moral and/or 20 social obligation to publish the words in the impugned statements. 39 [38] As we have said, in his submission in reply, the learned counsel for the Defendants submitted at length in support of his contention that the words in the impugned statements were not defamatory, and even if they were defamatory, they were of the lower level – namely that the Plaintiff might conceivably be involved in a crime related to the crash of the plane. 5 However, the Court of Appeal accepted the correctness of the learned trial judge’s ruling that the impugned statements were defamatory and the defence of justification did not avail the Defendants. It allowed the Defendants’ appeal because it found that the defence of qualified privilege was not properly considered by the learned trial judge, and that the law 10 on the subject of qualified privilege was not properly applied by His Lordship’s to the facts of the case. This is what the Court of Appeal said: “9. Whilst we have no reason to question the correctness of His Lordship's ruling that the statements were defamatory and 15 that the defence of justification did not avail the appellant, we allowed this appeal because we are satisfied that the defence of qualified privilege was not properly considered by the learned trial Judge and the law on the subject not properly applied to the facts of this case.” 20 [39] In this regard, it is important to note that the Defendants did not prefer any cross appeal against that aforesaid decision of the Court of Appeal. It is too late in the day for the Defendants to regurgitate the issue 40 as to whether the impugned statements were defamatory. More importantly, we have, on our part, considered all the evidence in this case and the findings of the Courts below. We find no reason to disturb the findings of both the Courts that the impugned statements were defamatory of the Plaintiff. 5 [40] As it is clear from paragraph 38 of this judgment, the sole ground upon which the Court of Appeal allowed the Defendants’ appeal was because it found that the defence of qualified privilege was not properly considered by the learned trial judge, and that the law on the subject of 10 qualified privilege was not properly applied by His Lordship to the facts of this case. [41] In paragraph 12 of its judgment the Court of Appeal said the law on the defence of qualified privilege has been refined to protect disclosures 15 by the maker of a statement so long as the maker is able to satisfy the Court that it is in the interest of the public to receive frank and uninhibited communication of particular information. The Court of Appeal said that Lord Nicholls expounded this defence in terms of his judgment in the House of Lords in Reynolds which the Court of Appeal then quoted. If 20 the statement of the Court of Appeal was intended to refer to the defence of qualified privilege as it evolved as a Reynolds public interest defence 41 [or simply as Reynolds defence], then what was said by the Court of Appeal at the beginning of paragraph 12 of its judgment was not sufficient to establish the public interest defence. To establish public interest defence two elements need to be established, namely, (i) It is in the public interest that the impugned statements be made; (ii) The First Defendant 5 had acted responsibly in publishing the statements [the responsible journalism element]. More of this later when we deal with the said defence in a greater detail. The passage in the judgment of Lord Nicholls quoted by the Court of Appeal in paragraph 12 of its judgment is as follows: 10 “The requirement that both the maker of the statement and the recipient must have an interest or duty draws attention to the need to have regard to the position of both parties when deciding whether an occasion is privileged. But this should not be allowed 15 to obscure the rationale of the underlying public interest on which privilege is founded. The essence of this defence lies in the law's recognition of the need, in the public interest, for a particular recipient to receive frank and uninhibited communication of particular information from a particular source. That is the end the 20 law is concerned to attain. The protection afforded to the maker of the statement is the means by which the law seeks to achieve that end. Thus the Court has to assess whether, in the public interest, the publication should be protected in the absence of malice. In determining whether an occasion is regarded as privileged the 25 Court has regard to all the circumstances: see, for example the 42 explicit statement of Lord Buckmaster LC in London Association for Protection of Trade v. Greenlands Ltd [1916] 2 AC 15 at 23, [1916-17] All ER Rep 452 at 456 ('every circumstance associated with the origin and publication of the defamatory matter'). And circumstances must be viewed with today's eyes. The 5 circumstances in which the public interest requires a communication to be protected in the absence of malice depend upon current social conditions. The requirements at the close of the twentieth century may not be the same as those of earlier centuries or earlier decades of this century. 10 Privilege and publication to the world at large Frequently a privileged occasion encompasses publication to one person only or to a limited group of people. Publication more widely, to persons who lack the requisite interest in receiving the information, is not privileged. But the common law has recognised 15 there are occasions when the public interest requires that publication to the world at large should be privileged. In Cox v. Feeney [1863] 4F & F 13 at 19, 176 ER 445 at 448 Cockburn CJ approved an earlier statement by Lord Tenterden CJ that 'a man has a right to publish, for the purpose of giving the public 20 information, that which it is proper for the public to know. Whether the public interest so requires depends upon an evaluation of the particular information in the circumstances of its publication. Through the cases runs the strain that, when determining whether the public at large had a right to know the particular information, 25 the Court has regard to all the circumstances. The Court is concerned to assess whether the information was of sufficient value to the public that, in the public interest, it should be protected by privilege in the absence of malice”. 30 43 [42] That passage in Lord Nicholls’s judgment referred to by the Court of Appeal occurs when His Lordship traced the development of the traditional defence of qualified privilege. Indeed, immediately prior to that passage His Lordship referred to the element of reciprocity in the principle 5 underlying the defence – to the effect that there must exist between the maker of the statement and the recipient some duty or interest in making the communication, for which the often-quoted dictum of Lord Atkinson in Adam v. Ward [1917] AC 309 at 334, [1916-17] All ER Rep 157 at 170 was referred to. It appears to us therefore that in paragraph 12 of its 10 judgment, the Court of Appeal was directing its mind to the traditional defence of qualified privilege. This is reinforced by what it said in paragraphs 13-14 of its judgment when it held: “[13] In our judgment, in the face the facts set out in paragraph 11 15 above and applying the law expounded by Lord Nicholls, the appellant's statements were issued on a privileged occasion since the respondent had a duty or, at the least, an interest as a politician and the leader of a political party to communicate to the public at large through his first and second statements, the contents of the 20 Tengku Razaleigh's revelations and to call for the fresh inquiry into the causes of the crash. In our judgment, a careful examination of the reason advanced by His Lordship in refuting proof of the first ingredient of this defence was merely to conclude that: 44 “similarly in the present case the defendants had no duty to communicate the information to the press and neither the press nor the world at large had common interest to receive the information in the way it was presented by the 1st defendant was in truth and substance an insinuation of 5 criminal conduct on the part of the Plaintiff.” With respect, the law is settled that the fact that the statement is defamatory does not prevent the occasion from being a privileged occasion. Whether the appellant abused the occasion by being actuated by malice so as to deprive the occasion from being a 10 privileged one, is an entirely different issue. MALICE [14] We now propose to examine the facts to ascertain whether the appellant was actuated by malice.” 15 [43] Malice, if established by the Defendants, will defeat the privilege. This is the traditional form of qualified privilege (See Jameel, per Lord Hoffmann at paragraphs 46 and 50 [2006] 4 All ER 1279). We hasten to add that sub-topic “Malice” in the judgment of the Court of Appeal contains paragraphs 14 to 22 in which it dealt with the issue of malice before 20 holding at paragraph 23 that the Defendants succeeded in establishing the defence of qualified privilege. 45 [44] Reverting to Lord Nicholls’s judgment in Reynolds, His Lordship then spoke of striking an appropriate balance between the freedom of expression and the protection of reputation: “Likewise, there is no need to elaborate on the importance 5 of the role discharged by the media in the expression and communication of information and comment on political matters. It is through the mass media that most people today obtain their information on political matters. Without freedom of expression by the media, freedom of expression would be a hollow concept. The 10 interest of a democratic society in ensuring a free press weighs heavily in the balance in deciding whether any curtailment of this freedom bears a reasonable relationship to the purpose of the curtailment. In this regard it should be kept in mind that one of the contemporary functions of the media is investigative journalism. 15 This activity, as much as the traditional activities of reporting and commenting, is part of the vital role of the press and the media generally. Reputation is an integral and important part of the dignity of 20 the individual. It also forms the basis of many decisions in a democratic society which are fundamental to its well-being: whom to employ or work for, whom to promote, whom to do business with or to vote for. Once besmirched by an unfounded allegation in a national newspaper, a reputation can be damaged for ever, 25 especially if there is no opportunity to vindicate one's reputation. When this happens, society as well as the individual is the loser. For it should not be supposed that protection of reputation is a matter of importance only to the affected individual and his family. Protection of reputation is conducive to the public good. It is in the 30 46 public interest that the reputation of public figures should not be debased falsely. In the political field, in order to make an informed choice, the electorate needs to be able to identify the good as well as the bad. Consistently with these considerations, human rights conventions recognise that freedom of expression is not an 5 absolute right. Its exercise may be subject to such restrictions as are prescribed by law and are necessary in a democratic society for the protection of the reputations of others. The crux of this appeal, therefore, lies in identifying the 10 restrictions which are fairly and reasonably necessary for the protection of reputation. Leaving aside the exceptional cases which attract absolute privilege, the common law denies protection to defamatory statements, whether of comment or fact, proved to be actuated by malice, in the Horrocks v. Lowe sense.. This common 15 law limitation on freedom of speech passes the 'necessary' test with flying colours. This is an acceptable limitation. Freedom of speech does not embrace freedom to make defamatory statements out of personal spite or without having a positive belief in their truth. 20 In the case of statements of opinion on matters of public interest, that is the limit of what is necessary for protection of reputation. Readers and viewers and listeners can make up their own minds on whether they agree or disagree with defamatory 25 statements which are recognisable as comment and which, expressly or implicitly, indicate in general terms the facts on which they are based. With defamatory imputations of fact the position is different 30 and more difficult. Those who read or hear such allegations are 47 unlikely to have any means of knowing whether they are true or not. In respect of such imputations, a plaintiff's ability to obtain a remedy if he can prove malice is not normally a sufficient safeguard. Malice is notoriously difficult to prove. If a newspaper is understandably unwilling to disclose its sources, a plaintiff can be 5 deprived of the material necessary to prove, or even allege, that the newspaper acted recklessly in publishing as it did without further verification. Thus, in the absence of any additional safeguard for reputation, a newspaper, anxious to be first with a 'scoop', would in practice be free to publish seriously defamatory 10 misstatements of fact based on the slenderest of materials. Unless the paper chose later to withdraw the allegations, the politician thus defamed would have no means of clearing his name, and the public would have no means of knowing where the truth lay. Some further protection for reputation is needed if this can be achieved without 15 a disproportionate incursion into freedom of expression. This is a difficult problem. No answer is perfect. Every solution has its own advantages and disadvantages. Depending on local conditions, such as legal procedures and the traditions and 20 power of the press, the solution preferred in one country may not be best suited to another country. … As highlighted by the Court of Appeal judgment in the present case, the common law solution is for the court to have 25 regard to all the circumstances when deciding whether the publication of particular material was privileged because of its value to the public. Its value to the public depends upon its quality as well as its subject-matter. This solution has the merit of elasticity. As observed by the Court of Appeal, this principle can be 30 applied appropriately to the particular circumstances of individual 48 cases in their infinite variety. It can be applied appropriately to all information published by a newspaper, whatever its source or origin. Hand in hand with this advantage goes the disadvantage of 5 an element of unpredictability and uncertainty. The outcome of a court decision, it was suggested, cannot always be predicted with certainty when the newspaper is deciding whether to publish a story. To an extent this is a valid criticism. A degree of uncertainty in borderline cases is inevitable. This uncertainty, coupled with the 10 expense of court proceedings, may 'chill' the publication of true statements of fact as well as those which are untrue. The chill factor is perhaps felt more keenly by the regional press, book publishers and broadcasters than the national press. However, the extent of this uncertainty should not be exaggerated. With the enunciation of 15 some guidelines by the court, any practical problems should be manageable. The common law does not seek to set a higher standard than that of responsible journalism, a standard the media themselves espouse. An incursion into press freedom which goes no further than this would not seem to be excessive or 20 disproportionate. The investigative journalist has adequate protection. … … 25 The common law approach does mean that it is an outside body, that is, some one other than the newspaper itself, which decides whether an occasion is privileged. This is bound to be so, if the decision of the press itself is not to be determinative of the propriety of publishing the particular material. The court has the 30 advantage of being impartial, independent of government, and 49 accustomed to deciding disputed issues of fact and whether an occasion is privileged. No one has suggested that some other institution would be better suited for this task.” [45] At pages 625-627, Lord Nicholls set out his conclusion. The 5 following passage in His Lordship’s judgment which contains the 10 point tests is the foundation of the Reynolds public interest defence: “My conclusion is that the established common law approach to misstatements of fact remains essentially sound. The common law 10 should not develop 'political information' as a new 'subject-matter' category of qualified privilege, whereby the publication of all such information would attract qualified privilege, whatever the circumstances. That would not provide adequate protection for reputation. Moreover, it would be unsound in principle to 15 distinguish political discussion from discussion of other matters of serious public concern. The elasticity of the common law principle enables interference with freedom of speech to be confined to what is necessary in the circumstances of the case. This elasticity enables the court to give appropriate weight, in today's conditions, 20 to the importance of freedom of expression by the media on all matters of public concern. Depending on the circumstances, the matters to be taken into account include the following. The comments are illustrative only. 25 (1) The seriousness of the allegation. The more serious the charge, the more the public is misinformed and the individual harmed, if the allegation is not true. (2) The nature of the information, and the extent to which the subject-matter is a matter of public concern. (3) 50 The source of the information. Some informants have no direct knowledge of the events. Some have their own axes to grind, or are being paid for their stories. (4) The steps taken to verify the information. (5) The status of the information. The allegation may have already been the subject of an investigation which commands 5 respect. (6) The urgency of the matter. News is often a perishable commodity. (7) Whether comment was sought from the plaintiff. He may have information others do not possess or have not disclosed. An approach to the plaintiff will not always be necessary. (8) Whether the article contained the gist of the plaintiff's side of 10 the story. (9) The tone of the article. A newspaper can raise queries or call for an investigation. It need not adopt allegations as statements of fact. (10) The circumstances of the publication, including the timing. 15 This list is not exhaustive. The weight to be given to these and any other relevant factors will vary from case to case. Any disputes of primary fact will be a matter for the jury, if there is one. The decision on whether, having regard to the admitted or proved facts, the publication was subject to qualified privilege is a matter for the 20 judge. This is the established practice and seems sound. A balancing operation is better carried out by a judge in a reasoned judgment than by a jury. Over time, a valuable corpus of case law will be built up.” 25 [46] In paragraph 16 of its judgment, the Court of Appeal said that a careful examination of the law set out in paragraph 9 of its judgment reveals that the fact that the statement “is in fact untrue and defamatory” did not preclude the defence of qualified privilege from availing the 51 Defendants. According to the Court of Appeal, it is trite law that qualified privilege as a live issue only arises where the statement is defamatory and untrue. In support, the Court of Appeal referred to paragraph 32 of the judgment of Lord Bingham of Cornhill in Jameel. So, according to the Court of Appeal, the learned trial judge fell into serious error in dissecting 5 the speech of Tengku Razaleigh to ascertain the truth of the content of the same before concluding that to the extent that the First Defendant had not verified the truth of the contents of Tengku Razaleigh’s speech, “he is therefore to be treated as if he knew the revelation to be false.” With respect, the underlined sentence is only part of what Lord Bingham said 10 at paragraph 32. That sentence is incomplete. It is important to consider the whole of paragraph 32 which reads as follows: “Qualified privilege as a live issue only arises where a statement is defamatory and untrue. It was in this context, and assuming the 15 matter to be one of public interest, that Lord Nicholls proposed ([1999] 4 All ER 609 at 623, [2001] 2 AC 127 at 202) a test of responsible journalism, a test repeated in Bonnick v Morris [2002] UKPC 31 AT [22]-[24], (2002) 12 BHRC 558 at [22]-[24], [2003] 1 AC 300. The rationale of this test is, as I understand, that there is 20 no duty to publish and the public have no interest to read material which the publisher has not taken reasonable steps to verify. As Lord Hobhouse observed with characteristic pungency ([1999] 4 All ER 609 at 657, [2001] 2 AC 127 at 238), ‘No public interest is served by publishing or communicating misinformation’. But the 25 publisher is protected if he has taken such steps as a responsible 52 journalist would take to try and ensure that what is published is accurate and fit for publication.” It is clear that actually Lord Bingham was explaining the test of responsible journalism proposed by Lord Nicholls in Reynolds. Lord Nicholls 5 proposed a test of responsible journalism, assuming the matter to be one of public interest. In other words, in the first place, the matter must be one of public interest before you can consider the issue of responsible journalism. The rationale of the test is that there is no duty to publish, and the public have no interest to read material which the publisher has not 10 take reasonable steps to verify. Quoting Lord Hobhouse in Reynolds, “No public interest is served by publishing or communicating misinformation. But the publisher is protected if he has taken such steps as a responsible journalist would take to try and ensure that what is published is accurate and fit for publication.” 15 [47] In paragraph 18 of its judgment, the Court of Appeal said that the learned trial judge fell into serious error in ruling that the First Defendant acted with malice because he called for reopening of investigations when this did not form part of Tengku Razaleigh’s speech. In other words, in 20 the learned trial judge’s view, since the First Defendant’s call for reopening of the original investigations were defamatory and this call did not form 53 part of Tengku Razaleigh’s revelation, the First Defendant cannot rely on the defence of qualified privilege. The Court of Appeal held that this is not the proper application of the law of qualified privilege. What the Court of Appeal set out in paragraph 18 is not a complete and accurate synopsis of the learned trial judge’s ruling on malice. The first reason given by the 5 learned trial judge in finding evidence of malice on the part of the Defendants was the First Defendant’s failure to verify with Tengku Razaleigh on the accuracy of his revelation. The learned trial judge said the First Defendant should have verified, because Tengku Razaleigh was available and that it was easy for him to do so. So, in the learned trial 10 judge’s view, the First Defendant did not care whether the Tengku Razaleigh’s revelation was true or not. The First Defendant was therefore to be treated as if he knew that the revelation was false. This indifference and could not careless attitude was evidence of malice on the part of the First Defendant and by extension the Second Defendant. The learned 15 trial judge’s ruling as such was a purported application of the test of malice as expounded by Lord Diplock in Horrocks v. Lowe [1974] 1 All ER 662. Next, the learned trial judge questioned the First Defendant’s motive in calling for a reinvestigation of the air crash? Was it a bona fide call for a fresh investigation or was it a call to investigate the Plaintiff for a possible 20 criminal act? According to the learned trial judge, there is a subtle difference between the two motives. This is where the learned trial judge 54 remarked that Tengku Razaleigh in his speech did not call a reinvestigation of the air crash, let alone to suggest that the Plaintiff was an accessory to a criminal act. That actually was the context in which the learned trial judge’s observation about nature of Tengku Razaleigh speech was made. The learned trial judge held that what First Defendant 5 did was to give his own slant to Tengku Razaleigh’s revelation in order to cast aspersion on the Plaintiff and that Defendants had seized on the occasion to provoke public speculation that the Plaintiff was up to no good when he asked Tengku Razaleigh to board another plane at the last moment. This, according to the learned trial judge was unfair to the 10 Plaintiff because the First Defendant himself knew that there was conflicting historical accounts of the events prior to the crash. The Court of Appeal then said that “the law requires the Judge to consider the First Defendant’s two statements as a whole, and if the article as a whole is justified, then, the defence of qualified privilege avails the First Defendant 15 even if the article is defamatory and some facts untrue”. Paragraph 34 of Lord Bingham’s judgment in Jameel was referred to in support. With respect, in the context of the discussion of the issue of malice (which the Court of Appeal appeared to be considering), this statement is misleading. Lord Bingham was not talking about malice, but about public interest; the 20 first element of the Reynolds defence. Lord Bingham was commenting on ‘the particular information’ referred to by Lord Nicholls in his speech in 55 Reynolds at page 619 [1999] 4 All ER. Lord Nicholls was then referring to the Court of Appeal’s decision in Reynolds. His Lordship said: “In its valuable and forward-looking analysis of the common law, the Court of Appeal in the present case highlighted that in deciding 5 whether an occasion is privileged the court considers, among other matters, the nature, status and source of the material published and the circumstances of the publication. In stressing the importance of these particular factors, the court treated them as matters going to a question (the circumstantial test) separate from, 10 and additional to, the conventional duty-interest questions (see [1998] 3 All ER 961 at 994–995, [1998] 3 WLR 862 at 899). With all respect to the Court of Appeal, this formulation of three questions gives rise to conceptual and practical difficulties and is better avoided. There is no separate or additional question. These 15 factors are to be taken into account in determining whether the duty-interest test is satisfied or, as I would prefer to say in a simpler and more direct way, whether the public was entitled to know the particular information. The duty-interest test, or the right to know test, cannot be carried out in isolation from these factors and 20 without regard to them.” Lord Bingham then explained the situation in which the particular publication complained of relates to one particular ingredient of a composite story, where it is open to a Plaintiff to contend (as in Jameel 25 but not in the case before us) that the article could have been published without inclusion of the particular ingredient complained of. In such a https://www.lexisnexis.com/my/legal/search/runRemoteLink.do?A=0.8925919777610336&bct=A&service=citation&risb=21_T26238502579&langcountry=GB&linkInfo=F%23GB%23ALLER%23vol%253%25sel1%251998%25page%25961%25year%251998%25tpage%25994%25sel2%253%25 https://www.lexisnexis.com/my/legal/search/runRemoteLink.do?A=0.8925919777610336&bct=A&service=citation&risb=21_T26238502579&langcountry=GB&linkInfo=F%23GB%23ALLER%23vol%253%25sel1%251998%25page%25961%25year%251998%25tpage%25994%25sel2%253%25 https://www.lexisnexis.com/my/legal/search/runRemoteLink.do?A=0.6579413923736771&bct=A&service=citation&risb=21_T26238502579&langcountry=GB&linkInfo=F%23GB%23WLR%23vol%253%25sel1%251998%25page%25862%25year%251998%25tpage%25899%25sel2%253%25 56 case, consideration should be given to the thrust of the article published. If the thrust of the article is true, and the public interest is satisfied, the inclusion of an inaccurate fact may not have the appearance of irresponsibility as it might if the whole thrust is untrue. Then, in paragraph 19 of its judgment, the Court of Appeal said even if the First Defendant’s 5 call for the reopening of the investigation was defamatory, and that this did not form part of Tengku Razaleigh’s revelation, in order to rule against the First Defendant on the ingredient of malice, the learned trial judge ought to have considered the two statements as a whole to determine “whether the inclusion of the defamatory statement was justified” in the 10 light of Tengku Razaleigh’s revelation, the making of which is true. Paragraph 51 of Lord Hoffmann’s judgment in Jameel was cited as authority. It is true that in that paragraph Lord Hoffmann was talking about the inclusion of the defamatory statement. However, His Lordship was not talking about the ingredient of malice. Indeed, in paragraph 50 of his 15 judgment, in comparing Reynolds defence with the traditional privilege defence, His Lordship said that in the former there is no burden upon the claimant to establish malice to defeat it: “The Reynolds defence is very different from the privilege 20 discussed by the Court of Appeal in Blackshaw v Lord [1983] 2 All ER 311, [1984] QB 1, where it was contemplated that in exceptional circumstances there could be a privileged occasion in https://www.lexisnexis.com/my/legal/search/runRemoteLink.do?A=0.6964655391352541&bct=A&service=citation&risb=21_T26204210178&langcountry=GB&linkInfo=F%23GB%23QB%23sel1%251984%25page%251%25year%251984%25 57 the classic sense, arising out of a duty to communicate information to the public generally and a corresponding interest in receiving it. The Court of Appeal there contemplated a traditional privilege, liable to be defeated only by proof of malice. But the Reynolds defence does not employ this two-stage process. It is not as narrow 5 as traditional privilege nor is there a burden upon the Claimant to show malice to defeat it.” [48] Paragraph 51 of Lord Hoffmann’s judgment opens up with the sentence “If the article as a whole concerned a matter of public interest, 10 the next question is whether the inclusion of the defamatory statement was justifiable.” So, the first element which must be established is whether the article as a whole concerned a matter of public interest. If it is, then comes the second question – whether the inclusion of the defamatory statement is justified? However, the fact that the material 15 was of public interest does not allow the newspaper to drag in damaging allegations which serve no public purpose. They must be part of the story. The more serious the allegation, the more important is that it should make real contribution to the public interest element in the article. The question of whether the defamatory statement should have been included is often 20 a matter of how the story should have been presented. In considering this question, the Court must give allowance for editorial judgment. In Jameel, the claimants are Saudi Arabians. The First Claimant is the President of the Abdul Latif Jameel Group, an international trading conglomerate 58 based in Saudi Arabia. The Second Claimant is a company incorporated in Saudi Arabia and is part of the group. The article published by the defendant which gave rise to the Court proceeding, was headed “Saudi Officials Monitor Certain Bank Accounts” with a smaller sub heading “Focus Is On Those With Potential Terrorist Ties”. The gist of the article 5 stated in the first paragraph, was that the Saudi Arabian Monetary Authority, the Kingdom’s Central Bank, was, at the request of the United States Law Enforcement agencies, monitoring bank accounts associated with some of the country’s most prominent businessmen in a bid to prevent them from being used, wittingly or unwittingly, for the funding of 10 funds to terrorist organisations. In the second paragraph, a number of companies and individuals were named, among them, ‘The Abdul Latif Group of Companies’. The Jury found that the article defamed the claimants. The defendant’s defence of Reynolds privilege was rejected by the trial Court and the Court of Appeal. The House of Lords reversed 15 those decisions. Paragraph 52 in Lord Hoffmann’s judgment in Jameel illustrates how the aforesaid principle was applied in the case. His Lordship said: “In the present case, the inclusion of the names of large and 20 respectable Saudi businesses was an important part of the story. It showed that co-operation with the United States Treasury's requests was not confined to a few companies on the fringe of 59 Saudi society but extended to companies which were by any test within the heartland of the Saudi business world. To convey this message, inclusion of the names was necessary. Generalisations such as “prominent Saudi companies”, which can mean anything or nothing, would not have served the same purpose.” 5 In Jameel therefore, the inclusion of the names of large and respectable Saudi businesses was an important part of the story. It showed that co- operation with the United States Treasury’s request was not confined to a few companies on the fringe of Saudi’s society, but extended to 10 companies which were by any test, within the heartland of the Saudi business world. That was the message to be conveyed. To convey that message, inclusion of the names of the claimants’ companies was necessary, as generalisations such as “prominent Saudi companies”, which can mean anything or nothing, would not have served the same 15 purpose. [49] Reverting to the present appeal, we can accept that the impugned statements concerned a matter of public interest – the Nomad plane crash on 6.6.1976 in Sabah (the double six tragedy) which took the lives of all 20 on board the plane including Tun Fuad Stephens and some of the Berjaya Cabinet Ministers, as well as the speech on the topic of “Minyak Sabah Untuk Siapa” by Tengku Razaleigh on 2.4.2010 which was published on 60 4.4.2010 with caption “Invite saved my life: Razaleigh”. However, even after giving maximum latitude to editorial judgment, we find that it was not necessary to embellish and spice up what Tengku Razaleigh had revealed in his speech with insinuation of the Plaintiff’s possible complicity in the commission of a criminal act. Tengku Razaleigh merely said that, 5 “Apabila cakap hal minyak dan Sabah, tak dapat tiada saya mesti mengingat kembali peristiwa yang amat sedih yang berlaku di sini yang menimpa rakyat Sabah dan negeri Sabah terutama sekali. Saya ingat dalam bulan Jun tahun 76, satu kemalangan besar berlaku di Sabah. Umur saya panjang, orang kenalan saya yang saya sanjung tinggi 10 umurnya pendek. Allahyarham Yang Amat Berhormat Tun Fuad Stephens dan anaknya sekali dengan pemimpin-pemimpin yang lain dari negeri Sabah dan juga pegawai-pegawai dari negeri Sabah dan dari kerajaan pusat bersekali dengan setiausaha sulit saya telah menjadi mangsa nahas apabila jatuhnya kapal terbang yang dinaiki mereka. Saya 15 sendiri sudahpun menaiki pesawat berkenaan bersekali dengan Tun Rahman Yaakob dan bersama-sama dengan saya melawat Labuan dan juga Sabah ketika itu dan dengan Almarhum Tengku Arif Bendahara Pahang. Kita semua sudah ‘strapped’ dah pakai tali pinggang kapal terbang. Saya duduk di belakang Allahyarham Tun Fuad Stephens, 20 sebelah kanan saya Tun Rahman Yaakob, sebelah belakang saya Tengku Arif Bendahara Pahang. Tiba-tiba Datuk Harris yang pada masa 61 itu menjadi Timbalan Ketua Menteri Sabah mengajak saya keluar kapal terbang, kerana dia kata elok kita ke Pulau Banggi melihat rancangan belaan sapi dari Australia di Pulau Banggi. Saya pun ajak Tun Rahman Yaakob dan Tengku Arif Bendahara bersama dengan saya turun kerana saya kata elok juga kita ikut Datuk Harris ke Pulau Banggi kerana saya 5 nak tengok rancangan bela sapi, kita panggil lembu, di Pulau Banggi. Jadi kita pun ikut Datuk Harris, ikut kapal terbang jenis yang sama Nomad, kita pergi ke Pulau Banggi.” Tengku Razaleigh was merely expressing his sadness upon recalling the double six tragedy which had taken the lives of some of his most revered friends and recounting how he and two others 10 alighted from the fatal flight minutes before its take-off on the invitation of the Plaintiff which saved his life. Tengku Razaleigh did not say anything or even hint about the cause of the crash. Tengku Razaleigh did not even hint let alone call for a reinvestigation into the crash. But the First Defendant went beyond what Tengku Razaleigh had mentioned in his 15 speech, and speculated, and embellished Tengku Razaleigh’s speech with insinuation of the Plaintiff’s possible complicity in criminal act of multiple murders. [50] For the Defendants it was contended that the impugned statements 20 were neutral in nature, in that in calling for the opening up of reinvestigation, the First Defendant merely said, “maybe nothing new will 62 come out of the investigation.” However, the First Defendant did not stop there. Not only did he add “or may be something big and explosive will surface from the depth of history”, he had spiced it up with references to the assassinations of John F. Kennedy, Martin Luther King and Benazir Bhutto. We are at pains to fathom how the inclusion of the defamatory 5 statements had made any contribution [let alone real contribution] to the public interest element in the publication [i.e. the air crash]. In our judgment, contrary to the finding of the Court of Appeal, the inclusion of the defamatory statements was not justified. At paragraph 21 of its judgment, the Court of Appeal, while still deliberating on the question 10 whether the inclusion of the defamatory statements in the publication by the First Defendant was justified, ruled that applying Lord Hoffmann’s pronouncement in paragraph 51 of his judgment in Jameel as aforesaid to the facts before it, the First Defendant’s call for reinvestigation made “a real contribution to public interest element in the article”. The Court of 15 Appeal criticized the learned trial judge in answering this question [the public interest question] in the negative, in doing which, according to the Court of Appeal, the learned trial judge was unduly influenced by his earlier finding that Tengku Razaleigh’s revelation was untrue because it was in conflict with the versions to be found in the two books, namely, 20 “Harris Salleh of Sabah” and “The Sabahans – The Life and Death of Tun Fuad Stephens” [which the First Defendant admitted as his reference 63 books]. According to the Court of Appeal, the answer to the question [whether the inclusion of the defamatory statements was justified] ought to have been determined by the application of the three of the ten points tests propounded by Lord Nicholls in Reynolds. This is what the Court of Appeal said: 5 “[21] Applying Justice Hoffman's pronouncements to the facts of this case, in our judgment, the appellant's call made "a real contribution to the public interest element in the article". The learned trial judge in answering this question in the negative was, 10 in our judgment, unduly influenced by His Lordship's earlier finding that Tengku Razaleigh's revelations were untrue because they were in conflict with the version to be found in the two books. In our judgment, the answer to this question ought to have been determined by the application of three of the ten points test 15 propounded by Justice Nicholls in the Reynolds v. Times Newspapers Ltd (supra). The first test related to the seriousness of the allegation. The principle being the more serious the charge, the more the public is misinformed and the individual harmed, if the allegation is not true. Secondly, the fifth test which related to the 20 status of the information. The principle being that the call for the re- opening of the investigations is unjustified if the previous investigations had reached a conclusion which commands respect. The third test being the tone of the article. The issue being whether the article merely raised queries or a call for investigations as 25 opposed to asserting false allegations in the form of a statement of fact. 64 [22] In our judgment, the appellant's call for the re-opening of the investigations does not run foul of any of the aforesaid three tests. First, because the earlier investigations did not result in the publication of a report as regards the causes for the crash. Secondly, the versions in the two books vary from Tengku 5 Razaleigh's revelations and there is no evidence that Tengku Razaleigh is the source for the versions of the crash contained in the two books. For this reason, his revelations clearly amounted to new information which warranted a fresh look at the crash. Hence, the justification for the appellant's call for fresh investigations to 10 clear all doubts for the cause of the crash. Finally, the tone of the article cannot be said to be provocative since the appellant merely called for a re-opening of the investigations and acknowledged the fact that the fresh investigations based on Tengku Razaleigh's revelations may result in nothing at all. The fact of the matter is that 15 the appellant's call for the re-opening of the investigations ties in with Tengku Razaleigh's revelations and the inconclusive nature of the earlier investigations.” [51] With respect, we find it difficult to agree with the aforesaid finding. 20 The ten point tests is for the determination of the element of responsible journalism (the second essential element in Reynolds public interest defence), of which no reference at all was specifically made by the Court of Appeal in its judgment. This is clear from several leading authorities including Syarikat Bekalan Air Selangor and Jameel. In Syarikat 25 Bekalan Air Selangor, explaining the Reynolds privilege defence, this Court said: 65 “[34] The Reynolds privilege defence is predicated on public interest and "responsible journalism". In the context of the present case, the Reynolds privilege defence required the defendant first, to establish that the impugned words were uttered on a matter of 5 public interest and the public had a corresponding interest in receiving the same. Once that was established, the court must consider whether the defendant acted reasonably in publishing the impugned words. This second test has been described as the test of "responsible journalism" (see Reynolds v. Times Newspapers 10 Ltd (supra) and Jameel And Another v. Wall Street Journal Europe SPRL (supra). Although the test refers to "journalism", it is merely a convenient description because as we have decided earlier the Reynolds privilege defence is in no way limited to journalistic publications. If the defendant passed the test of responsible 15 journalism, the issue would be determined in his favour. Lord Nicholls in Reynolds v. Times Newspapers Ltd (supra) sets out a number of factors to be taken into account in determining the issue of responsible journalism. These factors, which are not exhaustive, are, inter alia, as follows: 20 (1) The seriousness of the allegation. The more serious the charge, the more the public is misinformed and the individual harmed, if the allegation is not true. (2) The nature of the information, and the extent to which 25 the subject matter is a matter of public concern. (3) The source of the information. Some informants have no direct knowledge of the events. Some have their own axes to grind, or are being paid for their stories. (4) The steps taken to verify the information. 30 66 (5) The status of the information. The allegation may have already been the subject of an investigation, which commands respect. (6) The urgency of the matter. News is often a perishable commodity. 5 (7) Whether comment was sought from the plaintiff. He may have information others do not possess or have not disclosed. An approach to the plaintiff will not always be necessary. (8) Whether the article contained the gist of the plaintiff's 10 side of the story. (9) The tone of the article. A newspaper can raise queries or call for an investigation. It need not adopt allegations as statements of fact. (10) The circumstances of the publication, including the 15 timing. [35] In the present case, the impugned words uttered by the defendant was on a matter of public interest. Undeniably, the impugned words concerned the operation and management of 20 water supply services. In fact, this was an indisputable fact. Therefore, the first test for the Reynolds privilege defence to apply had been fulfilled. [36] The first test did not raise any serious difficulty. When it came 25 to the second test, though, the defendant ran into difficulties. The question that arises is this: whether the requisite of "responsible journalism" had been fulfilled.” 67 [52] In Jameel, in applying Reynolds public interest defence, in his judgment, after discussing (a) the public interest of the material (in paragraphs 48 to 50); and (b) the inclusion of the defamatory material (in paragraphs 51 to 52), Lord Hoffmann referred to the element of responsible journalism. His Lordship said at page 1297: 5 “(c) Responsible journalism 53. If the publication, including the defamatory statement, passes the public interest test, the inquiry then shifts to whether 10 the steps taken to gather and publish the information were responsible and fair. As Lord Nicholls said in Bonnick v Morris [2003] 1 AC 300, 309: “Stated shortly, the Reynolds privilege is concerned to 15 provide a proper degree of protection for responsible journalism when reporting matters of public concern. Responsible journalism is the point at which a fair balance is held between freedom of expression on matters of public concern and the reputations of individuals. Maintenance of 20 this standard is in the public interest and in the interests of those whose reputations are involved. It can be regarded as the price journalists pay in return for the privilege.” 54. Lord Nicholls was speaking in the context of a publication in 25 a newspaper but the defence is of course available to anyone who publishes material of public interest in any medium. The question in each case is whether the defendant behaved fairly and responsibly in gathering and publishing the information. But I shall http://www.lexisnexis.com/my/legal/search/runRemoteLink.do?A=0.705096835245373&bct=A&service=citation&risb=21_T26197841371&langcountry=GB&linkInfo=F%23GB%23AC%23vol%251%25sel1%252003%25page%25300%25year%252003%25sel2%251%25 68 for convenience continue to describe this as “responsible journalism”. … 5 58. I therefore pass to the question of whether the newspaper satisfied the conditions of responsible journalism. This may be divided into three topics: the steps taken to verify the story, the opportunity given to the Jameel group to comment and the propriety of publication in the light of US diplomatic policy at the 10 time.” [53] So, one of the relevant elements in the determination of responsible journalism is the steps taken to verify the information/story. The question is what verification, if any, was required on the part of the First Defendant? 15 This brings into focus the nature of the duty of verification. In this regard, the thrust of the Defendants’ contention is that the First Defendant’s duty is to check the basic facts. As held by the Court of Appeal, the basic facts that he was under a duty to check was that Tengku Razaleigh had actually made the revelation. The First Defendant did check, and 20 established that Tengku Razaleigh had made the revelation on 2.4.2010. From his own reading of books about the incident, the First Defendant knew that it had never been made before. Therefore, it was submitted that the First Defendant had made all the checks that were necessary to justify his call for an inquiry. He had verified that the revelation had been 25 69 made, and that it was new. It was contended that the First Defendant did not have to verify whether the revelation was true, because that would be the job of the very inquiry for which he was calling. In short, the Defendants’ case is that all they had to do was to establish that Tengku Razaleigh made the revelation. In other words, they claimed that their 5 case was akin to that of a reportage case, where the publisher is simply reporting what others have said [See per Baroness Hale in Jameel, paragraph 149, [2006] 4 AER 1322]. For reasons which we will set out shortly, we are unable to accept the contention. 10 [54] In Roberts v Gable [2007] EWCA Civ 721, upon reviewing a number of authorities on reportage, Ward L.J made the following remarks: “53. What can be learnt so far from this review of the authorities is that the journalist has a good defence to a claim for libel if 15 what he publishes, even without an attempt to verify its truth, amounts to reportage, the best description of which gleaned from these cases is that it is the neutral reporting without adoption or embellishment or subscribing to any belief in its truth of attributed allegations of both sides of a political and 20 possibly some other kind of dispute.” … 70 “61. (2) … In a true case of reportage there is no need to take steps to ensure the accuracy of the published information… (3) … To qualify as reportage the report, judging the 5 thrust of it as a whole, must have the effect of reporting, not the truth of the statements, but the fact that they were made. Those familiar with the circumstances in which hearsay evidence can be admitted will be familiar with the distinction: see Subramanian v Public Prosecutor [1956] 1 W.L.R. 965, 10 969. If upon a proper construction of the thrust of the article, the defamatory material is attributed to another and is not being put forward as true, then a responsible journalist would not need to take steps to verify its accuracy. He is absolved from that responsibility because he is simply reporting in a 15 neutral fashion the fact that it has been said without adopting the truth. (4) Since the test is to establish the effect of the article as a whole, it is for the judge to rule upon it in a way analogous 20 to a ruling on meaning. It is not enough for the journalist to assert what his intention was though his evidence may well be material to the decision. The test is objective, not subjective. All the circumstances surrounding the gathering in of the information, the manner of its reporting and the 25 purpose to be served will be material. (5) This protection will be lost if the journalist adopts the report and makes it his own or if he fails to report the story in a fair, disinterested and neutral way. Once that protection 30 is lost, he must then show, if he can, that it was a piece of 71 responsible journalism even though he did not check accuracy of his report.” [55] One of the cases referred to by Ward LJ in Robert v. Gable was Galloway v Telegraph Group Ltd [2006] EMLR 221 which is also 5 instructive on the principle on reportage: “42. The doctrine is next mentioned in Galloway v Telegraph Group Ltd [2006] E.M.L.R. 221. The articles concerned asserted that Mr Galloway, a well-known Member of Parliament, was in the 10 pay of Saddam Hussein, secretly receiving sums to the order of £375,000 a year, that he had diverted monies from the Oil for Food Programme thus depriving the Iraqi people whose interests he claimed to represent of food and medicine and that he had probably used the Mariam appeal as a front for personal 15 enrichment. The Daily Telegraph did not seek to justify these defamatory statements as true but, relying upon the fact that they were based on documents found by their reporter in Baghdad claimed that the publication was protected by privilege, inter alia, as reportage. The Court of Appeal held: 20 "48. It is not in dispute that the Baghdad documents were of great interest to the public and The Daily Telegraph was naturally very keen to publish them. If the documents had been published without comment or further allegations of 25 fact Mr Galloway could have no complaint since, in so far as they contained statements or allegations of fact it was in the public interest for The Daily Telegraph to publish them, at any rate after giving Mr Galloway a fair opportunity to 72 respond to them. Such publication would be reportage. The balance would come down in favour of freedom of expression, which, subject to Art. 10.2, is protected by Art. 10.1 of the Convention, and the statements would be protected by privilege. … 5 59. It appears to us that the newspaper was not merely reporting what the Baghdad documents said but that … it both adopted and embellished them. It was alleging that Mr Galloway took money from the Iraqi oil-for-food programme 10 for personal gain. That was not a mere repeat of the documents, which in our view did not, or did not clearly, make such an allegation. … the thrust of the coverage was that The Daily Telegraph was saying that Mr Galloway took money to line his own pockets. In all the circumstances we 15 answer the question whether the newspaper adopted and embellished the statements in the Baghdad documents in the affirmative.”… [56] In her judgment in Jameel, Baroness Hale made the following 20 observation on reportage in the context of the issue of verification: “Secondly, the publisher must have taken the care that a responsible publisher would take to verify the information published. The actual steps taken will vary with the nature and 25 sources of the information. … The requirements in "reportage" cases, where the publisher is simply reporting what others have said, may be rather different, but if the publisher does not himself believe the information to be true, he would be well-advised to make this clear. In any case, the tone in which the information is 30 73 conveyed will be relevant to whether or not the publisher has behaved responsibly in passing it on." [57] Reportage was also explained in Flood in the leading judgment of Lord Phillips of Worth Matravers PSC when His Lordship discussed the 5 duty to verify in the context of Reynolds public interest defence: “[75] Not all the items in Lord Nicholls's list in Reynolds case [2001] 2 AC 127, 205 were intended to be requirements of responsible journalism in every case. The first question is whether, on the facts 10 of this case, the requirements of responsible journalism included a duty of verification and, if so, the nature of that duty. I should insert a word of warning at the outset. Each case turns on its own facts. I use the phrase “duty of verification” as shorthand for a requirement to verify in the circumstances of this case. My 15 comments should not be treated as laying down principles to be applied in cases of different facts. [76] Mr Price alleged that TNL should have verified the accusation against Sergeant Flood reported in the article. Tugendhat J 20 concluded that Jameel’s case [2007] 1 AC 359 was incompatible with such an obligation. He considered that Jameel’s case showed that if it was in the public interest to publish the fact of an accusation, there was no obligation to verify the grounds of the allegation. Moore-Bick LJ commented [2011] 1 WLR 153, para 95, 25 that, if the judge were right, there was very little distinction to be drawn between the defence of reportage and the defence of responsible journalism in relation to the reporting of statements made by third parties. 74 [77] The judge was not right. Reportage is a special, and relatively rare, form of Reynolds privilege. It arises where it is not the content of a reported allegation that is of public interest, but the fact that the allegation has been made. It protects the publisher if he has 5 taken proper steps to verify the making of the allegation and provided that he does not adopt it. Jameel’s case was analogous to reportage because it was the fact that there were names of substantial Saudi Arabian companies on the black list that was of public interest, rather than the possibility that there might be good 10 reason for the particular names to be listed. Just as in the case of reportage, the publishers did not need to verify the aspect of the publication that was defamatory. [78] The position is quite different where the public interest in the 15 allegation that is reported lies in its content. In such a case the public interest in learning of the allegation lies in the fact that it is, or may be, true. It is in this situation that the responsible journalist must give consideration to the likelihood that the allegation is true. Reynolds privilege absolves the publisher from the need to justify 20 his defamatory publication, but the privilege will normally only be earned where the publisher has taken reasonable steps to satisfy himself that the allegation is true before he publishes it. Lord Hoffmann put his finger on this distinction in Jameel’s case [2007] 1 AC 359, para 62 when he said: 25 “In most cases the Reynolds defence will not get off the ground unless the journalist honestly and reasonably believed that the statement was true, but there are cases ('reportage') in which the public interest lies simply in the fact 30 75 that the statement was made, when it may be clear that the publisher does not subscribe to any belief in its truth.” [79] Thus verification involves both a subjective and an objective element. The responsible journalist must satisfy himself that the 5 allegation that he publishes is true. And his belief in its truth must be the result of a reasonable investigation and must be a reasonable belief to hold. What then does the responsible journalist have to verify in a case such as this, and what does he have to do to discharge that obligation? If this were a Chase level 1 case he 10 would have to satisfy himself, on reasonable grounds, that the claimant had in fact been guilty of corruption. His defence would not “get off the ground” unless he reasonably believed in the claimant's guilt. This is not, however, a Chase level 1 case, see my discussion of the meaning of the article at paras 48 to 50 above. 15 [80] What did the duty of verification involve? There is authority at the level of the Court of Appeal that to justify a Chase level 2 allegation a defendant has to adduce evidence of primary facts that constituted reasonable grounds for the suspicion alleged. These 20 will normally relate to the conduct of the claimant. Allegations made by others cannot be relied upon. The same may be true of a Chase level 3 allegation. The discussion in Gatley on Libel and Slander, 11th ed, at para 11.6 and the three cases there cited support these principles. No such hard and fast principles can be applied when 25 considering verification for the purpose of Reynolds privilege. They would impose too strict a fetter on freedom of expression. Where a journalist alleges that there are grounds for suspecting that a person has been guilty of misconduct, the responsible journalist should satisfy himself that such grounds exist, but this does not 30 necessarily require that he should know what those grounds are. 76 Their existence can be based on information from reliable sources, or inferred from the fact of a police investigation in circumstances where such inference is reasonable. I derive support for this conclusion from the fact that in Jameel’s case the House of Lords accepted that appropriate steps had been taken to verify the fact 5 that the Claimants were named on the black list where there had been reliance upon reliable sources, even though the defendants were not prepared to name them. [58] In our judgment, Tengku Razaleigh’s account of how he and two 10 others left the aircraft at the very last moment [to use the First Defendant’s own words in the first statement] before its take off, is the essence of the new revelation which is of paramount importance to the impugned statements and their publication by the Defendants. It was Tengku Razaleigh’s account of his leaving the aircraft at the last moment before 15 its take-off on the invitation of the Plaintiff (which had saved the latter’s life) which must have led to the First Defendant’s assertions about reopening of investigation “to remove all doubts about the true causes”, and opening up “old speculation of how the plane crashed in Sembulan” [in the first statement]. It was the same element in the account of Tengku 20 Razaleigh which had also, without doubt led the Defendants’ assertions that “the people will want to re-examine the June 6, 1976 air crash in light of Tengku Razaleigh Hamzah’s memory of the tragedy”, “Razaleigh was trying to tell the people something from the past in view of the revelation 77 on the moment before the Nomad aircraft took off from Labuan”. Indeed, the First Defendant himself admitted under cross-examination that “from the new information by Tengku Razaleigh” he “wanted the double six tragedy to be investigated”. He further agreed under cross-examination that “the testimony and statement [in paragraph 19(b) of the Statement of 5 Defence] are made which arise as a result of Tengku Razaleigh’s speech on 2.4.2010”. As such, in our view, the basic fact was the truth of Tengku Razaleigh’s account as aforesaid, and not merely the making of the account by him. If in the impugned statements the Defendants merely reported what Tengku Razaleigh had said in the speech, (which we 10 reproduced at paragraph 49 of this judgment) the Plaintiff would not have cause to complain. However, as it transpired that is not the case. It is clear that not only did the First Defendant adopt and embrace what Tengku Razaleigh had said in his speech, the First Defendant had embellished it with speculation and insinuation of the Plaintiff’s possible 15 involvement in the assassination of Tun Fuad Stephens and those on board the ill-fated Nomad, and further spicing it up by referring to assassinations of John F. Kennedy, Martin Luther King and Benazir Bhutto. As such, it cannot lie in the mouth of the First Defendant to say that he did not subscribe to any belief in the truth of what Tengku 20 Razaleigh said in his speech. In such a case, it is not sufficient for the First Defendant to just establish that he had verified that the statement 78 was made. The First Defendant must satisfy himself that Tengku Razaleigh’s speech as well as the insinuation made in the impugned statements he published was true, and his belief in its truth must be the result of a reasonable investigation and that the belief must be a reasonable belief to hold; all of which the First Defendant had failed to do. 5 [59] This bring us to the ten points in the test of responsible journalism enumerated in Reynolds. These factors are not exhaustive. The weight to be given to these points and any other relevant factors will vary from case to case. The first point is the seriousness of the allegation. The 10 more serious the charge, the more the public is misinformed and the Plaintiff harmed, if the allegation is not true. The focus is on the allegations which are not true. The insinuation of the Plaintiff’s possible complicity in a criminal act [of assassination of those on board the ill-fated Nomad] is very serious and capable of besmirching the Plaintiff’s 15 reputation forever if what is insinuated is not true. On the second and the third points, the information was about the account by Tengku Razaleigh of his leaving the ill-fated aircraft on the invitation of the Plaintiff moments before the aircraft took off, that he invited two others to leave the aircraft with him and that invitation by the Plaintiff saved his and the other two 20 persons’ lives. Tengku Razaleigh did not say anything or hint about the cause of the crash. Tengku Razaleigh did not even hint let alone call for 79 a reinvestigation into the crash. Indeed, the First Defendant admitted in cross-examination that the new information did not establish the true cause of the plane crash. We have demonstrated how the First Defendant had, in the impugned statements, adopted what Tengku Razaleigh had said and embellished it with speculation and defamatory insinuation. We 5 have also explained how the truth of what Tengku Razaleigh’s speech (as opposed to the mere making of the speech) was the basic fact which led to the making of the impugned statements. This leads us to the fourth point of the steps taken to verify the information. The First Defendant admitted that before he made the statement on 4.4.2010 and published it 10 on 5.4.2010, he did not check personally with Tengku Razaleigh whether his account of the event prior to the air crash was true and accurate. In this context, it must be added that the Plaintiff had, on 7.4.2010 disputed the account by Tengku Razaleigh, and challenged the First Defendant to repeat his remarks. The Plaintiff also gave his own version of the event. 15 This appeared in the “Daily Express” headed “Harris Dares Yong, Jeffrey” which was referred to and explained by the Plaintiff in his evidence [page 607-608 of the Appeal Record]. In that statement, the Plaintiff said Tengku Razaleigh was never scheduled to fly with Tun Fuad to Kota Kinabalu on that day. According to the Plaintiff, there were two planes 20 (Nomad Aircraft) that were scheduled to take off from Labuan around the same time that ill-fated day. One of the planes was due to fly to Kudat 80 and the passengers in the flight included Tengku Razaleigh, the Plaintiff and few others. The other plane carrying Tun Fuad and other Sabah leaders was going to the State Capital. Tengku Razaleigh was never scheduled to fly with Tun Fuad Stephens to Kota Kinabalu. Tengku Razaleigh together with Tun Rahman Yaakob were scheduled to fly to 5 Kudat by plane and thereafter by helicopter to Banggi Island. The purpose of the scheduled trip to Banggi, was for Tengku Razaleigh, the then Finance Minister, to view the very first cattle farm in Sabah located on Banggi Island. Therefore, the claim that Tengku Razaleigh was pulled out of the plane by him (the Plaintiff) at the last moment to board a second 10 plane to fly to Kudat was grossly inaccurate and “carried away with pleasantries”. In his evidence in Court, the Plaintiff reiterated that he was not in the same plane with the late Tun Fuad Stephens because he was supposed to accompany Tengku Razaleigh and a few others to visit a cattle farm at Pulau Banggi, Kudat by the other Nomad plane, and that it 15 was a prearranged programme. In other words, Tengku Razaleigh was not supposed to join Tun Fuad Stephens in the first place but to join the Plaintiff for a trip to Pulau Banggi, Kudat. In this regard, in cross- examination, the Plaintiff said [at page 204 of the Appeal Record]: 20 “Any visit by VIP a programme is prepared by State Government and the VIP himself or the Ministry because at that time Tengku Razaleigh had no ministry therefore by himself prepared 2 aircrafts 81 in Labuan Airport. There were 2 Nomad Aircrafts in Labuan Airport. One to fly the late Tun Fuad and other people straight to Kota Kinabalu, the other aircraft to fly to Kudat. It’s usual for any aircraft flying from airport to airport must have passengers’ list known as manifesto. Tengku Razaleigh and myself and Tun 5 Rahman Yaakob were scheduled a program to visit Banggi. I wish to add this statement, the statement made by Tengku Razaleigh in 1996 compared to his statement in 2010 surely Y.A. his statement 1996 is more fresh in his mind. I do not know whether Tengku Razaleigh will be called as a witness to be asked which statement 10 is true, the statement in the book or the statement he made on the 4.4.2010 here in Sabah. I wanted to add, surely anybody with common sense won’t believe me to go into the aircraft where Tun Fuad, Tengku Razaleigh were already sitting in the aircraft, surely its very rude and improper for me to pull Tengku Razaleigh out of 15 the aircraft.” [60] Tengku Razaleigh’s account in his speech on 2.4.2010 also differed from his previous statements on the incident as recorded in the two books which the First Defendant admitted to be his reference books. 20 In the books – “Harris Salleh of Sabah” [pages 534-550 of the Appeal Record] and “The Sabahans – The Life and Death of Tun Fuad Stephens”, [pages 572-585 of the Appeal Record] it was recorded that Tengku Razaleigh was not invited to leave the ill-fated Nomad at the last moment, which, as will be seen in a moment, was not denied by the First Defendant. 25 At page 269 of the second book it is recorded as follows: 82 “Improving relations with KL was another top priority. So in early June, Petronas Chairman Tengku Razaleigh Hamzah flew into Sabah. The first part of his itinerary involved a dinner in Labuan. Rahimah recollects, “I was ill that weekend. Otherwise I would have gone to Labuan with my husband.” 5 Tengku Razaleigh remembers that weekend vividly. In his own words: Donald, as I always called him in private, had hosted a 10 personal dinner on my behalf in Labuan that Saturday night [June 5th]. Donald was determined to see Sabah develop. We stayed up till 6am the next morning talking [June 6th]. Then he told me he had to leave to flag off a walkathon in Kota Kinabalu, so he and his brother Ben flew back. 15 I went to sleep. Some time after nine in the morning there was this loud banging on my door. When I opened it, there he was! Donald said, “I’ve just flagged off the walkathon. I couldn’t 20 just leave you here, so here I am.” Later we had lunch at Layang-Layang village and also addressed a large rally on the beach. After that I was schedule to fly back to KK with Donald on the same Nomad. But at the last 25 moment, on the beach, Harris said to me, “Why do you want to go back so early? You only need to be at the Istana in the evening. Come with me to Pulau Banggi and I’ll show you a cattle ranch.” It was still quite early, so I agreed. Because I was also 30 Finance Minister at the time, I had a high ranking civil servant attached to me, my executive assistant, Ishak Atan, who 83 accompanied me from KL. Ishak said that he would prefer to go back to KK first with the vesting documents to prepare for the signing ceremony after the State dinner in my honour at the Istana. We left Layang-Layang and headed for the airport. There 5 were two Nomads on the runaway. One was for Donald’s contingent heading back to KK and the other was for Harris and me. But first I climbed aboard Donald’s plane and looked around. I saw Rahman Ya’kub, Sarawak’s Chief Minister, there already seated. I asked him, “Why are you here? You’re part of my 10 contingent. Come with me to Pulau Banggi.” So he got out. I was the last person to see Donald and the others alive. Our Nomad took off after Fuad’s. Then, because the flight to Kudat where we stopped to go to Pulau Banggi was longer than Donald’s 15 flight to KK, it was only when we landed at Kudat that we were told there had been an air crash just outside KK.” [61] The relevant exchange in the cross-examination of the First Defendant runs as follows: 20 “Put: The two books Harris Salleh of Sabah and The Sabahan – The Life and Death of Tun Fuad Stephens have put on public record the facts that Tengku Razaleigh was invited by the plaintiff at Kg. Layang-Layang in the afternoon and not at the 25 last minute at the airport while Tengku Razaleigh was also not scheduled to fly back to Kota Kinabalu with the late Tun Fuad Stephens as he had a programme to visit a cattle farm in Banggi Island, agree? 30 84 A: That’s what the books say.” [62] In view of all these, it behoved the First Defendant to verify personally with Tengku Razaleigh the truth and accuracy of his account. However, instead of verifying the truth and accuracy of his account with 5 Tengku Razaleigh, the First Defendant published the second statement on 9.4.2010, reinforcing what he had said in the first statement. [63] The very material difference between the Plaintiff’s and the First Defendant’s version was acknowledged by the Defendants. Thus, in re-10 examination, the First Defendant was asked: “By the time of your second statement you already knew that there was one version of event by Tengku Razaleigh and another version by the Plaintiff. Can you clarify and explain why you didn’t see fit to seek clarification from either of them?” The First Defendant answered; “The version of events by Tengku 15 Razaleigh vary from the version by the Plaintiff and therefore I felt that this was for the tribunal to reinvestigate the plane crash to establish which of the two was the correct version and if the two versions can be reconciled or not. It is because of the two varying versions, that I have repeated the call for a reinvestigation in order to get the truth.” The two sentences in 20 that answer by the First Defendant contradict each other. In the first sentence, the First Defendant says, because the version of events by 85 Tengku Razaleigh differs from the version by the Plaintiff, he felt that this was for the tribunal to reinvestigate the plane crash to establish which of the two was the correct version and whether the two versions can be reconciled. This cannot be true because even in the first statement on 4.4.2010 [before the Plaintiff disputed Tengku Razaleigh’s account and 5 published his own version which was on 7.4.2010], the First Defendant had already called for “the investigation file” “to be opened to remove all doubts about the true causes”. In the second sentence the First Defendant says, it is because of the two differing versions that he has repeated the call for a reinvestigation in order to get the truth. This is also 10 not helpful. If the two differing versions caused him to repeat the call for a re-investigation [in the second statement], what was the cause of his call for the investigation file to be reopened [in the first statement]? It could not have been due to the two differing versions because as we have just shown, when he published the first statement, the Plaintiff had yet to 15 publish his own version. It seems to us that the First Defendant could not explain satisfactorily why he did not verify with Tengku Razaleigh or the Plaintiff about the truth or accuracy of their respective versions. In any case, neither version hint, let alone mention about the cause of the crash to justify the publication of the impugned statements by the Defendants. 20 86 [64] The stand of the First Defendant which also reflects his attitude that it is not for him to verify the accuracy of the statement made by Tengku Razaleigh, can be seen from the following exchange in cross- examination: 5 “Question: Do you agree that it is one thing to verify that Tengku Razaleigh had made the statement on 2.4.2010, but it is another thing to verify with him personally the accuracy of what he had stated? 10 Answer: I took steps to verify that Tengku Razaleigh had made that statement of 2.4.2010. What he said was very clear and reported in print. Based on that I made my comment as a matter of public interest. With due respect it is not for me to verify the accuracies of all 15 statements made by anybody before I comment. The maker of the original statement is always free to make clarification.” [65] So, the First Defendant did not verify with Tengku Razaleigh 20 personally the truth and accuracy of his account, and Tengku Razaleigh also did not testify at the trial to establish the truth and accuracy of his account. Why this material witness for the Defendants was not called to testify can be gathered from the notes of proceedings before the High Court. On 22.12.2011, before calling the First Defendant to testify, from 25 the Bar table the learned counsel for the Defendants informed the learned 87 trial judge that the subpoena has been served on Tengku Razaleigh by leaving a copy of the subpoena in the latter’s office. Learned counsel said at the time of service of the subpoena, Tengku Razaleigh indicated that he was not keen to come to testify. This, we pause to add, is hearsay. Learned counsel for the Defendants also said that there had been many 5 attempts to contact Tengku Razaleigh but failed. The learned counsel also informed the Court that the Defendants will decide at the end of the First Defendant’s testimony whether to enforce the subpoena by applying for a warrant of arrest against Tengku Razaleigh and that in the meantime, the Defendants would like to reserve all their rights in the matter. Learned 10 counsel for the Plaintiff responded by saying to the effect that without any affidavit of service being filed in Court, what was said from the Bar table by the learned counsel could not be taken on its face value. Learned counsel for the Plaintiff also argued that since the subpoena was left at Tengku Razaleigh’s office and not served on him personally, there was 15 no basis for saying that Tengku Razaleigh refused to testify. Learned counsel for the Defendants replied to the effect that when the Defendants “have decided to enforce the subpoena, they will produce an affidavit of service. The continued hearing then went on [pages 439-440 of the Appeal Record]. 20 88 [66] On 23.12.2011, at the end of the testimony of the First Defendant, the learned counsel for the Defendants following what he told the Court on 22.12.2011 informed the Court that “the Defendants have made their points and established their case in this defamation trial. The Defendants therefore leave it to the Court whether to enforce the subpoena or not.” 5 The thrust of the learned counsel for the Plaintiff’s reply is that unless and until there is evidence of service filed in Court, there is no basis for the Court to enforce the subpoena. As to whether or not the Defendants had established their case and hence not calling Tengku Razaleigh to testify, the argument submitted on behalf of the Plaintiff was that the real issue 10 which the Court had to decide on the line of the defence by the Defendants was the truthfulness of the statement by Tengku Razaleigh and not the existence of his statement regarding the event prior to the crash, of which submission will be made later on. For the Defendants, their learned counsel responded as follows: 15 “We have made our points. We are the Defendants in this libel suit. We think it will not be necessary to call one more witness to prove a point which has already been proven by the various witnesses for the Defendants …” 20 In other words, the non-existence of Tengku Razaleigh’s testimony in this case is not really due to the alleged refusal of Tengku Razaleigh to testify. 89 Rather it was because the Defendants themselves had decided that it was not necessary to call one more witness [which must be none other than Tengku Razaleigh] to prove their case, which according to the Defendants, had been proven by the various witnesses for the Defendants. This was supported by the fact that the learned counsel for 5 the Defendants then informed the Court that the Defendants rest their case [pages 497-500 of the Appeal Record]. [67] In our judgment, without Tengku Razaleigh being called to testify, the Defendants have failed to establish the truth and accuracy of Tengku 10 Razaleigh’s account. [68] Continuing with the Reynolds’ test for responsible journalism, on the fifth point, there was already an official investigation into the crash and it was officially revealed in Parliament in 2009 by the Federal Government 15 that the incident was caused by overloading, pilot error and absence of radar instrument. On the sixth, the seventh and the tenth points, there was no urgency for the First Defendant to publish the first statement calling for the investigation file to be reopened to remove doubt about the true cause of the plane crash when Tengku Razaleigh’s account did not 20 even hint about the cause of the crash. Moreover, there was no urgency for the First Defenant to rush into publishing the second statement on 90 9.4.2010 reinforcing the first statement without verifying from Tengku Razaleigh the truth and accuracy of his account which, to the knowledge of the First Defendant, was disputed by the Plaintiff on 7.4.2010. Indeed, as we have shown there was no intention to verify. On the eighth point, after the publication of the first statement, on 4.4.2010, the Plaintiff had, 5 on 7.4.2010 disputed Tengku Razaleigh’s account, and also gave his own version of the event. Not only did the First Defendant fail to verify with the Plaintiff, he published the second statement, which like the first statement, did not contain the gist of the Plaintiff’s version. Learned counsel for the Defendants contended that as the Plaintiff had put his account on the 10 public record, there was no need for the Defendants to repeat the Plaintiff’s version since it would be fresh in the minds of the readers of the “Daily Express”. We are unable to accept the contention. In this regard, we refer again to Syarikat Bekalan Air Selangor. The Court of Appeal in that case held that “once all relevant information is in the public domain, 15 then, the defendant is not obliged to satisfy the further Reynolds requirements.” In dealing with that ruling, this Court said at pages 495- 497: “[41] As submitted by learned counsel for the plaintiff, a closer 20 reading of the above passage did not support the Court of Appeal proposition of law. Clearly, the opinion in Gatley went further to say that parts of the Reynolds privilege test dealing with issues of 91 reasonable of conduct (for example, whether steps have been taken to verify the information) were relevant. He further argued that a far reaching implication of the Court of Appeal's proposition was that it would allow defendants to publish untrue defamatory statements, simply because the state of affairs had already been 5 published before in the public domain. We see much force in this argument. We agree with the submissions of learned counsel for the plaintiff that this cannot be right as such a proposition runs counter to the very concept of fair and responsible journalism. 10 [42] There is one aspect of the decision of the High Court that deserves our attention. It is this: the High Court found that the defendant had known that the non-replacement of water pipes and mains and the cash flow problems faced by the plaintiff were the result of the freeze of capital expenditure works and the refusal of 15 the Selangor State Government to agree to a proposed tariff hike and not the plaintiff's own fault. The defendant deliberately withheld this information, which would have explained the plaintiff's position and indeed did nothing to elicit a response from the plaintiff. On the contrary, the Court of Appeal held that the occasion might be 20 privileged even if the defendant failed to disclose all the relevant facts. With respect, in so deciding, the Court of Appeal failed to judiciously appreciate that omitting to disclose the gist of the plaintiff's side of the story would result in an unfair and misleading report and would go against the concept of responsible journalism. 25 [43] In his submissions, learned counsel for the plaintiff took us through the evidence of the defendant at the trial during cross- examination. The evidence disclosed that the defendant had omitted to publish information, which he was in possession of, 30 which would have shown the plaintiffs side of the story, in that the 92 non-replacement of water pipes and mains and the cash flow constraints were not due to the plaintiff's own fault. We should remind ourselves that in Reynolds v. Times Newspapers Ltd (supra), Lord Nicholls held that omitting the plaintiff's explanation of the version of events would result in an unfair and inaccurate 5 report, which would be misleading: A most telling criticism of the article is the failure to mention Mr. Reynolds' own explanation to the Dáil. Mr. Ruddock omitted this from the article because he rejected Mr. 10 Reynolds' version of the events and concluded that Mr. Reynolds had been deliberately misleading. It goes without saying that a journalist is entitled and bound to reach his own conclusions and to express them honestly and fearlessly. He is entitled to disbelieve and refute explanations given. But 15 this cannot be a good reason for omitting, from a hard hitting article making serious allegations against a named individual, all mention of that person's own explanation. Particularly so, when the press offices had told Mr. Ruddock that Mr. Reynolds was not giving interviews but would be 20 saying all he had to say in the Dáil. His statement in the Dáil was his answer to the allegations. An article omitting all reference to this statement could not be a fair and accurate report of proceedings in the Dáil. Such an article would be misleading as a report. This article is not defended as a 25 report, but it was misleading nonetheless. By omitting Mr. Reynolds' explanation English readers were left to suppose that, so far, Mr. Reynolds had offered no explanation. Further, it is elementary fairness that, in the normal course, a serious charge should be accompanied by the gist of any 30 explanation already given. An article, which fails to do so 93 faces an uphill task in claiming privilege if the allegation proves to be false and the unreported explanation proves to be true. [44] In our judgment, the Court of Appeal had failed to consider that 5 the defendant's knowledge of the plaintiff's true position and failure to disclose these facts would suggest that his conduct was unreasonable and would go against the concept of responsible journalism. In our judgment, the defendant had failed the responsible journalism test in failing to take responsible and fair 10 steps to gather, verify and publish the impugned words.” On the ninth point, we have shown how the First Defendant adopted and embraced what Tengku Razaleigh said in his speech [the truth and accuracy of which was not proven], and embellished it with speculation 15 and insinuation of the Plaintiff’s possible involvement in the assassination of Tun Fuad Stephens and others who perished in the double six tragedy. [69] In our judgment, the Defendants had failed the responsible journalism test. Thus, the Defendants failed to establish the Reynolds 20 privilege defence. The Court of Appeal erred in finding the issue of liability in favour of the Defendants and setting aside the decision of the High Court. We therefore set aside the decision of the Court of Appeal on liability. 25 94 [70] The sole ground upon which the Court of Appeal allowed the Defendants’ appeal was because it found that the defence of qualified privilege was not properly considered by the High Court. In fact before us the submissions by the Plaintiff and the Defendants centred on this issue. Our decision reversing the Court of Appeal in its finding of liability in favour 5 of the Defendants, would have brought the appeal on liability to an end. However, the High Court also considered the defence of fair comment which was also pleaded by the Defendants, and found that the latter failed to establish it. For the sake of completeness we have also considered the finding of the High Court on that defence ourselves in the light of all the 10 evidence before it. This is how the learned trial judge dealt with it in his judgment: “To sustain the defence of fair comment the defendants must prove the following: 15 (a) the words complained of are comments; (b) the comments are based on facts; (c) the comments or opinion expressed are fair; and (d) the comments must be on matters of public interest. 20 The learned authors of Gatley on Libel and Slander defines comment as follows at p 697: “Comment is a statement of opinion on facts. It is comment to say that a certain act which a man has done is disgraceful 25 or dishonourable; it is an allegation of fact to say he did the 95 act so criticized … while a comment is usually a statement of opinion as to merits or demerits of conduct, an inference of fact may also be a comment. There are, in the cases, no clear definitions of what is comment. If the statement appears to be one of opinion or conclusion, it is capable of 5 being comment. Comment to be fair must be based on facts. In Hasnul bin Abdul Hadi v Bulat bin Mohamed & Anor [1978] 1 MLJ 75 the defence of fair comment failed because the defendants failed to prove that the 10 facts on which the comment was founded were true. In London Artist Ltd v Littler [1969] 2 QBD 375 Lord Denning spoke of 'basic facts' when he said at p 391: “In order to be fair, the commentator must get his basic facts 15 right. The basic facts are those which go to the pith and substance of the matter: see Cunningham-Howie v Dimbleby [1951] 1 KB 360, 364. They are the facts on which the comments are based or from which the inferences are drawn — as distinct from the comments or inferences 20 themselves. The commentator need not set out in his original article all the basic facts: see Kemsley v Foot [1952] AC 345; but he must get them right and be ready to prove them to be true.” 25 In the context of the present case the basic fact is Tengku Razaleigh's revelation that the plaintiff asked him to leave the Nomad aircraft minutes before take off. This is the basic fact from which the insinuation of criminal conduct was drawn by the first defendant. The first defendant must get this fact right as a first step 30 in establishing the defence of fair comment. This is necessary https://www.lexisnexis.com/my/legal/search/runRemoteLink.do?A=0.29848910769304215&bct=A&service=citation&risb=21_T26250334419&langcountry=MY&linkInfo=F%23MY%23MLJ%23vol%251%25sel1%251978%25page%2575%25year%251978%25sel2%251%25 https://www.lexisnexis.com/my/legal/search/runRemoteLink.do?A=0.9437424541231573&bct=A&service=citation&risb=21_T26250334419&langcountry=MY&linkInfo=F%23GB%23QBD%23vol%252%25sel1%251969%25page%25375%25year%251969%25sel2%252%25 96 because Tengku Razaleigh's version of the events was disputed by the plaintiff but which the first defendant did not believe. Was it really a last minute decision by the plaintiff and if so was there any plausible explanation for it? 5 The first defendant should have verified with Tengku Razaleigh the accuracy of the new information before issuing the second statement. By not making any attempt to verify the accuracy of Tengku Razaleigh's revelation it is obvious that the first defendant had purposely abstained from enquiring into the facts or from 10 availing himself of means of information which lay at hand when the slightest inquiry would have shown the true situation. There is no doubt in my mind that the first defendant's intention in issuing the second statement was to tell the general public that the plaintiff's version of the events should not be believed. 15 In Joshua Benjamin Jeyaretnam v Goh Chok Thong [1989] 3 MLJ 1 the Privy Council said at p 3: “It is of course well established that a writer may not suggest 20 or invent facts and then comment upon them, on the assumption that they are true. If the facts upon which the comment purports to be made do not exist, the defence of fair comment must fail. The commentator must get his basic facts right.” 25 It behoves therefore on the defendants to call Tengku Razaleigh to clarify his statement in order to establish the defence of fair comment. In Juahir bin Sadikon v Perbadanan Kemajuan Ekonomi Negeri Johor [1996] 3 MLJ 627 Siti Norma Yaakob JCA (as she 30 then was) said: https://www.lexisnexis.com/my/legal/search/runRemoteLink.do?A=0.8251549667132655&bct=A&service=citation&risb=21_T26250334419&langcountry=MY&linkInfo=F%23MY%23MLJ%23vol%253%25sel1%251989%25page%251%25year%251989%25sel2%253%25 https://www.lexisnexis.com/my/legal/search/runRemoteLink.do?A=0.8251549667132655&bct=A&service=citation&risb=21_T26250334419&langcountry=MY&linkInfo=F%23MY%23MLJ%23vol%253%25sel1%251989%25page%251%25year%251989%25sel2%253%25 https://www.lexisnexis.com/my/legal/search/runRemoteLink.do?A=0.9429798301988787&bct=A&service=citation&risb=21_T26250334419&langcountry=MY&linkInfo=F%23MY%23MLJ%23vol%253%25sel1%251996%25page%25627%25year%251996%25sel2%253%25 97 “He who alleges must prove such allegations and the onus is on the appellant to do so. See s 103 of the EA. Thus, it is incumbent upon the appellant to produce … his witnesses to prove the allegation. The fact that the appellant was unable 5 to secure the attendance of … a witness does not shift the burden to…produce the witness … There is no obligation in law for the respondent to produce the witness as the obligation rests with … the party who alleges, and the fact that the appellant was unable to do so is fatal to his case. 10 For this very reason too, the adverse inference under s 114(g) is invoked against the appellant.” By failing to call Tengku Razaleigh to give evidence the consequence is that the defendants had merely proved that the 15 revelation was made by Tengku Razaleigh but without proving the truth and accuracy of what he revealed. Since the burden is on the defendants to prove the truth and accuracy of the new information, the failure means that the burden has not been discharged.” 20 [71] We find no reason to disturb the aforesaid findings of the High Court and we affirm it. CONCLUSION ON LIABILITY 25 [72] The decision we have made thus far is sufficient to dispose of the appeal on liability. We therefore find no necessity to answer the question in respect of which the leave to appeal was granted. 98 [73] In the result we allow the Plaintiff’s appeal on liability. The decision of the High Court on liability is reinstated albeit for different reasons in respect of the finding on the defence of privilege. 5 DAMAGES [74] The Plaintiff claimed RM50 million in damages against the Defendants. The High Court awarded a global sum of RM1 million for compensatory, aggravated and general damages. The Court of Appeal 10 held that the award was excessive and reduced it to RM100,000.00. [75] For the Plaintiff it was contended that the High Court’s award was not excessive and ought not to be disturbed. The Court of Appeal cases of Chin Choon v Chua Jui Meng [2005] 2 CLJ 569, Harry Isaacs & Ors 15 v. Berita Harian Sdn Bhd & Ors [2012] 4 MLJ 191 and Datuk Seri Anwar Ibrahim v. Wan Muhammad Azri Wan Deris [2015] 2 CLJ 557, were referred in support of that submission. In Datuk Seri Anwar Ibrahim v. Wan Muhammad Azri bin Wan Deris, the High Court awarded RM800,000.00 to the Plaintiff as general and exemplary damages. The 20 Defendant’s appeal to the Court of Appeal was dismissed on 4.12.2015 [Civil Appeal No. W-02(NCVC)(W)-532-03/2014]. The Defendant’s 99 application for leave to appeal was dismissed by the Federal Court on 26.7.2016 [Civil Application No. 08-2-01/2016 (W)]. For the Defendants it was submitted that the Court of Appeal correctly held that the High Court’s award was excessive and not supported by authorities. In support of their submission their learned counsel referred to several authorities 5 and argued as follows: “(1) Dato’ Ahmad Rejal Arbee & Anor v. Mahfuz Omar [2015] 6 CLJ 149. This case involving defamation against politician but the Court of Appeal only granted RM110,000.00. 10 (2) Chin Choon v. Chua Jui Meng [2005] 2 CLJ 569. The Court of Appeal only allowed an award of RM200,000.00 by way of global award of damages and reversed the High Court decision in granting RM1.5 million previously as 15 damages. (3) Dato’ Musa Hitam v. S.H. AlAttas & Ors. [1991] 2 CLJ (Rep) 487. The Court only grant RM100,000.00 as damages for defamation. 20 (4) Dato’ Hassan Mohamed Ali v. Tengku Putra Tengku Awang & Yang Lain [2010] 7 CLJ 856. The Court only granted the sum of RM50,000.00 despite the fact that the Plaintiff was an Exco (politician). 25 (5) Chong Siew Chiang v. Ng Kim Ho & Anor [2011] 6 CLJ 62. The Court held: 100 “… The award of damages in libel and slander cases is normally dependent on the facts and circumstances of each case. The nature of the libel or slander, the extent of the circulation of the defamatory words and 5 the social standing of the victim are relevant factors. Damages were awarded in the sum of RM100,000 against the 1st defendant and RM50,000 against the 2nd defendant …” 10 (6) Dato’ Dr Tan Chee Khuan v. Chin Choong Seng [2011] 8 CLJ 574. The Court only allowed the sum of RM150,000 to the plaintiff as a fair and reasonable to compensate him for the damages that he had suffered as well as to reflect that ‘libel does not come cheap’ in the circumstances of this case. 15 In the present case, Datuk Harris, the Respondent is a mere retiree, no longer active in politics, therefore damages, if any should be nominal. (7) Datuk Harris Mohd Salleh v. Datuk Mohd Shafie Hj Apdal 20 & Ors (High Court decision which was affirmed by the Court of Appeal) [2009] 2 CLJ 682. The Court decided to award RM50,000 only as damages to the Plaintiff against the 2nd to 5th Defendants despite the Plaintiff’s claim of RM43 million. The Plaintiff confirmed during cross-examination 25 that his appeal against damages was recently dismissed by the Court of Appeal. (8) Datuk Harris Mohd Salleh v. Abdul Jalil Ahmad & Anor [1983] CLJ 521 (Rep). At the material time the Plaintiff was 30 101 still the then Chief Ministry of Sabah but the Court only allowed RM100.000.00 in damages to the Plaintiff. (9) Lim Guan Eng v. Utusan Melayu (M) Bhd [2012] 2 CLJ 619. The above mentioned involved a politician and also the 5 Chief Minister of Penang. The Court observed that global damages should be awarded to ensure that awards of monetary damages are not excessive and to avoid any double counting on the damages awarded. Despite this case involving a Chief Minister a person of high ranking, the 10 Court decided to award RM200,000.00 as general and aggravated damages and costs of RM25,000.00 only. (10) Dato’ Seri Anwar Ibrahim v The New Straits Times Press (M) Sdn Bhd & Anor [2010] 5 CLJ 301. The Plaintiff 15 claimed for RM100 million. It was held by the Court that “the claim of RM100 million was a gross exaggeration.” A sum of RM100,000 as compensatory damages was awarded.” [76] The tort of defamation exists to protect, not the person or the pocket, 20 but reputation of the person defamed [See Jameel per Baroness Hale [2006] 4 All ER 1279, at 1322]. In Chin Choon v. Chua Jui Meng [2005] 2 CLJ 569, the Court of Appeal said at page 573: “In Defamation Law, Procedure & Practice by Price & Duodu (3rd 25 edition, para 20-04 at p. 208) the learned authors set out the several factors that a court must take into account in assessing compensatory damages. This is what they say: 102 The amount of damages awarded in respect of vindication and injury to reputation and feelings depends on a number of factors: 1. The gravity of the allegation. 5 2. The size and influence of the circulation. 3. The effect of the publication. 4. The extent and nature of the claimant's reputation. 5. The behaviour of the defendant. 6. The behaviour of the claimant. 10 This list is most helpful. But it must be borne in mind that this is not by any means exhaustive of the matters which the court may take into account when making an assessment.” 15 [77] In the present appeal, the Court of Appeal gave four reasons why it held that the High Court’s award was excessive. This is clear from its finding on the issue of damages which is as follows: “[24] In our judgment, even if we are wrong on the issue of liability, 20 His Lordship's award of RM1 million by way of damages is excessive on the particular facts of this case. In our view, His Lordship in awarding the sum of RM1 million was influenced by His Lordship's earlier ruling that the appellant had failed to verify the truth of Tengku Razaleigh's revelations when there is no such 25 burden since the defence relied upon was qualified privilege/fair comment and not justification. That this was an important consideration on the mind of His Lordship when determining the 103 quantum of damages is evident by His Lordship's pronouncements in paragraph 1190 to 1195 of the judgment: “the seriousness of the libel and the recklessness in the way it is published are relevant factors in determining the 5 quantum of damages. In the present case the insinuation of criminal conduct was a very serious libel perpetrated on the Plaintiff. Nothing can be more humiliating than to be accused of plotting to murder a serving Chief Minster (sic) in order to usurp his position, compounded as it was by the reckless 10 manner in which the defamatory statements were published.” [25] Secondly, His Lordship in arriving at the quantum of RM1 million also placed great emphasis on the award RM3 million made 15 by Gopal Sri Ram JCA in the case of MGG Pillai v. Tan Sri Dato' Vincent Tan Chee Yioun & Other Appeals [1995] 2 CLJ 912; [1995] 2 MLJ 493. We have had occasion in the case of Harry Isaacs & Ors v. Berita Harian Sdn Bhd & Ors [2012] 1 LNS 1359 to caution judges of the High Court against placing too much emphasis on 20 this award since it was an award made during a period of unrestrained excesses on the part of the judiciary. [26] Thirdly, it was wrong of the learned trial judge to totally disregard the award of only RM50,000 to the respondent by way of 25 damages by the High Court in the case of Datuk Harris Mohd Salleh v. Datuk Mohd Shafie Hj Apdal & Ors [2009] 2 CLJ 682. We opine to this effect because the respondent was similarly the plaintiff in that case and the respondent's claim was for defamation, as in the case here. Finally, with respect, since the award of 30 damages for defamation is very much dependent on the character javascript:DispCase=window.open('/Members/DisplayCase.aspx?CaseId=2522547201&SearchId=8hakim7','_DisplayCase','');DispCase.focus() javascript:DispCase=window.open('/Members/DisplayCase.aspx?CaseId=2522547201&SearchId=8hakim7','_DisplayCase','');DispCase.focus() javascript:DispCase=window.open('/Members/DisplayCase.aspx?CaseId=2927231237&SearchId=8hakim7','_DisplayCase','');DispCase.focus() javascript:DispCase=window.open('/Members/DisplayCase.aspx?CaseId=2927231237&SearchId=8hakim7','_DisplayCase','');DispCase.focus() javascript:DispCase=window.open('/Members/DisplayCase.aspx?CaseId=2840733697&SearchId=8hakim7','_DisplayCase','');DispCase.focus() javascript:DispCase=window.open('/Members/DisplayCase.aspx?CaseId=2840733697&SearchId=8hakim7','_DisplayCase','');DispCase.focus() 104 of the claimant, the pronouncements of the High Court Judge in the case of Tan Chiaw Thong J in Tun Mustapha v. YDP Negeri Sabah & Ors [1988] 2 CLJ Rep 480; [1988] 2 CLJ 330; [1986] 2 MLJ 420 concerning the character of the respondent is clearly a relevant factor in determining the damages to be awarded to the 5 respondent. For this reason, in our opinion, the learned trial judge erred in commenting as follows: “I can only think of one reason why the defendants drew the Court's attention to all these cases, and that is to provide 10 additional oomph to their allegation that the Plaintiff is a person of questionable character. The reference to the Judge's remarks in the Tun Mustapha case is wholly unnecessary and unfair to the Plaintiff as he was not even a witness in that case and therefore not in a position to defend 15 himself against those remarks, whatever the context they were made.” (paragraph 1300 at page 43 of the High Court judgment) when rejecting the submission that His Lordship should have 20 regard to the observation of the judge in the case of Tan Chiaw Thong J in Tun Mustapha v. YDP Negeri Sabah & Ors (supra) concerning the character of the respondent. Accordingly, in all the circumstances of this case, in our judgment, even if the learned trial judge was right on the issue of liability, the damages awarded to 25 the respondent ought to have been RM100,000 and not RM1 million.” [78] On the first reason given by the Court of Appeal, we do not think that the learned trial judge was influenced by his earlier ruling that the 30 javascript:DispCase=window.open('/Members/DisplayCase.aspx?CaseId=2277779457&SearchId=8hakim7','_DisplayCase','');DispCase.focus() javascript:DispCase=window.open('/Members/DisplayCase.aspx?CaseId=2277779457&SearchId=8hakim7','_DisplayCase','');DispCase.focus() 105 Defendants had failed to verify the truth of Tengku Razaleigh’s revelation. It appears to us from the passage in the High Court’s judgment quoted by the Court of Appeal that the learned trial judge actually considered the seriousness of the libel and the recklessness in its publication, which he was entitled to in determining the quantum of damages. On the third 5 reason we do not think that the learned trial judge totally disregarded the RM50,000.00 award in the case of the Plaintiff against Datuk Mohd Shafie Hj Apdal. Upon due consideration the High Court found it not to be an appropriate authority because of the difference in the facts. From the answer given by the Plaintiff in cross-examination in the present case, the 10 High Court found that in the case of Datuk Mohd Shafie Hj Apdal, Datuk Shafie had apologized publicly to the Plaintiff and in addition the former had contributed RM50,000.00 to Yayasan Islam. Thus, the High Court found that unlike the First Defendant in the present case, Datuk Shafie Apdal regretted his action and was remorseful. On the fourth reason given 15 by the Court of Appeal regarding certain remarks made by another High Court judge in the case of Tun Mustapha v YDP Negeri Sabah and Ors [1986] 2 MLJ 420, concerning the character of the Plaintiff, the learned trial judge in the present case opined that the reference to that remarks was unnecessary and unfair to the Plaintiff as he was not even a witness 20 in that case, and was therefore not in a position to defend himself against 106 those remarks, whatever the context they were made. We do not think that the learned trial judge in the present case could be faulted for that. [79] This leads us to the second reason given by the Court of Appeal – that the learned trial judge placed great emphasis on the award of RM3 5 million made by the Court of Appeal in M.G.G. Pillai v. Tan Sri Dato’ Vincent Tan Chee Yioun & 2 Other Appeals [1995] 2 CLJ 912. [80] In Liew Yew Tiam & Ors v. Cheah Cheng Hoc & Ors [2001] 2 CLJ 385, the Court of Appeal observed that the decision in MGG Pillai was 10 one which had been misunderstood, and that the trend set by that decision should be checked to ensure that an action for defamation would not be used as an engine of oppression. In Liew Yew Tiam, the Court of Appeal held, inter alia, that the learned trial judge erred when he made separate awards of damages against each of the appellants, and it reduced the 15 awards totalling RM1 million to RM100,000.00. This is what Gopal Sri Ram, JCA (later FCJ), [the learned judge of the Court of Appeal who wrote the main judgment in MGG Pillai] said: “In the process of making our assessment we have not overlooked 20 the recent trend in this country of claims and awards in defamation cases running into several million Ringgit. No doubt that trend was set by the decision of this Court in MGG Pillai v Tan Sri Dato 107 Vincent Tan Chee Yioun. It is a decision that has been much misunderstood. The underlying philosophy of that decision is that injury to reputation is as, if not more, important to a member of our society than the loss of a limb. But we think the time has come when we should check the trend set by that case. This is to ensure 5 that an action for defamation is not used as an engine of oppression. Otherwise, the constitutional guarantee of freedom of expression will be rendered illusory. … 10 We would add that we do not regard the affirmation by the Federal Court of the decision in MGG Pillai v Tan Sri Dato’ Vincent Tan Chee Yioun as an insurmountable hurdle of binding precedent to our decision in the present case. For, at the end of the day, the 15 Federal Court affirmed the award made in the circumstances of that particular case as a proper exercise of judicial discretion by the High Court upon the question of damages. We do not think that it automatically follows as a matter of policy that the plaintiff in every case should be entitled to receive an award in millions of ringgit.” 20 [81] In Karpal Singh v DP Vijandran [2001] 4 MLJ 161, the Court of Appeal remarked that the principal governing the assessment of damages in libel cases have remained unchanged over the years. It was the amount awarded which had drastically changed over the last five or six 25 years. Therefore, in considering the award made by the trial Court, it was important to look at the trend of awards of damages made by the Courts in the country. Of course, it must be borne in mind that each case was to 108 be decided on its own facts and circumstances. The Court then referred to awards made in several cases decided within the preceding period of twenty years from 1980. Abdul Hamid Mohamad JCA [later CJ], speaking for the Court of Appeal said: 5 “… I think that the cases that I have referred are sufficient to show the trend. Until the arrival of Vincent Tan in 1995, the highest award ever given by the court in this country was RM100,000. Vincent Tan sky rocketed the awards. When the award was confirmed by the Court of Appeal, what was an isolated pinnacle in an otherwise 10 undulating plain, the trend is set. When the Federal Court confirmed it, it became a binding precedent in all the courts in this country. But, now the Court of Appeal in Liew Yew Tiam has had second thoughts about it. The learned judge of the Court of Appeal who wrote the main judgment in MGG Pillai has sought to 15 distinguish MGG Pillai's case. 'It is a decision that has been much misunderstood and the trend should be checked,' he said. This court is bound by the decisions of the Federal Court. But what is binding is the principle laid down by the Federal Court in assessing damages in libel cases, not the amount. The amount to 20 be awarded in each case depends on the facts and the circumstances of the case. Indeed, how much is too much, how much is too little and how much is reasonable is quite subjective. No scale can be fixed. But it does not mean that, given a set of facts, the appellate court cannot say confidently that an award is 25 too little or too much or reasonable. It is the same as in an appeal against sentence in a criminal case or an appeal against an award of damages in other civil cases. 109 The principle that this court should apply is clear: whether this court is of the view that that the trial judge had 'acted on a wrong principle of law, or has misapprehended the facts, or has for these or other reasons made a wholly erroneous estimate of the damage suffered'. (See Ling Wah Press (M) Sdn Bhd & Ors v Tan Sri Dato' 5 Vincent Tan Chee Yioun & other appeals and the cases referred to therein). I would not say that the learned trial judge had acted on wrong principle in this case. However, I am of the view that the learned judge has misapprehended the facts and was also influenced by 10 the prevailing trend then.” [82] In the present appeal, the learned trial judge had considered the seriousness of the libel, the extent of the publication, the Plaintiff’s reputation and the adverse effect of the defamatory statements on his 15 dignity and reputation, and the conduct of the Defendants including absence of remorse for defaming the Plaintiff and in urging the Court not to award any damages or costs to the Plaintiff, all of which the learned trial judge was entitled to take into account in assessing damages. Then, there is the award in MGG Pillai’s case which we have to put into the 20 scale to consider the award made by the learned trial judge. Whilst we are not prepared to share the Court of Appeal’s view that the learned trial judge had placed great emphasis on the award of RM3 million against the First Defendant in MGG Pillai, it is difficult to say that if the learned trial judge had not been influenced by the award in MGG Pillai, he would have 25 110 awarded the global sum of RM1 million to the Plaintiff for compensatory, aggravated and exemplary damages. This, in our view warrants appellate interference. [83] In the circumstances of this case, we are of the view that a total 5 award of RM600,00.00 would be reasonable. Therefore, the Plaintiff’s appeal on damages is allowed. The total damages awarded to the Plaintiff is increased to RM600,000.00. CONCLUSION 10 [84] In the result, the Plaintiff’s appeal is allowed with costs. [85] Accordingly, it is ordered that: 15 (a) The First and the Second Defendants pay to the Plaintiff damages in the sum of RM600,000.00 with interest thereon at 8% per annum from the date of the judgment of the High Court (29.2.2012) until full payment; and 20 111 (b) The First and the Second Defendants pay to the Plaintiff costs in the sum of RM200,000.00 subject to the payment of allocatur. 5 sgd (TAN SRI DATUK WIRA AHMAD BIN HAJI MAAROP) Chief Judge of Malaya Federal Court of Malaysia Putrajaya 10 Dated: 26 September 2017 15 Counsel for the Appellant : Mr Yunof E. Maringking, Mr. Trevor Kenneth Maringking and Ms. Latania John Masabal (with him) Messrs. Maringking & Co Advocates & Solicitors 20 Lot 119, 2nd Floor, Jalan Gaya Wisma Bumi, P O Box 14174 88848 KOTA KINABALU Sabah 25 Counsel for the Respondent : Mr Geoffrey Robertson QC and Datuk Simon Shim ESQ (with him) Messrs. Shim Pang & Co Advocates & Solicitors Suite 308-311, 3rd Floor 30 Wisma Sabah, Jalan Tun Razak 88000 KOTA KINABALU Sabah	171,056	Tika 2.6.0
25-39-03/2016	PERAYU MEASAT BROADCAST SYSTEMS SDN. BHD. RESPONDEN 1. ) WOO CHEE SEONG 2. ) CHOO KIAN PIN 3. ) MAHKAMAH PERUSAHAAN MALAYSIA	null	26/09/2017	YA DATUK SU GEOK YIAM	https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=2e674bae-c1fd-4eab-a88d-25c760f43932&Inline=true	null	null	Failed Extraction
25-39-03/2016	PERAYU MEASAT BROADCAST SYSTEMS SDN. BHD. RESPONDEN 1. ) WOO CHEE SEONG 2. ) CHOO KIAN PIN 3. ) MAHKAMAH PERUSAHAAN MALAYSIA	null	26/09/2017	YA DATUK SU GEOK YIAM	https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=2e674bae-c1fd-4eab-a88d-25c760f43932&Inline=true	null	null	Failed Extraction
BA-A53-10-06/2016	PLAINTIF EURO RENT A CAR SDN BHD DEFENDAN SUNWAY PARKING SERVICES SDN BHD	Tuntutan gantirugi - Kereta plaintif yang diletakkan di kawasan parkir telah hilang - Hubungan bailor dan bailee - Pembuktian - Sama ada defendan sebagai pengurus dan pengendali kawasan parkir mempunyai kewajipan berjaga-jaga - Sama ada kehilangan kereta plaintif adalah berpunca akibat perlanggaran kewajipan berjaga-jaga oleh defendan - Sama ada klausa pengecualian bertentangan dengan undang-undang - Akta Keterangan 1950 [Akta 56], seksyen 101, 73A(2); Akta Kontrak 1950 [Akta 136], seksyen 101 dan 104; Akta Perlindungan Pengguna 1999 [Akta 599], seksyen 24C(2)(c), 24D(2) (e) dan (f).	25/09/2017	TN IZRALIZAM BIN SANUSI	https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=37d9403e-7e50-4fca-934f-caa95ed95aa6&Inline=true	DALAM MAHKAMAH SESYEN DI SHAH ALAM DALAM NEGERI SELANGOR DARUL EHSAN, MALAYSIA SAMAN NO.: BA-A53-10-06/2016 ANTARA EURO RENT A CAR SDN BHD (No. Syarikat : 587079-U) …PLAINTIF DAN SUNWAY PARKING SERVICES SDN BHD (No. Syarikat: 643825-X) …DEFENDAN ALASAN PENGHAKIMAN Pengenalan [1] Ini adalah satu tuntutan oleh plaintif untuk gantirugi berjumlah RM 117,215.80 bagi kehilangan sebuah kereta yang diletakkan di kawasan tempat letak kereta yang diuruskan dan dikendalikan oleh defendan. Fakta Kes [2] Plaintif ialah sebuah syarikat sendirian berhad yang diperbadankan di Malaysia dan menjalankan perniagaan penyewaan kereta. [3] Defendan merupakan sebuah syarikat sendirian berhad yang ditubuhkan pada tahun 2004 di bawah Akta Syarikat. Sepanjang masa yang material, defendan menjalankan perniagaan pengurusan tempat letak kereta termasuk pengurusan tempat letak kereta di The Pinnacle Sunway, Jalan Lagoon Timur, Bandar Sunway, 46500 Petaling Jaya Selangor. [4] Plaintif mendakwa bahawa pada 25.4.2016, plaintif telah menyewakan sebuah kereta miliknya, Honda HRV bernombor pendaftaran BNS 9066 yang berwarna kelabu (“kereta tersebut”), kepada seorang warganegara Perancis yang bernama Hemici Sofiane (“Hemici”). [5] Pada 27.4.2016, lebih kurang pukul 2.28 petang, Hemici mendakwa bahawa beliau telah meletakkan Kereta tersebut di tempat letak kereta yang dikenali sebagai Lot B2B, The Pinnacle Sunway, Jalan Lagoon Timur, Bandar Sunway, 46500 Petaling Jaya Selangor. Apabila beliau kembali pada jam 7.00 petang, beliau mendapati Kereta tersebut telah hilang. [6] Hemici kemudiannya memaklumkan kepada Pengawal keselamatan yang berada di bilik keselematan mengenai kehilangan kereta tersebut. Pengawal keselamatan membantu Hemici untuk mencari kereta itu namun ia gagal dijumpai. Selepas itu mereka pergi ke bilik kamera litar tertutup (“CCTV”) untuk melihat rakaman CCTV bagi memastikan punca kehilangan Kereta tersebut. [7] Berdasarkan tayangan rakaman CCTV, Hemici telah mendakwa bahawa Kereta tersebut telah dilarikan oleh orang yang tidak dikenali. Pada 28.4.2016, Hemici telah membuat laporan polis tentang kehilangan Kereta tersebut. Beliau juga telah membuat satu akuan bersumpah pada 12.5.2016, yang mengesahkan kejadian kecurian Kereta Plaintif tersebut. [8] Pada 30.4.2016, berdasarkan keterangan Encik Fabian Leo Bernard (SP2), beliau telah hadir ke tempat letak kereta tersebut dan melihat rakaman CCTV yang berkaitan dengan kecurian kereta tersebut. Pihak defendan telah memberi sesalinan rakaman CCTV berkaitan kepada SP2 pada keesokan hari. [9] Berdasarkan rakaman CCTV tersebut, pihak plaintif dan defendan telah bersetuju bahawa kandungan rakamannya adalah seperti yang berikut: (i) Seorang lelaki menuju ke arah kereta tersebut dan memasukinya. Lelaki itu memandu kereta tersebut keluar dari kotak parkir dan memberhentikan kereta tersebut di kawasan yang berdekatan dengan laluan keluar/masuk parkir tersebut. (ii) Selepas itu, sebuah kereta model Nissan Almera bernombor pendaftaran WA 561 G yang dipandu oleh seorang lelaki telah memasuki kawasan tempat letak kereta tersebut. (iii) Sejurus selepas kereta Nissan Almera itu memasuki premis parkir itu, ia membuat pusingan U dan menuju ke arah laluan keluar. Kereta tersebut kemudiannya bergerak dan mengekori kereta Nissan Almera tersebut dari belakang. (iv) Pemandu kereta Nissan Almera telah memasukkan tiket yang baru diambil dan memasukkannya ke dalam mesin manakala kereta tersebut mengekori kereta Nissan Almera secara rapat tanpa perlu pemandunya memasukkan tiket ke dalam mesin. Palang tidak turun untuk menghalang kereta tersebut keluar. (v) Kejadian tersebut berlaku kira-kira pukul 4.14 petang iaitu lebih kurang 3 jam sebelum Hemici mendapati kereta tersebut tiada di kawasan lot parkir. [10] Plaintif mendakwa bahawa defendan mempunyai tanggungjawab di bawah kontrak dan juga tort untuk memastikan keselamatan keretanya di tempat letak kereta tersebut. Defendan telah cuai di dalam tanggungjawabnya untuk memastikan keselamatan dan juga mengambil langkah untuk mengelakkan kecurian berlaku di dalam parkir tersebut. [11] Defendan pula mengatakan bahawa tanggungjawap defendan hanya untuk menyediakan tempat letak kereta yang selamat untuk tujuan meletakkan kereta dan defendan telah menggunakan kemahiran dan penjagaan yang munasabah untuk melaksanakan tanggungjawapnya. [12] Defendan juga memplidkan bahawa suatu klausa pengecualian liabiliti telah diletakkan dan ia menyatakan: “The management is not responsible for any loss or damage howsoever caused to the vehicle, its accessories or contents. Vehicle is parked solely at customer’s own risk.” [13] Defendan juga mendakwa bahawa klausa pengecualian telah secara nyata mengecualikan liabiliti defendan terhadap mana-mana kerugian dan kerosakan terhadap kereta tersebut. [14] Plaintif telah memanggil tiga (3) orang saksi untuk membuktikan tuntutannya manakala defendan telah memanggil empat (4) orang saksi. Saksi-saksi tersebut, adalah seperti yang berikut: No. Nama Saksi Saksi dirujuk sebagai Penyata Saksi dirujuk sebagai 1. Jaafar bin Abdullah SP1 WS-SP1 2. Fabian Bernard a/l Joseph Anthony Leo SP2 WS-SP2 3. Amardeep Sharma a/l Madan Gopal SP3 WS-SP3 4. Edmund Marc De Run Jr. SD1 WS-SD1 5. Low Sun Lee SD2 WS-SD2 6. Abdullah bin Amat SD3 WS-SD3 7. Ismail bin Omar SD4 WS-SD4 Isu-isu untuk dibicarakan [15] Kedua-dua pihak telah mengemukakan isu-isu untuk dibicarakan mengikut versi masing-masing. Oleh yang demikian, saya akan menyandarkan kepada isu-isu yang dikemukakan oleh pihak defendan di dalam hujahan bertulisnya dan saya juga akan mempertimbangkan isu-isu yang dikemukakan oleh pihak plaintif. Isu-isu yang perlu diputuskan adalah seperti yang berikut: (1) Apakah kewajipan berjaga-jaga (duty of care) yang ditanggung oleh defendan kepada plaintif sebagai pengurusan tempat letak kereta di Pinnacle Sunway dan sama ada kewajipan berjaga-jaga tersebut mencakupi aspek keselamatan kereta plaintif tersebut? (2) Sama ada plaintif berjaya membuktikan bahawa kecurian tersebut disebabkan oleh pelanggaran kewajipan berjaga-jaga oleh defendan. (3) Sama ada klausa pengecualian tersebut terpakai di dalam kes ini dan sama ada klausa pengecualian tersebut bertentangan dengan Akta Perlindungan pengguna 1999? Dapatan Mahkamah [16] Beban pembuktian adalah ke atas plaintif untuk membuktikan tuntutannya. Mahkamah ini merujuk kepada penghakiman Mahkamah Persekutuan dalam kes Datuk Mohd Ali Hj Abdul Majid & Anor v. Public Bank Bhd [2014] 6 CLJ 269 seperti berikut: This follows from the general rule that the burden of proving a fact is upon him who alleges it and not upon him who denies it, so that where a particular allegation forms an essential part of a person's case, the proof of such allegation fall on him (see s. 103 of the Evidence Act 1950). If he fails to prove both the liability and the quantum of damages, he loses the action. Therefore, in a claim for damages, it is not sufficient for the plaintiff to merely state the amount of damages that he is claiming, he must prove the damage that he had in fact suffered to the satisfaction of the court. [17] Mengikut kes Berjaya Development Sdn Bhd v. Keretapi Tanah Melayu Bhd [2012] 4 CLJ 35, Mahkamah telah memutuskan: “[7] The burden of proving a claim lies on the person alleging the claim. So it is here, the burden is on the Plaintiff to prove his claim before the burden moves to the defendant. Section 101 Evidence Act 1950 refers...........................................” [18] Plaintif hendaklah membuktikan kesnya atas standard imbangan kebarangkalian. Mahkamah ini juga merujuk kepada kes Ng Chin Guan v. Ng Khi Fui & Anor [2012] MLJ 798: “In law, the party who desires the Court to give judgment as to any legal right or liability bears the burden of proof (s. 101(1) Evidence Act 1950). The burden of proof is on that party is twofold; (i) The burden of establishing a case; and (ii) The burden of introducing evidence. The burden of proof lies on the party throughout the trial. The standard of proof required is on the balance of probabilities. The evidential burden of proof is only shifted to the other party once the other party has discharged its burden of proof. If that party fails to discharge the orginal burden of proof, then the other party need not adduce any evidence.” [19] Seksyen 101 Akta Keterangan 1950 memperuntukkan bahawa beban bukti terletak pada orang yang bergantung kepada kewujudan sesuatu fakta tersebut. Seksyen 101 Akta 56 memperuntukkan: “Beban membuktikan 101. (1) Sesiapa yang berhasrat supaya mana-mana Mahkamah memberikan penghakiman tentang apa-apa hak atau tanggungan di sisi undang-undang, dengan bergantung kepada kewujudan fakta yang ditegaskan olehnya, mestilah membuktikan bahawa fakta itu wujud. (2) Apabila seseorang terikat untuk membuktikan kewujudan apa-apa fakta, dikatakan bahawa beban membuktikan terletak pada orang itu.” [20] Saya menerimapakai prinsip kes-kes tersebut di atas kepada kes di hadapan Mahkamah ini, dan dengan merujuk kepada seksyen 101 Akta 56, plaintif hendaklah, atas imbangan kebarangkalian, membuktikan kes plaintif, dan beban adalah terletak pada plaintif untuk membuktikan sedemikian. Saya seterusnya telah mendengar keterangan, meneliti dokumen yang difailkan dan hujahan yang dikemukakan pihak-pihak, dengan penuh berhati-hati. Isu (1): Apakah kewajipan berjaga-jaga (duty of care) yang ditanggung oleh defendan kepada plaintif sebagai pengurusan tempat letak kereta di Pinnacle Sunway? Sama ada kewajipan berjaga-jaga tersebut mencakupi aspek keselamatan kereta plaintif tersebut? [21] Peguam defendan menghujahkan bahawa kontrak yang dimasuki di antara Hemici dan defendan adalah untuk defendan menyediakan ruang parkir. Beliau juga menghujahkan bahawa kewajipan berjaga-jaga (duty of care) yang ditanggung oleh defendan kepada penyewa di bawah undang-undang Tort ialah untuk menyediakan ruang yang sesuai untuk tujuan parkir kereta sahaja. Berdasarkan kes Ashby v Tolhurst [1937] 2 All ER 837 dan Halbauer v Brighton Corporation [1954] 2 All ER 707, defendan menyatakan bahawa hubungan di antara plaintif dan defendan bukan bailment dan defendan tidak mempunyai duty of care untuk menjaga keselamatan Kereta plaintif tersebut. Oleh itu, defendan berhujah bahawa defendan tidak bertanggungjawap atas kehilangan kereta tersebut. [22] Peguam plaintif pula berhujah bahawa fakta di dalam kes Ashby v Tolhurst (supra) wajar dibezakan daripada fakta kes ini. Di dalam kes tersebut tiket yang dikeluarkan oleh defendan hanya merupakan satu bukti pembayaran kepada plaintif untuk membenarkan plaintif memarkir kereta selepas pembayaran dilakukan. Memandangkan pembayaran sudah dibuat semasa menerima tiket tersebut, defendan tidak mempunyai obligasi terhadap plaintif kecuali menyediakan tempat parkir. Jika plaintif, sebagai pemilik kenderaan, mahu keluar dari tempat parkir tersebut, plaintif hanya perlu keluar tanpa memulangkan semula tiket tersebut kerana ia sudah dibayar. Oleh itu, Mahkamah telah mendapati mereka hanyalah licensor dan licensee simpliciter lalu memutuskan defendan tidak mempunyai obligasi terhadap plaintif. Namun begitu, defendan di dalam kes di hadapan Mahkamah ini telah menggunakan sistem operasi parkir yang berbeza. Sistem operasi defendan membenarkan Hemici memarkir sebelum sebarang pembayaran dilakukan. Tiket dan sistem operasi defendan di dalam kes ini tidak membenarkan pelanggan untuk keluar tanpa sebarang pembayaran. Selagi pembayaran masih belum dibuat, kereta tersebut akan disekat dan dikawal oleh defendan sehingga pembayaran dilakukan. [23] Peguam Plaintif merujuk kepada perenggan 2 dan 3 di bawah notis yang dipamerkan di tempat ‘auto gate parking’ (D17), yang dengan jelas menyatakan seperti berikut: “2. Vehicles parked at unauthorised places will be clamped and a fine of RM 50 will be imposed. 3. No overnight parking. Storage charges of RM 100 (one hundred ringgit) per day will be imposed to vehicle that parked overnight without approval or vehicle will be removed at management’s discretion.” [24] Berdasarkan D17 tersebut, peguam plaintif menghujahkan bahawa defendan mempunyai kuasa-kuasa tertentu terhadap kereta pelanggan-pelanggannya selagi pembayaran dan pemulangan tiket masih belum dilakukan. Defendan juga mempunyai kuasa untuk mengenakan denda dan mengenakan storage charges sekiranya kereta diparkir di tempat yang tidak dibenarkan atau membiarkan kereta diparkir semalaman. Oleh yang demikian, terdapat hubungan bailor dan bailee antara defendan dan penyewa/plaintif. Untuk menyokong hujahannya mengenai hubungan bailor dan bailee tersebut, peguam plaintif merujuk kepada seksyen 101 dan 104 Akta Kontrak 1950. Tiada sebarang kes yang dikemukakan oleh peguam plaintif untuk menyokong hujahannya dalam isu ini. [25] Isu mengenai hubungan di antara pengendali parkir dan pemilik kenderaan yang memakir sudah lama dibincangkan dan diputuskan oleh kes-kes terdahulu. Berdasarkan kes klasik Ashby v Tolhurst (supra), adalah diputuskan bahawa hubungan tersebut merupakan hubungan di antara licensor dan licensee. Maka pengendali parkir tidak bertanggungjawap untuk memastikan keselamatan kenderaan yang diparkir. Untuk memahami dengan jelas rasional keputusan kes ini, fakta kes tersebut perlulah difahami terlebih dahulu. Fakta kes tersebut adalah seperti berikut: Pada 25.8.1936, plaintif telah memarkir keretanya di sebidang tanah kepunyaan defendan. Tanah tersebut merupakan kawasan lapang yang terbuka dan tidak berpagar. Setelah memasuki kawasan parkir tersebut, plaintif membuat bayaran kepada pekerja defendan yang berada di situ. Plaintif kemudiannya diberikan ‘car park ticket’ dan beliau seterusnya memarkir keretanya dalam keadaan berkunci. Car park ticket tersebut mengandungi klausa berikut: “The proprietors do not take any responsibility for the save custody of any cars or articles there, nor for any damage to the cars or articles however caused, nor for any injuries to any person, all cars being left in all respect entirely at their owners’ risk. Owners are requested to show ticket when required.” Setelah plaintif kembali ke tempat parkir tersebut, beliau mendapati keretanya telah hilang. Setelah bertanya kepada pekerja defendan, beliau diberitahu bahawa keretanya telah dipandu keluar oleh seorang lelaki yang mengaku sebagai kawan plaintif. Di dalam kes Ashby tersebut, Mahkamah memutuskan: “If that be the true view, the relationship was a relationship of licensor and licensee alone, and that relationship in itself would carry no obligations of the licensor towards the licensee in relation to the chattel left there, no obligation to provide anybody to look after it. … there was no contract between the parties except the mere permission to leave the car there for payment.” . [26] Di dalam kes Ashby tersebut, faktanya jelas menunjukkan bahawa defendan mengendalikan tempat letak kereta yang terbuka, tidak mempunyai ciri-ciri keselamatan yang ketat, hanya seorang atendan yang mengeluarkan tiket dan mengawal laluan keluar masuk, serta pembayaran dibuat semasa pemilik kenderaan mendapatkan tiket untuk masuk ke kawasan parkir tersebut. Dapat dirumuskan bahawa fakta kes tersebut hampir sama dengan fakta kes di hadapan Mahkamah ini, iaitu ianya berkisar tentang kehilangan kenderaan plaintif semasa kenderaannya diparkir di kawasan tempat letak kereta yang dikendalikan oleh defendan. [27] Namun begitu, terdapat perbezaan yang jelas tentang pengendalian tempat letak kereta di dalam kes di hadapan Mahkamah ini. Tempat letak kereta yang dikendalikan oleh defendan merupakan sebuah bangunan yang mempunyai 12 tingkat. Tingkat-tingkat tersebut dikhususkan hanya untuk parkir. Setiap laluan keluar dan masuk dikawal dengan mesin dan penghadang automatik. Pemilik kenderaan perlu mengambil tiket di laluan masuk dan kenderaan hanya boleh dipandu keluar setelah tiket tersebut dibayar. Di atas tiket dicatatkan “RM50 charge for lost ticket” [Eksibit D19(B)]. Kenderaan hanya boleh diparkir di lot-lot khusus, kegagalan mematuhinya akan menyebabkan tayar kenderaan dikunci dan pemilik kenderaan akan didenda untuk membuka kunci tersebut. Sekiranya pemilik kenderaan memarkir kenderaanya ‘overnight’ tanpa kebenaran, pemilik akan dikenakan bayaran ‘Storage charges’ yang berjumlah RM 100.00 sehari atau kenderaannya akan dialihkan atau dikeluarkan. Tempat letak kereta defendan juga dikawal oleh pengawal-pemgawal keselamatan dan diawasi oleh CCTV. [28] Saya berpendapat bahawa fakta kes di hadapan Mahkamah ini adalah berbeza dengan kes Ashby v Tolhurst (supra) dari aspek pengendalian dan kawalan oleh defendan ke atas tempat letak kereta serta kenderaan-kenderaan yang diparkir, dan juga perbezaan mengenai ciri-ciri keselamatannya. Maka, saya perlu meneliti apakah hubungan yang mengikat di antara plaintif dan defendan berdasarkan fakta-fakta yang telah dihuraikan di atas. Adakah hubungan di antara mereka merupakan hubungan di antara “licensor and licensee”, seperti yang diputuskan oleh kes Ashby v Tolhurst (supra), ataupun terdapat hubungan lain yang mengikat mereka?. [29] Untuk menjawap persoalan ini, saya merujuk kepada kes Walton Stores Ltd. v Sydney City Council (1968) 70 SR (NSW) 244. Fakta di dalam kes Walton ini adalah seperti berikut: Pada 24 Disember 1963, seorang pengurus di syarikat Walton Stores Limited yang bernama McCauley telah menggunakan kereta syarikat dan memakirnya di Goulburn Street Car Park. Tempat letak kereta tersebut dimiliki dan dikendalikan oleh defendan. Ketika memasuki tempat letak kereta tersebut, beliau diberikan tiket dan tiket tersebut menyatakan klausa pengecualian seperti berikut: “The Council does not accept any responsibility for the loss or damage to any vehicle or for loss of or damage to any article or thing in or upon any vehicle or for any injury to any person however such loss, damage or injury may arise or be caused”. Tiket tersebut juga menyatakan “Important - This ticket must be presented at cash register for time stamping and payment before proceeding to remove vehicle from station” dan “This card must be presented to Attendant when vehicle is being removed from station”. Sekembalinya McCauley ke lot parkir keretanya, beliau mendapati kereta tersebut telah hilang. Selepas itu, McCauley telah dimaklumkan oleh pihak defendan bahawa seorang lelaki bernama Jones telah memandu kereta tersebut keluar dengan menggunakan salinan tiket (duplicate ticket) yang telah diberikan oleh pekerja defendan. Plaintif selanjutnya menuntut gantirugi terhadap defendan di ‘District Court’. Hakim perbicaraan, Cameron-Smith D.C.J, membenarkan tuntutan gantirugi plaintif berjumlah $2,790.00 atas alasan defendan telah melanggar kontrak sebagai bailee kereta tersebut. Defendan tidak berpuas hati dengan keputusan tersebut dan seterusnya menfailkan rayuan ke Mahkamah Rayuan. Mahkamah Rayuan (Wals, Asprey dan Holmes JJ.A) memutuskan seperti yang berikut: “I now turn to the substantive question argued upon whether the true legal conclusion to be drawn from the uncontradicted facts was, as the trial judge held, that the plaintiff and the defendant were bailor and bailee respectively of the plaintiff’s motor vehicle. Upon this appeal it was argued for the defendant that of licensor and licensee and not that of bailor and bailee, and for this proposition Ashby v. Tolhurst (6) was strongly relied on. In that case Sir Wilfred Greene M.R. said… …………….. . I am of the view that the nature of the Goulburn Street parking station would point towards the conclusion that there was a delivery of possession. So far as the second ground…….I am now concerned. But in their place appear the words “Important - This ticket must be presented at cash register for time stamping and payment before proceeding to remove vehicle from station” and “This card must be presented to Attendant when vehicle is being removed from station”. In my opinion the effect of the words quoted from each of the three cards or tickets lastly referred to is to produce exactly the same result. Each provides for the fulfilment of conditions precedent by the holder of the ticket issued by the proprietor of the building in which the vehicle is stored before the holder can regain possession of the vehicle from the proprietor. The change …….. delivery. The steps to be taken to enable the plaintiff to regain physical possession of its motor car from the defendant’s building involve more than its removal by simply driving it away. Its removal required a bilateral transaction in the terms of the document. It may be that the defendant did not have a lien at common law upon the vehicle of its parking charges (cf. Hatton v. Car Maintenance Co. Ltd. (13) and see now the Warehousemen’s Liens Act, 1935) but the contract which regulated the legal relationship of the parties plainly evinced their intention that the holder of the card or ticket had either to pay or tender payment of the amount of the charges for the storage of the vehicle before he was entitle to demand possession of it. To a demand for the vehicle unaccompanied by payment or tender of payment of the charges, the proprietor of the parking station would be entitled to respond with a qualified refusal to the effect that its charges first be paid (see Singer Manufacturing Co. v. London & South Western Railway Co. (14) as explained in Jowitt & Sons v. Union Cold Storage Co. (15)). It should also be observed that condition (2) of the parking condition contained on the ticket in the present case also operates to preserve the custody of the vehicle by the defendant against a demand made by the ticket-holder during hour when the parking station is closed (cf. Stallard v. Great Westen Railway Co. (16)). If, as Professor Winfield has said, the salient feature of bailment is the element of possession, the matters to which I have just referred appear to me to point to the fact that in the present case the defendant did have possession of the subject vehicle. I think that Ashby v. Tolhurst (17) is clearly distinguishable and the relationship of the plaintiff and the defendant was that of bailor and bailee. In these circumstances, as it was conceded by the defendant that, once bailment was established, there were no material differences between this case and West’s case (18), I am of the opinion that the appeal should be dismissed with costs.” [30] Isu mengenai perkara ini tidak banyak dibincangkan oleh mahkamah-mahkamah Malaysia. Oleh yang demikian, adalah suai-manafaat jika keputusan kes-kes dalam bidangkuasa lain, terutama di Amerika Syarikat, dirujuk. Dalam kes William Hale vs. Massachusetts Parking Authority 358 Mass. 470 (1970), plaintif merupakan pemegang pas bulanan bagi tempat letak kereta yang dikendalikan oleh defendan. Beliau membuat bayaran parkir secara bulanan. Plaintif diberikan pelekat kenderaan dan ‘parker's plate’ untuk pengenalan dan tujuan keselamatan. Pada 11.11.1964, plaintif memarkir dan mengunci keretanya di kawasan yang dikhaskan untuk pemegang pas bulanan. Pada 13.11.1964, lebih kurang pukul 8.30 malam, seorang lelaki telah memandu kereta plaintif keluar dari premis parkir tersebut. Ketika melalui laluan keluar, atendan tempat letak kenderaan tersebut meminta pemandu itu untuk menunjukkan monthly parking plate dan tiket parkir. Pemandu tersebut kemudiannya memecut keluar kerana tidak dapat mengemukakannya. Di laluan keluar tersebut tidak terdapat palang yang boleh menghalang sebarang kenderaan. Pekerja defendan tidak mengambil sebarang tindakan kerana menyangka pemandu kereta itu adalah pemiliknya. Pada 14.11.1964, plaintif mendapati keretanya telah hilang di lot parkirnya. Beliau kemudianya mengambil tindakan untuk menuntut gantirugi atas kehilangan keretanya terhadap defendan. Di dalam kes ini, Supreme Judicial Court of Massachusetts (Tauro, C.J., Spalding, Kirk, Reardon, & Quirico, JJ.) memutuskan: “The defendant was a bailee for hire and as such was not an insurer for the safety of property left in its custody. But it was bound to "exercise that degree of care which may reasonably be expected from ordinarily prudent persons in similar circumstances." Greenberg v. Shoppers' Garage, Inc. 329 Mass. 31, 35.” [31] Saya juga merujuk kepada satu lagi kes yang telah diputuskan oleh Mahkamah Rayuan di Massachusetts, Amerika Syarikat dalam kes Richard v. Massachusetts Port Authority, 310 N.E.2d 146 (Mass. App. Ct. 1974) di mana Mahkamah Rayuan tersebut bersetuju dengan dapatan yang dibuat oleh kes William Hale vs. Massachusetts Parking Authority (supra). Fakta di dalam kes Richard tersebut adalah seperti berikut: Pada 31.7.1968, plaintif telah memandu keretanya memasuki laluan masuk ke tempat letak kereta di Logan International Airport. Semasa memasuki laluan masuk tersebut, plaintif mengambil tiket dari mesin, beliau kemudiannya memakir dan seterusnya mengunci keretanya. Beliau kembali ke tempat letak kereta tersebut pada 4.8.1968 dan mendapati keretanya telah hilang. Selepas itu, plaintif mengambil tindakan untuk menuntut gantirugi atas kehilangan keretanya terhadap defendan. ‘Municipal Court of the City of Boston’ telah membenarkan tuntutan plaintif dengan jumlah sebanyak $3,705.00. Di peringkat rayuan, Mahkamah Rayuan di Massachusetts telah mengekalkan keputusan tersebut. [32] Merujuk kepada isu (1) di atas, adalah jelas bahawa fakta kes di hadapan Mahkamah ini sama dengan fakta di dalam kes Walton Stores Ltd. v Sydney City Council (supra). Oleh itu, kes di hadapan Mahkamah ini juga wajar dibezakan dengan kes Ashby v. Tolhurst (supra). Adalah jelas bahawa plaintif perlu membuat bayaran sebelum dibenarkan memandu keluar dari tempat letak kereta defendan. Sekiranya plaintif gagal membayar, maka defendan berhak menolak dengan penolakan bersyarat untuk plaintif terlebih dahulu membuat pembayaran seperti yang dikenakan. Perlu diambil perhatian juga bahawa berdasarkan D17, defendan boleh mengunci tayar kenderaan dan pemilik kenderaan akan didenda untuk membuka kunci tersebut. Sekiranya pemilik kenderaan memarkir kenderaanya ‘overnight’ tanpa kebenaran, pemilik akan dikenakan bayaran ‘storage charges’ yang berjumlah RM 100.00 sehari atau kenderaannya akan dialihkan atau dikeluarkan. Oleh yang demikian, selaras dengan keputusan kes Walton Stores Ltd. v Sydney City Council (supra), adalah wajar diputuskan bahawa defendan mempunyai ‘possession of the subject vehicle’. Maka saya memutuskan bahawa hubungan di antara plaintif dan defendan di dalam kes di hadapan Mahkamah ini adalah merupakah hubungan bailor dan bailee. Selanjutnya saya juga memutuskan bahawa kewajipan berjaga-jaga yang terletak dibahu defendan juga mencakupi aspek keselamatan kereta plaintif tersebut. Isu (2): Sama ada plaintif berjaya membuktikan bahawa kecurian tersebut disebabkan oleh pelanggaran kewajipan berjaga-jaga oleh defendan. [33] Peguam defendan menghujahkan bahawa plaintif perlu membuktikan keretanya telah dicuri untuk berjaya di dalam tuntutannya. Ketika kejadian itu, kereta plaintif telah disewakan kepada Hemici. Maka hanya Hemici yang boleh memberikan keterangan di Mahkamah untuk membuktikan kecurian tersebut. Kegagalan plaintif memanggil Hemici untuk memberikan keterangan mengakibatkan plaintif gagal membuktikan kesnya. Oleh itu, tuntutan plaintif wajar ditolak dengan kos. Prinsip ini selaras dengan kes Takako Sakao v Ng Pek Yuen & Anor [2009] 6 MLJ 751, PP v. Ang Kian Chai [2012] 1 LNS 389 dan Johara Bi Binti Abdul Kadir Marican v Lawrence Lam Kwok Fou [1981] 1 MLJ 139. [34] Peguam defendan selanjutnya menghujahkan bahawa tindakan pihak ketiga yang memandu kereta keluar dari premis pakir defendan membawa kepada ‘novus actus interveniens’, oleh itu ia melepaskan defendan dari sebarang tanggugjawap ke atas apa yang berlaku. Peguam defendan merujuk kepada kes Devan & Associates v. TSR Bina Sdn Bhd [2015] 5 CLJ 17 dan juga kes Smith v Littlewoods Organisation Ltd (Chief Constable, Fire Constabulary, third party) [1987] 1 All ER 710 untuk menyokong hujahnya. [35] Peguam plaintif pula menghujahkan bahawa terdapat keterangan-keterangan sokongan yang menunjukkan bahawa Kereta plaintif tersebut telah dicuri semasa diletakkan di tempat letak kereta defendan. Antara dokumen-dokumen yang membuktikan kereta tersebut telah dicuri adalah Laporan Polis (P1), Surat Pengesahan Status Kes oleh SP1 (P2), Geran Kereta tersebut (P7), Perjanjian Sewaan Kereta di antara Plaintif dan Hemici Sofiane (P8), cakera padat ynag mengandungi rakaman kamera litar tertutup [CCTV] (P10) dan gambar-gambar dari CCTV tersebut (P11 [a] hingga [r]). [36] Mengenai isu ‘novus actus interveniens’ pula, peguam plaintif menghujahkan bahawa Kedua-dua kes yang dirujuk oleh peguam defendan adalah berbeza dengan kes ini apabila dilihat berdasarkan fakta bahawa, walaupun terdapat tindakan/kegiatan berasingan (independent) oleh pencuri tersebut, namun chain of causation defendan masih lagi bersambung apabila CCTV gagal dipantau oleh pengawal keselamatan defendan. Selain itu, fakta-fakta berikut menunjukkan chain of causation defendan masih lagi bersambung apabila terdapat fakta yang menunjukkan bahawa rondaan gagal dilakukan dengan kerap, kegagalan mesin parkir menghalang pencuri kereta keluar tanpa menggunakan tiket, ketiadaan speed breaker dan ketiadaan pengawal keselamatan defendan yang memantau setiap laluan keluar parkir tersebut. [37] Untuk menjawap isu (2) ini, saya merujuk kes Port Swettenham Authority v. TW Wu and Co (M) Sdn Bhd [1975] 2 MLJ 73. Di dalam kes tersebut, Mahkamah Persekutuan mengatakan: “In the ordinary cases of tort the onus would be on the plaintiff to prove that defendant was negligent and that the act or omission was the proximate cause of the loss or injury. But, in cases where the bailor and bailee relationship has been established then all that the plaintiff has to do is to prove that he entrusted the goods to defendant who could not deliver them on demand. It would then be up to the defendant as bailee to show that the loss was not due to his negligence. The fact that the appellants had devised a good system did not render them any the less liable if it was not shown that the loss of the goods arose otherwise than through their negligence.” [38] Setelah saya mendapati bahawa hubungan di antara plaintif dan defendan merupakan hubungan di antara bailor dan bailee, maka adalah menjadi tanggungjawap plaintif untuk membuktikan bahawa kereta tersebut hilang semasa di bawah jagaan defendan. Sekiranya plaintif berjaya membuktikan sedemikian, maka defendan pula perlu membuktikan bahawa kereta tersebut hilang bukan disebabkan oleh kecuaian/kesalahan yang dilakukan oleh defendan atau pekerjanya. Prinsip ini adalah selaras dengan keputusan kes Port Swettenham Authority v. TW Wu and Co (M) Sdn Bhd (supra). [39] Adalah menjadi fakta yang tidak dipertikaikan bahawa pada 27.4.2016, lebih kurang pukul 4.14 petang, Kereta tersebut telah dipandu oleh seorang lelaki keluar dari tempat letak kereta defendan tanpa membayar tiket. Defendan mendakwa bahawa plaintif gagal membuktikan kereta tersebut dicuri kerana Hemici tidak dipanggil untuk memberikan keterangan di Mahkamah ini. Defendan juga berhujah bahawa hanya Hemici yang mengetahui sama ada kereta tersebut berkunci atau tidak ketika ia diparkir dan sama ada beliau mengenali pemandu yang memandu kereta tersebut keluar dari tempat letak kereta defendan. Kegagalan plaintif memanggil Hemici sebagai saksi mengakibatkan fakta-fakta tersebut gagal dibuktikan. Tambahan pula, akuan bersumpah (ID16) yang dibuat oleh Hemici dan juga emel di antara pihak plaintif dan Hemici bertarikh 16.1.2017 (ID4) hanya ditandakan sebagai ID (Identification document) ketika perbicaraan. Oleh itu dokumen-dokumen tersebut tidak boleh diterima sebagai keterangan bagi menyokong dakwaan plaintif. Dengan hormat, saya tidak bersetuju dengan hujahan defendan mengenai isu Identification document (ID) ini. Saya berpendapat bahawa penjelasan pihak plaintif mengenai ketidakhadiran Hemici adalah munasabah dan wajar diterima. Hemici ketika ini berada di negaranya Perancis dan perbelanjaan beliau ke Malaysia semata-mata untuk memberikan keterangan kes ini akan menyebabkan plaintif menanggung kos yang tinggi dan kelewatan yang tidak wajar. [40] Saya merujuk kepada seksyen 73A(2) Akta Keterangan yang memperuntukkan: “(2) In any civil proceedings, the court may at any stage of the proceedings, if having regard to all the circumstances of the case it is satisfied that undue delay or expense would otherwise be caused, order that such a statement as is mentioned in subsection (1) shall be admissible as evidence or may, without any such order having been made, admit such a statement in evidence - (a) notwithstanding that the maker of the statement is available but is not called as a witness; and (b) notwithstanding that the original document is not produced, if, in lieu thereof, there is produced a copy of the original document... (5) For the purpose of deciding whether or not a statement is admissible as evidence by virtue of subsection (1) to (4), the court may draw any reasonable inference from the form or contents of the document in which the statement is contained, or from any other circumstances....... (6) In estimating the weight, if any, to be attached to a statement rendered admissible as evidence by this Act, regard shall be had to all the circumstances from which any inference can reasonably be drawn as to the accuracy or otherwise of the statement, and in particular to the question whether or not the statement was made contemporaneously with the occurrence or existence of the facts stated, and to the question whether or not the maker of the statement had any incentive to conceal or misrepresent facts. [41] Berdasarkan seksyen 73A Akta Keterangan, sesuatu keterangan boleh diterima masuk di bawah 3 keadaan dan antara 1 dari keadaan tersebut ialah di mana pembuat dapat memberi keterangan tetapi tidak dipanggil sebagai saksi di bawah keadaan yang diperuntukkan oleh seksyen 73A(2). Di bawah sekyen kecil (2) s. 73A Akta Keterangan, sesuatu pernyataan boleh diterima masuk sekiranya Mahkamah berpuas hati bahawa kelengahan atau perbelanjaan tak wajar akan berlaku sekiranya pembuat pernyataan tersebut dipanggil untuk memberi keterangan. Dalam menggunapakai seksyen 73A(2) tersebut, Mahkamah boleh membuat tanggapan-tanggapan yang munasabah dari bentuk atau kandungan dokumen atau dari lain-lain keadaan. Perkara Ini dengan jelas dinyatakan di dalam seksyen 73A(5) Akta yang sama. Di dalam kes ini, adalah jelas bahawa SP2 di dalam keterangannya menjelaskan bahawa beliau merupakan shareholder dan managing director syarikat plaintif yang mengetahui secara terperinci mengenai perjalanan perniagaan syarikatnya. SP2 telah menjelaskan dengan teliti mengapa beliau tidak dapat membawa Hemici ke Malaysia untuk dijadikan saksi dalam kes ini. SP2 mengemukakan emel-emel perhubungan di antara pihak plaintif dan Hemici serta kos perbelanjaan yang akan ditanggungnya sekiranya Hemici datang ke Malaysia. Peguam defendan juga telah memeriksa balas keterangan SP2 mengenai isu yang berkaitan dengan laporan Hemici. Oleh itu, saya berpendapat adalah memadai untuk pihak plaintif membuktikan kehilangan kereta tersebut berdasarkan Laporan Polis (P1), Surat Pengesahan Status Kes oleh SP1 (P2), Geran Kereta tersebut (P7), Perjanjian Sewaan Kereta di antara Plaintif dan Hemici Sofiane (P8), Rakaman Kamera Litar CCTV (P10), gambar-gambar CCTV (P11 [a] hingga [r]), serta akuan bersumpah oleh Hemici (ID16) tanpa perlu memanggil Hemici yang akan mengakibatkan kelengahan masa dan kos perbelanjaan yang tidak wajar. [42] Peguam defendan juga menghujahkan bahawa emel-emel di antara plaintif dan Hemici serta akuan bersumpah Hemici tersebut hanya ditanda sebagai “ID”, memandangkan kesahihan dan kebenaran dokumen-dokumen plaintif tersebut tidak boleh diuji di Mahkamah semasa pemeriksaan balas. Dengan hormatnya, saya tidak bersetuju dengan hujahan peguam defendan. Di dalam pemeriksaan utama, SP2 telah cuba untuk mengemukakan kesemua dokumen-dokumen tersebut sebagai bukti/eksibit, namun telah dibantah oleh peguam defendan. Oleh itu, Mahkamah perlu memutuskan isu ‘admissibility’ dokumen-dokumen tersebut selepas mendengar semua keterangan dan keadaan yang relevan. Di peringkat perbicaraan, memang pada permulaanya kesemua dokumen-dokumen tersebut ditandakan sebagai “ID” , namun ia tidak menghalang Mahkamah untuk memutuskan isu tersebut di akhir perbicaraan kes, iaitu semasa di peringkat hujahan. Section 73A Akta Keterangan memberikan kuasa kepada Mahkamah untuk berbuat demikian. Seksyen tersebut menyatakan bahawa Mahkamah boleh menggunapakai kuasa tersebut “at any stage of the proceedings, having regards to all the circumstances of the case”. [43] Dalam mempertimbangkan dan memutuskan isu identification document (“ID”), Mahkamah ini juga merujuk kepada kes-kes berikut sebagai panduan: (i) Bank Of Tokyo-Mitsubishi (Malaysia) Bhd V. Sim Lim Holdings Bhd & Ors [2001] 2 CLJ 474 yang memutuskan: “Section 73A(2) of the Evidence Act 1950 provides for the admittance of documents when the maker is not called, if having regard to all the circumstances of the case the court is satisfied that undue delay or expense would otherwise be caused. In doing so, the court may draw any reasonable inference from the form or contents of the document or from any other circumstances. This is provided under s. 73A(5) of the same Act. The relevant parts of s. 73A(2) and (5)reads as follows: (2) In any civil proceedings........ (5) For the purpose of deciding...... (6) In estimating the weight,........ Therefore, by virtue of the above provisions of law, I am satisfied that the said notices of demand (ID17 - ID19) and (ID21 - ID23); the AR Cards (ID18 - ID20) and Certificates of Posting (ID22 - ID24) are admissible as evidence. All these documents are part of a transaction or records which are consistent, and were issued in the course of business and discharge of professional duty. The court can see the genuinity of these documents without the makers being called. By virtue of s. 73A(5) and 73A(6) of the same Act, in deciding whether all these documents are admitted, the court had also considered the reasonable inference from the form and contents of the document as well as from any related circumstances, as to the accuracy or otherwise of the statement and in particular to the question whether or not the statements or the documents were made contemporaneously with the occurrence or existence of the facts stated. The counsel for the 2nd and 3rd defendants also submitted that all those documents are only marked as "ID" and thus only for identification purposes and are not admissible evidence. I cannot agree with the counsel on that point. From the records of the proceedings, it seems that the plaintiff had attempted to produce all those documents as evidence but was objected to by the counsel for the 2nd and 3rd defendants. Thus, the court had to decide on the admissibility of all those documents at the end of the trial after hearing all the relevant circumstances of the case. At that stage of the proceedings, all those documents have to be marked as "ID" first, but it does not stop the court from deciding on their admissibility at the end of the trial ie, during submissions stage. Section 73A(2) of the Evidence Act 1950empowers the court to do so. The said subsection provides for the exercise of the power "at any stage of the proceedings, having regards to all the circumstances of the case". There is nothing to say that those documents cannot be admitted as evidence under s. 73A(2) just because they have only been marked as "ID".” (ii) Amalcon Engeneering Sdn Bhd v Saw Chong Teok Quarry Sdn Bhd [2010] MLJU 522, di mana Mahkamah memutuskan: “In addition to that, there are also other documents in the form of invoices and receipts tending to support the defendant's claim that the final completion and successful commissioning was April 1996. Exhibits 1D D40, 1D D42, 1D D44, 1D D43, and 1D D45 are receipts and invoices produced by the defendant related to the motor and cone crushers. These are receipts relating to expenses incurred by the defendant bearing April 1996 dates. These documents give an indication that as at April 1996 expenses relating to the cone crushers and the generator to run the extended plant were expended by the defendant. This is above and over the oral testimonies of DW1 and DW2. These documents although they are only marked as ID exhibits, does not stop the court from deciding on their admissibility at the end of the trial. The court is given wide discretionary powers under sections 73A(2), sections 73A(5), sections 73A(6) of the Evidence Act 1950. It would be against commercial realities to hold otherwise. In my view these documents were made contemporaneously with the occurrence or existence of the facts stated therein. In so admitting, the court had considered all the circumstances from which inferences can reasonably be made as to the accuracy or otherwise of the statement or facts stated therein. (See:Kubota Agricultural Machinery Sdn. Bhd. v. Sharizan Sdn. Bhd & Ors. (Third Parties) (2001) 6 CLJ 104, Chin Hooi Nan v. Comprehensive Auto Restoration Service Sdn. Bhd. & Anor (1995) 1 BLJ 25, Bank of Tokyo - Mitsubishi (Malaysia) Bhd. v. Sim Lim Holdings Bhd. & Ors. (2001) 2 CLJ 474).” (iii) Di dalam kes RNS Oil And Gas Sdn Bhd V. Norhayati Ahmad Kamal [2016] 1 LNS 1113, Mahkamah berpendapat bahawa: “1) Whether reliance on documents marked as "ID" in allowing the counterclaim erroneous [26] The appellant asserted that out of the sum of RM284,396.98 granted to the respondent in her counter-claim, ...were erroneously based on receipts for the respective payments which however were marked only as "ID". Specifically, these are IDD25 and IDD16, respectively. [27] I cannot agree more with the contention of the appellant that documents marked as "ID", which IDD25 and IDD16 manifestly are, possessing merely the status of 'identification document', as a general rule, inadmissible in evidence. This is already settled law. It is totally congruent with the Evidence Act 1950. The reference by the appellant to a number of case-law authorities which give effect to this principle of evidential law is not disputed. I need only refer to the case of Joseph Thambirajah v. Bank Buruh (M) Bhd [2008] 2 MLJ 773,........... [28] However, a careful review of the grounds of decision of the Sessions Court will readily show that the trial judge did not merely refer to the invoice issued by Oridiant Sdn Bhd in IDD25 as the basis of the finding that awarded RM109,246.50 in respect of the alleged payment made by the respondent to Oridiant Sdn Bhd. Reliance was more crucially placed on exhibit D26 which was a copy of a page from the savings account book of the respondent which showed a debit entry or a transfer-out of the exact amount of RM109,246.50. [29] Counsel for the appellant did in the cross examination of the respondent asked whether the latter had other documents to prove her payment of the amount to Oridiant Sdn Bhd - to which she answered in the negative, since the mode of payment was said to be telegraphic direct transfer as stated in D26 itself. But it is in any event entirely defensible and certainly proper for the trial court to have exercised its discretion in making a finding on the basis of the totality of evidence, including the testimony of the respondent and especially D26, that such payment to Oridiant Sdn Bhd had indeed been undertaken by the respondent, and done for the benefit of the appellant. [30] In respect of the award for the payment of RM56,000.00 to Cofoma Sdn Bhd, it is true that in support of this finding, the Sessions Court referred to IDD16, being two official receipts, dated 28 May 2013 and 25 June 2013 each for the amount of RM28,000.00 and thus stated to be the full and final settlement of the rental owing in the exact amount of RM56,000.00. But the Court also considered the letter from Cofoma Sdn Bhd dated 24 June 2013 in IDD14 which confirmed that the debt from the appellant had been fully settled and the winding up petition against the appellant withdrawn as a result. More pertinently, even though this letter was also not converted to a trial exhibit, the Court has the discretion, and certainly the power under the Evidence Act 1950, considering the circumstances of the case, including the testimony of the respondent, to nevertheless accept the evidence of "ID"- marked documents, like was done in the instant case. [31] The grounds of the decision of the Sessions Court on this issue was clear in the analysis of the relevance of IDD14 and IDD16. The Sessions Court acknowledged that these were "ID" documents (since the makers were not called) but accepted the same, also because of the finding that the appellant had failed to produce any documents that could instead show the reverse - that such payment was made to Cofoma Sdn Bhd by the appellant itself. The crux of the respondent's case is that Rosini from the appellant requested that the respondent makes payment to Cofoma Sdn Bhd to avoid the winding up of the appellant. ....even though the receipts were addressed in the name of the appellant since the debt was owing from the appellant. Despite denying the respondent having made payment, and claiming instead having possession of the receipt of full payment, Rosini, as PW1 could not however, during cross-examination, produce the same. [32] This approach is supported by case law authorities. As correctly submitted by the respondent, in Bank of Tokyo-Mitsubishi (Malaysia) Bhd v. Sim Lim Holdings Bhd & Ors [2001] 2 CLJ 474, it was instructively stated by Ramly Ali JC (now FCJ) as follows..... [33] A similar position was upheld in the case of Kubota Agricultural Machinery Sdn Bhd v. Sharizan Sdn Bhd & Anor; Sharizan Sdn Bhd & Ors (Third Parties) [2001] 6 CLJ 104. [34] Accordingly, the trial court's reliance on among others, in addition to other evidence such as the testimony of witnesses, IDD14 and IDD16 to arrive at the finding that the respondent had shown that she had paid the said amount of RM56,000.00 to Cofoma Sdn Bhd on behalf of the appellant is neither unsupportable nor objectionable under the law.” [44] Berlandaskan alasan-alasan di atas, saya memutuskan bahawa ID4, ID5, ID6 dan ID16 boleh diterima sebagai keterangan di Mahkamah dan dengan ini ID4, ID5, ID6 dan ID16 di tandakan sebagai eksibit P4, P5, P6 dan P16. Berdasarkan keterangan SP2 yang konsisten dan disokong oleh bukti-bukti dokumentar, antara lainnya, P1, P2, P7, P8, P10, P4, P5, P6 dan P16, maka saya memutuskan bahawa plaintif telah berjaya membuktikan bahawa kereta tersebut telah dicuri ketika dibawah jagaan dan kawalan defendan. [45] Selanjutnya, saya perlu memutuskan sama ada defendan berjaya membuktikan bahawa kereta tersebut hilang bukan disebabkan oleh kecuaian/kesalahan yang dilakukan oleh defendan atau pekerjanya. Untuk membuktikan bahawa tiada sebarang kecuaian atau kesalahan yang dilakukan oleh defendan atau pekerjanya, pihak defendan menghujahkan bahawa car park system yang dijalankan oleh defendan adalah bersesuaian dengan tujuan perkhidmatan yang disediakan olehnya. Sistem palang automatik juga adalah bersesuaian dan ia akan memastikan kenderaan telah keluar sepenuhnya sebelum palang automatik turun sepenuhnya. Dalam perkara ini, saya mendapati pihak defendan bersetuju bahawa, (ketika kejadian berlaku) pemandu kereta Nissan Almera telah memasukkan tiket yang baru diambil dan memasukkannya ke dalam mesin manakala kereta plaintif tersebut (yang dipandu pencuri) mengekori kereta Nissan Almera secara rapat tanpa perlu pemandunya memasukkan tiket ke dalam mesin. Palang tidak turun untuk menghalang kereta tersebut keluar. Ini menunjukkan bahawa terdapat kelemahan dalam sistem palang automatik tersebut. Ia juga menunjukkan bahawa sistem palang automatik tersebut tidak dapat menghalang kecurian kereta sekiranya kereta yang dicuri dipandu rapat dengan kereta yang berada di hadapannya. Kelemahan ini diakui sendiri oleh saksi defendan SD2 ketika pemeriksaan balas. Berikut diturunkan keterangan yang berkaitan dengan kelemahan tersebut: “4. Q: Refer to question 5, which you answer basically, the purpose of Safety loops, is to ensure that the barrier don’t drop into the car. So, it is actually to prevent the damage of car, so do you agree that the safety loops got nothing to do with the security to prevent theft? A: Yes. 5. Q: Can I refer you to the picture. Page 16 of the bundle B1, refer to your answer in the question 4, you said: “When a car insert a valid ticket to the ticket machine and the ticket is verified, the ticket machine will send an open gate signal to lift up the barrier”. Let say if the car behind was tailgating very close so the barrier won’t close. Do you agree or not, that basically the safety loops only for the purpose of ensuring the security if the car get through the barrier? A: What I understand, actually this safety loop is for safety and security purpose to avoid hitting the car. 6. Q: I put to it you again that basically the safety loop is actually cannot prevent any sought of theft situation happening in the exit entrance. Am I right? A: Yes.” [46] Berdasarkan keterangan SD2 tersebut, adalah jelas bahawa defendan mengakui bahawa sistem palang automatik tersebut mempunyai kelemahan iaitu ia tidak dapat menghalang kecurian kereta sekiranya modus operandi yang digunakan oleh pencuri tersebut digunakan. Sepatutnya, defendan mengatasi kelemahan tersebut dengan menugaskan seorang pengawal keselamatan di setiap laluan keluar untuk memastikan setiap kenderaan yang keluar mempunyai tiket berbayar yang sah dan menahan sebarang kenderaan yang mencurigakan di laluan keluar. [47] Tidak dinafikan bahawa defendan mempunyai sistem keselamatan seperti kawalan dan pemantauan oleh pengawal keselamatan dan pemasangan CCTV di setiap tingkat tempat letak kereta tersebut. Berdasarkan keterangan saksi SD1, tempat letak kereta tersebut di kawal oleh 4 orang ‘patrol guards’ dan SD2 pula menerangakan bahawa premis parkir tersebut dipasang dengan 68 CCTV. Tempat letak kereta tersebut juga mempunyai bilik kawalan yang memantau setiap rakaman CCTV tersebut. Namun isunya di sini, adakah kehilangan tersebut disebabkan oleh kecuaian defendan. Sekali lagi saya memetik panduan yang diberikan oleh Mahkamah Persekutuan iaitu: “The fact that the appellants had devised a good system did not render them any the less liable if it was not shown that the loss of the goods arose otherwise than through their negligence.” (Rujuk Port Swettenham Authority v. TW Wu and Co (M) Sdn Bhd [supra]). [48] Saya merujuk kepada keterangan SD2, beliau menerangkan bahawa terdapat seorang pengawal keselamatan yang berada di dalam bilik kawalan untuk memantau CCTV. Namun begitu, beliau tidak dapat menjelaskan siapa yang berada di dalam bilik kawalan tersebut dan beliau juga tidak dapat mengemukakan sebarang bukti bahawa CCTV telah dipantau sepanjang masa. Pihak defendan juga tidak memanggil pegawal keselamatan yang bertugas untuk mengesahkan kehadirannya di dalam bilik kawalan pada masa material. Sekiranya pengawal keselamatan meneliti rakaman CCTV berkaitan dengan kecurian tersebut (rakaman kereta tersebut melalui penghadang automatik), pasti beliau akan menyedari kereta tersebut keluar tanpa tiket dan ia akan menimbulkan curiga bahawa setu kesalahan jenayah telah dilakukan. Seterusnya, beliau akan bertindak segera untuk menghalang kejadian jenayah tersebut daripada berlaku. Paling tidak pun, beliau boleh menyalurkan maklumat tersebut kepada pengawal keselamatan yang lain atau anggota polis untuk mengambil tindakan yang segera dan munasabah. Oleh yang demikian, saya berpendapat kegagalan pengawal keselamatan memantau rakaman CCTV di bilik kawalan tersebut merupakan satu kecuaian. [49] Berdasarkan keterangan-keterangan yang dikemukakan di Mahkamah ini, secara ringkasnya, saya berpendapat bahawa perkara-perkara berikut merupakan kecuaian yang dilakukan oleh pihak defendan: (i) Gagal menyediakan sistem penghadang automatik yang berkesan dan baik. Sistem keluar-masuk kereta di Parkir tersebut tidak menghalang orang yang tidak membayar/memasukkan tiket parkir untuk keluar. Keadaan ini memudahkan kereta yang ditempatkan di tempat letak kereta tersebut untuk dibawa keluar tanpa izin dengan tiada halangan. Di dalam kes ini, Kereta Plaintif tersebut telah dibawa keluar tanpa halangan walaupun tiada tiket dan tiada bayaran untuk tiket dibuat. (ii) Gagal menempatkan pengawal keselamatan di laluan keluar / laluan auto gate sedangkan defendan mengakui kelemahan berkaitan sistem palang automatik yang gagal menghalang kenderaan yang dicuri sekiranya ia dipandu secara rapat dengan kereta depan. (iii) Gagal menempatkan pengawal keselamatan di bilik kawalan yang bertugas untuk memantau CCTV, supaya dapat memastikan dan memantau kejadian/tindakan mencurigakan (dalam kes ini kejadian dua kereta dipandu rapat di laluan keluar dan melepasi palang automatik dengan menggunakan satu tiket) dan seterusnya bertindak dengan segera untuk menghalang kecurian daripada berlaku. Isu (3): Sama ada klausa pengecualian terpakai di dalam kes ini dan sama ada klausa pengecualian tersebut menyalahi atau melanggar Akta Perlindungan Pengguna 1999? [50] Dalam isu ini, peguam defendan menghujahkan bahawa gabungan perkataan “however caused” digunakan dalam klausa pengecualian tersebut membawa makna yang luas dan ia melindungi defendan daripada sebarang tanggungan akibat kecuaian. Peguam defendan mengemukakan kes Premier Hotel Sdn Bhd v Tang Ling Seng [1995] 4 MLJ 229 untuk menyokong hujahannya. [51] Peguam defendan juga menghujahkan bahawa bukan sahaja papan tanda yang mengandungi klausa pengecualian dipamerkan di laluan masuk bersebelahan mesin tiket, bahkan papan tanda tersebut berwarna kuning cerah yang boleh menarik perhatian pemandu kenderaan yang melaluinya. Oleh yang demikian, tindakan defendan tersebut adalah memadai untuk membawa klausa pengecualian tersebut ke perhatian dan pengetahuan para pemandu kenderaan yang menggunakan premis parkir tersebut selaras dengan dapatan kes Thornton v Shoe Lane Parking Ltd [1971] All ER 686. [52] Peguam defendan selanjutnya berhujah bahawa klausa pengecualian tersebut tidak menyalahi Akta Perlindungan Pengguna 1999 kerana klausa pengecualian mematuhi ‘reasonable standard of fair dealing selaras dengan seksyen 24C(2)(c) akta tersebut. Klausa pengecualian tersebut juga tidak bertentangan dengan sesyen 24D(2) (e) dan 24D(2)(f) akta tersebut. Tambahan pula, kontrak telah dimasuki antara Hemici dan defendan. Oleh itu berdasarkan prinsip privity of contract maka hanya Hemici yang boleh memberikan keterangan sama ada klausa tersebut adil dan munasabah atau sebaliknya. [53] Peguam plaintif pula berhujah bahawa Klausa tersebut tidak terpakai kerana ia tidak dibawa dengan khususnya kepada perhatian penyewa tersebut ataupun mana-mana pengguna tempat letak kereta. Undang-undang adalah jelas bahawa mana-mana Klausa Pengecualian Liabiliti hendaklah dibawa kepada perhatian seorang pengguna sebelum ia efektif sebagai suatu terma kontrak sebagaimana yang diputuskan di dalam kes Interfoto Picture Library Ltd v Stiletto Visual Programmes Ltd [1989] QB 433. [54] Peguam plaintif selanjutnya menyatakan bahawa sekalipun jika Klausa Pengecualian Liabiliti tersebut terpakai, undang-undang masih menuntut untuk Defendan membuktikan bahawa ia tidak cuai dan gantirugi yang dituntut bukan disebabkan oleh kecuaian Defendan. Prinsip ini diterangkan di dalam kes Chin Hooi Nan v Comprehensive Auto Restoration Service Sdn Bhd [1995] 2 MLJ 100. [55] Mengenai isu (3) ini, peguam plaintif dan peguam defendan masing-masingnya mengemukakan hujahan mengenai isu notis, isu susunan ayat di dalam klausa pengecualian tersebut dan juga isu sama ada klausa pengecualian tersebut bertentangan dengan Akta Perlindungan Pengguna 1999. Walau bagaimanapun, saya memutuskan isu (3) ini berdasarkan keputusan-keputusan kes yang telah dibuat oleh Mahkamah Malaysia. [56] Dalam perkara ini , saya akur dengan keputusan Siti Norma Yaakob J, di dalam kes Chin Hooi Nan v. Comprehensive Auto Restoration Service Sdn Bhd & Anor (supra). Di dalam kes ini perayu (plaintif) telah menghantar keretanya ke syarikat responden (defendan) untuk membolehkan keretanya digilap dengan penggilap berlilin atas bayaran sebanyak RM295.00. Beliau telah meninggalkan keretanya di premis responden di tingkat bawah tanah Kompleks Sungai Wang Plaza dan diberi suatu resit untuk menuntut kereta itu. Apabila perayu kembali untuk mengambil keretanya daripada responden, beliau mendapati bahawa kereta itu telah mengalami kerosakan semasa dipandu oleh seorang pekerja responden kedua (defendan kedua). Perayu telah mendakwa responden untuk kos membaiki kereta itu berjumlah RM3,630.85; kos menyewa sebuah kereta lain selama satu bulan berjumlah RM1,790.00; susut nilai kereta itu sebanyak 25% berjumlah RM9,128.81; dan kos menggaji seorang penyelaras kerugian bebas berjumlah RM169. Guaman itu telah ditolak dengan kos selepas suatu perbicaraan penuh di mahkamah majistret atas dasar bahawa fasal pengecualian di belakang resit itu yang menyatakan “The company is not liable for any loss or damage whatsoever of or to the vehicle, its accessories or contents. Vehicle and goods are at owner's risk”, telah melepaskan responden daripada liabiliti. Perayu seterusnya telah membuat rayuan terhadap keputusan tersebut. Mahkamah tinggi kemudiannya memutuskan: “Before me the issue is whether such an exemption clause can absolve the respondents from any blame for the damages caused to the car. The law on this is quite settled in that an exemption clause however wide and general does not exonerate the respondents from the burden of proving that the damages caused to the car were not due to their negligence and misconduct. They must show that they had exercised due diligence and care in the handling of the car. Sze Hai Tong Bank Ltd v Rambler Cycle Co Ltd [1959] X MLJ 200, and Port Swettenham Authority v TW Wu & Co (M) Sdn Bhd [1978] 2 MLJ 137, are authorities for this proposition of the law. In this instance, the respondents had not adduced any evidence that they had exercised due care and diligence when handling the appellant's car. On the contrary, there is ample evidence to show that the respondents had been negligent when one of their employees had involved the car in an accident when he, the employee, was driving it to a different floor of the basement car park. On this conclusion, the appeal must be allowed.” [57] Dalam memutuskan sama ada klausa pengecualian tersebut dapat melindungi defendan, saya juga berpandukan kepada kes ML Breadworks Sdn Bhd v. Malayan Banking Bhd [2013] 1 CLJ 833. Di dalam kes ini, dalam mentafsirkan klausa 6.3, Mahkamah Rayuan memutuskan seperti yang berikut: “[87] Clause 6.1 is a general indemnity clause which seeks to exonerate the defendant entirely. In like manner, cl. 6.3 seeks to limit the defendant's total liability under the terms and conditions to nothing more than RM500 for all claims. …………. [89] Even if I am incorrect in so concluding, the defendant ought not to be allowed to rely on the conclusive evidence clause as the bank was negligent in accepting the signature of the accountant as an authorised signatory, as well as failing to check with either authorised personnel or an authorised signatory before paying out on the subject cheque. Even if the forged signature was difficult to ascertain upon examination, the fact that the further oral check by DW5 was done with persons who were neither the authorised personnel to verify the validity of the cheque, nor the authorised signatories, shows that the defendant did not exercise sufficient or adequate care in making or honouring the payment. This is a further reason for concluding that the defendant ought not to be allowed to rely on the exclusion or limitation clauses specified. For these reasons I conclude that these clauses do not exclude or limit the defendant's liability.” [58] Berdasarkan kedua-dua kes di atas, adalah menjadi undang-undang yang mantap bahawa sesuatu fasal pengecualian walau bagaimana luas dan am, tidak melepaskan defendan daripada beban untuk membuktikan bahawa kerosakan atau kehilangan yang diakibatkan oleh defendan bukan disebabkan oleh kecuaian atau salah laku mereka. Di dalam kes di hadapan Mahkamah ini, adalah jelas bahawa terdapat bukti yang lebih daripada cukup untuk menunjukkan bahawa defendan telah cuai dan menyebabkan kehilangan kereta plaintif tersebut. Kesimpulan [59] Berdasarkan alasan-alasan tersebut di atas saya dapati atas imbangan kebarangkalian, plaintif telah berjaya membuktikan kesnya terhadap defendan. Oleh itu tuntutan plaintif dibenarkan seperti berikut: (a) Jumlah ganti rugi sebanyak RM117, 215.80 (b) Faedah ke atas jumlah ganti rugi pada kadar 5% setahun bermula dari tarikh writ sehingga tarikh penyelesaian penuh; dan (c) kos tindakan sebagaimana skala kos. (IZRALIZAM BIN SANUSI) Hakim Mahkamah Sesyen Shah Alam Bertarikh: 25.9.2017 Peguamcara Plaintif: Encik Fahri Azzat Tetuan Fahri & Co 15-2, Jalan PJU 7/16A Mutiara Damansara 47800 Petaling Jaya SELANGOR Peguamcara Defendan: Encik Mah Mun Yan Tetuan Gan Patrnership D-32-02, Menara Suezcap 1, KL Gateway No.2 Jalan Kerinchi Gerbang Kerinchi Lestari 59200 KUALA LUMPUR 42	61,786	Tika 2.6.0
BA-A53-10-06/2016	PLAINTIF EURO RENT A CAR SDN BHD DEFENDAN SUNWAY PARKING SERVICES SDN BHD	Tuntutan gantirugi - Kereta plaintif yang diletakkan di kawasan parkir telah hilang - Hubungan bailor dan bailee - Pembuktian - Sama ada defendan sebagai pengurus dan pengendali kawasan parkir mempunyai kewajipan berjaga-jaga - Sama ada kehilangan kereta plaintif adalah berpunca akibat perlanggaran kewajipan berjaga-jaga oleh defendan - Sama ada klausa pengecualian bertentangan dengan undang-undang - Akta Keterangan 1950 [Akta 56], seksyen 101, 73A(2); Akta Kontrak 1950 [Akta 136], seksyen 101 dan 104; Akta Perlindungan Pengguna 1999 [Akta 599], seksyen 24C(2)(c), 24D(2) (e) dan (f).	25/09/2017	TN IZRALIZAM BIN SANUSI	https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=37d9403e-7e50-4fca-934f-caa95ed95aa6&Inline=true	DALAM MAHKAMAH SESYEN DI SHAH ALAM DALAM NEGERI SELANGOR DARUL EHSAN, MALAYSIA SAMAN NO.: BA-A53-10-06/2016 ANTARA EURO RENT A CAR SDN BHD (No. Syarikat : 587079-U) …PLAINTIF DAN SUNWAY PARKING SERVICES SDN BHD (No. Syarikat: 643825-X) …DEFENDAN ALASAN PENGHAKIMAN Pengenalan [1] Ini adalah satu tuntutan oleh plaintif untuk gantirugi berjumlah RM 117,215.80 bagi kehilangan sebuah kereta yang diletakkan di kawasan tempat letak kereta yang diuruskan dan dikendalikan oleh defendan. Fakta Kes [2] Plaintif ialah sebuah syarikat sendirian berhad yang diperbadankan di Malaysia dan menjalankan perniagaan penyewaan kereta. [3] Defendan merupakan sebuah syarikat sendirian berhad yang ditubuhkan pada tahun 2004 di bawah Akta Syarikat. Sepanjang masa yang material, defendan menjalankan perniagaan pengurusan tempat letak kereta termasuk pengurusan tempat letak kereta di The Pinnacle Sunway, Jalan Lagoon Timur, Bandar Sunway, 46500 Petaling Jaya Selangor. [4] Plaintif mendakwa bahawa pada 25.4.2016, plaintif telah menyewakan sebuah kereta miliknya, Honda HRV bernombor pendaftaran BNS 9066 yang berwarna kelabu (“kereta tersebut”), kepada seorang warganegara Perancis yang bernama Hemici Sofiane (“Hemici”). [5] Pada 27.4.2016, lebih kurang pukul 2.28 petang, Hemici mendakwa bahawa beliau telah meletakkan Kereta tersebut di tempat letak kereta yang dikenali sebagai Lot B2B, The Pinnacle Sunway, Jalan Lagoon Timur, Bandar Sunway, 46500 Petaling Jaya Selangor. Apabila beliau kembali pada jam 7.00 petang, beliau mendapati Kereta tersebut telah hilang. [6] Hemici kemudiannya memaklumkan kepada Pengawal keselamatan yang berada di bilik keselematan mengenai kehilangan kereta tersebut. Pengawal keselamatan membantu Hemici untuk mencari kereta itu namun ia gagal dijumpai. Selepas itu mereka pergi ke bilik kamera litar tertutup (“CCTV”) untuk melihat rakaman CCTV bagi memastikan punca kehilangan Kereta tersebut. [7] Berdasarkan tayangan rakaman CCTV, Hemici telah mendakwa bahawa Kereta tersebut telah dilarikan oleh orang yang tidak dikenali. Pada 28.4.2016, Hemici telah membuat laporan polis tentang kehilangan Kereta tersebut. Beliau juga telah membuat satu akuan bersumpah pada 12.5.2016, yang mengesahkan kejadian kecurian Kereta Plaintif tersebut. [8] Pada 30.4.2016, berdasarkan keterangan Encik Fabian Leo Bernard (SP2), beliau telah hadir ke tempat letak kereta tersebut dan melihat rakaman CCTV yang berkaitan dengan kecurian kereta tersebut. Pihak defendan telah memberi sesalinan rakaman CCTV berkaitan kepada SP2 pada keesokan hari. [9] Berdasarkan rakaman CCTV tersebut, pihak plaintif dan defendan telah bersetuju bahawa kandungan rakamannya adalah seperti yang berikut: (i) Seorang lelaki menuju ke arah kereta tersebut dan memasukinya. Lelaki itu memandu kereta tersebut keluar dari kotak parkir dan memberhentikan kereta tersebut di kawasan yang berdekatan dengan laluan keluar/masuk parkir tersebut. (ii) Selepas itu, sebuah kereta model Nissan Almera bernombor pendaftaran WA 561 G yang dipandu oleh seorang lelaki telah memasuki kawasan tempat letak kereta tersebut. (iii) Sejurus selepas kereta Nissan Almera itu memasuki premis parkir itu, ia membuat pusingan U dan menuju ke arah laluan keluar. Kereta tersebut kemudiannya bergerak dan mengekori kereta Nissan Almera tersebut dari belakang. (iv) Pemandu kereta Nissan Almera telah memasukkan tiket yang baru diambil dan memasukkannya ke dalam mesin manakala kereta tersebut mengekori kereta Nissan Almera secara rapat tanpa perlu pemandunya memasukkan tiket ke dalam mesin. Palang tidak turun untuk menghalang kereta tersebut keluar. (v) Kejadian tersebut berlaku kira-kira pukul 4.14 petang iaitu lebih kurang 3 jam sebelum Hemici mendapati kereta tersebut tiada di kawasan lot parkir. [10] Plaintif mendakwa bahawa defendan mempunyai tanggungjawab di bawah kontrak dan juga tort untuk memastikan keselamatan keretanya di tempat letak kereta tersebut. Defendan telah cuai di dalam tanggungjawabnya untuk memastikan keselamatan dan juga mengambil langkah untuk mengelakkan kecurian berlaku di dalam parkir tersebut. [11] Defendan pula mengatakan bahawa tanggungjawap defendan hanya untuk menyediakan tempat letak kereta yang selamat untuk tujuan meletakkan kereta dan defendan telah menggunakan kemahiran dan penjagaan yang munasabah untuk melaksanakan tanggungjawapnya. [12] Defendan juga memplidkan bahawa suatu klausa pengecualian liabiliti telah diletakkan dan ia menyatakan: “The management is not responsible for any loss or damage howsoever caused to the vehicle, its accessories or contents. Vehicle is parked solely at customer’s own risk.” [13] Defendan juga mendakwa bahawa klausa pengecualian telah secara nyata mengecualikan liabiliti defendan terhadap mana-mana kerugian dan kerosakan terhadap kereta tersebut. [14] Plaintif telah memanggil tiga (3) orang saksi untuk membuktikan tuntutannya manakala defendan telah memanggil empat (4) orang saksi. Saksi-saksi tersebut, adalah seperti yang berikut: No. Nama Saksi Saksi dirujuk sebagai Penyata Saksi dirujuk sebagai 1. Jaafar bin Abdullah SP1 WS-SP1 2. Fabian Bernard a/l Joseph Anthony Leo SP2 WS-SP2 3. Amardeep Sharma a/l Madan Gopal SP3 WS-SP3 4. Edmund Marc De Run Jr. SD1 WS-SD1 5. Low Sun Lee SD2 WS-SD2 6. Abdullah bin Amat SD3 WS-SD3 7. Ismail bin Omar SD4 WS-SD4 Isu-isu untuk dibicarakan [15] Kedua-dua pihak telah mengemukakan isu-isu untuk dibicarakan mengikut versi masing-masing. Oleh yang demikian, saya akan menyandarkan kepada isu-isu yang dikemukakan oleh pihak defendan di dalam hujahan bertulisnya dan saya juga akan mempertimbangkan isu-isu yang dikemukakan oleh pihak plaintif. Isu-isu yang perlu diputuskan adalah seperti yang berikut: (1) Apakah kewajipan berjaga-jaga (duty of care) yang ditanggung oleh defendan kepada plaintif sebagai pengurusan tempat letak kereta di Pinnacle Sunway dan sama ada kewajipan berjaga-jaga tersebut mencakupi aspek keselamatan kereta plaintif tersebut? (2) Sama ada plaintif berjaya membuktikan bahawa kecurian tersebut disebabkan oleh pelanggaran kewajipan berjaga-jaga oleh defendan. (3) Sama ada klausa pengecualian tersebut terpakai di dalam kes ini dan sama ada klausa pengecualian tersebut bertentangan dengan Akta Perlindungan pengguna 1999? Dapatan Mahkamah [16] Beban pembuktian adalah ke atas plaintif untuk membuktikan tuntutannya. Mahkamah ini merujuk kepada penghakiman Mahkamah Persekutuan dalam kes Datuk Mohd Ali Hj Abdul Majid & Anor v. Public Bank Bhd [2014] 6 CLJ 269 seperti berikut: This follows from the general rule that the burden of proving a fact is upon him who alleges it and not upon him who denies it, so that where a particular allegation forms an essential part of a person's case, the proof of such allegation fall on him (see s. 103 of the Evidence Act 1950). If he fails to prove both the liability and the quantum of damages, he loses the action. Therefore, in a claim for damages, it is not sufficient for the plaintiff to merely state the amount of damages that he is claiming, he must prove the damage that he had in fact suffered to the satisfaction of the court. [17] Mengikut kes Berjaya Development Sdn Bhd v. Keretapi Tanah Melayu Bhd [2012] 4 CLJ 35, Mahkamah telah memutuskan: “[7] The burden of proving a claim lies on the person alleging the claim. So it is here, the burden is on the Plaintiff to prove his claim before the burden moves to the defendant. Section 101 Evidence Act 1950 refers...........................................” [18] Plaintif hendaklah membuktikan kesnya atas standard imbangan kebarangkalian. Mahkamah ini juga merujuk kepada kes Ng Chin Guan v. Ng Khi Fui & Anor [2012] MLJ 798: “In law, the party who desires the Court to give judgment as to any legal right or liability bears the burden of proof (s. 101(1) Evidence Act 1950). The burden of proof is on that party is twofold; (i) The burden of establishing a case; and (ii) The burden of introducing evidence. The burden of proof lies on the party throughout the trial. The standard of proof required is on the balance of probabilities. The evidential burden of proof is only shifted to the other party once the other party has discharged its burden of proof. If that party fails to discharge the orginal burden of proof, then the other party need not adduce any evidence.” [19] Seksyen 101 Akta Keterangan 1950 memperuntukkan bahawa beban bukti terletak pada orang yang bergantung kepada kewujudan sesuatu fakta tersebut. Seksyen 101 Akta 56 memperuntukkan: “Beban membuktikan 101. (1) Sesiapa yang berhasrat supaya mana-mana Mahkamah memberikan penghakiman tentang apa-apa hak atau tanggungan di sisi undang-undang, dengan bergantung kepada kewujudan fakta yang ditegaskan olehnya, mestilah membuktikan bahawa fakta itu wujud. (2) Apabila seseorang terikat untuk membuktikan kewujudan apa-apa fakta, dikatakan bahawa beban membuktikan terletak pada orang itu.” [20] Saya menerimapakai prinsip kes-kes tersebut di atas kepada kes di hadapan Mahkamah ini, dan dengan merujuk kepada seksyen 101 Akta 56, plaintif hendaklah, atas imbangan kebarangkalian, membuktikan kes plaintif, dan beban adalah terletak pada plaintif untuk membuktikan sedemikian. Saya seterusnya telah mendengar keterangan, meneliti dokumen yang difailkan dan hujahan yang dikemukakan pihak-pihak, dengan penuh berhati-hati. Isu (1): Apakah kewajipan berjaga-jaga (duty of care) yang ditanggung oleh defendan kepada plaintif sebagai pengurusan tempat letak kereta di Pinnacle Sunway? Sama ada kewajipan berjaga-jaga tersebut mencakupi aspek keselamatan kereta plaintif tersebut? [21] Peguam defendan menghujahkan bahawa kontrak yang dimasuki di antara Hemici dan defendan adalah untuk defendan menyediakan ruang parkir. Beliau juga menghujahkan bahawa kewajipan berjaga-jaga (duty of care) yang ditanggung oleh defendan kepada penyewa di bawah undang-undang Tort ialah untuk menyediakan ruang yang sesuai untuk tujuan parkir kereta sahaja. Berdasarkan kes Ashby v Tolhurst [1937] 2 All ER 837 dan Halbauer v Brighton Corporation [1954] 2 All ER 707, defendan menyatakan bahawa hubungan di antara plaintif dan defendan bukan bailment dan defendan tidak mempunyai duty of care untuk menjaga keselamatan Kereta plaintif tersebut. Oleh itu, defendan berhujah bahawa defendan tidak bertanggungjawap atas kehilangan kereta tersebut. [22] Peguam plaintif pula berhujah bahawa fakta di dalam kes Ashby v Tolhurst (supra) wajar dibezakan daripada fakta kes ini. Di dalam kes tersebut tiket yang dikeluarkan oleh defendan hanya merupakan satu bukti pembayaran kepada plaintif untuk membenarkan plaintif memarkir kereta selepas pembayaran dilakukan. Memandangkan pembayaran sudah dibuat semasa menerima tiket tersebut, defendan tidak mempunyai obligasi terhadap plaintif kecuali menyediakan tempat parkir. Jika plaintif, sebagai pemilik kenderaan, mahu keluar dari tempat parkir tersebut, plaintif hanya perlu keluar tanpa memulangkan semula tiket tersebut kerana ia sudah dibayar. Oleh itu, Mahkamah telah mendapati mereka hanyalah licensor dan licensee simpliciter lalu memutuskan defendan tidak mempunyai obligasi terhadap plaintif. Namun begitu, defendan di dalam kes di hadapan Mahkamah ini telah menggunakan sistem operasi parkir yang berbeza. Sistem operasi defendan membenarkan Hemici memarkir sebelum sebarang pembayaran dilakukan. Tiket dan sistem operasi defendan di dalam kes ini tidak membenarkan pelanggan untuk keluar tanpa sebarang pembayaran. Selagi pembayaran masih belum dibuat, kereta tersebut akan disekat dan dikawal oleh defendan sehingga pembayaran dilakukan. [23] Peguam Plaintif merujuk kepada perenggan 2 dan 3 di bawah notis yang dipamerkan di tempat ‘auto gate parking’ (D17), yang dengan jelas menyatakan seperti berikut: “2. Vehicles parked at unauthorised places will be clamped and a fine of RM 50 will be imposed. 3. No overnight parking. Storage charges of RM 100 (one hundred ringgit) per day will be imposed to vehicle that parked overnight without approval or vehicle will be removed at management’s discretion.” [24] Berdasarkan D17 tersebut, peguam plaintif menghujahkan bahawa defendan mempunyai kuasa-kuasa tertentu terhadap kereta pelanggan-pelanggannya selagi pembayaran dan pemulangan tiket masih belum dilakukan. Defendan juga mempunyai kuasa untuk mengenakan denda dan mengenakan storage charges sekiranya kereta diparkir di tempat yang tidak dibenarkan atau membiarkan kereta diparkir semalaman. Oleh yang demikian, terdapat hubungan bailor dan bailee antara defendan dan penyewa/plaintif. Untuk menyokong hujahannya mengenai hubungan bailor dan bailee tersebut, peguam plaintif merujuk kepada seksyen 101 dan 104 Akta Kontrak 1950. Tiada sebarang kes yang dikemukakan oleh peguam plaintif untuk menyokong hujahannya dalam isu ini. [25] Isu mengenai hubungan di antara pengendali parkir dan pemilik kenderaan yang memakir sudah lama dibincangkan dan diputuskan oleh kes-kes terdahulu. Berdasarkan kes klasik Ashby v Tolhurst (supra), adalah diputuskan bahawa hubungan tersebut merupakan hubungan di antara licensor dan licensee. Maka pengendali parkir tidak bertanggungjawap untuk memastikan keselamatan kenderaan yang diparkir. Untuk memahami dengan jelas rasional keputusan kes ini, fakta kes tersebut perlulah difahami terlebih dahulu. Fakta kes tersebut adalah seperti berikut: Pada 25.8.1936, plaintif telah memarkir keretanya di sebidang tanah kepunyaan defendan. Tanah tersebut merupakan kawasan lapang yang terbuka dan tidak berpagar. Setelah memasuki kawasan parkir tersebut, plaintif membuat bayaran kepada pekerja defendan yang berada di situ. Plaintif kemudiannya diberikan ‘car park ticket’ dan beliau seterusnya memarkir keretanya dalam keadaan berkunci. Car park ticket tersebut mengandungi klausa berikut: “The proprietors do not take any responsibility for the save custody of any cars or articles there, nor for any damage to the cars or articles however caused, nor for any injuries to any person, all cars being left in all respect entirely at their owners’ risk. Owners are requested to show ticket when required.” Setelah plaintif kembali ke tempat parkir tersebut, beliau mendapati keretanya telah hilang. Setelah bertanya kepada pekerja defendan, beliau diberitahu bahawa keretanya telah dipandu keluar oleh seorang lelaki yang mengaku sebagai kawan plaintif. Di dalam kes Ashby tersebut, Mahkamah memutuskan: “If that be the true view, the relationship was a relationship of licensor and licensee alone, and that relationship in itself would carry no obligations of the licensor towards the licensee in relation to the chattel left there, no obligation to provide anybody to look after it. … there was no contract between the parties except the mere permission to leave the car there for payment.” . [26] Di dalam kes Ashby tersebut, faktanya jelas menunjukkan bahawa defendan mengendalikan tempat letak kereta yang terbuka, tidak mempunyai ciri-ciri keselamatan yang ketat, hanya seorang atendan yang mengeluarkan tiket dan mengawal laluan keluar masuk, serta pembayaran dibuat semasa pemilik kenderaan mendapatkan tiket untuk masuk ke kawasan parkir tersebut. Dapat dirumuskan bahawa fakta kes tersebut hampir sama dengan fakta kes di hadapan Mahkamah ini, iaitu ianya berkisar tentang kehilangan kenderaan plaintif semasa kenderaannya diparkir di kawasan tempat letak kereta yang dikendalikan oleh defendan. [27] Namun begitu, terdapat perbezaan yang jelas tentang pengendalian tempat letak kereta di dalam kes di hadapan Mahkamah ini. Tempat letak kereta yang dikendalikan oleh defendan merupakan sebuah bangunan yang mempunyai 12 tingkat. Tingkat-tingkat tersebut dikhususkan hanya untuk parkir. Setiap laluan keluar dan masuk dikawal dengan mesin dan penghadang automatik. Pemilik kenderaan perlu mengambil tiket di laluan masuk dan kenderaan hanya boleh dipandu keluar setelah tiket tersebut dibayar. Di atas tiket dicatatkan “RM50 charge for lost ticket” [Eksibit D19(B)]. Kenderaan hanya boleh diparkir di lot-lot khusus, kegagalan mematuhinya akan menyebabkan tayar kenderaan dikunci dan pemilik kenderaan akan didenda untuk membuka kunci tersebut. Sekiranya pemilik kenderaan memarkir kenderaanya ‘overnight’ tanpa kebenaran, pemilik akan dikenakan bayaran ‘Storage charges’ yang berjumlah RM 100.00 sehari atau kenderaannya akan dialihkan atau dikeluarkan. Tempat letak kereta defendan juga dikawal oleh pengawal-pemgawal keselamatan dan diawasi oleh CCTV. [28] Saya berpendapat bahawa fakta kes di hadapan Mahkamah ini adalah berbeza dengan kes Ashby v Tolhurst (supra) dari aspek pengendalian dan kawalan oleh defendan ke atas tempat letak kereta serta kenderaan-kenderaan yang diparkir, dan juga perbezaan mengenai ciri-ciri keselamatannya. Maka, saya perlu meneliti apakah hubungan yang mengikat di antara plaintif dan defendan berdasarkan fakta-fakta yang telah dihuraikan di atas. Adakah hubungan di antara mereka merupakan hubungan di antara “licensor and licensee”, seperti yang diputuskan oleh kes Ashby v Tolhurst (supra), ataupun terdapat hubungan lain yang mengikat mereka?. [29] Untuk menjawap persoalan ini, saya merujuk kepada kes Walton Stores Ltd. v Sydney City Council (1968) 70 SR (NSW) 244. Fakta di dalam kes Walton ini adalah seperti berikut: Pada 24 Disember 1963, seorang pengurus di syarikat Walton Stores Limited yang bernama McCauley telah menggunakan kereta syarikat dan memakirnya di Goulburn Street Car Park. Tempat letak kereta tersebut dimiliki dan dikendalikan oleh defendan. Ketika memasuki tempat letak kereta tersebut, beliau diberikan tiket dan tiket tersebut menyatakan klausa pengecualian seperti berikut: “The Council does not accept any responsibility for the loss or damage to any vehicle or for loss of or damage to any article or thing in or upon any vehicle or for any injury to any person however such loss, damage or injury may arise or be caused”. Tiket tersebut juga menyatakan “Important - This ticket must be presented at cash register for time stamping and payment before proceeding to remove vehicle from station” dan “This card must be presented to Attendant when vehicle is being removed from station”. Sekembalinya McCauley ke lot parkir keretanya, beliau mendapati kereta tersebut telah hilang. Selepas itu, McCauley telah dimaklumkan oleh pihak defendan bahawa seorang lelaki bernama Jones telah memandu kereta tersebut keluar dengan menggunakan salinan tiket (duplicate ticket) yang telah diberikan oleh pekerja defendan. Plaintif selanjutnya menuntut gantirugi terhadap defendan di ‘District Court’. Hakim perbicaraan, Cameron-Smith D.C.J, membenarkan tuntutan gantirugi plaintif berjumlah $2,790.00 atas alasan defendan telah melanggar kontrak sebagai bailee kereta tersebut. Defendan tidak berpuas hati dengan keputusan tersebut dan seterusnya menfailkan rayuan ke Mahkamah Rayuan. Mahkamah Rayuan (Wals, Asprey dan Holmes JJ.A) memutuskan seperti yang berikut: “I now turn to the substantive question argued upon whether the true legal conclusion to be drawn from the uncontradicted facts was, as the trial judge held, that the plaintiff and the defendant were bailor and bailee respectively of the plaintiff’s motor vehicle. Upon this appeal it was argued for the defendant that of licensor and licensee and not that of bailor and bailee, and for this proposition Ashby v. Tolhurst (6) was strongly relied on. In that case Sir Wilfred Greene M.R. said… …………….. . I am of the view that the nature of the Goulburn Street parking station would point towards the conclusion that there was a delivery of possession. So far as the second ground…….I am now concerned. But in their place appear the words “Important - This ticket must be presented at cash register for time stamping and payment before proceeding to remove vehicle from station” and “This card must be presented to Attendant when vehicle is being removed from station”. In my opinion the effect of the words quoted from each of the three cards or tickets lastly referred to is to produce exactly the same result. Each provides for the fulfilment of conditions precedent by the holder of the ticket issued by the proprietor of the building in which the vehicle is stored before the holder can regain possession of the vehicle from the proprietor. The change …….. delivery. The steps to be taken to enable the plaintiff to regain physical possession of its motor car from the defendant’s building involve more than its removal by simply driving it away. Its removal required a bilateral transaction in the terms of the document. It may be that the defendant did not have a lien at common law upon the vehicle of its parking charges (cf. Hatton v. Car Maintenance Co. Ltd. (13) and see now the Warehousemen’s Liens Act, 1935) but the contract which regulated the legal relationship of the parties plainly evinced their intention that the holder of the card or ticket had either to pay or tender payment of the amount of the charges for the storage of the vehicle before he was entitle to demand possession of it. To a demand for the vehicle unaccompanied by payment or tender of payment of the charges, the proprietor of the parking station would be entitled to respond with a qualified refusal to the effect that its charges first be paid (see Singer Manufacturing Co. v. London & South Western Railway Co. (14) as explained in Jowitt & Sons v. Union Cold Storage Co. (15)). It should also be observed that condition (2) of the parking condition contained on the ticket in the present case also operates to preserve the custody of the vehicle by the defendant against a demand made by the ticket-holder during hour when the parking station is closed (cf. Stallard v. Great Westen Railway Co. (16)). If, as Professor Winfield has said, the salient feature of bailment is the element of possession, the matters to which I have just referred appear to me to point to the fact that in the present case the defendant did have possession of the subject vehicle. I think that Ashby v. Tolhurst (17) is clearly distinguishable and the relationship of the plaintiff and the defendant was that of bailor and bailee. In these circumstances, as it was conceded by the defendant that, once bailment was established, there were no material differences between this case and West’s case (18), I am of the opinion that the appeal should be dismissed with costs.” [30] Isu mengenai perkara ini tidak banyak dibincangkan oleh mahkamah-mahkamah Malaysia. Oleh yang demikian, adalah suai-manafaat jika keputusan kes-kes dalam bidangkuasa lain, terutama di Amerika Syarikat, dirujuk. Dalam kes William Hale vs. Massachusetts Parking Authority 358 Mass. 470 (1970), plaintif merupakan pemegang pas bulanan bagi tempat letak kereta yang dikendalikan oleh defendan. Beliau membuat bayaran parkir secara bulanan. Plaintif diberikan pelekat kenderaan dan ‘parker's plate’ untuk pengenalan dan tujuan keselamatan. Pada 11.11.1964, plaintif memarkir dan mengunci keretanya di kawasan yang dikhaskan untuk pemegang pas bulanan. Pada 13.11.1964, lebih kurang pukul 8.30 malam, seorang lelaki telah memandu kereta plaintif keluar dari premis parkir tersebut. Ketika melalui laluan keluar, atendan tempat letak kenderaan tersebut meminta pemandu itu untuk menunjukkan monthly parking plate dan tiket parkir. Pemandu tersebut kemudiannya memecut keluar kerana tidak dapat mengemukakannya. Di laluan keluar tersebut tidak terdapat palang yang boleh menghalang sebarang kenderaan. Pekerja defendan tidak mengambil sebarang tindakan kerana menyangka pemandu kereta itu adalah pemiliknya. Pada 14.11.1964, plaintif mendapati keretanya telah hilang di lot parkirnya. Beliau kemudianya mengambil tindakan untuk menuntut gantirugi atas kehilangan keretanya terhadap defendan. Di dalam kes ini, Supreme Judicial Court of Massachusetts (Tauro, C.J., Spalding, Kirk, Reardon, & Quirico, JJ.) memutuskan: “The defendant was a bailee for hire and as such was not an insurer for the safety of property left in its custody. But it was bound to "exercise that degree of care which may reasonably be expected from ordinarily prudent persons in similar circumstances." Greenberg v. Shoppers' Garage, Inc. 329 Mass. 31, 35.” [31] Saya juga merujuk kepada satu lagi kes yang telah diputuskan oleh Mahkamah Rayuan di Massachusetts, Amerika Syarikat dalam kes Richard v. Massachusetts Port Authority, 310 N.E.2d 146 (Mass. App. Ct. 1974) di mana Mahkamah Rayuan tersebut bersetuju dengan dapatan yang dibuat oleh kes William Hale vs. Massachusetts Parking Authority (supra). Fakta di dalam kes Richard tersebut adalah seperti berikut: Pada 31.7.1968, plaintif telah memandu keretanya memasuki laluan masuk ke tempat letak kereta di Logan International Airport. Semasa memasuki laluan masuk tersebut, plaintif mengambil tiket dari mesin, beliau kemudiannya memakir dan seterusnya mengunci keretanya. Beliau kembali ke tempat letak kereta tersebut pada 4.8.1968 dan mendapati keretanya telah hilang. Selepas itu, plaintif mengambil tindakan untuk menuntut gantirugi atas kehilangan keretanya terhadap defendan. ‘Municipal Court of the City of Boston’ telah membenarkan tuntutan plaintif dengan jumlah sebanyak $3,705.00. Di peringkat rayuan, Mahkamah Rayuan di Massachusetts telah mengekalkan keputusan tersebut. [32] Merujuk kepada isu (1) di atas, adalah jelas bahawa fakta kes di hadapan Mahkamah ini sama dengan fakta di dalam kes Walton Stores Ltd. v Sydney City Council (supra). Oleh itu, kes di hadapan Mahkamah ini juga wajar dibezakan dengan kes Ashby v. Tolhurst (supra). Adalah jelas bahawa plaintif perlu membuat bayaran sebelum dibenarkan memandu keluar dari tempat letak kereta defendan. Sekiranya plaintif gagal membayar, maka defendan berhak menolak dengan penolakan bersyarat untuk plaintif terlebih dahulu membuat pembayaran seperti yang dikenakan. Perlu diambil perhatian juga bahawa berdasarkan D17, defendan boleh mengunci tayar kenderaan dan pemilik kenderaan akan didenda untuk membuka kunci tersebut. Sekiranya pemilik kenderaan memarkir kenderaanya ‘overnight’ tanpa kebenaran, pemilik akan dikenakan bayaran ‘storage charges’ yang berjumlah RM 100.00 sehari atau kenderaannya akan dialihkan atau dikeluarkan. Oleh yang demikian, selaras dengan keputusan kes Walton Stores Ltd. v Sydney City Council (supra), adalah wajar diputuskan bahawa defendan mempunyai ‘possession of the subject vehicle’. Maka saya memutuskan bahawa hubungan di antara plaintif dan defendan di dalam kes di hadapan Mahkamah ini adalah merupakah hubungan bailor dan bailee. Selanjutnya saya juga memutuskan bahawa kewajipan berjaga-jaga yang terletak dibahu defendan juga mencakupi aspek keselamatan kereta plaintif tersebut. Isu (2): Sama ada plaintif berjaya membuktikan bahawa kecurian tersebut disebabkan oleh pelanggaran kewajipan berjaga-jaga oleh defendan. [33] Peguam defendan menghujahkan bahawa plaintif perlu membuktikan keretanya telah dicuri untuk berjaya di dalam tuntutannya. Ketika kejadian itu, kereta plaintif telah disewakan kepada Hemici. Maka hanya Hemici yang boleh memberikan keterangan di Mahkamah untuk membuktikan kecurian tersebut. Kegagalan plaintif memanggil Hemici untuk memberikan keterangan mengakibatkan plaintif gagal membuktikan kesnya. Oleh itu, tuntutan plaintif wajar ditolak dengan kos. Prinsip ini selaras dengan kes Takako Sakao v Ng Pek Yuen & Anor [2009] 6 MLJ 751, PP v. Ang Kian Chai [2012] 1 LNS 389 dan Johara Bi Binti Abdul Kadir Marican v Lawrence Lam Kwok Fou [1981] 1 MLJ 139. [34] Peguam defendan selanjutnya menghujahkan bahawa tindakan pihak ketiga yang memandu kereta keluar dari premis pakir defendan membawa kepada ‘novus actus interveniens’, oleh itu ia melepaskan defendan dari sebarang tanggugjawap ke atas apa yang berlaku. Peguam defendan merujuk kepada kes Devan & Associates v. TSR Bina Sdn Bhd [2015] 5 CLJ 17 dan juga kes Smith v Littlewoods Organisation Ltd (Chief Constable, Fire Constabulary, third party) [1987] 1 All ER 710 untuk menyokong hujahnya. [35] Peguam plaintif pula menghujahkan bahawa terdapat keterangan-keterangan sokongan yang menunjukkan bahawa Kereta plaintif tersebut telah dicuri semasa diletakkan di tempat letak kereta defendan. Antara dokumen-dokumen yang membuktikan kereta tersebut telah dicuri adalah Laporan Polis (P1), Surat Pengesahan Status Kes oleh SP1 (P2), Geran Kereta tersebut (P7), Perjanjian Sewaan Kereta di antara Plaintif dan Hemici Sofiane (P8), cakera padat ynag mengandungi rakaman kamera litar tertutup [CCTV] (P10) dan gambar-gambar dari CCTV tersebut (P11 [a] hingga [r]). [36] Mengenai isu ‘novus actus interveniens’ pula, peguam plaintif menghujahkan bahawa Kedua-dua kes yang dirujuk oleh peguam defendan adalah berbeza dengan kes ini apabila dilihat berdasarkan fakta bahawa, walaupun terdapat tindakan/kegiatan berasingan (independent) oleh pencuri tersebut, namun chain of causation defendan masih lagi bersambung apabila CCTV gagal dipantau oleh pengawal keselamatan defendan. Selain itu, fakta-fakta berikut menunjukkan chain of causation defendan masih lagi bersambung apabila terdapat fakta yang menunjukkan bahawa rondaan gagal dilakukan dengan kerap, kegagalan mesin parkir menghalang pencuri kereta keluar tanpa menggunakan tiket, ketiadaan speed breaker dan ketiadaan pengawal keselamatan defendan yang memantau setiap laluan keluar parkir tersebut. [37] Untuk menjawap isu (2) ini, saya merujuk kes Port Swettenham Authority v. TW Wu and Co (M) Sdn Bhd [1975] 2 MLJ 73. Di dalam kes tersebut, Mahkamah Persekutuan mengatakan: “In the ordinary cases of tort the onus would be on the plaintiff to prove that defendant was negligent and that the act or omission was the proximate cause of the loss or injury. But, in cases where the bailor and bailee relationship has been established then all that the plaintiff has to do is to prove that he entrusted the goods to defendant who could not deliver them on demand. It would then be up to the defendant as bailee to show that the loss was not due to his negligence. The fact that the appellants had devised a good system did not render them any the less liable if it was not shown that the loss of the goods arose otherwise than through their negligence.” [38] Setelah saya mendapati bahawa hubungan di antara plaintif dan defendan merupakan hubungan di antara bailor dan bailee, maka adalah menjadi tanggungjawap plaintif untuk membuktikan bahawa kereta tersebut hilang semasa di bawah jagaan defendan. Sekiranya plaintif berjaya membuktikan sedemikian, maka defendan pula perlu membuktikan bahawa kereta tersebut hilang bukan disebabkan oleh kecuaian/kesalahan yang dilakukan oleh defendan atau pekerjanya. Prinsip ini adalah selaras dengan keputusan kes Port Swettenham Authority v. TW Wu and Co (M) Sdn Bhd (supra). [39] Adalah menjadi fakta yang tidak dipertikaikan bahawa pada 27.4.2016, lebih kurang pukul 4.14 petang, Kereta tersebut telah dipandu oleh seorang lelaki keluar dari tempat letak kereta defendan tanpa membayar tiket. Defendan mendakwa bahawa plaintif gagal membuktikan kereta tersebut dicuri kerana Hemici tidak dipanggil untuk memberikan keterangan di Mahkamah ini. Defendan juga berhujah bahawa hanya Hemici yang mengetahui sama ada kereta tersebut berkunci atau tidak ketika ia diparkir dan sama ada beliau mengenali pemandu yang memandu kereta tersebut keluar dari tempat letak kereta defendan. Kegagalan plaintif memanggil Hemici sebagai saksi mengakibatkan fakta-fakta tersebut gagal dibuktikan. Tambahan pula, akuan bersumpah (ID16) yang dibuat oleh Hemici dan juga emel di antara pihak plaintif dan Hemici bertarikh 16.1.2017 (ID4) hanya ditandakan sebagai ID (Identification document) ketika perbicaraan. Oleh itu dokumen-dokumen tersebut tidak boleh diterima sebagai keterangan bagi menyokong dakwaan plaintif. Dengan hormat, saya tidak bersetuju dengan hujahan defendan mengenai isu Identification document (ID) ini. Saya berpendapat bahawa penjelasan pihak plaintif mengenai ketidakhadiran Hemici adalah munasabah dan wajar diterima. Hemici ketika ini berada di negaranya Perancis dan perbelanjaan beliau ke Malaysia semata-mata untuk memberikan keterangan kes ini akan menyebabkan plaintif menanggung kos yang tinggi dan kelewatan yang tidak wajar. [40] Saya merujuk kepada seksyen 73A(2) Akta Keterangan yang memperuntukkan: “(2) In any civil proceedings, the court may at any stage of the proceedings, if having regard to all the circumstances of the case it is satisfied that undue delay or expense would otherwise be caused, order that such a statement as is mentioned in subsection (1) shall be admissible as evidence or may, without any such order having been made, admit such a statement in evidence - (a) notwithstanding that the maker of the statement is available but is not called as a witness; and (b) notwithstanding that the original document is not produced, if, in lieu thereof, there is produced a copy of the original document... (5) For the purpose of deciding whether or not a statement is admissible as evidence by virtue of subsection (1) to (4), the court may draw any reasonable inference from the form or contents of the document in which the statement is contained, or from any other circumstances....... (6) In estimating the weight, if any, to be attached to a statement rendered admissible as evidence by this Act, regard shall be had to all the circumstances from which any inference can reasonably be drawn as to the accuracy or otherwise of the statement, and in particular to the question whether or not the statement was made contemporaneously with the occurrence or existence of the facts stated, and to the question whether or not the maker of the statement had any incentive to conceal or misrepresent facts. [41] Berdasarkan seksyen 73A Akta Keterangan, sesuatu keterangan boleh diterima masuk di bawah 3 keadaan dan antara 1 dari keadaan tersebut ialah di mana pembuat dapat memberi keterangan tetapi tidak dipanggil sebagai saksi di bawah keadaan yang diperuntukkan oleh seksyen 73A(2). Di bawah sekyen kecil (2) s. 73A Akta Keterangan, sesuatu pernyataan boleh diterima masuk sekiranya Mahkamah berpuas hati bahawa kelengahan atau perbelanjaan tak wajar akan berlaku sekiranya pembuat pernyataan tersebut dipanggil untuk memberi keterangan. Dalam menggunapakai seksyen 73A(2) tersebut, Mahkamah boleh membuat tanggapan-tanggapan yang munasabah dari bentuk atau kandungan dokumen atau dari lain-lain keadaan. Perkara Ini dengan jelas dinyatakan di dalam seksyen 73A(5) Akta yang sama. Di dalam kes ini, adalah jelas bahawa SP2 di dalam keterangannya menjelaskan bahawa beliau merupakan shareholder dan managing director syarikat plaintif yang mengetahui secara terperinci mengenai perjalanan perniagaan syarikatnya. SP2 telah menjelaskan dengan teliti mengapa beliau tidak dapat membawa Hemici ke Malaysia untuk dijadikan saksi dalam kes ini. SP2 mengemukakan emel-emel perhubungan di antara pihak plaintif dan Hemici serta kos perbelanjaan yang akan ditanggungnya sekiranya Hemici datang ke Malaysia. Peguam defendan juga telah memeriksa balas keterangan SP2 mengenai isu yang berkaitan dengan laporan Hemici. Oleh itu, saya berpendapat adalah memadai untuk pihak plaintif membuktikan kehilangan kereta tersebut berdasarkan Laporan Polis (P1), Surat Pengesahan Status Kes oleh SP1 (P2), Geran Kereta tersebut (P7), Perjanjian Sewaan Kereta di antara Plaintif dan Hemici Sofiane (P8), Rakaman Kamera Litar CCTV (P10), gambar-gambar CCTV (P11 [a] hingga [r]), serta akuan bersumpah oleh Hemici (ID16) tanpa perlu memanggil Hemici yang akan mengakibatkan kelengahan masa dan kos perbelanjaan yang tidak wajar. [42] Peguam defendan juga menghujahkan bahawa emel-emel di antara plaintif dan Hemici serta akuan bersumpah Hemici tersebut hanya ditanda sebagai “ID”, memandangkan kesahihan dan kebenaran dokumen-dokumen plaintif tersebut tidak boleh diuji di Mahkamah semasa pemeriksaan balas. Dengan hormatnya, saya tidak bersetuju dengan hujahan peguam defendan. Di dalam pemeriksaan utama, SP2 telah cuba untuk mengemukakan kesemua dokumen-dokumen tersebut sebagai bukti/eksibit, namun telah dibantah oleh peguam defendan. Oleh itu, Mahkamah perlu memutuskan isu ‘admissibility’ dokumen-dokumen tersebut selepas mendengar semua keterangan dan keadaan yang relevan. Di peringkat perbicaraan, memang pada permulaanya kesemua dokumen-dokumen tersebut ditandakan sebagai “ID” , namun ia tidak menghalang Mahkamah untuk memutuskan isu tersebut di akhir perbicaraan kes, iaitu semasa di peringkat hujahan. Section 73A Akta Keterangan memberikan kuasa kepada Mahkamah untuk berbuat demikian. Seksyen tersebut menyatakan bahawa Mahkamah boleh menggunapakai kuasa tersebut “at any stage of the proceedings, having regards to all the circumstances of the case”. [43] Dalam mempertimbangkan dan memutuskan isu identification document (“ID”), Mahkamah ini juga merujuk kepada kes-kes berikut sebagai panduan: (i) Bank Of Tokyo-Mitsubishi (Malaysia) Bhd V. Sim Lim Holdings Bhd & Ors [2001] 2 CLJ 474 yang memutuskan: “Section 73A(2) of the Evidence Act 1950 provides for the admittance of documents when the maker is not called, if having regard to all the circumstances of the case the court is satisfied that undue delay or expense would otherwise be caused. In doing so, the court may draw any reasonable inference from the form or contents of the document or from any other circumstances. This is provided under s. 73A(5) of the same Act. The relevant parts of s. 73A(2) and (5)reads as follows: (2) In any civil proceedings........ (5) For the purpose of deciding...... (6) In estimating the weight,........ Therefore, by virtue of the above provisions of law, I am satisfied that the said notices of demand (ID17 - ID19) and (ID21 - ID23); the AR Cards (ID18 - ID20) and Certificates of Posting (ID22 - ID24) are admissible as evidence. All these documents are part of a transaction or records which are consistent, and were issued in the course of business and discharge of professional duty. The court can see the genuinity of these documents without the makers being called. By virtue of s. 73A(5) and 73A(6) of the same Act, in deciding whether all these documents are admitted, the court had also considered the reasonable inference from the form and contents of the document as well as from any related circumstances, as to the accuracy or otherwise of the statement and in particular to the question whether or not the statements or the documents were made contemporaneously with the occurrence or existence of the facts stated. The counsel for the 2nd and 3rd defendants also submitted that all those documents are only marked as "ID" and thus only for identification purposes and are not admissible evidence. I cannot agree with the counsel on that point. From the records of the proceedings, it seems that the plaintiff had attempted to produce all those documents as evidence but was objected to by the counsel for the 2nd and 3rd defendants. Thus, the court had to decide on the admissibility of all those documents at the end of the trial after hearing all the relevant circumstances of the case. At that stage of the proceedings, all those documents have to be marked as "ID" first, but it does not stop the court from deciding on their admissibility at the end of the trial ie, during submissions stage. Section 73A(2) of the Evidence Act 1950empowers the court to do so. The said subsection provides for the exercise of the power "at any stage of the proceedings, having regards to all the circumstances of the case". There is nothing to say that those documents cannot be admitted as evidence under s. 73A(2) just because they have only been marked as "ID".” (ii) Amalcon Engeneering Sdn Bhd v Saw Chong Teok Quarry Sdn Bhd [2010] MLJU 522, di mana Mahkamah memutuskan: “In addition to that, there are also other documents in the form of invoices and receipts tending to support the defendant's claim that the final completion and successful commissioning was April 1996. Exhibits 1D D40, 1D D42, 1D D44, 1D D43, and 1D D45 are receipts and invoices produced by the defendant related to the motor and cone crushers. These are receipts relating to expenses incurred by the defendant bearing April 1996 dates. These documents give an indication that as at April 1996 expenses relating to the cone crushers and the generator to run the extended plant were expended by the defendant. This is above and over the oral testimonies of DW1 and DW2. These documents although they are only marked as ID exhibits, does not stop the court from deciding on their admissibility at the end of the trial. The court is given wide discretionary powers under sections 73A(2), sections 73A(5), sections 73A(6) of the Evidence Act 1950. It would be against commercial realities to hold otherwise. In my view these documents were made contemporaneously with the occurrence or existence of the facts stated therein. In so admitting, the court had considered all the circumstances from which inferences can reasonably be made as to the accuracy or otherwise of the statement or facts stated therein. (See:Kubota Agricultural Machinery Sdn. Bhd. v. Sharizan Sdn. Bhd & Ors. (Third Parties) (2001) 6 CLJ 104, Chin Hooi Nan v. Comprehensive Auto Restoration Service Sdn. Bhd. & Anor (1995) 1 BLJ 25, Bank of Tokyo - Mitsubishi (Malaysia) Bhd. v. Sim Lim Holdings Bhd. & Ors. (2001) 2 CLJ 474).” (iii) Di dalam kes RNS Oil And Gas Sdn Bhd V. Norhayati Ahmad Kamal [2016] 1 LNS 1113, Mahkamah berpendapat bahawa: “1) Whether reliance on documents marked as "ID" in allowing the counterclaim erroneous [26] The appellant asserted that out of the sum of RM284,396.98 granted to the respondent in her counter-claim, ...were erroneously based on receipts for the respective payments which however were marked only as "ID". Specifically, these are IDD25 and IDD16, respectively. [27] I cannot agree more with the contention of the appellant that documents marked as "ID", which IDD25 and IDD16 manifestly are, possessing merely the status of 'identification document', as a general rule, inadmissible in evidence. This is already settled law. It is totally congruent with the Evidence Act 1950. The reference by the appellant to a number of case-law authorities which give effect to this principle of evidential law is not disputed. I need only refer to the case of Joseph Thambirajah v. Bank Buruh (M) Bhd [2008] 2 MLJ 773,........... [28] However, a careful review of the grounds of decision of the Sessions Court will readily show that the trial judge did not merely refer to the invoice issued by Oridiant Sdn Bhd in IDD25 as the basis of the finding that awarded RM109,246.50 in respect of the alleged payment made by the respondent to Oridiant Sdn Bhd. Reliance was more crucially placed on exhibit D26 which was a copy of a page from the savings account book of the respondent which showed a debit entry or a transfer-out of the exact amount of RM109,246.50. [29] Counsel for the appellant did in the cross examination of the respondent asked whether the latter had other documents to prove her payment of the amount to Oridiant Sdn Bhd - to which she answered in the negative, since the mode of payment was said to be telegraphic direct transfer as stated in D26 itself. But it is in any event entirely defensible and certainly proper for the trial court to have exercised its discretion in making a finding on the basis of the totality of evidence, including the testimony of the respondent and especially D26, that such payment to Oridiant Sdn Bhd had indeed been undertaken by the respondent, and done for the benefit of the appellant. [30] In respect of the award for the payment of RM56,000.00 to Cofoma Sdn Bhd, it is true that in support of this finding, the Sessions Court referred to IDD16, being two official receipts, dated 28 May 2013 and 25 June 2013 each for the amount of RM28,000.00 and thus stated to be the full and final settlement of the rental owing in the exact amount of RM56,000.00. But the Court also considered the letter from Cofoma Sdn Bhd dated 24 June 2013 in IDD14 which confirmed that the debt from the appellant had been fully settled and the winding up petition against the appellant withdrawn as a result. More pertinently, even though this letter was also not converted to a trial exhibit, the Court has the discretion, and certainly the power under the Evidence Act 1950, considering the circumstances of the case, including the testimony of the respondent, to nevertheless accept the evidence of "ID"- marked documents, like was done in the instant case. [31] The grounds of the decision of the Sessions Court on this issue was clear in the analysis of the relevance of IDD14 and IDD16. The Sessions Court acknowledged that these were "ID" documents (since the makers were not called) but accepted the same, also because of the finding that the appellant had failed to produce any documents that could instead show the reverse - that such payment was made to Cofoma Sdn Bhd by the appellant itself. The crux of the respondent's case is that Rosini from the appellant requested that the respondent makes payment to Cofoma Sdn Bhd to avoid the winding up of the appellant. ....even though the receipts were addressed in the name of the appellant since the debt was owing from the appellant. Despite denying the respondent having made payment, and claiming instead having possession of the receipt of full payment, Rosini, as PW1 could not however, during cross-examination, produce the same. [32] This approach is supported by case law authorities. As correctly submitted by the respondent, in Bank of Tokyo-Mitsubishi (Malaysia) Bhd v. Sim Lim Holdings Bhd & Ors [2001] 2 CLJ 474, it was instructively stated by Ramly Ali JC (now FCJ) as follows..... [33] A similar position was upheld in the case of Kubota Agricultural Machinery Sdn Bhd v. Sharizan Sdn Bhd & Anor; Sharizan Sdn Bhd & Ors (Third Parties) [2001] 6 CLJ 104. [34] Accordingly, the trial court's reliance on among others, in addition to other evidence such as the testimony of witnesses, IDD14 and IDD16 to arrive at the finding that the respondent had shown that she had paid the said amount of RM56,000.00 to Cofoma Sdn Bhd on behalf of the appellant is neither unsupportable nor objectionable under the law.” [44] Berlandaskan alasan-alasan di atas, saya memutuskan bahawa ID4, ID5, ID6 dan ID16 boleh diterima sebagai keterangan di Mahkamah dan dengan ini ID4, ID5, ID6 dan ID16 di tandakan sebagai eksibit P4, P5, P6 dan P16. Berdasarkan keterangan SP2 yang konsisten dan disokong oleh bukti-bukti dokumentar, antara lainnya, P1, P2, P7, P8, P10, P4, P5, P6 dan P16, maka saya memutuskan bahawa plaintif telah berjaya membuktikan bahawa kereta tersebut telah dicuri ketika dibawah jagaan dan kawalan defendan. [45] Selanjutnya, saya perlu memutuskan sama ada defendan berjaya membuktikan bahawa kereta tersebut hilang bukan disebabkan oleh kecuaian/kesalahan yang dilakukan oleh defendan atau pekerjanya. Untuk membuktikan bahawa tiada sebarang kecuaian atau kesalahan yang dilakukan oleh defendan atau pekerjanya, pihak defendan menghujahkan bahawa car park system yang dijalankan oleh defendan adalah bersesuaian dengan tujuan perkhidmatan yang disediakan olehnya. Sistem palang automatik juga adalah bersesuaian dan ia akan memastikan kenderaan telah keluar sepenuhnya sebelum palang automatik turun sepenuhnya. Dalam perkara ini, saya mendapati pihak defendan bersetuju bahawa, (ketika kejadian berlaku) pemandu kereta Nissan Almera telah memasukkan tiket yang baru diambil dan memasukkannya ke dalam mesin manakala kereta plaintif tersebut (yang dipandu pencuri) mengekori kereta Nissan Almera secara rapat tanpa perlu pemandunya memasukkan tiket ke dalam mesin. Palang tidak turun untuk menghalang kereta tersebut keluar. Ini menunjukkan bahawa terdapat kelemahan dalam sistem palang automatik tersebut. Ia juga menunjukkan bahawa sistem palang automatik tersebut tidak dapat menghalang kecurian kereta sekiranya kereta yang dicuri dipandu rapat dengan kereta yang berada di hadapannya. Kelemahan ini diakui sendiri oleh saksi defendan SD2 ketika pemeriksaan balas. Berikut diturunkan keterangan yang berkaitan dengan kelemahan tersebut: “4. Q: Refer to question 5, which you answer basically, the purpose of Safety loops, is to ensure that the barrier don’t drop into the car. So, it is actually to prevent the damage of car, so do you agree that the safety loops got nothing to do with the security to prevent theft? A: Yes. 5. Q: Can I refer you to the picture. Page 16 of the bundle B1, refer to your answer in the question 4, you said: “When a car insert a valid ticket to the ticket machine and the ticket is verified, the ticket machine will send an open gate signal to lift up the barrier”. Let say if the car behind was tailgating very close so the barrier won’t close. Do you agree or not, that basically the safety loops only for the purpose of ensuring the security if the car get through the barrier? A: What I understand, actually this safety loop is for safety and security purpose to avoid hitting the car. 6. Q: I put to it you again that basically the safety loop is actually cannot prevent any sought of theft situation happening in the exit entrance. Am I right? A: Yes.” [46] Berdasarkan keterangan SD2 tersebut, adalah jelas bahawa defendan mengakui bahawa sistem palang automatik tersebut mempunyai kelemahan iaitu ia tidak dapat menghalang kecurian kereta sekiranya modus operandi yang digunakan oleh pencuri tersebut digunakan. Sepatutnya, defendan mengatasi kelemahan tersebut dengan menugaskan seorang pengawal keselamatan di setiap laluan keluar untuk memastikan setiap kenderaan yang keluar mempunyai tiket berbayar yang sah dan menahan sebarang kenderaan yang mencurigakan di laluan keluar. [47] Tidak dinafikan bahawa defendan mempunyai sistem keselamatan seperti kawalan dan pemantauan oleh pengawal keselamatan dan pemasangan CCTV di setiap tingkat tempat letak kereta tersebut. Berdasarkan keterangan saksi SD1, tempat letak kereta tersebut di kawal oleh 4 orang ‘patrol guards’ dan SD2 pula menerangakan bahawa premis parkir tersebut dipasang dengan 68 CCTV. Tempat letak kereta tersebut juga mempunyai bilik kawalan yang memantau setiap rakaman CCTV tersebut. Namun isunya di sini, adakah kehilangan tersebut disebabkan oleh kecuaian defendan. Sekali lagi saya memetik panduan yang diberikan oleh Mahkamah Persekutuan iaitu: “The fact that the appellants had devised a good system did not render them any the less liable if it was not shown that the loss of the goods arose otherwise than through their negligence.” (Rujuk Port Swettenham Authority v. TW Wu and Co (M) Sdn Bhd [supra]). [48] Saya merujuk kepada keterangan SD2, beliau menerangkan bahawa terdapat seorang pengawal keselamatan yang berada di dalam bilik kawalan untuk memantau CCTV. Namun begitu, beliau tidak dapat menjelaskan siapa yang berada di dalam bilik kawalan tersebut dan beliau juga tidak dapat mengemukakan sebarang bukti bahawa CCTV telah dipantau sepanjang masa. Pihak defendan juga tidak memanggil pegawal keselamatan yang bertugas untuk mengesahkan kehadirannya di dalam bilik kawalan pada masa material. Sekiranya pengawal keselamatan meneliti rakaman CCTV berkaitan dengan kecurian tersebut (rakaman kereta tersebut melalui penghadang automatik), pasti beliau akan menyedari kereta tersebut keluar tanpa tiket dan ia akan menimbulkan curiga bahawa setu kesalahan jenayah telah dilakukan. Seterusnya, beliau akan bertindak segera untuk menghalang kejadian jenayah tersebut daripada berlaku. Paling tidak pun, beliau boleh menyalurkan maklumat tersebut kepada pengawal keselamatan yang lain atau anggota polis untuk mengambil tindakan yang segera dan munasabah. Oleh yang demikian, saya berpendapat kegagalan pengawal keselamatan memantau rakaman CCTV di bilik kawalan tersebut merupakan satu kecuaian. [49] Berdasarkan keterangan-keterangan yang dikemukakan di Mahkamah ini, secara ringkasnya, saya berpendapat bahawa perkara-perkara berikut merupakan kecuaian yang dilakukan oleh pihak defendan: (i) Gagal menyediakan sistem penghadang automatik yang berkesan dan baik. Sistem keluar-masuk kereta di Parkir tersebut tidak menghalang orang yang tidak membayar/memasukkan tiket parkir untuk keluar. Keadaan ini memudahkan kereta yang ditempatkan di tempat letak kereta tersebut untuk dibawa keluar tanpa izin dengan tiada halangan. Di dalam kes ini, Kereta Plaintif tersebut telah dibawa keluar tanpa halangan walaupun tiada tiket dan tiada bayaran untuk tiket dibuat. (ii) Gagal menempatkan pengawal keselamatan di laluan keluar / laluan auto gate sedangkan defendan mengakui kelemahan berkaitan sistem palang automatik yang gagal menghalang kenderaan yang dicuri sekiranya ia dipandu secara rapat dengan kereta depan. (iii) Gagal menempatkan pengawal keselamatan di bilik kawalan yang bertugas untuk memantau CCTV, supaya dapat memastikan dan memantau kejadian/tindakan mencurigakan (dalam kes ini kejadian dua kereta dipandu rapat di laluan keluar dan melepasi palang automatik dengan menggunakan satu tiket) dan seterusnya bertindak dengan segera untuk menghalang kecurian daripada berlaku. Isu (3): Sama ada klausa pengecualian terpakai di dalam kes ini dan sama ada klausa pengecualian tersebut menyalahi atau melanggar Akta Perlindungan Pengguna 1999? [50] Dalam isu ini, peguam defendan menghujahkan bahawa gabungan perkataan “however caused” digunakan dalam klausa pengecualian tersebut membawa makna yang luas dan ia melindungi defendan daripada sebarang tanggungan akibat kecuaian. Peguam defendan mengemukakan kes Premier Hotel Sdn Bhd v Tang Ling Seng [1995] 4 MLJ 229 untuk menyokong hujahannya. [51] Peguam defendan juga menghujahkan bahawa bukan sahaja papan tanda yang mengandungi klausa pengecualian dipamerkan di laluan masuk bersebelahan mesin tiket, bahkan papan tanda tersebut berwarna kuning cerah yang boleh menarik perhatian pemandu kenderaan yang melaluinya. Oleh yang demikian, tindakan defendan tersebut adalah memadai untuk membawa klausa pengecualian tersebut ke perhatian dan pengetahuan para pemandu kenderaan yang menggunakan premis parkir tersebut selaras dengan dapatan kes Thornton v Shoe Lane Parking Ltd [1971] All ER 686. [52] Peguam defendan selanjutnya berhujah bahawa klausa pengecualian tersebut tidak menyalahi Akta Perlindungan Pengguna 1999 kerana klausa pengecualian mematuhi ‘reasonable standard of fair dealing selaras dengan seksyen 24C(2)(c) akta tersebut. Klausa pengecualian tersebut juga tidak bertentangan dengan sesyen 24D(2) (e) dan 24D(2)(f) akta tersebut. Tambahan pula, kontrak telah dimasuki antara Hemici dan defendan. Oleh itu berdasarkan prinsip privity of contract maka hanya Hemici yang boleh memberikan keterangan sama ada klausa tersebut adil dan munasabah atau sebaliknya. [53] Peguam plaintif pula berhujah bahawa Klausa tersebut tidak terpakai kerana ia tidak dibawa dengan khususnya kepada perhatian penyewa tersebut ataupun mana-mana pengguna tempat letak kereta. Undang-undang adalah jelas bahawa mana-mana Klausa Pengecualian Liabiliti hendaklah dibawa kepada perhatian seorang pengguna sebelum ia efektif sebagai suatu terma kontrak sebagaimana yang diputuskan di dalam kes Interfoto Picture Library Ltd v Stiletto Visual Programmes Ltd [1989] QB 433. [54] Peguam plaintif selanjutnya menyatakan bahawa sekalipun jika Klausa Pengecualian Liabiliti tersebut terpakai, undang-undang masih menuntut untuk Defendan membuktikan bahawa ia tidak cuai dan gantirugi yang dituntut bukan disebabkan oleh kecuaian Defendan. Prinsip ini diterangkan di dalam kes Chin Hooi Nan v Comprehensive Auto Restoration Service Sdn Bhd [1995] 2 MLJ 100. [55] Mengenai isu (3) ini, peguam plaintif dan peguam defendan masing-masingnya mengemukakan hujahan mengenai isu notis, isu susunan ayat di dalam klausa pengecualian tersebut dan juga isu sama ada klausa pengecualian tersebut bertentangan dengan Akta Perlindungan Pengguna 1999. Walau bagaimanapun, saya memutuskan isu (3) ini berdasarkan keputusan-keputusan kes yang telah dibuat oleh Mahkamah Malaysia. [56] Dalam perkara ini , saya akur dengan keputusan Siti Norma Yaakob J, di dalam kes Chin Hooi Nan v. Comprehensive Auto Restoration Service Sdn Bhd & Anor (supra). Di dalam kes ini perayu (plaintif) telah menghantar keretanya ke syarikat responden (defendan) untuk membolehkan keretanya digilap dengan penggilap berlilin atas bayaran sebanyak RM295.00. Beliau telah meninggalkan keretanya di premis responden di tingkat bawah tanah Kompleks Sungai Wang Plaza dan diberi suatu resit untuk menuntut kereta itu. Apabila perayu kembali untuk mengambil keretanya daripada responden, beliau mendapati bahawa kereta itu telah mengalami kerosakan semasa dipandu oleh seorang pekerja responden kedua (defendan kedua). Perayu telah mendakwa responden untuk kos membaiki kereta itu berjumlah RM3,630.85; kos menyewa sebuah kereta lain selama satu bulan berjumlah RM1,790.00; susut nilai kereta itu sebanyak 25% berjumlah RM9,128.81; dan kos menggaji seorang penyelaras kerugian bebas berjumlah RM169. Guaman itu telah ditolak dengan kos selepas suatu perbicaraan penuh di mahkamah majistret atas dasar bahawa fasal pengecualian di belakang resit itu yang menyatakan “The company is not liable for any loss or damage whatsoever of or to the vehicle, its accessories or contents. Vehicle and goods are at owner's risk”, telah melepaskan responden daripada liabiliti. Perayu seterusnya telah membuat rayuan terhadap keputusan tersebut. Mahkamah tinggi kemudiannya memutuskan: “Before me the issue is whether such an exemption clause can absolve the respondents from any blame for the damages caused to the car. The law on this is quite settled in that an exemption clause however wide and general does not exonerate the respondents from the burden of proving that the damages caused to the car were not due to their negligence and misconduct. They must show that they had exercised due diligence and care in the handling of the car. Sze Hai Tong Bank Ltd v Rambler Cycle Co Ltd [1959] X MLJ 200, and Port Swettenham Authority v TW Wu & Co (M) Sdn Bhd [1978] 2 MLJ 137, are authorities for this proposition of the law. In this instance, the respondents had not adduced any evidence that they had exercised due care and diligence when handling the appellant's car. On the contrary, there is ample evidence to show that the respondents had been negligent when one of their employees had involved the car in an accident when he, the employee, was driving it to a different floor of the basement car park. On this conclusion, the appeal must be allowed.” [57] Dalam memutuskan sama ada klausa pengecualian tersebut dapat melindungi defendan, saya juga berpandukan kepada kes ML Breadworks Sdn Bhd v. Malayan Banking Bhd [2013] 1 CLJ 833. Di dalam kes ini, dalam mentafsirkan klausa 6.3, Mahkamah Rayuan memutuskan seperti yang berikut: “[87] Clause 6.1 is a general indemnity clause which seeks to exonerate the defendant entirely. In like manner, cl. 6.3 seeks to limit the defendant's total liability under the terms and conditions to nothing more than RM500 for all claims. …………. [89] Even if I am incorrect in so concluding, the defendant ought not to be allowed to rely on the conclusive evidence clause as the bank was negligent in accepting the signature of the accountant as an authorised signatory, as well as failing to check with either authorised personnel or an authorised signatory before paying out on the subject cheque. Even if the forged signature was difficult to ascertain upon examination, the fact that the further oral check by DW5 was done with persons who were neither the authorised personnel to verify the validity of the cheque, nor the authorised signatories, shows that the defendant did not exercise sufficient or adequate care in making or honouring the payment. This is a further reason for concluding that the defendant ought not to be allowed to rely on the exclusion or limitation clauses specified. For these reasons I conclude that these clauses do not exclude or limit the defendant's liability.” [58] Berdasarkan kedua-dua kes di atas, adalah menjadi undang-undang yang mantap bahawa sesuatu fasal pengecualian walau bagaimana luas dan am, tidak melepaskan defendan daripada beban untuk membuktikan bahawa kerosakan atau kehilangan yang diakibatkan oleh defendan bukan disebabkan oleh kecuaian atau salah laku mereka. Di dalam kes di hadapan Mahkamah ini, adalah jelas bahawa terdapat bukti yang lebih daripada cukup untuk menunjukkan bahawa defendan telah cuai dan menyebabkan kehilangan kereta plaintif tersebut. Kesimpulan [59] Berdasarkan alasan-alasan tersebut di atas saya dapati atas imbangan kebarangkalian, plaintif telah berjaya membuktikan kesnya terhadap defendan. Oleh itu tuntutan plaintif dibenarkan seperti berikut: (a) Jumlah ganti rugi sebanyak RM117, 215.80 (b) Faedah ke atas jumlah ganti rugi pada kadar 5% setahun bermula dari tarikh writ sehingga tarikh penyelesaian penuh; dan (c) kos tindakan sebagaimana skala kos. (IZRALIZAM BIN SANUSI) Hakim Mahkamah Sesyen Shah Alam Bertarikh: 25.9.2017 Peguamcara Plaintif: Encik Fahri Azzat Tetuan Fahri & Co 15-2, Jalan PJU 7/16A Mutiara Damansara 47800 Petaling Jaya SELANGOR Peguamcara Defendan: Encik Mah Mun Yan Tetuan Gan Patrnership D-32-02, Menara Suezcap 1, KL Gateway No.2 Jalan Kerinchi Gerbang Kerinchi Lestari 59200 KUALA LUMPUR 42	61,786	Tika 2.6.0
12AC-23-09/2016	PLAINTIF Malairaju a/l Ramasamy Velar DEFENDAN Malayan Saiva Sidthanta Sangam & Anor	Striking out application - whether the 1st Plaintiff has no authority to bring this action on its own behalf or on behalf of and in the name of the 2nd Plaintiff as this issue has been decided by two previous High Court cases and that res jusdicata applies - whether the solicitors Messrs Rathi MG Associates have no authority to act for the 2nd Plaintiff - Rules of Court 2012, Order 18 rule 19 (1); Order 14 rule 7(4); Contracts Act [Act 136], section 24.	21/09/2017	YA DATO' LEE SWEE SENG	https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=eba8105a-1e2f-421b-a16c-6200352668e6&Inline=true	1 IN THE HIGH COURT OF MALAYA AT KUALA LUMPUR IN THE FEDERAL TERRITORY OF WILAYAH PERSEKUTUAN, MALAYSIA (CIVIL DIVISION) CIVIL APPEAL NO: 12AC-23-09/2016 BETWEEN MALAIRAJU A/L RAMASAMY VELAR - APPELLANT AND 1. MALAYAN SAIVA SIDTHANTA SANGAM (COMPANY NO. 590-U) 2. THE BOARD OF TRUSTEES OF THE AHTHI-EESWARAN TEMPLE - RESPONDENTS IN THE SESSION COURT AT KUALA LUMPUR IN THE FEDERAL TERRITORY OF WILAYAH PERSEKUTUAN, MALAYSIA CIVIL SUIT NO: WA-B52C-50-05/2016 BETWEEN 1. MALAYAN SAIVA SIDTHANTA SANGAM (COMPANY NO. 590-U) 2. THE BOARD OF TRUSTEES OF THE AHTHI-EESWARAN TEMPLE - PLAINTIFFS 2 And MALAIRAJU A/L RAMASAMY VELAR - DEFENDANT THE JUDGMENT OF Y.A. LEE SWEE SENG [1] On the surface this is an action brought by the 1st and 2nd Plaintiffs in the Sessions Court to restrain the Defendant from carrying on renovation works in a temple. On closer scrutiny of the surrounding circumstances of the case, this is the continuing saga of control over the temple that has been simmering for the past 20 years and the schism driven deeper with the disputes coming before the courts in at least recent 2 cases. [2] There is thus more than meets the eye in this seemingly simple case of a contractor having no authority to carry out renovation works at a temple. It is a collateral attack launched when 2 previous frontal onslaughts have failed in recent times in 2012 and 2015. [3] This Court shall try to set out once again what 2 previous High Courts have unravelled in a dispute that would not go away. 3 Parties [4] The 1st Plaintiff in the Sessions Court is the Malayan Saiva Sidthanta Sangam (“Malayan Sangam”). It is a company limited by guarantee. In Malaysia it is not uncommon for a charitable and religious body to be so registered for a not for profit purpose. [5] The Malayan Sangam was incorporated to manage and control the Ahthi-Eeswaran Temple (“the Temple”) which was erected in Sentul in 1937. [6] The 2nd Plaintiff is the alleged Board of Trustees of the Temple. I had used this term “alleged” because there is the question as to whether the solicitors Messrs Rathi MG Associates has the proper authority to commence this suit in the name of The Board of Trustees of the Temple. [7] The solicitors acting for The Board of Trustees of the Temple has intervened in the proceedings in the Sessions Court to strike out the Plaintiffs’ suit. [8] The Board of Trustees of the Temple was incorporated by a Selangor Enactment pursuant to the resolutions passed by the founders of the Temple at the AGM and EGM of the Malayan Sangam in 1939. The relevant statute is the Selangor State Enactment No.8 of 1941 (“the 4 Enactment”). By the terms of the Enactment the lands belonging to the Malayan Sangam and the management and control of the Temple became vested in The Board of Trustees of the Temple. [9] The Defendant is a contractor appointed by The Board of Trustees of the Temple to carry out certain renovation works of the Temple. Pleadings [10] The Malayan Sangam as the 1st Plaintiff in the Sessions Court below had commenced this action using the name of The Board of Trustees of the Temple as the 2nd Defendant in claiming that they had not appointed the Defendant as contractor and that the Defendant was trespassing on the Temple. [11] The 2nd Plaintiff pleaded that it did not sign the purported Agreement dated 22.1.2016 appointing the Defendant as contractor and that the said Agreement is tainted with fraud and illegality. [12] The Plaintiffs also pleaded that the purported Agreement is in breach of the Building (Federal Territory of Kuala Lumpur) By-Laws 1985 as no approval for the renovation/alteration has been obtained from Dewan Bandaraya Kuala Lumpur (“DBKL”). [13] The Plaintiffs further stated that their actions were constrained by the fact that DBKL had investigated the matter and issued reminders 5 to the Plaintiffs to submit the relevant plans for approval before commencing any renovation works on the Temple. They maintained that only they could sign the plans as they are the registered owners of the Temple land. [14] They argued that there would be the sanction of fines imposed if nothing is done with respect to restraining the Defendant further from trespassing and continuing with the renovation. [15] The Defendant’s stand and Defence is that he was appointed by The Board of Trustees of the Temple to carry our works at the Temple through the Agreement dated 22.1.2016. Prayers [16] The Defendant applied by way of a Notice of Application dated 15.7.2016 for an order that the Writ of Summons and Statement of Claim dated 25.5.2016 be struck out pursuant to Order 18 Rule 19(1) (b), (c) and (d) Rules of Court 2012 (“ROC 2012”) in that: (b) is scandalous, frivolous or vexatious and/or (c) it may prejudice, embarrass or delay the fair trial of the action and/or (d) it is otherwise an abuse of the process of the Court 6 [17] The chief reason is that the 1st Plaintiff has no authority to bring this action on its own behalf or in the name of and on behalf of the 2nd Plaintiff as the land on which the Temple stands and the management and control of the Temple has been vested in the The Board of Trustees by virtue of the Enactment and that the Board of Trustees has not authorized Messrs Rathi MG Associates to commence this action in the name of The Board of Trustees. [18] The learned Sessions Court Judge dismissed the Application with costs in the cause on 2.9.2016. Against that decision the Defendant/Appellant had appealed to this Court. [19] The parties shall be referred to as Plaintiffs and Defendant as they were so referred in the Sessions Court. The 1st and 2nd Plaintiffs shall at times be referred to as the Malayan Sangam and the alleged Board of Trustees of the Temple respectively where appropriate in the context of the judgment below. [20] The Board of Trustees of the Temple, aggrieved by the action of the unauthorized use of its name to commence this action, had also been allowed leave by the Sessions Court to intervene in the proceedings below after the Sessions Court had dismissed the said application to strike out the Writ and Statement of Claim. The Intervener 7 Board of Trustees had also applied to strike out the action in the Sessions Court. [21] I had allowed the Intervener Board of Trustees of the Temple to appear in this hearing of the appeal as a friend of the Court. Principles [22] The law relating to striking out under an O 18 r 19(1) ROC 2012 is summarized succinctly in the case of Bandar Builder Sdn Bhd & Ors v United Malayan Banking Corporation Bhd [1993] 3 MLJ 36 by the Supreme Court as follows in the headnotes: “(1) The principles upon which the Court acts in exercising its power under any of the four limbs of O18 r 19 of the Rules of the High Court 1980 are well settled. It is only in plain and obvious cases that recourse should be had to the summary process under this rule and the summary procedure can only be adopted when it can clearly be seen that a claim or answer is on the face of it ‘obviously unsustainable’. It cannot be exercised by a minute examination of the documents and facts of the case in order to see whether the party has a cause of action or a defence.” 8 [23] I bear in mind too the caution issued in Seruan Gemilang Makmur Sdn Bhd v Kerajaan Negeri Pahang Darul Makmur & Anor [2016] 3 MLJ 1, where the Federal Court held: “(3) ... However, whether the said evidence could or could not be obtained with reasonable diligence, whether it would have an important influence on the result of the trial, and whether it was presumably to be believed, were purely questions of facts which could only be determined at full trial where witnesses could be called to testify but not by way of affidavits evidence at the stage of summary proceedings of striking out under O 18 r 19 of the ROC as applied for by the appellant ...” Whether the 1st Plaintiff has no authority to bring this action on its own behalf or on behalf of and in the name of the 2nd Plaintiff as this issue has been decided by 2 previous High Court cases and that res jusdicata applies. [24] Learned counsel for the Malayan Sangam, Miss Rathimalar of Messrs Rathi MG Associates, cannot but be aware of what had already been decided in 2 previous Kuala Lumpur High Courts’ decisions in OS No. 24NCVC-1991-07/2012 (“the 2012 OS”) and in Civil Suit No. 22NCVC-378-07/2015 (“the 2015 Suit”). She, herself appeared as 9 counsel in those 2 cases and the solicitors were also Messrs Rathi MG Associates. The 2012 OS was decided by Justice John O’Hara and the 2015 Suit by Justice Nantha Balan. [25] The Plaintiff in the 2012 OS was The Board of Trustees of the Temple and the Defendants were the Malayan Sangam and 3 individuals including one Rasamalar a/p Gnanasundram who was the 3rd Defendant there and the person who has affirmed all the affidavits in this Sessions Court action and holding herself out as a Board member and chairman of the Malayan Sangam and President of The Board of Trustees of the Temple. [26] The Board of Trustees of the Temple as the Plaintiff there had sought the determination of the High Court in the 2012 OS on the following question: 1. Whether the Plaintiff, pursuant to the State of Selangor Enactment No. 8 of 1941 is entitled to the ownership and management of the Hindu Temple known as the Ahthi- Eeswaran Temple with an address at Lorong Timur, Off Jalan Sentul, 51000 Kuala Lumpur. [27] The determination and related reliefs were sought then because the Malayan Sangam in breach of the Enactment, began asserting 10 management and control of the Temple. The directors of the Malayan Sangam had taken upon themselves to change the locks of the Temple office and interfered with the day to day management and control of the Temple. [28] The High Court ruled in favour of the Plaintiff, The Board Trustees of the Temple, and answered the question for determination in the affirmative and further granted an order in terms of the reliefs prayed for including prayers (i), (ii), (iii) and (iv) of the 2012 OS as follows: i) A declaration that the Plaintiff is the lawful body responsible for the ownership, management and maintenance of the Temple; ii) An injunction restraining the Defendants from holding themselves out to the public as the lawful body responsible for the ownership, management and maintenance of the Temple; iii) An injunction restraining the Defendants from trespassing on the part of the Temple specifically reserved for the Plaintiff as the owners of the said Temple subject to the rights of the 1st Defendant as enshrined in section 7(iii) of the Enactment; iv) An injunction restraining the Defendants from Managing and/or using the assets, finances and other property of the Temple. 11 [29] The High Court further granted damages of RM1,000.00 to be paid individually by the 2nd, 3rd and 4th Defendants. The said Defendants were also ordered jointly to pay costs of RM10,000.00. There was further a penal endorsement under Order 45 rule 7(4) of the ROC 2012 against the Malayan Sangam and the Defendants there including Rasamalar a/p Gnansundram. [30] It was further argued by learned counsel Miss Rathimalar of Messrs Rathi MG Associates, who also appeared for the Defendants there that The Board of Trustee of the Temple did not have the locus standi to commence the action because it was wrongly constituted in that the members of The Board of Trustees bringing the action were not the lawful members of The Board of Trustees. The Board of Trustees of the Temple who were the Plaintiff in the 2012 OS was represented by Mr Chetan Jethwani of Messrs Kumar Partnership who is also the counsel for The Board of Trustees of the Temple here. [31] In determining whether The Board of Trustees of the Temple had been properly constituted the High Court had traced the history of the composition of the Board of Trustees of the Temple from 1991 up to the time of delivery of the judgment on 22.1.2014. The High Court in the 2012 OS observed as follows: 12 “36. The Defendant also questions the locus standi of the Plaintiff to bring this action arguing that the Plaintiff is not validly constituted and as such has no locus to commence this action. This Court finds that this argument cannot be sustained. The Plaintiff, vide the Plaintiff’s Affidavit in Reply, has explained how the membership of the Plaintiff has changed over time since the filing of the 1990 Suit. In essence, from the time of the 1990 Suit, due to the resignation or death of certain manners, these member were then replaced, culminating in the present composition of the Plaintiff. The current membership of the Plaintiff has been communicated to the Attorney-General. In view of the finding in the High Court in the 1990 Suit as regards the composition of the Plaintiff and the 2009 Suit as to the rightful status and position of the Plaintiff, the Defendants’ argument that the Plaintiff has not been validly and constitutionally set up holds no water.” (emphasis added) [32] As alluded to in this 2012 OS, there were previously a 1990 Suit and a 2009 Suit on this matter. [33] The High Court in the 2012 OS had also held as follows: 13 “29. And it is the Court’s finding that since section 7(ii). [of the Enactment] provides that the property and assets of the 1st Defendant [Malayan Sangam] shall be deemed to have been lawfully transferred to and shall vest in the Plaintiff, the Plaintiff is therefore entitled to the relief claimed. For ease of reference section 7(ii) is reproduced and reads as follows: (ii) Upon the coming into force of this Enactment all the property and assets of the Malayan Shiva Sidthanta Sangam (a Company not for profit but limited by guarantee incorporated and registered in the Federated Malay States) shall be deemed to have been lawfully transferred to and shall vest in the Board together with all rights and interests of the said company in and over the Temple lands and the Temple and the Board shall thereupon become liable to pay all the debts then lawfully due from and owing by the said Company.” [34] Malayan Sangam had appealed to the Court of Appeal and after a full hearing on the merits, the Court of Appeal dismissed the appeal. [35] Hardly had the ink dried with respect to the decision of the 2012 OS delivered on 22.1.2014, Miss Rathimalar had on July 2015 launched another Civil Suit in the 2015 Suit purportedly on behalf of the Board of Trustees of the Temple as the 1st Plaintiff and the Malayan Sangam as 14 the 2nd Plaintiff and naming some 8 individuals as the Defendants including the persons held by the High Court in the 2012 OS as the lawful members of The Board of Trustees of the Temple i.e.: a) Prof. Emeritus Dato’ Dr N Visweswaran (President) (5th Defendant-D5); b) Mr. Nadasapilkay a/l V Kailasapillay (7th Defendant - D7); c) Mr. N. Ramachandran (6th Defendant-D6). [36] Again the Defendants applied to strike out the 2015 Suit predicated on the following grounds that: a) Messrs Rathi MG Associates were not authorized by the lawful Board of Trustees of the Temple to commence this action; b) The Malayan Sangam has no locus standi to commence this action and c) In all the circumstances, this Suit is a manifestation of an abuse of process. [37] The High Court in the 2015 Suit could not have been clearer where the issue of the proper party to bring an action with respect to matters of ownership, management and maintenance of the Temple is concerned. Justice Nantha Balan in his decision of 7.12.2015 categorically held as follows: 15 “57. In my view, the ruling by the Court in OS 1991 [corresponding to our 2012 OS] makes it crystal clear that the Board of Trustees of the Temple is the lawful body responsible for the ownership management and maintenance of the Temple and Sangam’s role is only limited to the extent as prescribed by section 7(iii) of the Enactment.” For the sake of interest and completeness section 7(iii) of the Enactment is reproduced below: “After this Enactment has come into force every member of the said Malayan Sangam Saiva Sidhanta Sangam who has paid or on whose behalf has been paid to the Board a subscription at the rate of one dollar a month shall, during the period to which such subscription relates and subject to such rules as may be lawfully made by the Board, be entitled to the use and enjoyment of the Temple and its amenities and the said Sangam shall, subject to the said rules, be given all reasonable accommodation and facilities necessary for the carrying on of their activities.” [38] As can be seen nothing turns on this innocuous provision and certainly nothing on the composition of The Board of Trustees of the Temple. 16 [39] The High Court in the 2015 Suit went on to conclude clearly and categorically as follows at paragraph 64 as follows: “64. …Further Sangam also lacks the requisite locus standi to file this suit for and on behalf of the Temple, as all such authority is only vested only with the lawful Board of Trustees of the Temple.” [40] There was no appeal against the decision in this 2015 Suit. [41] The concern that only the owner can sign the plans and full address of the owner has to be stated in the light of By-laws 7 of the Building (Federal Territory of Kuala Lumpur) By-Laws 1985 is misplaced. It reads: “7. Plans to be signed. All plans submitted shall be signed by the principal submitting person or submitting person and by the owner or his agent and shall bear the full address of the owner.” [42] As can be seen the plans may be signed by the owner or his agent. In the light of section 7(ii) of the Enactment whereby all the property and assets of the Malayan Sangam shall be deemed to have been lawfully transferred to The Board of Trustees of the Temple, it is the Board of Trustees of the Temple that is vested with the authority to sign all relevant plans and shall take all consequences that may arise from the non-submission. 17 [43] The Plaintiffs had pivoted their case on the premise that the Agreement engaging the Defendant as Contractor is illegal as there has been no prior approval of a renovation works by DBKL and no plans drawn up by a registered Architect has been submitted to DBKL. [44] The Plaintiffs submitted through their learned counsel that the purported Agreement is illegal under Section 24 Contracts Act 1950 and said that this Court must take notice of illegality once pleaded and not to strike out the claim. As support for the above proposition learned counsel referred to the case of Merong Mahawangsa Sdn Bhd & Anor v Dato’ Shazryl Eskay bin Abdullah [2015] 5 MLJ 619 where the Federal Court held as summarized in the head notes as follows: (1) The courts are bound at all stages to take notice of illegality, whether ex facie or which later appears, even though not pleaded, and to refuse to enforce the contract; China Road & Bridge Corp & Anor v DCX Technologies Sdn Bhd and another appeal [2014] 5 MLJ 1 referred (see para 35). (2) A contract may be good under s 2 of the Act but yet bad under s 24 of the Act. It is wrong in law to uphold an illegal contract from the aspect and on the basis of s 2 of the Act. Whenever the illegality of a contract is raised or become apparent, it is the duty of https://www.lexisnexis.com/my/legal/search/runRemoteLink.do?A=0.2609431503275058&bct=A&service=citation&risb=21_T24516597739&langcountry=MY&linkInfo=F%2523MY%2523MLJ%2523vol%25255%2525sel1%25252014%2525page%25251%2525year%25252014%2525sel2%25255%2525 https://www.lexisnexis.com/my/legal/search/runRemoteLink.do?A=0.2609431503275058&bct=A&service=citation&risb=21_T24516597739&langcountry=MY&linkInfo=F%2523MY%2523MLJ%2523vol%25255%2525sel1%25252014%2525page%25251%2525year%25252014%2525sel2%25255%2525 18 the court to take it up, by reference to s 24 of the Act (see para 69). [45] I do not doubt the above proposition for a moment but the context of that is where the party raising illegality is a party to the contract. Not so here where a stranger to the Agreement seeks reliefs from the Court. [46] Even if there is illegality here it is not for any busybody to bring this action but the body authorized by the said Enactment which is the lawful Board of Trustees of the Temple and not the Malayan Sangam that has the locus standi to commence the action. [47] This Court would not allow a matter that had been decided by a previous court with precision and finality to be regurgitated and re- litigated again ad nauseum when it has not been shown any material change of circumstance surrounding the same factual matrix. [48] To do so would be to encourage a litigant to continue to fan the flame of litigation hoping that it would succeed in a differently constituted panel and perchance to keep the issue alive even if it be by reframing it to make it not so obviously alike to the previous cases and so as not to offend the doctrine of res judicata. [49] This Court would of course look beyond the labels to the substance of the dispute and more so when the same solicitors and 19 counsel have been involved in the previous actions that had decided with precision and finality on the issue. [50] I need go no further than to refer to the dicta of the Court of Appeal in Hartecon JV Sdn. Bhd. & Anor v Hartela Contractors Ltd. [1997] 2 CLJ 104 where the Court states as follows at pages 113-114: “If authority is needed for the proposition which has commended itself to us, it is to be found in Government Of Malaysia v Dato Chong Kok Lim [1973] 2 MLJ 74 which was drawn to the attention of Counsel during argument and in which there appears the following passage in the judgment of Sharma J (at p. 76): In Satyadhyan Ghosel and others v Sint Deorajin Dobi Another AIR [1960] SC 941, the statement of the law on the subject is given thus: The principle of res judicata is based on the need of giving a finality to judicial decisions. What it says is that once a res is judicata, it shall be not adjudged again. Primarily it applies as between past litigation and future litigation. When a matter - whether on a question of fact or a question of law - has been decided between two parties in one suit or proceeding and the decision 20 is final, either because no appeal was taken to a higher Court or because the appeal was dismissed, or no appeal lies, neither party will be allowed in a future suit or proceeding between the same parties to canvass the matter again. This principle of res judicata is embodied in relation to suits in s. 11 of the Code of Civil Procedure; but even where s. 11 does not apply, the principle of res judicata has been applied by Courts for the purpose of achieving finality in litigation.The result of this is that the original Court as well as any higher Court must in any future litigation proceed on the basis that the previous decision was correct. The principle of res judicata applies also as between two stages in the same litigation to this extent that a Court, whether the trial Court or a higher Court having at an earlier stage decided a matter in one way will not allow the parties to re-agitate the matter again at a subsequent stage of the same proceedings. A decision given by a Court at one stage on a particular matter or issue is binding on it at a later stage in the same suit or in a subsequent suit. (See Peareth v Marriott [1883] 22 21 Ch. D. 182, Hook v Administrator-General of Bengal and Others LR 48 IA 187 and In the Matter of the Trusts of the Will of Tan Tye (Deceased) Yap Liang Neo v Tan Yew Ghee and Another [1936] MLJ 141, 147- 151). Parties cannot raise a second time in the same suit an issue that has already been determined either expressly or by necessary implication. (See Louis Dreyfus v. Aruna Chalayya LR 58 IA 381). ” (emphasis added) [51] To allow the 1st Plaintiff, Malayan Sangam to canvass the same issue again on its locus to bring an action on a matter relating to the ownership, management and maintenance of the Temple would be to allow the 1st Plaintiff to re-litigate the matter in blatant disregard of the principle of res judicata. Having lost the appeal to the Court of Appeal in the 2012 OS and having failed to appeal against the decision in 2015 Suit the 1st Plaintiff would have to accept that it has no locus to bring this action of an injunction against the Defendant contractor lawfully appointed by The Board of Trustees from carrying out the renovation works in the Temple. [52] The Plaintiffs have tried to position its claim on the basis that DBKL has directed the 1st Plaintiff to submit plans for its approval before any renovation, changes and additional works are done on the Temple. One does not expect DBKL to have a knowledge of the history of the 22 relationship between the still registered owner of the Temple land and the provision of section 7(ii) of the Enactment where the land and assets of the Malayan Sangam “shall be deemed to have been lawfully transferred to and shall vest in The Board of Trustees of the Temple together with all rights and interests of the Malayan Sangam in and over the Temple lands and the Temple and The Board of Trustees of the Temple shall thereupon become liable to pay all the debts then lawfully due from and owing by the Malayan Sangam.” [53] It is for the Malayan Sangam to bring this to the notice and attention of DBKL and not to take another opportunity to launch a further collateral attack on 2 recent previous judgments of the High Court in the 2012 OS and the 2015 Suit. [54] The Board of Trustees of the Temple through their counsel, Mr Chetan, had explained that the said DBKL’s letter was only a reminder that a registered Architect ought to be engaged to submit renovation plans and that at the moment the renovation has not reached the stage of additional works. [55] I am more than satisfied that to allow this suit to continue further in the Sessions Court would be to allow the 1st Plaintiff to abuse the process of the Court and that the suit by the 1st Plaintiff ought to be 23 struck out at this stage. In Malaysia Building Society Bhd v Tan Sri General Ungku Nazaruddin Ungku Mohamed [1998] 2 CLJ 340 at page 352 the Court of Appeal observed as follows: “Every person who is aggrieved by some wrong he considers done him is at liberty to invoke the process of the court. Equally may a litigant invoke the process to enforce some claim which he perceives he has against another. When however, the process of the court is invoked, not for the genuine purpose of obtaining the relief claimed, but for a collateral purpose, for example, to oppress the defendant, it becomes an abuse of process. Where the court's process is abused, the proceedings complained of may be stayed, or if it is too late to grant a stay, the party injured may bring an action based on the tort of collateral abuse of process.” (emphasis added) [56] Clearly while couching and crafting it as a action to avoid the sanction of DBKL to impose fines for commencing works without proper approval of plans, it was calculated to revive a fresh litigation on the locus to bring an action with respect to the ownership, management and maintenance of the Temple in the continuing saga of the strife of 2 factions for control of the Temple. 24 [57] This must stop or else the previous 2 recent judgments of the High Court would have been in vain! Whether the said solicitors for the Plaintiffs Messrs Rathi MG Associates have no authority to act for the Second Plaintiff [58] A challenge the authority of counsel or solicitors to act for a party may be brought at any stage of the proceedings and not necessarily by way of a formal application. [59] In the case of Syawal Enterprise Sdn. Bhd. & Anor. v Dayadiri Sdn. Bhd [1990] 3 CLJ Rep 165 at page 167 the High Court held as follows: “The lack of authority of the solicitors to act can be challenged at any stage of the proceedings - See Simmons v Liberal Opinion Ltd. [1911] 1 KB 966 followed in Re L.Y. Swee & Co. Ltd. [1968] 2 MLJ 104 at 107 and in Chin Kok Kwong Const. Sdn. Bhd. v Sunrise Towers Sdn. Bhd. [1986] 2 MLJ 41 at 42. The challenge having been made the burden of proving that the suit had been instituted with proper authority rests on the plaintiff company. See United Investment & Finance Ltd. v Tee Chin Yong & Ors. [1967] 1 MLJ 31 at 35”. 25 [60] In the application of the Defendant to strike out the Plaintiffs’ claim, the Defendant had exhibited in Exhibit M 2 at page 30 of the Appeal Record Volume 1 a letter from The Board of Trustees of the Temple addressed to the Defendant and signed by one Mr.K Nadasapillay as a member of The Board of Trustees of the Temple dated 9.7.2016 as follows: “We hereby confirm that we have engaged you to carry out refurbishment work at Ahthi-Eeswaran Temple. We have not engaged Messrs Rathi MG Associates or any other to act on our behalf on the above action. Our counsel is Kumar Partnership. It appears that the Plaintiff is an imposter claiming to be a trustee of the Ahthi-Eeswaran Temple.” [61] The caption of the said letter referred to the Sessions Court Suit number and the names of the parties. [62] The said Mr K Nadasapillay is one of the Trustees as so held by Justice John O’Hara in the 2012 OS at paragraphs 23 and 24 of the said judgment. [63] Perhaps the boldness of the said Trustee in castigating the act of the alleged Board of Trustees of the Temple as that of an imposter 26 stems from the fact that in the 2015 Suit Justice Nantha Balan had categorically held as follows: “51. The main question here is whether Messrs Rathi MG have been duly authorized by the lawful Board of Trustees of the Temple to initiate this suit. 52. The connected question that naturally arises is with regards to the composition of the Board of Trustees of the Temple and the question of the Sangam’s locus standi to file this action in respect of the affairs of the Temple. 53. The view that I have formed as regards the composition of the Board of Trustees of the Temple is that the lawful Board of Trustees of the Temple, is the Board of Trustees comprising of D5, D6 and D7 and two others namely Dato’ T Selvanthiranathan and K. Satkunabalan (who has since ceased to be a member). 54. In this regard, I am particularly mindful that the recognition of these persons as lawful members of The Board of Trustees of the Temple was granted by the High Court in OS 1991 [corresponding to our 2012 OS] which also granted injunctions against the Sangam (Second Plaintiff herein) and against Rasamalar 27 Gunasundram and Krishna Kumar Kumarakulasajan, whom the present Plaintiffs claim are part of the alleged Board. 55. In view of the Order dated 22 January 2014 in OS 1991 [corresponding to our 2012 OS], the arguments put forward by the present Plaintiffs inter alia that membership of the Sangam is a pre-requisite to membership of the Board of Trustees of the Temple or that the Sangam decides as to who sits on the Board of Trustees of the Temple or that the Board of Trustees of the Temple is regulated by the Sangam, are plainly untenable. 56. If, as the Plaintiffs contend, the Sangam is the appointing or regulating authority for the Board of Trustees, then surely the injunction order against the Sangam in OS 1991 [corresponding to our 2012 OS] contradicts that position.” (emphasis added). [64] D7 as stated earlier in the judgment is Mr K Nadasapillay who signed the said letter of The Board of Trustees of the Temple confirming for the Defendant that he was lawfully engaged to do the refurbishment works of the Temple. [65] Mr K Nadasapillay also signed as a Trustee, the Agreement between The Board of Trustees of the Temple and the Defendant as Contractor dated 22.1. 2016 exhibited as Exhibit M 3 in the Defendant’s 28 Affidavit in Support at pages 32-38 of the Appeal Record Volume 1. The other Trustee who signed the said Agreement is D5 referred to in the 2015 Suit. [66] Learned counsel for the Plaintiffs, Miss Rathimalar had argued that the existence of the signatories and witnesses at page 38, the signing page of Agreement, is suspicious. She further argued that the full name and their NRIC numbers are not disclosed and that these are issues for determination at trial. [67] With respect, I do not think so. The core of the complaint is not the doubt as to which Trustees had signed the Agreement appointing the Defendant. It is that the Malayan Sangam as the 1st Plaintiff had claimed that the following persons constituted The Board of Trustees of the Temple and are the lawful Trustees to authorize the filing of the 2015 Suit: (a) Rasamalar a/p Gnansundram, (b) Kulaveerasingam a/l Ayampillai, (c) Tan Sri Dr. Ampikaipakan S Kandiah and (d) Krishna Kumar a/l Kumarakulasingam. [68] Miss Rathimalar submitted that the 2nd Plaintiff had duly informed the Attorney General on 11.1.2016 that the members of The Board of 29 Trustees of the Temple are the four persons listed above. However that is a self serving document and in contradistinction to the decision of the High Court in the 2015 Suit on who constituted the Board of Trustees of the Temple. [69] Further the High Court in the 2012 OS had granted an injunction against Rasamalar a/p Gnansundram and Krishna Kumar a/l Kumarakulasingam who were the 3rd and 4th Defendants in the 2012 OS from holding themselves out to the public as lawfully responsible for the management and maintenance of the Temple. [70] The High Court in the 2015 Suit at paragraph 53 of the said judgment had held the following persons to be the lawful members of the Board of Trustees of the Temple: (a) Prof Emeritus Dato’ Dr. N Visweswaran (D5), (b) Dato’ T. Selventhiranathan; (c) Mr. Nadasapillay a/l V Kailasapillay (D7) and (d) Mr. N. Ramachandran (D6). [71] Miss Rathimalar submitted that a trial is necessary as the Agreement appointing the Defendant as Contractor by the Board of Trustees of the Temple is suspect. Surely if there were suspicious circumstances with respect to the appointment of the Defendant as 30 Contractor, one would have expected a police report to be lodged. A mere assertion of the Agreement being suspicious without more would not constrain this Court to allow the Suit to proceed to trial especially against the backdrop of issues that had been decided with precision and finality by the 2012 OS and 2015 Suit. [72] More specifically and seriously on the authority of counsel Miss Rathimalar of Messrs Rathi MG Associates to act for the lawful Board of Trustees of the Temple, Justice Nantha Balan’s censorious conclusion at paragraph 64 reads as follows: “64 In the result, the lawful Board of Trustees is the one which was recognized and validated by the Court by way of order dated 22 January 2014 in OS 1991 [corresponding to our 2012 OS]. As such, since the lawful Board of Trustees of the Temple have not authorised Messrs Rathi MG to file this action, I hold the firm of Messrs Rathi MG had no authority to file this suit on behalf of the Board of Trustees of the Temple…” (emphasis added) [73] The High Court in Suit 2015 struck out the Plaintiffs action and the bitter pill to swallow for Miss Rathimalar was that the High Court also ordered her to personally pay costs of RM3,500.00 to the Defendants there. I can appreciate the exasperation of learned counsel for lawful 31 Board of Trustees of the Temple, Mr Chetan Jethwani. I agree that the lawful Board of Trustees of the Temple is being undermined by the continuous, unceasing litigation wrought in its name by the 1st Plaintiff. The Board of Trustees of the Temple on whom is vested the ownership, management and maintenance of the Temple, is intent on carrying out renovation works. That cannot be frustrated by the 1st Plaintiff in a collateral attack in an action against the Defendant as Contractor. I am more than satisfied that the Defendant has been validly appointed by the lawful Board of a Trustee of the Temple. [74] The Defendant, as Contractor, was caught in between this tussle and conflict between 2 factions of the Temple. Fortunately the dust of the conflict has settled with the 2 recent actions in the 2012 OS and the 2015 Suit. To allow the same issues to be resuscitated and resurrected under the guise of a separate action against the Defendant as Contractor would be to allow the Plaintiffs and their solicitors and counsel to proceed with impunity against all known principles of res judicata. The bones of contention ought to be interned by the grounds of judgment in the 2012 OS and 2015 Suit and now with this judgment of the Court. [75] Indeed as pointed out by Mr Chetan, two of the persons whom the 1st Plaintiff claimed constitute the Board of Trustees of the Temple are 32 defendants in the 2012 OS and were specifically restrained by order of court from asserting management and control of the Temple, i.e. Miss Rasamalar Gnanasundram as the 3rd Defendant there and Mr Krishna Kumar Kumarakulasajan as the 4th Defendant. [76] What is more inexplicable is that the counsel and solicitors having conduct of this matter is also the counsel and solicitors who handled the 2012 OS and 2015 Suit. [77] There is thus no dispute as to the properly constituted Board of Trustees of the Temple that would necessitate a trial to determine. To allow that would be to allow the Plaintiffs to undermine the 2 previous judgments of the High Court. [78] There is also no doubt that Miss Rathimalar and the firm of Messrs Rathi MG Associates were not instructed by the properly constituted Board of Trustees of the Temple and thus she and the firm have no authority to act for The Board of Trustees of the Temple as the 2nd Plaintiff. Pronouncement [79] I would be similarly impelled to allow the striking out of the Suit of both the 1st Plaintiff the Malayan Sangam and that of the 2nd Plaintiff brought without the authority of The Board of Trustees of the Temple. 33 Therefore I had allowed the appeal of the Defendant as the Appellant here with costs of RM3,000.00 to be paid by the 1st Plaintiff to the Defendant and costs of RM5,000.00 to be paid by counsel Ms Rathimalar of Messrs Rathi MG Associates to the Defendant. [80] The deposit of appeal shall be refunded to Defendant/Appellant. [81] As a postscript this judgment was written after the Plaintiffs as Respondents in this appeal had applied for and obtained leave from the Court of Appeal to file appeal. Dated: 21 September 2017. - signed - LEE SWEE SENG Judge Construction Court High Court Kuala Lumpur For the Appellant : G. Suresh (Messrs G. Suresh Ayangar & Associates) For the Respondents : Rathimalar (Messrs Rathi MG Associates) 34 For Intervener : Chetan Jethwani (Messrs Kumar Partnership) Dates of Decision: 23 January 2017	40,701	Tika 2.6.0
NO.: W-01(NCVC)(W)-308-08/2016	PERAYU 1. KERAJAAN MALAYSIA 2. KEMENTERIAN PERDAGANGAN DALAM NEGERI KOPERASI DAN KEPENGGUNAAN ... PERAYU - 3. NORISAM BIN DAUD PERAYU RESPONDEN 1. THEN SEE NYUK ... RESPONDEN - 2. CHONG CHEE CHEONG RESPONDEN	Civil Procedure — Appeal — Search warrant — Whether disclosed no offence — Whether search warrant was legally issued — Whether Copyright Act afforded protection to the raiding officer who was also Assistant Controller — Whether, in determining the civil claim for loss and damages suffered by respondents, learned trial judge should go behind search warrant issued and questioned its legality or the manner in which it was obtained — Copyright Act 1987 [Act 332], section 41, section 44, section 57; Evidence Act 1950 [Act 56], section 114 (g)	20/09/2017	YA PUAN SRI DATO' ZALEHA BINTI YUSOFKorumYAA TUN TENGKU MAIMUN BINTI TUAN MATYA DATO' ABDUL RAHMAN BIN SEBLIYA PUAN SRI DATO' ZALEHA BINTI YUSOF	https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=8e277d7a-a1fa-4b6e-9295-efa339b701ce&Inline=true	1 DALAM MAHKAMAH RAYUAN MALAYSIA (BIDANG KUASA RAYUAN) RAYUAN SIVIL NO.: W-01(NCVC)(W)-308-08/2016 ANTARA 1. KERAJAAN MALAYSIA 2. KEMENTERIAN PERDAGANGAN DALAM NEGERI KOPERASI DAN KEPENGGUNAAN ….. PERAYU- 3. NORISAM BIN DAUD PERAYU DAN 1. THEN SEE NYUK ….. RESPONDEN- 2. CHONG CHEE CHEONG RESPONDEN [Mahkamah Tinggi Kuala Lumpur Guaman No. 21NCVC-41-07/2014 Antara 1. Then See Nyuk ….. Plaintif- 2. Chong Chee Cheong Plaintif Dan 1. Kerajaan Malaysia 2. Kementerian Perdagangan Dalam Negeri Koperasi Dan Kepenggunaan ….. Defendan- 3. Norisam Bin Daud Defendan] KORUM: Tengku Maimun binti Tuan Mat, HMR Abdul Rahman bin Sebli, HMR Zaleha binti Yusof, HMR 2 JUDGMENT [1] The first appellant in this appeal is the Government of Malaysia while the 2nd appellant is a Ministry of the 1st appellant charged with inter-alia the responsibility for intellectual property. Hence the Copyright Act 1987 (“the Copyright Act”) and its enforcement is within the purview of the 2nd appellant. The 3rd appellant is an Enforcement Assistant of the 2nd appellant. [2] The respondents are partners of an internet cafe called “Gen X”, which operates at No 28, Tingkat Bawah, Jalan Kaskas 3, Taman Cheras, Kuala Lumpur. [3] One Blizzard Entertainment, Inc. a Delaware (USA) corporation (“Blizzard”) is the owner of the copyright works entitled Warcraft 3 Battlechest, Diablo 2 Battlechest and Starcraft Battlechest (“Warcraft copyright”). [4] Blizzard had licensed one Sendi Mutiara Multimedia Sdn. Bhd, a Malaysian corporation (“SMM”), inter-alia, the right to retail, sell, distribute and collect monthly royalty from cyber cafes for the software products of 3 the Warcraft copyright. SMM was also appointed by Blizzard as its attorney to, inter-alia, take legal action against illegal or unauthorized reproduction of the said products. [5] On 17.11.2009, upon receiving a complaint from SMM of infringement of its Warcraft copyright, a team of enforcement officers of the 2nd appellant which included the 3rd appellant and also representatives of SMM, had gone and raided Gen X. Some items were seized, purportedly for investigation into possible offence under the Copyright Act. However, after a total period of 1 year and 8 months, the seized items were returned to the respondents without them or Gen X being charged for any offence under the Copyright Act. [6] Consequently the respondents filed an action in the High Court for loss and damages purportedly suffered by them as a result of the appellants’ illegal raid and seizure. After a full trial, the High Court had granted some of the reliefs prayed for by the respondents i.e special as well as exemplary damages, loss of earning and loss of reputation. Hence this appeal before us by the appellants, being unhappy with the said decision of the High Court. 4 [7] The main issue before us was whether the search warrant was legally issued. The learned High Court Judge was of the view that the search warrant ought not to be issued in the first place. He gave his reasons as follows: “ ………SD8 presented a complaint based upon a Statutory Declaration prepared by SD5 which had relied upon a surveillance report that was prepared by a person who cannot be traced. The original of the PA was not tendered for perusal of this Court and the licence granted according to the PA by Blizzard Entertainment was only for a limited time ending on 31.12.2009. In addition, this Court is deprived of hearing the reasons of the Registrar for the exercise of her discretion in granting the Warrant. In revisiting the issue of the granting of the Warrant, this Court can safely say that based upon the materials before it, it would rule that it was an unsafe exercise of discretion to grant the Search Warrant”. [8] His Lordship concluded by saying that the raid carried out in consequence of a warrant which ought not to have been granted “is accordingly illegal”. 5 [9] The learned High Court Judge was also of the view that the very fact that the Deputy Public Prosecutor (“DPP”) declined to prosecute (NFA) was indicative that the whole conduct and exercise of their powers of applying for the search warrant, of search, seizures, investigation and detention of the seized items by the appellants was carried out in an outrageous, lackadaisical and negligent manner lacking in the element of bona fide. [10] Before us, the learned Senior Federal Counsel submitted that the search warrant was properly issued in accordance with section 44 of the Copyright Act. There was no application made to set it aside and there was also no revision to challenge its legality. It was therefore a valid search warrant issued by the court. [11] Learned Senior Federal Counsel also brought this Court’s attention to section 57 of the Copyright Act which gave protection to the raiding officer, in this case, the 3rd appellant, who was also the Assistant Controller under the Copyright Act. 6 [12] Further she submitted that the fact there was eventually no prosecution framed against the respondents or Gen X did not mean that the search warrant was illegal or there was bad faith on the part of the appellants. It was the prerogative of the Public Prosecutor based on the available evidence, whether to prosecute or not. In this case, evidence shows the decision not to charge was because there was insufficient materials to prove a charge against them. [13] Learned counsel for the respondents in his oral submission before us conceded that the search warrant was good in law at the time it was issued and could not be questioned. However he submitted that the learned High Court Judge was right as the SMM computer technician, one Leon Aun Thye who prepared the surveillance technician report upon which the complaint was based, did not come to court to give evidence. Therefore section 114 (g) of the Evidence Act 1950 should be invoked. Following that he argued that the learned High Court Judge was right in questioning the validity of the search warrant. 7 OUR DECISION [14] After perusing the appeal records and judgment of the learned High Court Judge and also having heard submissions made by learned counsels for both parties, we decided to allow the appeal with cost. We now give our reasons. [15] Section 44 (1) of the Copyright Act provides inter-alia: “ 44(1) In every case where information is given on oath to any magistrate that there is reasonable cause for suspecting that there is in any house or premises any infringing copy or any contrivance used or intended to be used for making infringing copies or capable of being used for the purpose of making infringing copies, or any other article or vehicle, book or document by means of or in relation to which any offence under section 41 has been committed, he shall issue a warrant under his hand by virtue of which any Assistant Controller or police officer not below the rank of Inspector named or referred to in the warrant may enter the house or premises at any reasonable time by day or night and search for and seize any such copy, contrivance, article, vehicle, book or document..” (emphasis added)]. 8 [16] The section requires a magistrate to issue a search warrant if information on oath is given that there is reasonable cause for suspecting that any infringing copy etc is in any premises. So, two requirements need to be satisfied: (i) information on oath; (ii) reasonable cause for suspecting What is “reasonable cause” has been explained in Waz Lian Enterprise Sdn. Bhd. v Kerajaan Malaysia & 1 lagi [1994] 4CLJ 979 as follows: “What is reasonable or probable cause? In a case Herniman v Smith [1938] I ALL ER 1 involving malicious prosecution, which I think may be applied to our present case, the House of Lords held that the question of the absence of reasonable and probable cause is for the judge and such question is a question of fact and not law. In that case the House of Lords adopted the statement of Hawkins, J. in Hicks v Faulkner [1881] 8 QBD 167 at 171: I should define reasonable and probable cause to be, an honest belief in the guilt of the accused based upon a full conviction, founded upon reasonable grounds, of the existence of a state of circumstances, which, assuming them to be true, would reasonably lead any ordinary prudent and cautious man, 9 placed in the position of the accuser, to the conclusion that the person charged was probably guilty of the crime imputed.” It had been shown by the appellants that they acted upon receiving the official complaint from SMM vide a letter dated 26.10.2009, exhibiting its Enforcement Technical Surveillance Report, Statutory Declaration , Letter of Authorization and Power of Attorney. The appellants had scrutinized the complaint before taking action. The search warrant and the raid were not done out of the blue. There was reasonable cause for the appellants to act based on the official complaint. We were of the view that it was on the respondents to show if there was none and in this instance we were satisfied that the respondents had failed to do so. [17] In this instant appeal, the information on oath (Maklumat Bersumpah) was given to the magistrate on 17.11.2009, the same day the raid was conducted. As can be seen at page 154 of Common Core Bundle, the “Maklumat Bersumpah” contains among others: “bahawa dipercayai premis yang beralamat:- No. 28, Tingkat Bawah, Jalan Kaskas 3, Taman Cheras, 56100 KUALA LUMPUR 10 adalah disyaki digunakan bagi maksud membuat, menyimpan atau menjual perekaan yang digunakan atau dicadang untuk digunakan bagi membuat salinan langgaran. Dari maklumat yang diterima, saya ada sebab-sebab yang munasabah untuk mempercayai bahawa satu kesalahan di bawah Seksyen 41, Akta Hakcipta 1987 telah dilakukan oleh penghuni premis tersebut. Saya juga ada sebab mempercayai bahawa ada salinan-salinan langgaran, perekaan, artikel, buku, dokumen atau lain-lain keterangan mengenai kesalahan tersebut mungkin ada di premis tersebut”. (emphasis added). [18] The “Maklumat Bersumpah” was given by the 3rd respondent, who by virtue of Government Gazette P.U (B) 131/2003 (“P.U (B) 131”) was also an Assistant Controller of Copyright. [19] The “Maklumat Bersumpah” had clearly stated that there was a reasonable cause for suspecting that there were in Gen X “salinan langganan, perekaan, artikel, buku, dokumen atau lain-lain keterangan” pertaining to an offence under section 41 of the Copyright Act. Therefore, it was our view that the magistrate was correct in issuing the search 11 warrant as the requirement of section 44(1) of the Copyright Act as alluded to earlier had already been satisfied. [20] Let us reiterate that even learned counsel for the respondents in his oral submission before us agreed that the search warrant was good in law at the time of its issuance and there was no question of its invalidity then. To this, we must also say, that not only it was valid then, it is indeed still valid now. The reason being, the search warrant was issued pursuant to the magistrate’s criminal jurisdiction. Hence the relevant High Court which has the jurisdiction to set it aside is the High Court exercising its criminal, appellate or revision power under the Court of Judicature Act 1967. Therefore it is our view, the learned High Court Judge in this case, should not, in determining the civil claim of the plaintiffs (respondents) for loss and damages suffered by the respondents, go behind the search warrant and questioned its legality or the manner in which it was obtained. See the Court of Appeal decisions in Ketua Polis Daerah Johor Bahru, Johor & Ors v Ngui Tek Choi [2013] 4 CLJ 47 and also Datuk Seri Khalid Abu Bakar & Ors v N Indra P Nallathamby & Another Appeal [2014] 9 CLJ 15. We fully agreed with learned Senior Federal Counsel that the learned High Court Judge erred when His Lordship decided for the respondents based on the purported illegality of the search warrant. 12 [21] The learned Senior Federal Counsel also argued that the learned High Court Judge had erred when His Lordship found the 3rd appellant to be jointly and severally liable to the respondents. This was clearly against section 57 of the Copyright Act which provides as follows: “ No action or prosecution shall be brought, instituted or maintained in any court against any Assistant Controller or police officer not below the rank of Inspector for or on account of or in respect of any act ordered or done for the purpose of carrying into effect this Act, and no suit or prosecution shall lie in any court against any other person for or on account of or in respect of any act done or purporting to have been done by him under order, direction or instruction of any Assistant Controller or police officer not below the rank of Inspector given for any such purpose as aforesaid: Provided that the act was done in good faith and in a reasonable belief that it was necessary for the purpose intended to be served thereby.” [22] We again endorsed the learned Senior Federal Counsel’s submission on this point as well, as the 3rd appellant, being an Enforcement Assistant of the 2nd appellant, was also by virtue of P.U(B)131 as mentioned earlier, an Assistant Controller under the Copyright Act. Hence, he was entitled 13 for protection under the aforementioned provision unless it could be shown mala fide on his action. We were not able to find any evidence that shows the raid was done not in good faith. As we had earlier found the search warrant and the raid were validly issued and done the decision of the learned High Court Judge to award the respondents against the appellants which included the 3rd appellant, was obviously misconceived. [23] As stated earlier the learned High Court Judge in paragraph 32 of his ground of judgment had found there was no bona fide in the whole conduct of the appellants as reflected in the non prosecution of the respondents. However, with due respect we agreed with learned Senior Federal Counsel that to prosecute or not to prosecute is the prerogative of the Public Prosecutor, based on the availability of evidence pertaining to the offence. SD2 at page 288 – 290 of Rekod Rayuan Tambahan Jilid 2(2) Bahagian B, had given the following explanation as to why the respondents were not prosecuted. “S.7 Sila tuan jelaskan, berdasarkan hasil siasatan tuan kenapa kes ini tidak dituduh di Mahkamah? 14 J.7 Oleh kerana laporan pihak Cyber Security menyatakan tiada software game ditemui dalam server A44 dan simulasi game tersebut juga tidak boleh dijalankan maka TPR telah memutuskan pendakwaan kes tidak diteruskan kerana pertuduhan hakcipta memerlukan pihak pendakwaan membuktikan kewujudan game tersebut namun dalam server yang disita program game tersebut tidak disimpan (save) di dalam hard disk kerana dipercayai Plaintif Pertama menggunapakai server di tempat lain dan game tersebut dibekalkan secara online sahaja. Oleh kerana bekalan elektrik telah dimatikan ketika serbuan dijalankan, maka talian internet telah terputus. S.8 Adakah dengan tidak menuduh kes ini ke Mahkamah menunjukkan bahawa serbuan dan sitaan yang dibuat itu tidak sah? J.8 Tidak. Walaupun kes tidak dituduh di Mahkamah namun serbuan dan tindakan yang dilakukan adalah betul dan tidak melanggar mana-mana prosedur atau undang-undang pada bila-bila masa kerana: i) Pengadu telah membuat aduan bertulis berhubung pelanggaran hakcipta terhadap karya sastera miliknya. Rujuk: lampiran 47, m/s 189-191 dan 192-221 15 ii) Pengadu telah membekalkan dokumen yang menunjukkan bahawa Pengadu adalah wakil pemegang hakcipta yang berhak untuk mengambil tindakan pelanggaran hakcipta game tersebut di Malaysia. Rujuk: lampiran 47, m/s 189-191 dan 192-221 iii) Serbuan dan penyitaan dilakukan selepas memperolehi waran geledah yang sah Rujuk: lampiran 47, m/s 222 dan 223 iv) Penyimpanan eksibit telah dibenarkan melalui permohonan ke Mahkamah selaras dengan peruntukan seksyen 44(2) Akta Hakcipta. Rujuk: lampiran 47, m/s 262-273 v) Menyimpan atau memiliki salinan langgaran adalah satu kesalahan jenayah kerana Hakcipta bagi karya sastera program adalah dimiliki oleh Pengadu. [24] Based on the above evidence of SD2, we were therefore of the view that the absence of prosecution in this case did not affect the warrant of search and seizure as whether to charge or not to charge was all depended on the availability of evidence to prove the ingredients of the offence. 16 CONCLUSION [25] Based on those reasons, we allowed the appeal by a unanimous decision with cost of RM10,000 to be paid by the respondents to the appellants. The order of the High Court Judge was therefore set aside. Dated: 20 September 2017 (ZALEHA BINTI YUSOF) Judge Court of Appeal Malaysia For The Appellants: SFC Rozielawaty binti Ab Ghani, SFC Noor Akmal binti Mustafa Kamal dan SFC Natassa binti Zaini, Peguam Kanan Persekutuan Jabatan Peguam Negara Cawangan Wilayah Persekutuan Unit Guaman, Tingkat 5 (Sayap Kanan) Wisma Chase Perdana, Off Jalan Semantan, Damansara Heights 50512 KUALA LUMPUR. For The Respondents: Tan Hwee Keong Tetuan HK TAN & CO. Peguambela & Peguamcara No. 83A (1st Floor) Jalan Tembaga Kuning 1 Taman Sri Skudai 81300 Skudai JOHOR DARUL TAKZIM	18,339	Tika 2.6.0
S-01(IM)-43-02 OF 2016	PERAYU RATNA SERI ARIF … 1 ST APPELLANT DAVID GERAINT STALLARD POWELL … 2ND APPELLANT TAN SRI HERMAN LUPING @ HERMAN JAMES LUPING … 3 RD APPELLANT RESPONDEN THE MAYOR OF THE CITY OF KOTA KINABALU … 1ST RESPONDEN T CENTRAL TOWN AND COUNTRY PLANNING BOARD … 2ND RESPONDEN T BORNEO WEALTH SDN BHD … 3RD RESPONDEN T	Dilaporkan dalam [2017] 6 MLJ 1 Land Law — Acquisition of land — Applicant not informed of land acquisition — Notice served at wrong address — Failure to comply with process under the Sarawak Land Code — Whether learned judge erred in law in failing to direct his mind and address various declaratory orders which appellant sought as pleaded in statement of claim — Whether respondents’ failure to issue and serve public notice upon appellant fatal and rendered resumption process of land to second respondent null and void — Federal Constitution art 13 — Sarawak Land Code s 49	20/09/2017	YA DATO' ABDUL RAHMAN BIN SEBLIKorumYAA TUN TENGKU MAIMUN BINTI TUAN MATYA DATUK VERNON ONG LAM KIATYA DATO' ABDUL RAHMAN BIN SEBLI	https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=5513f1e6-41bd-49c5-b052-184ce2e11084&Inline=true	1 IN THE COURT OF APPEAL OF MALAYSIA (APPELLATE CIVIL JURISDICTION) CIVIL APPEAL NO. S-01(IM)-43-02 OF 2016 BETWEEN RATNA SERI ARIF … 1ST APPELLANT DAVID GERAINT STALLARD POWELL … 2ND APPELLANT TAN SRI HERMAN LUPING @ HERMAN JAMES LUPING … 3RD APPELLANT AND THE MAYOR OF THE CITY OF KOTA KINABALU … 1ST RESPONDENT CENTRAL TOWN AND COUNTRY PLANNING BOARD … 2ND RESPONDENT BORNEO WEALTH SDN BHD … 3RD RESPONDENT [In the matter of Application for Judicial Review No. BKI-13JR-2/2- 2013 in the High Court of Sabah and Sarawak at Kota Kinabalu Between Ratna Seri Arif … 1st Applicant David Geraint Stallard Powell … 2nd Applicant Tan Sri Herman Luping @ Herman James Luping … 3rd Applicant Datuk Peter Khoo Keok Swa … 4th Applicant 2 And The Mayor of the City of Kota Kinabalu … 1st Respondent Central Town and Country Planning Board … 2nd Respondent Borneo Wealth Sdn Bhd … 3rd Respondent] CORAM TENGKU MAIMUN TUAN MAT, JCA VERNON ONG LAM KIAT, JCA ABDUL RAHMAN SEBLI, JCA JUDGMENT OF THE COURT [1] For the salient facts, we shall rely on those that learned counsel for the appellants had set out in his written submissions, with the necessary modifications. They are as follows. The appellants are the owners of properties adjacent to the land held under TL017522593 situated at Signal Hill, Kota Kinabalu, Sabah (“the subject land”), which is being developed by the 3rd respondent into a 15-storey condominium. The 3rd respondent is the registered owner of the subject land. [2] The appellants had earlier filed an application for judicial review in the High Court at Kota Kinabalu amongst others to quash the decision of the 1st respondent giving development and building approvals for the 3rd respondent’s high rise residential project. The grounds on which the application was made were that: (a) the planning approvals were unlawful, null and void on the ground of procedural unfairness; 3 (b) the planning approvals were unlawful, null and void on the ground that they were unreasonable and irrational; and (c) the planning approvals were unlawful, null and void on the ground that they are contrary to the legitimate expectation of the appellants. [3] At the judicial review hearing, the 1st and 3rd respondents raised the following preliminary objections: (i) That the application for judicial review was filed out of time; (ii) That the appellants had come to court with unclean hands. [4] The unclean hands issue relates to the 3rd respondent’s allegation that the appellants had illegally encroached into an open space adjacent to its high rise residential project by building structures such as a garage, a retaining wall and a pondok, in breach of By-Law 22 of the Building By- Laws, 1951. [5] The open space does not, however, belong to the 3rd respondent. It belongs to the State. It was urged upon the court by the 1st and 3rd respondents that to grant the appellants the reliefs sought would be tantamount to sanctioning an illegal occupation of State land and endorsing the use of the open space for personal benefit. [6] On 13.8.2013, the learned High Court Judge upheld preliminary objection (i), i.e. the limitation issue and dismissed the appellants’ entire application for judicial review on that ground alone. The learned judge did not address the issue of unclean hands as he took the view that the limitation issue goes to the jurisdiction of the court. 4 [7] Being dissatisfied with the decision, the appellants appealed to this court. At the hearing of the appeal on 12.11.2014, the 3rd respondent raised the issue of unclean hands against the appellants, and this can be seen from the following paragraphs 23 and 31 of learned counsel’s written submissions: “23. Further, it is respectfully submitted that the Appellants’ application for judicial review should not be entertained by this Honourable Court as they have come to court with unclean hands. 31. In view of the clear legal principles that the court will not assist a litigant who comes to court with unclean hands, it is respectfully submitted that this Honourable Court ought to dismiss the Appellants’ appeal with costs.” [8] It is thus clear that in asking this court to dismiss the appellants’ appeal, the 3rd respondent had relied on the ground that the appellants had come to court with unclean hands. After hearing the parties, this court comprising Justices Zaharah Ibrahim (now FCJ), Alizatul Khair Osman Khairuddin and Mohd Zawawi Salleh overturned the learned judge’s decision and ordered that the appellants’ application for judicial review be heard on the merits. [9] By allowing the appellants’ appeal, it is implicit that this court rejected the 3rd respondent’s contention that the appellants had come to court with unclean hands. It would have dismissed the appellants’ appeal if it were otherwise. There can be no argument that the unclean hands issue was an issue that this court was called upon to determine as it was specifically raised by the 3rd respondent in its written submissions. 5 [10] Dissatisfied with the decision, the 1st and 3rd respondents filed separate applications for leave to appeal to the Federal Court. In the 3rd respondent’s application for leave, one of the questions posed was: “Does the principle of ‘unclean hands’ apply to judicial review proceedings?” [11] Pending hearing of the leave applications, the appellants requested the High Court to fix the case for hearing, which the court obliged. When the case came up for hearing before the High Court on 15.5.2015, it was heard by a different judge in the person of the learned Judicial Commissioner (“JC”). [12] At the hearing, learned counsel for the 1st respondent told the learned JC that the issue of unclean hands was never argued before this court at the hearing on 12.11.2014 and that the appellants’ grounds of appeal never touched on the subject. [13] The learned JC adjourned the matter for ruling on 15.6.2015. However, he did not deliver his ruling on the appointed date but instead directed the parties to submit on the issue of unclean hands before proceeding (if at all necessary) with the substantive hearing of the judicial review application as he agreed with counsel that this court did not deal with the issue of unclean hands at the hearing of the appellants’ appeal on 12.11.2014. [14] On 29.12.2015, the learned JC delivered his decision whereupon he upheld the 1st and 3rd respondents’ preliminary objection and ruled that the appellants had come to court with unclean hands. He accordingly dismissed the appellants’ application for judicial review. Thus, for the 6 second time in as many preliminary objections raised, the appellants’ entire application for judicial review was thrown out by the High Court on a preliminary point. It was against this decision that the present appeal before us was concerned with. [15] As it turned out, and well after the learned JC had delivered his decision on 29.12.2015, the Federal Court on 27.10.2016 dismissed the 1st and 3rd respondents’ application for leave to appeal against this court’s decision on 12.11.2014. This necessarily means that the decision of this court on the issue of unclean hands remains intact. [16] Having heard arguments by the parties, we unanimously allowed the appellants’ appeal and set aside the learned JC’s decision. These are our grounds for allowing the appeal. [17] Given the turn of events that preceded the filing of the present appeal, we think it would be useful, for context, to reproduce the following grounds of appeal that the appellants relied on to impugn the decision of the learned JC, as follows: (1) That the learned JC had erred in law and in fact in dismissing the judicial review application on the basis of unclean hands; (2) That the learned JC had erred in failing to consider that the issue of unclean hands had previously been argued before this Court on 12.11.2014 and was res judicata; (3) That the learned JC had erred in failing to consider that the 3rd respondent had even proposed a question on unclean hands for the determination of the Federal Court in its application for leave to appeal to the Federal Court; 7 (4) That the learned JC had erred in failing to hold that the respondents were barred by issue estoppel from raising the issue of unclean hands, and in failing to hold that it was an abuse of process to do so. [18] The question for our determination was whether the learned JC was right in allowing the 1st and 3rd respondents to raise the issue of unclean hands by way of a preliminary objection, or whether the issue was res judicata. [19] There is no dearth of authority on the point. Suffice it if we refer to four of them. First, Government of Malaysia v Dato Chong Kok Lim [1973] 2 MLJ 74 where Sharma J held at page 76: “A decision given by a court at one stage on a particular matter or issue is binding on it at a later stage in the same suit or in a subsequent suit. (See Peareth v Marriott, Hook v Administrator-General of Bengal and Others and In the matter of the Trusts of the Will of Tan Tye (Deceased) Yap Liang Neo v Tan Yew Ghee and Another. Parties cannot raise a second time in the same suit an issue that has already been determined either expressly or by necessary implication. (See Louis Dreyfus v Arunachala Ayya).” (emphasis added) [20] Second, Tenaga Nasional Bhd v Prorak Sdn Bhd & Anor [2000] 1 MLJ 479. Gopal Sri Ram JCA (as he then was) delivering the judgment of the court quoted with approval the following pronouncements by Wigram VC in Henderson v Henderson [1843] All ER Rep 378 at pages 381-382: “[W]here a given matter becomes the subject of litigation in, and of adjudication by, a court of competent jurisdiction, the court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought 8 forward as part of the subject in contest, but which was not brought forward only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation and which the parties, exercising reasonable diligence, might have brought forward at the time.” (emphasis added) [21] Third, Hong Leong Bank Bhd (previously known as Credit Corp (M) Bhd) v Sheikh Ahmad Marzuki bin Sheikh Yusof [2015] 2 MLJ 12. In that case the respondent filed an application to rescind the receiving order and adjudication order on the ground that the loan had been fully settled. The application was dismissed by the registrar and the respondent appealed to the judge but subsequently withdrew the appeal. [22] Some months later, the respondent again filed an application to annul and rescind the receiving order and adjudication order, which was again dismissed by the registrar. However, on appeal to the judge, the appeal was allowed. On further appeal to this court, it was held that the respondent was estopped, pursuant to the principle of res judicata, from re-litigating the issues of annulment and rescission of the adjudication order and receiving order and the expungement of the proof of debt admitted by the Director General of Insolvency under the conventional loan. This is what the court said at page 21: “the respondent had the opportunity to fully ventilate his case before the learned judge in chambers in the hearing of his appeal against the decision of the learned registrar in encl 12A but had instead chosen to withdraw his appeal. The same cause of action may not be relitigated between the same parties as it is res judicata. It is trite that the respondent cannot litigate by instalments;” 9 [23] Last but not least, the decision of the then Supreme Court in Asia Commercial Finance (M) Bhd v Kawal Teliti Sdn Bhd [1995] 3 MLJ 189 where it was held as follows at page 200: “There is one school of thought that issue estoppel applies only to issues actually decided by the court in the previous proceedings and not to issues which might have been and which were not brought forward, either deliberately or due to negligence or inadvertence, while another school of thought holds the contrary view that such issues which might have been and which were not brought forward as described, though not actually decided by the court, are still covered by the doctrine of res judicata, ie doctrine of estoppel per rem judicatum. We are of the opinion that the aforesaid contrary view is to be preferred; it represents for one thing, a correct even though broader approach to the scope of issue estoppel. It is warranted by the weight of authorities to be illustrated later. It is completely in accord or resonant with the rationales behind the doctrine of res judicata, in other words, with the doctrine of estoppel per rem judicatum. It is particularly important to bear in mind the question of public policy that there should be finality in litigation in conjunction with the exploding population; the increasing sophistication of the populace with the law and with the expanding resources of the courts being found always one step behind the resulting increase in litigation.” (emphasis added) [24] This authority binds us and all courts below us. We were therefore constrained by the doctrine of stare decisis to agree with learned counsel for the appellants that res judicata or issue estoppel would apply to the issue of unclean hands raised by the 1st and 3rd respondents. [25] On the facts and having regard to the authorities, it was clear to us that the issue of unclean hands raised by the 1st and 3rd respondents in the court below was res judicata. We do not think it was open to the 1st and 3rd respondents to argue before us in the present appeal that the issue of unclean hands was not before this court at the hearing of the appellants’ 10 appeal on 12.11.2014 and could therefore be raised again before the learned JC by way of a preliminary objection. [26] Paragraphs 23 and 31 of the 3rd respondent’s written submissions which it filed for purposes of the appeal on 12.11.2014 provide enough proof that the issue was indeed raised at the hearing and had been decided upon by this court. It was for this reason that we allowed the appellants’ appeal with costs, subject to payment of the allocator fee. ABDUL RAHMAN SEBLI Judge Court of Appeal Malaysia Dated: 20.9.2017 For the Appellants: Chung Jiun Dau of Messrs Chung & Associates. For the 1st Respondent: Catherine Chau of Messrs Catherine Chau & Associates. For the 2nd Respondent: Dayangku Fazidah Hatun binti Pg Bagul of the State Attorney General’s Chambers. For the 3rd Respondent: Norbert Yapp and Eow Ee Pei of Messrs Norbert Yapp & Associates.	15,859	Tika 2.6.0
JA-33-29-01/2016	RESPONDEN Chang Suan Geen (No. K/P: 781223-08-5676)LAIN-LAINMahendran a/l Manickam (No. K/P: 790213-05-5697) ...Pempetisyen	null	17/09/2017	YA DATO' DR. CHOO KAH SING	https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=0dfa6ce1-e1a6-455d-b2ed-3187e81a304c&Inline=true	Page 1 of 12 DALAM MAHKAMAH TINGGI MALAYA DI JOHOR BAHRU DALAM NEGERI JOHOR, MALAYSIA PETISYEN PERCERAIAN NO: JA-33-29-01/2016 Dalam Perkara Seksyen Akta 53 & 54(1)(b)(c) & (d) Akta Membaharuhi Undang-Undang (Perkahwinan dan Penceraian) 1976 Antara MAHENDRAN A/L MANICKAM (NO. K/P: 790213-05-5697) PEMPETISYEN Dan CHANG SUAN GEEN (NO. K/P: 781223-08-5676) RESPONDEN DECISION (Enclosure 28) CHOO KAH SING Judicial Commissioner High Court, Johor Bahru Date: 17.9.2017 Page 2 of 12 Introduction [1] Enclosure 28 was filed by the respondent wife to seek for an order to set aside and/or vary the terms of a Decree Nisi dated 29.12.2016. The terms of the Decree Nisi were entered into by consent between the petitioner husband and respondent wife. [2] On 6.7.2017, this Court dismissed the respondent’s application. The reasons for the decision are set down as below. Brief Facts [3] The hearing of the divorce petition was fixed for full trial on 27th, 28th and 29th of December 2016. On 29.12.2016, the trial ended. Before the Court could deliver its decision after hearing the oral evidence of the parties, the parties requested to record a consent Decree Nisi in Chambers. The Court acceded to the request and recorded a consent Decree Nisi. The terms of the consent Decree Nisi are as follows: i. Perkahwinan dibubarkan melainkan jika terdapat sebab- sebab yang memcukupi dibuktikan kepada Mahkamah dalam masa (3) bulan mulai dari tarikh dekri ini kenapa dekri ini tidak paptutnya dijadikan mutlak; ii. Bahawa Pempetisyen Suami hendaklah memberi nafkah sebanyak RM500.00 untuk Responden Isteri setiap bulan mulai dari 7hb Januari 2017; Page 3 of 12 iii. Bahawa Pempetisyen dikehendaki memberi 1/3 daripada bahagian harga rumah yang terletak di No. 74, Jalan Ara 2, Taman Desa Cemerlang, 81800 Ulu Tiram Johor Bahru, Johor kepada Responden menurut laporan penilaian terkini dan nilai hartanah tersebut perlu ditolak baki hutang (redemption sum) dan kos-kos yang lain seperti kos peguam, dan sebagainya; iv. Bahawa Responden dibenarkan untuk tinggal di rumah perkahwinan selama 3 bulan sahaja iaitu sehingga 1/4/2017 dan Responden harus berikan milikan kosong; v. Bahawa 1/3 nilai hartanah tersebut (selepas ditolak segala kos) hendaklah dibayar kepada Responden oleh Pempetisyen dalam tempoh 6 bulan dari tarikh perintah ini; vi. Bahawa kedua-dua pihak tidak dibenarkan untuk menggangu antara satu sama lain; vii. Bahawa kos permohonan ini ditanggung oleh pihak masing-masing. [4] Before the consent Decree Nisi could become absolute on 30.3.2017, on 12.3.2017, the respondent had filed enclosure 28 seeking the following orders: Page 4 of 12 (a) Bahawa Dekri Nisi bertarikh 29 Disember, 2016 yang direkodkan sepertimana yang dinyatakan sebagai dipersetujui diketepikan DAN / ATAU Secara Alternatifnya Memberi kebenaran untuk Meminda terma-terma yang terkandung di dalam Dekri Nisi bertarikh 29 Disember, 2016 dengan meminda dengan terma-terma berikut, iaitu:- (i) Responden diberi kebenaran untuk memohon supaya Pempetisyen membayar Nafkah kepada Responden sebanyak RM1,000.00 sebulan yang akan diperintahkan kelak; (ii) Aset Rumah Matrimonial (Matrimonial home’) yang beralamat No. 74, Jalan Ara 2, Taman Desa Cemerlang, 81800 Ulu Tiram, Johor hendaklah dibahagi-bahagian kepada ½ bahagian masing-masing dengan mengambil kira penilaian hartanah semasa setelah ditolak baki hutang (redemption sum) termasuk segala kos-kos terlibat termasuk penilaian dan penjualan hartanah tersebut; (iii) Responden hendaklah diberi keutamaan untuk membeli hartanah tersebut dalam tempoh masa tiga (3) bulan dan sekiranya ianya ditolak oleh Responden, maka Pempetisyen boleh membelinya hartanah tersebut dalm tempoh tiga (3) bulan selanjutnya dengan membayar ½ Page 5 of 12 hasil jualan mengikut nilai pasaran setelah ditolak segala kos-kos termasuk bagi hutang (redemption sum) bagi hartanah tersebut dalam tempoh tiga (3) bulan; (iv) Sekiranya Responden dan juga Pempetisyen tidak sanggup dan tidak bersetuju membeli hartanah tersebut dalam tempoh tiga (3) bulang masing-masing, maka hartanah tersebut hendaklah dijual secara persetujuan bersama kepada pihak ketiga secara ‘private treaty’ dan/atau melalui jualan secara lelongan awam dalam tempoh enam (6) bulan; (v) Responden diberi kebenaran untuk tinggal dirumah perkahwinan (matrimonial home) sehingga pembayaran bahagian masing-masing dalam tempoh yang dinyatakan di para (iii) dan/atau sehingga hartanah tersebut dilupuskan secara jualan lelongan awam / ‘private treaty’ menurut para (iv) dan masing-masing perlu berikan milikan kosong; (vi) Kos hendaklah ditanggung masing-masing; dan (vii) Relif-relif dan perintah-perintah lain yang difikirkan wajar dan suaimanfaat oleh Mahkamah Yang Mulia ini. [5] The reasons provided by the respondent in support her application are as follows: Page 6 of 12 (i) Dekri Nisi bertarikh 29 Disember, 2016 masih belum dijadikan Dekri Nisi Mutlak. (ii) Responden telah melantik Peguamcaranya untuk bertindak dalam Petisyen Penceraian ini dengan penuh kepercayaan bahawa kepentingan dan hak Responden melalui Petisyen Penceraian ini diberi perhatian yang sewajarnya. (iii) Pada 29 Disember, 2016, Responden telah hadir di Mahkamah dan Responden telah dinasihatkan oleh Peguamcaranya secara salah nyata bahawa terma-terma yang dinyatakan di dalam Deraf Nisi adalah terbaik dan sesuai dengan tidak memberikan penjelasan sepanuhnya. (iv) Responden hanya difaham bahawa Mahkamah telah memerintahkan terma-terma tersebut dan Responden dikehendaki menerima terma-terma yang dinyatakan secara salah nyata di dalam Dekri Nisi bertarikh 29 Disember, 2016. (v) Responden telah pergi ke pejabat Peguamcara Responden untuk mendapatkan satu salinan Deraf Dekri Nisi berkenaan dan penjelasan lanjut untuk menyemak dan mendapat nasihat keatas kandungan terma-terma berkenaan. Page 7 of 12 (vi) Responden telah dimaklumkan bahawa terma-terma tersebut ada menyatakan bahawa terma-terma yang dinyatakan adalah atas persetujuan Responden yang mana Responden tidak diberikan nasihat dan penjelasan yang sewajarnya ke atas isi kandungan dan Responden tidak memberikan persetujuannya sepertimana yang dimaksudkan di dalam Deraf Dekri Nisi yang diberikan kepada Responden. (vii) Responden juga adalah seorang yang buta huruf dan beliau tidak didedahkan dengan implikasi sepenuhnya mengenai terma-terma yang dinyatakan tersebut. [6] The essence of the respondent’s complaint is that she was ill- advised by the then solicitors who represented her and that she was not aware she had consented to the terms of the Decree Nisi and that she is an illiterate person. [7] The respondent had also filed two affidavits in support of her application, namely, Afidavit Sokongan (encl. 29) Afidavit Balasan Kepada Afidavit Jawapan Pempetisyen (encl. 32). The Finding of this Court Setting Aside A Consent Decree Nisi [8] The respondent has prayed to set-aside the consent Decree Nisi and/or in the alternative vary the terms of the said Decree Nisi. Page 8 of 12 [9] With regard to the issue of setting aside a consent Decree, this Court refers to the oft-quote judgment of his Lordship Raja Azlan Shah (as HRH then was) in the Federal Court decision in Ganapathy Chettiar v Lum Kum Chum & Ors; Meenachi v Lum Kum Chum & Ors [1981] 2 MLJ 145, wherein his Lordship held that “an order by consent is evidence of a contract between the parties and is binding on all parties to the order all the more so, where there is not a slightest question of any mistake as to facts or law.” “The only possible way in which a consent order could be altered would be by the consent of all parties: followed Australasian Automatic Weighing Machine Co. v Walter (1981) W.N. 170”, his Lordship further said. These legal propositions have been constantly applied in our jurisprudence of setting aside a consent decree (see Vadivellu Kalimuthu v Rajes Subramaniam [2014] 1 LNS 1276; Chen Choy & Son Realty Sdn Bhd v Ganesha Ganapathy & Anor [1987] 2 CLJ 433; Tay Hup Lian v Histyle Sdn Bhd & Anor; Lim Hock Bee @ Lim Ser Hai & Ors (Intervener) [2010] 1 LNS 418) [10] In this present case, the respondent was represented by her then solicitors and there was no mistake as to facts or law with regard to the terms. The terms in the consent Decree Nisi were translated to her by the court interpreter in the Tamil language that she was familiar with and was comfortable. She had unconditionally accepted the terms. The respondent’s complaint centred mainly on the ill-advice given by her then solicitors and that she was not aware she had entered into a consent Decree. These complaints could not hold true, because it appeared to this Court that the respondent was fully aware what was told and explained to her by the court interpreter as well as her then solicitors. Page 9 of 12 [11] The respondent wife also claimed she was illiterate, but none of the affidavits she had attested contained a jurat-clause to state that the contents were interpreted to her and she fully consented to the contents before she placed her signatures on them. This means she had attested all her affidavits with full knowledge of the contents, and she fully understood the contents in Bahasa language. She could not be illiterate. [12] For the above reasons, this Court was not satisfied the respondent has a legitimate complaint that she could not understand the contents of the consent Decree Nisi. She could have changed her mind on the terms of the consent Decree Nisi after several weeks later. The respondent could have gotten a third party’s advice telling her that she got a bad bargain and decided to come back to set aside the consent Decree Nisi. The respondent wife could not blow hot and cold whenever she likes. That could not be a valid reason for this Court to set aside the consent Decree Nisi. She has to abide by the terms of the consent Decree Nisi, unless the respondent wife could satisfy this Court that it has the jurisdictional power to vary the terms of the consent Decree Nisi. This leads to the respondent wife’s alternative prayer, i.e. vary the terms of the consent Decree. Varying the Terms of Consent Decree Nisi [13] The respondent wife has prayed to vary the consent order of her maintenance from RM500 to RM1,000.00. Section 83 of the Law Reform (Marriage and Divorce) Act 1976 allows the court the power to vary orders for maintenance provided that it is satisfied that the order made was based on any misrepresentation, mistake of fact or where there has been any material change in the circumstances. Page 10 of 12 [14] The respondent has claimed that she was ill-advised and she was not aware that she was entering into a consent Decree. In other words, she was asserting there was a mistake of fact that she had entered into a consent Decree. This Court finds that the respondent wife was fully aware what she was doing, there could be no mistake of fact, and neither could there be any misrepresentation. The contents of the consent Decree Nisi were translated, repeated and explained to the respondent with the presence of her then solicitors, and she consented to them before they were recorded by this Court. [15] With regard to the other prayers which are mainly to deal with the matrimonial property, this Court is of the considered view that it has no jurisdiction to deal with the prayers to vary the terms entered into for the matrimonial property. [16] Section 76 of the Law Reform (Marriage and Divorce) Act 1976 only allows the court the power to deal with the matrimonial property during the subsisting of a matrimonial proceedings, not after a consent Decree Nisi has been entered (see Federal Court decision in Manokaram Subramaniam v Ranjit Kaur Nata Singh [2008] 6 CLJ 209). Seeking a Rehearing? [17] Upon close examination of the contents stated in enclosure 32, the respondent’s Afidavit Balasan Kepada Afidavit Jawapan Pempetisyen, the respondent has repeated in her affidavit her contributions to the matrimonial property which she had stated in her testimony during the Page 11 of 12 hearing of the petition before the consent Decree Nisi was reached. Although the respondent did not pray for a rehearing, the contents of her affidavit in support of this application was as if she was seeking a rehearing of her plea. [18] In the event the respondent is seeking a rehearing, the petitioner’s counsel pointed out to this Court that the respondent has come to this Court with the wrong mode of proceedings. She ought to have filed her application via rule 44 of the Divorce and Matrimonial Proceedings Rules 1980, not by way of the normal application under the Rules of Court, the counsel for the petitioner submitted. Rule 44 of the Divorce and Matrimonial Proceedings Rules 1980 states, inter alia, as follows: (1) An application for re-hearing of a cause tried by a judge alone (whether in the High Court or a Sessions Court in West Malaysia or a First Class Magistrate’s Court in East Malaysia), where no error of the court at the hearing is alleged, shall be made to a judge. (2) Unless otherwise directed, the application shall be made to the judge by whom the cause was tried and shall be heard in open court. (3) …. (4) Unless otherwise directed, the notice must be issued within 6 weeks after the judgment and served on every other party to the cause not less than 14 days before the day fixed for the hearing of the application. Page 12 of 12 [19] This Court could not accept the respondent’s application as one seeking for a rehearing for three simple reasons. First, the respondent did not pray for an order of rehearing. Secondly, if the application was meant for a rehearing, then the respondent has used the wrong mode in her application. Thirdly, if the application was meant to have filed via rule 44, it was out of time, i.e. 6 weeks from 29.12.2016. The enclosure 28 was filed on 12.3.2017, more than 6 weeks from 20.12.2016. Conclusion [20] Based on the above reasoning, this Court dismissed the respondent’s application and ordered costs of RM2,000.00 to be paid to the petitioner by the respondent. -Signed- ……………………………………….. (CHOO KAH SING) Judicial Commissioner High Court, Johor Bahru Counsel for the Petitioner husband : Ms. Barathi Tetuan Kamarudin Yusof & Associates Counsel for the Respondent wife : Mr. Krishnan Tetuan N. Krishnan Nair & Co.	15,314	Tika 2.6.0
W-02(C)(A)-1496-08/2016	PERAYU MARTEGO SDN. BHD . ... APPELLANT (COMPANY NO. 194048-W) RESPONDEN ARKITEK MEOR & CHEW SDN. BHD. ... RESPONDEN T (COMPANY NO. 934713-T)	Building and Construction Law — Construction contracts — Appeal to set aside the adjudication — Martego engaged the respondent, a firm of architects as the Project Architect — Disputes arose— Whether learned adjudicator had acted in excess of jurisdiction — Whether Act 746 has no application to claim in respect of the architectural fees — Whether there has been a breach of natural justice in the process of adjudication — Whether the decision of the adjudication can be reviewed on its merits — Construction Industry Payment and Adjudication Act 2012 [Act 746], ss 15 and 28	15/09/2017	YA DATUK DR HAJI HAMID SULTAN BIN ABU BACKERKorumYAA TAN SRI DATUK SERI PANGLIMA DAVID WONG DAK WAHYA DATUK DR HAJI HAMID SULTAN BIN ABU BACKERYA DATO' UMI KALTHUM BINTI ABDUL MAJID	https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=7cea4448-8c82-437c-a2a8-33b20ccc044b&Inline=true	1 IN THE COURT OF APPEAL OF MALAYSIA (APPELLATE JURISDICTION) CIVIL APPEAL NO. W-02(C)(A)-1496-08/2016 BETWEEN MARTEGO SDN. BHD . ... APPELLANT (COMPANY NO. 194048-W) AND ARKITEK MEOR & CHEW SDN. BHD. ... RESPONDENT (COMPANY NO. 934713-T) HEARD TOGETHER WITH IN THE COURT OF APPEAL OF MALAYSIA (APPELLATE JURISDICTION) CIVIL APPEAL NO. W-02(C)(A)-1497-08/2016 BETWEEN MARTEGO SDN. BHD . ... APPELLANT (COMPANY NO. 194048-W) AND ARKITEK MEOR & CHEW SDN. BHD. ... RESPONDENT (COMPANY NO. 934713-T) 2 [In the matter concerning the Kuala Lumpur High Court Originating Summons No.: WA-24C-39-06/2016] Between Martego Sdn. Bhd. … Plaintiff (Company No.: 194048-W) And Akitek Meor & Chew Sdn. Bhd. … Defendant (Company No.: 934713-T) Coram: David Wong Dak Wah, JCA Hamid Sultan bin Abu Backer, JCA Umi Kalthum binti Abdul Majid, JCA Hamid Sultan Bin Abu Backer, JCA (Delivering Dissenting Judgment of The Court) GROUNDS OF JUDGMENT [1] There are two appeals by Martego (respondent to adjudication decision) before us related to one adjudication decision under appeal No. W-02(C)(A)-1496-08-2016 (1st appeal) and appeal No. W-02(C)(A)-1497- 08-2016 (2nd appeal), which came up for hearing on 27-03-2017. We reserved judgment and invited further submissions on two main issues which goes to the jurisdiction of the applicability of Construction Industry Payment and Adjudication Act 2012 (CIPAA 2012) itself. The questions posed by the court were as follows: 3 “(a) Whether the subject matter of the adjudication was based on interim payment claim or a final claim; (b) Whether statutory adjudication in other jurisdictions makes a distinction between final bills and interim bills. [2] The 1st appeal is Martego’s appeal to set aside the adjudication under section 15 of CIPAA 2012. The 2nd appeal is also Martego’s appeal to set aside the enforcement order made by the learned High Court judge in respect of the adjudication decision pursuant to section 28 of CIPAA 2012. If the 1st appeal is allowed, it will follow that the 2nd appeal must be allowed and the enforcement order given under section 28 will have to be set aside. [3] It was contended before us by the respondent to both appeals that it was wrong for this court to direct the parties to submit on the two issues related to jurisdiction, which was not raised and argued by the parties in the court below. And heavily relied on the Federal Court case of Dato’ Tan Chin Who v Dato’ Yalumallai @ M Ramalingam s/o V Muthusamy [2016] 5 MLJ 590 and RHB Bank Bhd (substitution Kwong Yik Bank Bhd) v Kwan Chew Holdings Sdn Bhd [2010] 2 MLJ 188. I take the view that both cases are good law but there are a number of exceptions. That is to say, the Federal Court in Dato’ Tan’s case itself recognises the exceptions. His Lordship Arifin Zakaria CJ had this to say: “[14] While it is true that the Court of Appeal can consider a point not expressly taken in the memorandum of appeal or argued in the court below based on the broad wording of s 69(4) of the CJA and r 18(2) of the Rules of the Court of Appeal 1994 , this is subject to the overriding discretion of the http://www.lexisnexis.com/my/legal/search/runRemoteLink.do?A=0.6928939624843388&bct=A&service=citation&risb=21_T26062235893&langcountry=MY&linkInfo=F%23MY%23USM_PA%23act%2591%25section%2569%25 4 court to do justice. Where the justice of the case requires a departure from the rule that parties should be bound by the grounds in the memorandum of appeal, the court may allow a new point to be argued (see Luggage Distributors (M) Sdn Bhd v Tan Hor Teng & Anor [1995] 1 MLJ 719; [1995] 3 CLJ 520; Cheow Chew Khoon (t/a Cathay Hotel) v Abdul Johari bin Abdul Rahman [1995] 1 MLJ 457; [1995] 4 CLJ 127; Mohd Azam Shuja & Ors v United Malayan Banking Corporation Bhd [1995] 2 MLJ 851; [1995] 1 CLJ 861). In so doing, it is however not the duty of the Court of Appeal, to invent or create a cause of action or a defence under the guise of doing justice for the parties as it is also trite that parties in litigation are bound by the four corners of their pleadings (see RHB Bank Bhd (substituting Kwong Yik Bank Bhd) v Kwan Chew Holdings Sdn Bhd [2010] 2 MLJ 188). [15] What happened in the present case was that the Court of Appeal in the purported exercise of its discretion under s 69(4) of the CJA had substituted the defence of qualified privilege with that of absolute privilege, a defence which was never pleaded nor raised before the High Court. From the authorities set out earlier and the plain reading of s 69(4) of the CJA, the power of the Court of Appeal is only to draw inferences of facts and to make an order which ought to have been made by the High Court. The power is essentially limited to making of inferences of facts from the facts as found by the High Court. …”. [4] The question posed by the court is related to jurisdiction and in consequence both the cases will not apply. Whilst it is trite that as a general rule, a new point cannot be raised in an appeal, which was not pleaded or argued in the courts below, this rule is subject to more than two exceptions. Some of them are as follows:- (i) first, a point of law could be taken up for the first time on appeal if it raised a question of jurisdiction; http://www.lexisnexis.com/my/legal/search/runRemoteLink.do?A=0.8276290406767306&bct=A&service=citation&risb=21_T26062235893&langcountry=MY&linkInfo=F%23MY%23MLJ%23vol%251%25sel1%251995%25page%25719%25year%251995%25sel2%251%25 http://www.lexisnexis.com/my/legal/search/runRemoteLink.do?A=0.2176335363601838&bct=A&service=citation&risb=21_T26062235893&langcountry=MY&linkInfo=F%23MY%23MLJ%23vol%251%25sel1%251995%25page%25457%25year%251995%25sel2%251%25 http://www.lexisnexis.com/my/legal/search/runRemoteLink.do?A=0.45808365447683885&bct=A&service=citation&risb=21_T26062235893&langcountry=MY&linkInfo=F%23MY%23MLJ%23vol%252%25sel1%251995%25page%25851%25year%251995%25sel2%252%25 http://www.lexisnexis.com/my/legal/search/runRemoteLink.do?A=0.020034647449424958&bct=A&service=citation&risb=21_T26062235893&langcountry=MY&linkInfo=F%23MY%23MLJ%23vol%252%25sel1%252010%25page%25188%25year%252010%25sel2%252%25 http://www.lexisnexis.com/my/legal/search/runRemoteLink.do?A=0.34493729279063656&bct=A&service=citation&risb=21_T26062235893&langcountry=MY&linkInfo=F%23MY%23USM_PA%23act%2591%25section%2569%25 http://www.lexisnexis.com/my/legal/search/runRemoteLink.do?A=0.7834896390657271&bct=A&service=citation&risb=21_T26062235893&langcountry=MY&linkInfo=F%23MY%23USM_PA%23act%2591%25section%2569%25 5 (ii) secondly, the court of appeal would entertain a point of law not raised in the court below if it would result in the rectification of an erroneous order; (iii) thirdly, if the decision of the court is a nullity based on the principles enunciated in the Federal Court case of Badiaddin bin Mohd Mohidin & Anor v Arab-Malaysian Finance Berhad [1998] 1 MLJ 393; (iv) fourthly, when issues such as illegality or public policy are raised first time in the appeal provided there are sufficient materials in the appeal record to entertain the submission. [See Merong Mahawangsa Sdn Bhd & Anor v Dato’ Shazryl Eskay bin Abdullah [2015] 8 CLJ 212; China Road & Bridge Corporation & Anor v DCX Technologies Sdn Bhd and Another Appeal [2014] 5 MLJ 1]. [See Yong Mok Hin v United Malay States Sugar Industries [1967] 2 MLJ 9; Manharlal Baichand Gathani v Perwira Habib Bank (M) Bhd [2002] 2 MLJ 139, Tommy Thomas v Peguam Negara Malaysia & other appeals [2001] 3 CLJ 457]. General Jurisprudence Related to Construction Law [5] The respondent’s case is not just related to law of contract but relates to construction law which is seen as an evolutionary jurisprudence to the law of contract. It may relate to tort, commercial law, planning law, employment law, oil and gas law, etc. and covers a wide range of legal issues related to contract, bonds, guarantees, liens 6 and other securities, tenders, consultancy contract, as well as many regulatory framework, etc. A construction dispute may not just involve the parties to the dispute but a range of persons and/or professionals whose evidence will be relevant and/or material to adjudicate upon a construction dispute. The conduct of parties during the progress of work as well as instruction by relevant parties may determine the outcome of the dispute, notwithstanding the contractual provision may not cover such instances or certification for work done has been denied, etc. Standard form contracts have been a norm and trade practices of the construction industry had carried much probative force in judicial decision making process as well as arbitration, adjudication, etc. In consequence, the jurisprudence relating to law of evidence and decisions related to breach of contract and breach of construction contract or construction dispute may not be necessarily the same. Relying on judicial precedents without making a distinction will tantamount to comparing an apple to an orange. [6] It is important to note that CIPAA 2012 deals with construction contract and periodical payment for work done. Primarily the relevant law will be law of contractual obligations. CIPAA 2012 is not meant to cover construction disputes where the law applicable may be wider than law of contract. If this distinction is not appreciated in the right perspective, it will lead to convoluted jurisprudence. For example, interim payment will relate to contractual obligations and final payment may encompass more issues and law and the jurisprudence is not one and the same for both. 7 Brief Facts [7] The facts and law have been well articulated by the learned High Court judge in a 69 pages judgment. [See Martego Sdn Bhd v Arkitek Meor & Chew Sdn Bhd & Another Case [2017] 1 CLJ 101]. This judgment must be read with the judgment of the learned judge to appreciate our reasoning in the proper perspective. The brief facts in my own words can be summarised as follows: (a) Martego engaged the respondent who were architects as the Project Architect for the Project. (b) The clear provision of the Architect Act and/or Rules requires that a dispute as to fees of the architect must be referred to arbitration. (c) Martego terminated the respondent before the completion of the contractual obligation of the respondent. Respondent accepted the termination and filed a claim under CIPAA 2012 for professional fees and services rendered. (d) The matter proceeded for adjudication under CIPAA 2012. The adjudicator granted a sum of RM258,550.00 only with pre-award interest, post-award interest and costs of RM20,585.00 to the respondent. (e) To set aside the decision, Martego before the High Court had relied on two grounds, namely that (i) the adjudicator had acted in excess of jurisdiction; (ii) there has been a breach of 8 natural justice as the adjudicator failed to hold an oral hearing despite three separate requests from Martego. [8] The Memorandum of Appeal in respect of the 1st appeal reads as follows: “1. The Learned Judge erred in law and in fact in dismissing the Appellant's application in Kuala Lumpur High Court Originating Summons No.: WA-24C-39-06/2016 to set aside the Adjudication Decision dated 14.4.2016 made by Ir. Lai Sze Ching ("Adjudication Decision"). Statutory Interpretation of CIPAA 2. The learned Judge erred in law and in fact in holding that the Construction Industry Payment and Adjudication Act 2012 (CIPAA) applies to all parties who provide construction consultancy services in relation to construction work when in fact the Preamble of CIPAA specifically sets out the objectives of CIPAA as being connected to or in relation to recovery of payment in the construction industry. 3. The learned Judge erred in law and in fact in holding that the definition of 'construction consultancy contract' under Section 4 of CIPAA is inclusive such that the words appearing after 'include' must mean either a single component of the services referred to, or a combination of all or a few of the services referred to when in feet, the said definition under Section 4 of CIPAA is exhaustive. 4. The learned Judge erred in law and in fact in holding that an expansive reading must be given to the definition section (under Section 4 of CIPAA) where as far as the purpose of the CIPAA is concerned the High Court in Uda Holdings Bhd. v Bisraya Construction Sdn. Bhd. [2015] 5 CLJ 527 held that the definitions found in Section 4 of CIPAA are "unusually definitive and 9 exhaustive in their defines as opposed to the practice of drafting general or non-exhaustive definitions". 5. The learned Judge erred in law and in fact in holding that to require one to say that the definition of 'construction consultancy contract' under Section 4 of CIPAA has a reference only to 'Design and Build' contracts would be to put an undue strain to the definition of the term, when in fact, that reference was intended by Parliament. 6. The learned Judge erred in law and in fact in presuming the existence of a casus omissus in the interpretation of the definition of 'construction consultancy contract' under Section 4 of CIPAA which is contrary to all rules of construction when in fact, the definition under Section 4 is plain and unambiguous. 7. The learned Judge erred in law and in fact in construing the phrase construction consultancy contract' under Section 4 of CIPAA disjunctively rather than conjunctively despite the use of the operative phrase '...and includes...' in the said provision. 8. The learned Judge erred in law and in fact in holding that the term 'architectural work' is to be read as a definition of 'construction consultancy contract' under Section 4 of CIPAA when it is in fact an extension of the phrase 'construction consultancy contract'. 9. The learned Judge erred in law and in fact in according a broad definition of 'construction consultancy contract' pursuant to Section 4 of CIPAA to include the provision of architectural consultancy services when in fact the definitions in Section 4 have a particular and peculiar but limited meaning and understanding. 10. The learned Judge erred in law and in fact in holding that the Contract satisfies all the requirements of a 'construction consultancy contract' under Section 4 of CIPAA. 10 The Contract between the Appellant and Respondent 11. The learned Judge erred in law and in fact in holding that the Respondent was able to avail itself of the remedies under CIPAA when in fact the Letter of Appointment dated 22.8.2014 ("Contract") between the Appellant and the Respondent is not a construction contract which triggers the application of CIPAA. 12. The learned Judge erred in law and in fact in failing to consider that the Respondent's scope of services under the Contract was for 'contract administration' pursuant to Section 3(b) of the Contract thereby rendering the Respondent a 'contract administrator' per the definition of Section 4 of CIPAA. 13. The learned Judge erred in law and in fact in failing to give the term 'contract administration' its plain meaning when the language in the Contract is unequivocal, unambiguous and needs no explanation. The Architects Act 1967 (AA) and the Architects Rules 1966 (AR) 14. The learned Judge erred in law and in fact in failing to consider the mandatory dispute resolution mechanism under Sub-Rule 24, Third Schedule, Part One of AR which provides that disputes between a professional architect and his client which require settlement shall be by way of arbitration. 15. The learned Judge erred in law and in fact in applying the established rules of construction expressed by the latin maxim generalibus specialia non derogant which provides that the specific legislation or the special provision in the specific legislation, namely the AR read together with AA, will exclude the operation of the general legislation, namely CIPAA. 16. The learned Judge erred in law and in fact in holding that the Respondent was entitled to avail itself to the adjudication process under 11 CIPAA in contravention of the mandatory dispute resolution mechanism by arbitration provided under the AR. 17. The learned Judge erred in law and in fact in failing to give effect to the intentions of the Parliament by holding that merely because there is a procedure for an architect or his client to proceed with mediation and arbitration that by itself should not exclude them from the adjudication process under CIPAA. 18. The learned Judge erred in law and in fact in failing to consider that the Contract between the Respondent and Appellant is a contract between a professional architect and his client which falls under the purview of the AA read together with the AR. 19. The learned Judge erred in law and in fact in failing to consider that the appointment of an adjudicator under CIPAA falls within the jurisdiction of the KLRCA whereas the appointment of an arbitrator under the AA read together with the AR vests with the President of the Board of Architects Malaysia. 20. The learned Judge erred in law and in fact in holding that parties are at liberty to have the procedure under the AR running concurrently with adjudication when in fact, the use of the word 'shall' in Sub-Rule 24(1) of the AR makes it unequivocal in its requirement that the parties refer their dispute to arbitration. 21. The learned Judge erred in law and in fact in holding that there is nothing to prevent the Appellant from proceeding with arbitration under the AR even after the adjudication process is over as the language used in Sub- Rule 24(1) of the AR makes it mandatory, rather than directory, that arbitration must be used as the mode of dispute resolution. 22. The learned Judge erred in law and in fact in failing to consider and/or apply established principles of law that where a statute creates a right and, "in plain language, gives a specific remedy or appoints a specific tribunal for its 12 enforcement, a party seeking to enforce the right must resort to that remedy or that tribunal and not to others. Natural Justice 23. The learned Judge erred in law and in fact in finding that there was no breach of natural justice from the Adjudicator's failure to hold an oral hearing despite the Appellant's 3 requests for an oral hearing to present its case and meet the case against it. Appellate Interference 24. The learned Judge erred in law and in fact by making findings that a proper and thorough judicial appreciation of the factual matrix and the law would not have lent itself to, and fell into plain and obvious error, without a proper appraisal of the said factual matrix and submission of the law tendered, and consequently by erroneously dismissing the Appellant's claim with costs.” [9] The Memorandum of Appeal for the 2nd appeal reads as follows: “1. The Learned Judge erred in law and in fact in allowing the Respondent's application in Kuala Lumpur High Court Originating Summons No.: WA-24C-47-06/2016 to enforce the Adjudication Decision dated 14.4.2016 made by Lai Sze Ching ("Adjudication Decision"). Statutory Interpretation of CIPAA 2. The learned Judge erred in law and in fact in holding that the Construction Industry Payment and Adjudication Act 2012 (CIPAA) applies to all parties who provide construction consultancy services in relation to construction work when in fact the Preamble of CIPAA specifically sets out the objectives of CIPAA as being connected to or in relation to recovery of payment in the construction industry. 13 3. The learned Judge erred in law and in fact in holding that the definition of 'construction consultancy contract' under Section 4 of CIPAA is inclusive such that the words appearing after 'include' must mean either a single component of the sentences referred to, or a combination of all or a few of the services referred to when in fact, the said definition under Section 4 of CIPAA is exhaustive. 4. The learned Judge erred in law and in fact in holding that an expansive reading must be given to the definition section (under Section 4 of CIPAA) where as far as the purpose of the CIPAA is concerned the High Court in Uda Holdings Bhd. v Bisraya Construction Sdn. Bhd. [2015] 5 CLJ 527 held that the definitions found in Section 4 of CIPAA are "unusually definitive and exhaustive in their defines as opposed to the practice of drafting general or non-exhaustive definitions". 5. The learned Judge erred in law and in fact in holding that to require one to say that the definition of 'construction consultancy contract' under Section 4 of CIPAA has a reference only to 'Design and Build' contracts would be to put an undue strain to the definition of the term, when in fact, that reference was intended by Parliament. 6. The learned Judge erred in law and in fact in presuming the existence of a casus omissus in the interpretation of the definition of 'construction consultancy contract' under Section 4 of CIPAA which is contrary to all rules of construction when in fact, the definition under Section 4 is plain and unambiguous. 7. The learned Judge erred in law and in fact in construing the phrase 'construction consultancy contract' under Section 4 of CIPAA disjunctively rather than conjunctively despite the use of the operative phrase '...and includes...' in the said provision. 14 8. The learned Judge erred in law and in fact in holding that the term 'architectural work' is to be read as a definition of 'construction consultancy contract' under Section 4 of CIPAA when it is in fact an extension of the phrase 'construction consultancy contract'. 9. The learned Judge erred in law and in fact in according a broad definition of ‘construction consultancy contract' pursuant to Section 4 of CIPAA to include the provision of architectural consultancy services when in fact the definitions in Section 4 have a particular and peculiar but limited meaning and understanding. 10. The learned Judge erred in law and in fact in holding that the Contract satisfies all the requirements of a 'construction consultancy contract' under Section 4 of CIPAA. The Contract between the Appellant and Respondent 11. The learned Judge erred in law and in fact in holding that the Respondent was able to avail itself of the remedies under CIPAA when in fact the Letter of Appointment dated 22.8.2014 ("Contract") between the Appellant and the Respondent is not a construction contract which triggers the application of CIPAA. 12. The learned Judge erred in law and in fact in failing to consider that the Respondent's scope of services under the Contract was for contract administration' pursuant to Section 3(b) of the Contract thereby rendering the Respondent a 'contract administrator- per the definition of Section 4 of CIPAA. 13. The learned Judge erred in law and in fact in failing to give the term 'contract administration' its plain meaning when the language in the Contract is unequivocal, unambiguous and needs no explanation. 15 The Architects Act 1967 (AA) and the Architects Rules 1966 (AR) 14. The learned Judge erred in law and in fact in failing to consider the mandatory dispute resolution mechanism under Sub-Rule 24, Third Schedule, Part One of AR which provides that disputes between a professional architect and his client which require settlement shall be by way of arbitration. 15. The learned Judge erred in law and in fact in applying the established rules of construction expressed by the latin maxim generalibus specialia non derogant which provides that the specific legislation or the special provision in the specific legislation, namely the AR read together with AA, will exclude the operation of the general legislation, namely CIPAA. 16. The learned Judge erred in law and in fact in holding that the Respondent was entitled to avail itself to the adjudication process under CIPAA in contravention of the mandatory dispute resolution mechanism by arbitration provided under the AR. 17. The learned Judge erred in law and in fact in failing to give effect to the intentions of Parliament by holding that merely because there is a procedure for an architect or his client to proceed with mediation and arbitration, that by itself should not exclude them from the adjudication process under CIPAA. 18. The learned Judge erred in law and in fact in failing to consider that the Contract between the Respondent and Appellant is a contract between a professional architect and his client which falls under the purview of the AA read together with the AR. 19. The learned Judge erred in law and in fact in failing to consider that the appointment of an adjudicator under CIPAA falls within the jurisdiction of the KLRCA whereas the appointment of an arbitrator under the AA read together with the AR vests with the President of the Board of Architects Malaysia. 16 20. The learned Judge erred in law and in fact in holding that parties are at liberty to have the procedure under the AR running concurrently with adjudication when in fact, the use of the word 'shall' in Sub-Rule 24(1) of the AR makes it unequivocal in its requirement that the parties refer their dispute to arbitration. 21. The learned Judge erred in law and in fact in holding that there is nothing to prevent the Appellant from proceeding with arbitration under the AR even after the adjudication process is over as the language used in Sub- Rule 24(1) of the AR makes it mandatory, rather than directory, that arbitration must be used as the mode of dispute resolution. 22. The learned Judge erred in law and in fact in failing to consider and/or apply established principles of law that where a statute creates a right and, in plain language, gives a specific remedy or appoints a specific tribunal for its enforcement, a party seeking to enforce the right must resort to that remedy or that tribunal and not to others. Natural Justice 23. The learned Judge erred in law and in fact in finding that there was no breach of natural justice from the Adjudicator's failure to hold an oral hearing despite the Appellant's 3 requests for an oral hearing to present its case and meet the case against it. Appellate Interference 24. The learned Judge erred in law and in fact by making findings that a proper and thorough judicial appreciation of the factual matrix and the law would not have lent itself to, and fell into plain and obvious error, without a proper appraisal of the said factual matrix and submission of the law tendered, and consequently by erroneously allowing the Respondent's application with costs.” 17 Oral Hearing and Breach of Natural Justice [10] On the issue of oral hearing and breach of natural justice, I wish to say that the adjudicator is a master of the proceeding and he has to exercise his discretion fairly and justly taking into consideration CIPAA 2012 is meant to be quick and summary process. As it is a quick and summary process, Parliament in its wisdom has been careful to identify the qualified persons to hear dispute relating to CIPAA 2012. One category of persons that CIPAA 2012 directly and/or by legal construct recognises as competent and qualified to hear CIPAA 2012 disputes are arbitrator and/or judges and will necessarily include arbitrators in KLRCA panel as well as ex-judges. [See Citibank Berhad v Mohamed Khalid Bin Farzalur Rahman & 2 Ors [2000] 3 AMR 3475; CIT v Hindustan Bulk Carriers (2003) 3 SCC 57]. This is set out in section 13 of CIPAA 2012 itself. The other category of persons will relate to the appointment made by KLRCA pursuant to section 32 of CIPAA 2012 and ordinarily will relate to professionals who need to be trained to appreciate legal niceties and ability to write adjudication decision. The law having provided for qualified persons to hear CIPAA 2012, the decision of such persons on procedural matters will rarely be a subject matter of intervention of the court. Being a competent and qualified person to hear CIPAA 2012 dispute itself is not sufficient as the sole right to appoint a competent and qualified person to hear a CIPAA 2012 dispute relating to adjudication is vested solely with KLRCA. [See section 23 of CIPAA 2012]. If there is constant justifiable complaint against an adjudicator for conduct or misconduct, it will be unlikely for the said adjudicator to obtain further assignment through KLRCA. In essence, the law provides proper check and balance for competency, qualification as well as appointment sufficient to say that the Director of KLRCA will 18 only assign cases to appropriate persons taking into consideration the nature of dispute and the expertise required. In addition, parties themselves can appoint any person as an adjudicator of their own choice. That is to say, party autonomy in the appointment of adjudicator is well recognised in CIPAA 2012. [See section 21 of CIPAA 2012]. Having appointed the adjudicator at their own choice, the court will not ordinarily entertain the decision of the adjudicator on procedural matters. [See Ng Chee Yew Sdn Bhd & Ors v IJM Corporation Bhd & Anor [2009] 10 CLJ 378]. [11] If the Director of KLRCA compromises his discretion in appointing adjudicator, it will cause grave injustice to parties and there is little court can do to remedy any form of injustice arising from the appointment of adjudicators who are not proficient or who do not subscribe to impartiality principle as well as the concept related to natural justice itself. Such appointment will have damaging effect if CIPAA 2012 is made applicable to final payment. Jurisdictional Issues [12] If any party is dissatisfied with decision of the adjudicator they can re-agitate the issues by way of arbitration or litigation as the case may be. The issues related to jurisdiction will be the real issue which will determine this appeal and I will deal with it in details. The grounds taken by the appellant read as follows: “(a) the Adjudicator has no jurisdiction to adjudicate a dispute under CIPAA when the Architects Act 1967 ("AA") read together with the Architects Rules 1996 ("Rules") specifies a specific dispute resolution mechanism where the fees of an architect is in dispute; and 19 (b) the Contract is, in any event, not a 'construction contract' under CIPAA.” [13] On the first issue, the learned trial judge had spent substantial time in justifying that CIPAA 2012 is applicable, notwithstanding the provision in the Architect Act read with the Rules, by statutory formula has to go for arbitration. What I wish to say here is CIPAA 2012 is not against arbitration or litigation. It only gives a statutory formula for compulsory adjudication to be able to decide the issue summarily. If the Architect Act and Rules says it should be sent for arbitration does not necessarily mean that CIPAA 2012 is excluded when CIPAA 2012 itself does not say so. I find merit in the reasoning and decision of the learned trial judge limited for the purpose of the instant case only and in consequence I will not labour on this issue further, as CIPAA 2012 also gives the option for arbitration. [14] On the 2nd issue whether CIPAA 2012 applies to ‘construction contract’, the learned trial judge had dealt with it extensively and held it applies. What I wish to say here is that CIPAA 2012 defines construction contract very widely to encompass all and every work which has nexus to construction and will cover pre-construction work and also all form of consultancy work related to the proposed construction, provided it is in writing. The crucial element of the contract must be in relation to construction work. This is well articulated in section 2 of CIPAA 2012 which reads as follows: “2. This Act applies to every construction contract made in writing relating to construction work carried out wholly or partly within the territory of Malaysia including a construction contract entered into by the Government.” 20 [15] The interpretation section gives some clarity to what construction work will entail. The relevant part of the interpretation provision in section 4 does not appear to restrict the meaning of section 4. Section 4 defines construction consultancy contract, construction contract, construction work, construction work contract and contract administrator, in the widest form, as follows: “"construction consultancy contract" means a contract to carry out consultancy services in relation to construction work and includes planning and feasibility study, architectural work, engineering, surveying, exterior and interior decoration, landscaping and project management services; "construction contract" means a construction work contract or construction consultancy contract; "construction work" means the construction, extension, installation, repair, maintenance, renewal, removal, renovation, alteration, dismantling, or demolition of— (a) any building, erection, edifice, structure, wall, fence or chimney, whether constructed wholly or partly above or below ground level; (b) any road, harbour works, railway, cableway, canal or aerodrome; (c) any drainage, irrigation or river control work; (d) any electrical, mechanical, water, gas, oil, petrochemical or telecommunication work; or (e) any bridge, viaduct, dam, reservoir, earthworks, pipeline, sewer, aqueduct, culvert, drive, shaft, tunnel or reclamation work, and includes — (A) any work which forms an integral part of, or are preparatory to or temporary for the works described in paragraphs (a) to (e), including 21 site clearance, soil investigation and improvement, earth-moving, excavation, laying of foundation, site restoration and landscaping; and (B) procurement of construction materials, equipment or workers, as necessarily required for any works described in paragraphs (a) to (e)\ "construction work contract" means a contract to carry out construction work; "contract administrator" means an architect, engineer, superintending officer or other person howsoever designated who administers a construction contract.” [16] The learned trial judge’s deliberation on the meaning of construction contract has merits and I take the view it subscribes to the wide definition endorsed in CIPAA 2012. However, whether a construction contract in writing was in existence for the matter to be referred to adjudication is a jurisdictional issue. Further, whether the claim is related to interim payment or final account or final payment, will also be a jurisdictional issue. In this respect, final account or final payment or final certificate may not be one and the same. It may all depend on the facts and circumstances of the case. I will deliberate on the said issues further based on the non- controverted facts. Brief facts and law related to Architectural Consultancy Contract [17] In this case, the architectural consultancy services contract was terminated and accepted by the respondent. That is to say, there is no dispute that it has been terminated. Once it is terminated, there will not be an existing contract for the matter to be referred to pursuant to CIPAA 2012. However, if the termination is not accepted, then there is a 22 dispute for the matter to be referred to adjudication. I find merit in the submission of the learned counsel limited for the purpose of this case only. To save courts time, I repeat the submission of the learned counsel for the appellant which read as follows: “B(ii). The obligations of the parties post-termination of the Contract 15. It is worth reiterating that the Respondent served the Invoice for payment on the Appellant after the termination of the Contract was accepted by the Respondent and when the Contract no longer subsisted. What then became of the obligations of the parties under the Contract? 16. The answer, we submit, is found in Section 63 of the Contracts Act 1950 (see IA(P) 3- Tab 20). Once the parties agree to rescind the Contract, the Contract need not be performed (see also, Ramli bin Shahdan v Motor Insurers' Bureau of West Malaysia [2006] 2 MLJ 116 at 134 -135, IA(P) 4- Tab 35). 17. Indeed, this was the intention of the parties going by the strict letter of the Contract itself where at Clause 6, the obligation of the Appellant to make payment to the Respondent based on the schedule/mode of payment under the Contract was expressed as UP to the point of termination only. Beyond the termination of the Contract, the Appellant is not obliged to make payment to the Respondent based on the schedule/mode of payment prescribed under the Contract. 18. A somewhat similar issue was ventilated before the High Court in Econpile (M) Sdn Bhd v IRDK Ventures Sdn Bhd [2017] 7 MLJ 732 at 752 (see IA(P) 3- Tab 25) where Lee Swee Seng J took the view that "just because there is no express provision in the CIPAA to say that it is applicable in cases where the construction contract has been terminated does not mean that the CIPAA is inapplicable when the contract has been terminated'. 23 19. In this regard, we respectfully submit that where there is no express provision in CIPAA providing for the question of law and/or issue at hand, the Courts ought not go beyond their judicial role and interpret CIPAA at will. The interpretation of CIPAA ought to at all times reflect the intention of Parliament. 20. In Duport Steels Ltd and others v Sirs and others [1980] 1 All ER 529 at 541-542 (see (l(A)P 4- Tab 34) (as affirmed in the Federal Court in R Rama Chandran v the Industrial Court of Malaysia & Anor [1997] 1 MLJ 145 at 218-219, l(A)P 3- Tab 24), Lord Diplock held that: "... Parliament makes the laws, the judiciary interpret them...the role of the judiciary is confined to ascertaining from the words that Parliament has approved as expressing its intention what that intention was, and to giving effect to it. Where the meaning of the statutory words is plain and unambiguous it is not for the judges to invent fancied ambiguities as an excuse for failing to give effect to its plain meaning because they themselves consider that the consequences of doing so would be inexpedient, or even unjust... ...it is for Parliament, not for the judiciary, to decide whether any changes should be made to the law as stated in the Acts, and if so. what are the precise limits that ought to be imposed ... It endangers continued public confidence in the political impartiality of the judiciary, which is essential to the continuance of the rule of law, if judges, under the guise of interpretation, provide their own preferred amendments to statues which experience of their operation has shown to have had consequences that members of the court before whom the matter comes consider to be injurious to the public interest..." (emphasis added) 21. In applying the foregoing, we respectfully submit that the stand taken by Lee Swee Seng J in Econpile (supra) at 752 (see IA(P) 3 - Tab 25) is erroneous. By interpreting CIPAA so as to effect a change in the law when there are no express wordings in the legislation to the same effect, his 24 Lordship had effectively gone beyond his role as a Judge (which is to interpret a piece of legislation to mirror the intention of Parliament) and into the realm of law-making. 22. In any event, the facts of Econpile (supra) (see IA(P) 3 - Tab 25) are distinguishable from that of the present case. In the former case, there were two payment certificates, in the nature of progress claims issued, both dated 24.3.2015 and 31.3.2015 respectively ("outstanding invoices"). The contract between the parties was terminated on 17.4.2015. After the termination, the claimant served its payment claim for the outstanding invoices on 20.5.2015. 23. In short, the outstanding invoices were issued before the termination of the contract and accordingly, the High Court determined that the subsequent termination of the contract did not preclude the claimant from making a valid claim under CIPAA. 24. By contrast, however, the facts in the instant case are different. Here, the Respondent issued the Invoice dated 8.10.2015 for claims well after the termination of the Contract. The Invoice is not a progress payment as it was not made during the currency of the Contract. What then was the effect of the termination of the Contract on the Invoice? 25. In Gantley Pty Ltd v Phoenix International Group [2010] VSC 106 at 46 (see IA(P) 4 - Tab 30), the Supreme Court of Victoria considered the effect of termination at common law and said that:- “144. It is well accepted that when a contract is terminated at common law by the acceptance of a repudiation, both parties are discharged from the further performance of the contract, but rights which have already been unconditionally acquired are not divested or discharged unless the contract provides to the contrary." 26. This does not mean that the 'wronged party' is left without a remedy. It merely means that the remedy available is no longer to be sought for under 25 CIPAA. Instead, the remedy of contractual damages on the basis of a quantum meruit ought to be pursued by the 'wronged party' who has accepted the termination of a contract. 27. At paragraph 146 of Gantley (supra) (see IA(P) 4 - Tab 30), the Supreme Court of Victoria aptly summarized the position thus:- "146. On this analysis, the first question becomes: do the rights to make progress claims under each of the relevant contract up to the date of termination accrue such that they are not rights which are divested or discharged on termination but rather are rights which are "unconditionally acquired" and thereby survive termination? If this is the case, the Act will apply. If not, it won't." (emphasis added). 28. In summary, the amount claimed by the Respondent under the Invoice was not a valid progress payment under the Contract. If it was, it would have been a cause of action which survived the termination of the Contract. However, since the Contract had already been terminated by the time the Invoice was issued, CIPAA will have no operation in relation to it.” Brief facts and law in relation to interim or final account or final payment [18] The architectural consultancy services contract was related to 4 Towers and 3 stages of work and each stage the respondent is entitled to a percentage of remuneration as follows: Element Scope of Work Proposed fee based on progress of work Podium car park structure  To manage the construction from Ground floor up to 5th storey podium Monthly progressive billing over 14 months Tower 1  A. Contract documentation – 35% 26 upon completion of tender drawing Tower 2  A. Contract documentation – upon completion of tender drawing 35% Tower 3  A. Contract documentation – upon completion of tender drawing 35% Tower 4  A. Contract documentation – upon completion of tender drawing 35% [19] It is not in dispute that the termination took place before the completion of the construction of the towers. If there has been no termination or unilateral termination, their claim would have been for interim payment and the matter can be referred pursuant to CIPAA 2012. If the contract has been terminated and accepted as in this case, then the claim of the respondent will relate to final account or final payment and in consequence CIPAA 2012 will not be applicable. My reasons are as follows: (a) CIPAA 2012 deals with construction contract and not the rights and liabilities of parties related to construction dispute and the law. The distinction here is not one of an apple and orange but it is one of a marble and pumpkin. The payment in CIPAA 2012 relates to contractual claim and progress payment is based on contractual terms. However, when it comes to final account or final payment, the whole area of construction law and/or part may become applicable. For example, if the contractor is liable in negligence to adjoining owners and in consequence the employer becomes liable then the employer may have claims against the contractor. 27 (b) To appreciate the scope of CIPAA 2012 and the construction contract, construction dispute and construction law, the phrases need to be explained: (i) CIPAA 2012 has everything to do with written construction contract. If there is a breach of the terms which resulted in non-payment, the law applicable to decide the issue to a large extent will be the law of contract. (ii) Construction contract as far as CIPAA 2012 is concerned, it has been defined. The said definition may not be the same as defined in the dictionary or book writers. For example, learned author John Uff in his book titled ‘Construction Law” (9th edn.) makes the following observation at page 1: “The term "construction contract" now has a statutory definition covering most but not all types of construction work, and including both building and engineering work. Construction law, however, embraces all construction contracts, whether or not within the statute.” And also at the same page: “The term "construction law" is now universally understood to cover the whole field of law which directly affects the construction industry and the legal instruments through which it operates. But construction law extends well beyond the law as such.” 28 (c) Construction dispute excluding CIPAA 2012 will naturally embrace many areas of law inclusive of civil, commercial as well as administrative law, etc. CIPAA 2012 is meant only to cover the contractual dispute and not construction dispute. When it comes to final account or final payment, the commercial reality is for the parties to settle the construction dispute as a whole, at least at the stage of final payment. (d) Construction contract itself may have defined what are the necessary considerations to be taken into account for final certificate or final account. Further, in some construction contracts, the meaning of final certificate or final account may have been contractually provided that does not necessarily mean the employer or employee is restrained from making claims which had nexus to the construction contract itself before the issue of final payment is settled. In in the case of Pembenaan Leow Tuck Chui Sdn Bhd v Dr Leela Medical Centre Sdn Bhd [1995] 2 MLJ 57, Edgar Joseph Jr observed: "It is well known to lawyers engaged in the field of construction contract law that the question whether a building owner or main contractor is entitled to refuse to make payment of money to a contractor or contractor, as the case may be, allegedly due and payable under an interim certificate issued by an architect or engineer, pursuant provisions in a RIBA contract and other known forms of building contracts and sub contracts, on the ground that he has cross-claims alleging defective work or over-valuation or damages for delay, is a the question of ever-recurring importance, which inevitably throws open for discussion the actual terms of the 29 particular contract or sub-contract in the case and the all too familiar trilogy of cases of Dawnays Ltd v FG Minter Ltd & Anor [1971] 2 All ER 1389; [1971] 1 WLR 1205, Gilbert-Ash (Northern) Ltd v Modern Engineering (Bristol) Ltd [1974] AC 689; [1973] 3 All ER 195; [1973]3 to WLR 421, Mottram Consultants Ltd v Bernard Sunley & Sons Ltd [1975] 2 Lloyd's ' Rep 197 and their progeny." (e) The word final account is not mentioned in the Act. However, section 36 particularly provides a positive right to progress payment only. This will be consonant to the principle that CIPAA 2012 is meant to be for summary determination where rule of law relating to trial or hearing procedure can be compromised and parties can resort to arbitration and/or litigation if they are not satisfied with the adjudicator’s decision. The said section 36 reads as follows: “36. (1) Unless otherwise agreed by the parties, a party who has agreed to carry out construction work or provide construction consultancy services under a construction contract has the right to progress payment at a value calculated by reference to — (a) the contract price for the construction work or construction consultancy services; (b) any other rate specified in the construction contract; (c) any variation agreed to by the parties to the construction contract by which the contract price or any other rate specified in the construction contract is to be adjusted; and (d) the estimated reasonable cost of rectifying any defect or correcting any non-conformance or the diminution in the value of the construction work or construction consultancy services performed, whichever is more reasonable. 30 (2) In the absence of any of the matters referred to in paragraphs (1) (a) to (d), reference shall be made to — (a) the fees prescribed by the relevant regulatory board under any written law; or (b) if there are no prescribed fees referred to in paragraph (a), the fair and reasonable prices or rates prevailing in the construction industry at the time of the carrying out of the construction work or the construction consultancy services. (3) The frequency of progress payment is — (a) monthly, for construction work and construction consultancy services; and (b) upon the delivery of supply, for the supply of construction materials, equipment or workers in connection with a construction contract. (4) The due date for payment under subsection (3) is thirty calendar days from the receipt of the invoice.” (f) It is trite that in litigation, dispute cannot be taken on instalment basis, though there may be exceptions. [See Henderson v Henderson [1843] 3 Hare 100; Shahidan bin Shafie v Atlan Holdings Bhd & Anor [2013] 7 MLJ 215]. If Parliament in its wisdom had intended for CIPAA 2012 to be applicable for final account or final payment, it would have clearly done so. It will not be the function of the court to add or minus what has been stated in the statute to broaden the scope of CIPAA 2012 to include the final payment, save as to clarify the meaning attributable to the word or phrase based on the principles relating to ‘Harmonious Construction of 31 Statute’. Harmonious Construction of Statute may lead the court to recognise the implied or broad meaning of a word or phrase in a section, taking a holistic approach to other provisions of the Act as well as statutes. [See Citibank Berhad v Mohamed Khalid Bin Farzalur Rahman & 2 Ors [2000] 3 AMR 3475; CIT v Hindustan Bulk Carriers (2003) 3 SCC 57]. Without a proper trial or hearing in the form of arbitration or litigation and to allow a party to summarily execute a decision of the adjudicator may ultimately cause prejudice to the respondent to the award. This is so because the adjudicator’s decision can inter alia be used to wind up the company against whom the decision has been made. (g) In addition, section 29 of CIPAA 2012 deals with suspension of work. At common law, it is trite that a contractor as a general rule will not be able to suspend work for non- payment though he may have a right to terminate the contract. [See Kah Seng Construction Sdn. Bhd. [1997] 1 CLJ 448; Citex (M) Sdn Bhd v Ingeback (M) Sdn Bhd [1995] 1 LNS 52]. Learned authors of Keatings on Building Contract, 5th Edn., at page 157 observes:- “No general right to suspend work. Although particular contracts may give the contractor express rights if certificates are not paid, there is no general right to suspend work if payment is wrongly withheld. This is consistent with the principle that, except where there is a breach of condition or fundamental breach of contract, breach of contract by one party does not discharge the other party from performance of his unperformed obligations.” 32 (h) Section 29 displaces the common law rule and allows the contractor to suspend work and it relates to progress payment. Section 29 of CIPAA 2012 read as follows: “29. (1) A party may suspend performance or reduce the rate of progress of performance of any construction work or construction consultancy services under a construction contract if the adjudicated amount pursuant to an adjudication decision has not been paid wholly or partly after receipt of the adjudicated decision under subsection 12(6). (2) The party intending to suspend the performance or reduce the rate of progress of performance under subsection (1) shall give written notice of intention to suspend performance or reduce the rate of progress of performance to the other party if the adjudicated amount is not paid within fourteen calendar days from the date of receipt of the notice. (3) The party intending to suspend the performance or reduce the rate of progress of performance under subsection (1) shall have the right to suspend performance or reduce the rate of progress of performance of any construction work or construction consultancy services under a construction contract upon the expiry of fourteen calendar days of the service of the notice given under subsection (2). (4) The party who exercises his right under subsection (3) — (a) is not in breach of contract; (b) is entitled to a fair and reasonable extension of time to complete his obligations under the contract; (c) is entitled to recover any loss and expenses incurred as a result of the suspension or reduction in the rate of progress of performance from the other party; and 33 (d) shall resume performance or the rate of progress of performance of the construction work or construction consultancy services under a construction contract in accordance with the contract within ten working days after having been paid the adjudicated amount or an amount as may be determined by arbitration or the court pursuant to subsection 37(1).” (i) Final account or payment may include the exercise to open up, review and revise the certificate and/or certificate of extension, etc. To say CIPAA 2012 includes the final claim is not strictly supported by the legislation. Reliance on the Singapore position or other jurisdictions where their statutes allow final account or payment to be dealt by summary process, will not subscribe to the Rule of Law related to statutes and our case laws. Further, their appeal and enforcement procedure as well as case laws related to adjudicator’s decision may be different. A disputed adjudication decision made summarily as per the case laws in Malaysia will be fatal to the employer as well as the contractor as the decision can be used to wind up the company immediately as opposed to an arbitration award and/or judgment of the court. Pay first and dispute later principle may be a good option for progress payment but not for final account and/or final payment. Learned authors Chow Kok Fong, Lim Chong Fong and Oon Chee Kheng in their book titled “Adjudication of Construction Payment Disputes in Malaysia”, at pages 42 and 43 observes: 34 “[5.4] In each of these instances, the Contractor's entitlement to be paid relates relevantly to the amount certified on the interim certificate but this entitlement only accrues on the date when the Contractor should have received payment. There is authority in Malaysia for the proposition that a progress payment certificate which has been properly and duly issued enjoys temporary finality. It creates a debt due from the employer to the contractor which is capable of being enforced summarily.” and at pages 122 and 123 observes:- “[13.3] In this connection, a question which may arise is the extent to which the temporarily finality of an adjudication decision is comparable with the temporary finality which is ascribed by the authorities to a payment certificate issued as part of the certification process provided in a construction contract. [13.4] It is settled law in Malaysia that a progress payment certificate which has been properly and duly issued enjoys temporary finality. In BMC Construction Sdn Bhd v Dataran Rentas Sdn Bhd (2001), Jefferey Tan J (as he then was) held that the respondent in that case was indebted to the petitioner for the amounts certified in the relevant payment certificates and that since the respondent was unable to discharge this debt, the respondent company would be wound up. This decision was subsequently affirmed by the Court of Appeal in Dataran Rentas Sdn Bhd v BMC Constructions Sdn Bhd (2008). [13.5] In contrast, the same could not be said of the amount awarded by an arbitrator. In Malayan Flour Mill Bhd v Raja Lope & Tan Co (2006), Ramly Ali JC (as he then was) held that an arbitrator's award, unlike an order or judgment of a court, does not immediately entitle a successful party to levy execution against the assets of the unsuccessful party. The successful party has to first 'convert the award into a judgment or order of the court' before he can proceed to levy 35 execution. This decision was cited with approval by the Court of Appeal in Mobikom Sdn Bhd v Inmiss Communications Sdn Bhd (2007). Gopal Sri Ram JCA (as he then was) in particular stated, 'I entirely agree' with the decision of Ramli Ali JC in Malayan Flour Mill. It is interesting to note that the learned judge also sat in the Court of Appeal in Dataran Rentas and in his judgment in the earlier case had stated that the unsatisfied payment certificates would entitle the petitioner to proceed with the winding up proceeding and all 'issues that go to challenge the debt may be dealt with at the hearing of the petition'. It would appear from these decisions that in the event of a winding up of the paying party, the unpaid party may have a better claim on the basis of the amount certified in a progress payment certificate than a sum awarded by an arbitrator. [13.6] In adjudication under the CIPAA, section 28 provides specifically for an adjudication to be enforced by an application to the High Court 'for an order to enforce the adjudication decision as if it is a judgment or order of the High Court'. The stipulation of this as a procedural step suggests that the status of an adjudication decision in the context of a winding up approaches that of an arbitration award the enforcement of which is provided under section 38(1) of the Arbitration Act 2005. As suggested by the decisions in Malayan Flour Mill and Mobikom v Inmiss, it follows that in the event of a winding up of the paying party, an unpaid party may have a better claim on the basis of the amount certified in a progress payment certificate than on a sum awarded under an adjudication decision.” (j) It is also interesting to note that the learned authors are careful to use the word progress payment several times in pages cited above to anchor the argument of material injustice which may arise if a construction of the statute is given to include final account or final payment. Though the learned authors make a distinction between the adjudication 36 decision and payment certificate, the principles for winding up is related ‘debt due and owing’ and it is not necessary for an award or judgment to be in existence. (k) In addition, the preamble of CIPAA 2012 says regular and timely payment. Regular and timely payment will only be in issue if it is a contract which needs to be performed and not to an obligation which has been completed. The phrase ‘regular and timely’ is conjunctive and not disjunctive. The position arguably, may be different if it had been stated as ‘Regular or timely payment’. The preamble relates to overcome cash flow problem relating to construction contracts and not construction dispute. The observation of the Federal Court relating to cash flow in the case of Globe Engineering Sdn Bhd v Bina Jati Sdn Bhd [2014] 7 CLJ 1 is instructive. The court dealt with some of the cases in relation to construction contract, interim payment and cash flow or liquidity and stated on the facts inter alia as follows: “[33] That liability was contingent was also impliedly refuted by cl. 19 in the sub-contract. It should not be lost that "the purpose of an interim certificate is to provide by payments on account a cash-flow to enable the contractor to finance the work" Crown House Engineering Ltd v. Amec Projects Ltd (1990) 6 Const LJ 141, per Slade LJ), to enable "interim payments to be made to the contractor as the Works progress" (Tameside Metropolitan Borough Council v. Barlow Securities Group Services Ltd (2001) 75 Con LR 112, [2001] EWCA Civ 1). "The primary purpose of the interim certificates in this kind of contract is to ensure that the contractor will receive regular stage payments as his work progresses" (London Borough of Camden v. Thomas McInerney & Sons Ltd (1986) 9 Con LR 99; see also Rohcon Ltd v. SIAC 37 Architectural Ltd [2003] IEHC 1133S 01) so "that the sub-contractor can have the money in hand to get on with his work and the further work he has to do" (Dawnays Ltd v. FG Minter Ltd and Another [1971] 2 All ER 1389 per Lord Denning MR, which dictum was adopted by the Federal Court in Bandar Raya Developments Bhd v. Woon Hoe Kan & Sons Sdn Bhd [1971] 1 LNS 11; [1972] 1 MLJ 75). "... the purpose of interim certificates is to see that the contractor is in sufficient funds to carry on the construction as it progresses" (Unpaid Interim Payment Certificates by Vinayak Pradhan [1997] 2 MLJ xv).” [20] In view of sections 29 and 36, any reasonable tribunal appraised with the facts and law relating to construction claim, construction contract, construction dispute and construction law will come to a conclusion that CIPAA 2012 is limited to progress claim. On this issue, I find merit in the submission of the learned counsel for the appellant. To save judicial time, I repeat the submission verbatim and it reads as follows: “C. Was the Invoice for a 'progress payment' or a 'final claim'? 29. It is worth reiterating that the term 'progress payment' under CIPAA is found in Section 36 (see IA(P) - Tab 1) which provides for a statutory right to progress payment where there is no specific mechanism for the calculation of the same in construction contracts. In the instant case, the value of the progress payment is calculated by reference to the rate specified in the Contract (per Section 36(1)(b) of CIPAA) (see IA(P)- Tab 1). 30. CIPAA does not define a 'progress payment' nor does the Act expressly mention whether its application would cover final payments. javascript:DispCase=window.open('/Members/DisplayCase.aspx?CaseId=1959068161&SearchId=3hakim33','_DisplayCase','');DispCase.focus() javascript:DispCase=window.open('/Members/DisplayCase.aspx?CaseId=1959068161&SearchId=3hakim33','_DisplayCase','');DispCase.focus() 38 31. The court in Gantley (supra) (see IA(P) 4 - Tab 30) drew a distinction between progress claims and final payment claims at paragraph 233 of the judgment and the distinguishing features may be summarized as follows:- (a) once the final payment is made pursuant to a final payment claim, the rights and claims of the parties under the contract are settled through accord and satisfaction with the result that each party's obligations under the contract are discharged; and (b) by contrast, a progress claim under the contract does not have this effect. Progress payment made pursuant to a progress claim which turns out to be wrong would not preclude a later adjustment to correct the error. 32. Further, at paragraph 239 of the judgment in Gantley (supra) (see IA(P) 4- Tab 30), the court held that "the provision of a final balancing of account between the contracting parties is a hallmark of a final payment claim." 33. In the instant case, we would submit that that the Invoice is neither a progress payment nor a final claim under the Contract for the simple reason that the Invoice was issued after termination of the Contract. Further: - (a) the Invoice could not have been a 'progress payment' because the progress payment in respect of Towers 1, 2 and 3 only fell due upon completion of the Contract Documentation Phase. It is glaring from the Respondent's Payment Claim itself that the Invoice comprised work done for 'partial completion' of the Contract Documentation Phase in respect of Towers 2 and 3; (b) nor could the Invoice have been a 'final claim' because the contractual process for the making of a final payment claim under the Contract was extinguished upon the early mutual termination of the Contract – i.e. the balance 10% under the Contract would have been due only upon the Respondent 39 obtaining the Certificate of Completion and Compliance. This was not the case; and (c) like in Gantley (supra) at p 72, para 238 (see IA(P) 4 - Tab 30), the Invoice was prepared and served well after the termination had occurred, following which no further work was carried out under the Contract. 34. As such, the distinction between a 'progress payment' and a 'final claim' is, we submit, not pertinent in deciding the instant case. Regardless of its form, the Invoice was in substance made post-termination of the Contract. 35. The jurisprudence in this area is divided - with the Court of Appeal in View Esteem Sdn Bhd v Bina Puri Holdings Bhd [2016] 6 MLJ 717 at 744 (see IA(P) - Tab 15) suggesting in obiter on the one hand that CIPAA's application is only in relation to interim payments: "[32] ...the CIPAA 2012 relates to interim payments and not the final accounts between the parties." while the High Court in Econpile (supra) (see IA(P) 3 - Tab 25) on the other hand suggesting that from the rationale and purpose perspective of the Act, there was no good reason to exclude its application once the construction contract had been terminated. C(ii). The meaning of 'right to progress payment' under Section 36 of CIPAA by reference to similar provisions in other jurisdictions (a) The Australian position - the Old Victorian Act and the Old NSW Act 36. As submitted earlier on, the Old Victorian Act bears resemblance to CIPAA. Section 9 of the Old Victorian Act (see IA(P) 3 – Tab 19) provides for the 'rights to progress payments' and subsection (1) reads:- 40 (1) On and from each reference date under a construction contract, a person: (a) who has undertaken to carry out construction work under the contract, or (b) who has undertaken to supply related goods and services under the contract, is entitled to a progress payment under this Act, calculated by reference to that date." 37. The corresponding provision in CIPAA is found in Section 36(1) (see IA(P) - Tab 1) which although drafted differently, bears the same meaning in so far as it states:- (1) Unless otherwise agreed by the parties, a party who has agreed to carry out construction work or provide construction consultancy services under a construction contract has the right to progress payment at a value calculated by reference to - (a) the contract price for the construction work or construction consultancy services; (b) any other rate specified in the construction contract; (c) any variation agreed to by the parties to the construction contract by which the contract price or any other rate specified in the construction contract is to be adjusted; and (d) the estimated reasonable cost of rectifying any defect or correcting any non-conformance or the diminution in the value of the construction work or construction consultancy services performed, whichever is more reasonable, (emphasis added). 38. In interpreting the Old Victorian Act, the Supreme Court of Victoria had on at least 2 occasions determined that the Old Victorian Act's application is exclusive to 'progress payments' only, in line with the intent and purpose of the Old Victorian Act:- 41 (a) In De Martin and Gasparini Pty Ltd v Energy Australia arid Another (2002) 55 NSWLR 577 at 590-591 (see IA(P) 3 -Tab 26) the Supreme Court of NSW acknowledged that while the term 'progress payments' is not fully articulated in the Old Victorian Act, the court referred to the decision in Jemzone Pty Ltd v Trytan Pty Ltd (2002) 42 ACSR 42 (see IA(P) 4 - Tab 31) where the learned Judge in the latter case concluded that:- "if the Act (the Old Victorian Act) was intended to apply in the case of final payment on practical completion, it would have been a simple matter for the drafter of the statement of the object of the Act in s 3(1) to refer to the entitlement to receive all payments due under the construction contract, rather than only 'specified progress payments'." (b) In Gantley (supra) at pp. 53-54 (see IA(P) 4 - Tab 30), the Supreme Court of Victoria once again delivered its views on the definition of 'progress payments' and took the position that it would be 'straining the language' to suggest that a claim for 'progress payment' can be made upon, inter alia, termination of a contract:- "172. ...There being no definition provided by the Old Act (the Victorian Act) the construction of 'progress payment' in the first instance is to be derived from the ordinary and natural meaning of the words as used in the context of the text of the legislation. 'Progress payments' in a construction contract are payments made by providing instalments of part of the agreed contract price sequentially and progressively over the life of a contract. As Finkelstein J said in Protectavale: 42 Progress payments are effectively payments by instalments or periodic payments made over the life of the contract for construction work a/ready completed. In my opinion, it would be straining the language to suggest that a 'progress payment' can be made following either the completion of the contract or its termination." (emphasis added). 39. In fact, the Old NSW Act which was applied in Jemzone Pty Ltd (supra) (see IA(P) 4 - Tab 31) also provides for the 'right to progress payments' under Section 8. Section 8(1) and (2)(a) of the Old NSW Act (see IA(P) 3 - Tab 17) are almost identical to Section 9(1) and 2(a) of the Old Victorian Act (see IA(P) 3 - Tab 19) with the only difference being the parentheses in Section 8(2)(a)(ii) of the Old NSW Act. 40. The court in Gantley (supra) at paragraph 245 (see IA(P) 4- Tab 30) also held that if indeed the claims made in that case were final payment claims, they were not permitted to be made under the Old Victorian Act. This, the court said, was in line with the core purpose of the Act:- "249. The core purpose of the Act is to provide a statutory right to payment of progress payments under a construction contract and to provide a mechanism to enable the party so entitled to recover those payments. The framework under the Old Act was confined to providing this facility in respect of 'progress payments'. 251. Under this ground, I am satisfied that the payment claims were invalid. They failed to satisfy a basic and essential requirement of the legislation in a substantial and material way, and further that the failures were manifest on the face of the documents. There was therefore jurisdictional error." (emphasis added) 43 41. If the rationale in Gantley (supra) (see IA(P) 4- Tab 30) was adopted, would this mean that the Respondent would be left without a remedy? Surely not - as the Respondent would still be able to seek remedies in litigation or arbitration as provided under the Contract. As explained by the court in paragraph 252 of the judgment:- "252. If final payment claims are to be made in respect of construction contracts to which the Old Act applies, the contractual mechanism, if there be one, should be engaged. If there be a failure on the part of a respondent to such a claim to make payment, when pursuant to the contract it is required to do so, litigation and not the Act, is the last resort for enforcement. Likewise, in cases such as the present, if the construction contract to which the Old Act applies has been terminated prior to the time when the contract permits a final payment claim to be made, and the contractual mechanism for the making of a final payment claim is not, or cannot be engaged, in circumstances where a principal or head contractor refuses payment of what is due, litigation and not the Act is again the last resort for enforcement of what may be due to a contractor." (emphasis added). (b) The Singaporean position 42. The High Court of Singapore adopted a broad interpretation of the Singaporean Building and Construction Industry Security of Payment Act 2006 ("Singaporean Act") (see IA(P) 3- Tab 16) in Tionq Seng Contractors (Pte) Ltd v Chuan Lim Construction Pte Ltd [2007] 4 SLR 364 at 370 (see IA(P) 4- Tab 27) to include adjudication of final progress payments. At paragraph 27, the court held:- "27. Looking at the structure and wording of the provision, it appears that an exclusion of 'final payments' from the ambit of the Act can only be justified by express wording to that effect. It would not suffice to infer a legislative intention to exclude simply on the basis that 'final payments' were not included in a non-exhaustive supplementary 44 definition, ostensibly provided for clarification. If the Legislature had intended to exclude final claims from the adjudicatory ambit of the Act, it could have clearly included a proviso or provision to that effect. In the absence of such express exclusion, the primary broad-ranging definition in the main limb must be determinative." (emphasis added) 43. By contrast to CIPAA and the Old Victorian Act, the Singaporean Act (see IA(P) 3- Tab 16) defines 'progress payment' as:- "...a payment to which a person is entitled for the carrying out of construction work, or the supply of goods or services, under a contract, and includes— (a) a single or one-off payment, or (b) a payment that is based on an event or a date; 44. Notably absent from the Singaporean Act is the 'right to progress payment' which features in the Old Victorian Act, Old NSW Act and CIPAA. It was for this reason that the Singapore High Court in Tionq Sena Contractors (Pte) Ltd (supra) at (see IA(P) 4- Tab 27) distinguished Jemzone Ptv Ltd (supra) (see IA(P) 4 - Tab 31) which was decided on the Old NSW Act:- "44. I am of the view that Austin J's holding in Jemzone ([20] supra) loses its significance once we appreciate that s 8 of the NSW Act (as it then was) did not define or explain the term 'progress payment'...In contrast to the NSW Act (as it then was), s 2 of our current version of the Act unambiguously defines 'progress payments' as 'a payment to which a person is entitled for the carrying out of construction work, or the supply of goods or services, under a contract" - a definition which leans towards the adjudicatory ambit of the Act." 45 (c) The Malaysian position under CIPAA 45. In Tunku Yaacob Holdings Sdn Bhd v Pentadbir Tanah Kedah & Ors [2016] 1 MLJ 200 at 218, (see IA(P) 3 - Tab 22) the Federal Court considered the 'settled general rule' that 'when a statute is susceptible of two or more interpretations, normally that interpretation should be accepted as reflecting the will of the legislation which is presumed to operate most equitably, justly and reasonably as judged by the ordinary and normal conceptions of what is right and what is wrong and of what is just and what is un just. 46. Accordingly, we humbly submit that the interpretation of CIPAA to be exclusive to progress payments only would best reflect the will of the legislation.” [21] In my view, CIPAA 2012 if by decisions of courts is made applicable to final account or final payment in relation to construction disputes as opposed to construction contract for interim payment, it may lead to abuse of process. My reasons are as follows: (i) CIPAA 2012 was meant to assist contractor to receive the interim payment for work in progress timely, as the law was that the contractor was obliged to complete the contract within time frame even if the employer did not pay timely the contractual payments for work done. (ii) CIPAA 2012 mechanism for adjudication dispenses with trial process as well as law of evidence, etc. There is little that the respondent to a CIPAA 2012 adjudicator’s decision can do to refuse payment. To summarily determine a final payment will be breach of rule of law and constitutional provisions and safeguards. 46 (iii) To allow the contractor to enforce a final payment of summary adjudication process will be abhorrent to notion of justice and fair play and will cause irreparable loss to the employer in the event by arbitration process or litigation process it is found the employer is not liable to payment and the money is not commercially recoverable from the contractor. (iv) It is wrong to construe the Act of Parliament to include claims for final payment when the mischief CIPAA 2012 was intended to cure was the timely payment for work related to progress payments and not final account. (v) CIPAA 2012 must not be interpreted by the courts to oppress the employers as that was not the aim, purpose and intent of the Act. (vi) It is principally wrong to read into the Act the phrase ‘final payment’ when Parliament has not expressly stated and the holistic reading of the Act will lean towards interim payments only as explained earlier. (vii) CIPAA 2012 which will be applicable also to the Federal or State Government contracts inclusive of its organs such as Federal and State owned or related corporations, etc. in the capacity of employers of contract can be adversely affected if it relates to final payment and the money paid to the contractor subsequently is not recovered from the contractor upon an arbitration award or judgment in 47 favour of the employer. It will then impinge on public purse, which requires the court to be vigilant when leaning to an interpretation which is not patently stated in the Act. [22] It is one related to common sense to conceive generally that contractors and sub-contractors will be persons who may not have financial strength or capacity in contrast to the employers. To say CIPAA 2012 advocates full payment to be released on final account that too summarily will not subscribe to commercial reality as well as rule of law and constitutional safeguards enjoyed by others in litigation or arbitration process. [23] CIPAA 2012 mechanism has no form of civilised rules or law of evidence for the adjudicator to be bound and/or to allow the court to supervise the adjudication process at all and submitting to the adjudicator is also not a voluntary process. The adjudicator under the CIPAA 2012 has been made a supreme decision maker, where his decision is right or wrong must be complied with. There is also no disciplinary mechanism to check the misconduct of adjudicator. History on rule of law has shown power corrupts and absolute power may lead to corruption, that too when it is related to a final payment. If CIPAA 2012 is ruled to cover final payment, KLRCA will benefit from collection of administrative fees. That should not be seen as criteria to advocate CIPAA 2012 for final payment when the Act does not say so. In addition, as a general rule, the courts will jealously guard its jurisdiction. [See The Abidin Daver [1984] 1 All ER 470; Semenyih Jaya Sdn Bhd v Pentadbir Tanah Daerah Hulu Langat & Anorther Case [2017] 5 CLJ 526]. It will be wrong in jurisprudence for KLRCA to seize jurisdiction for final 48 payment under CIPAA 2012 when the Act does not expressly say so. What has been expressly stated is only interim payments and not final payment. Simply put if CIPAA 2012 is made applicable to final claim, it will lead to travesty of justice in the employers perspective as articulated by the appellant in this case. [24] I have read the appeal records and the able submissions of the learned counsel. After giving much consideration to the submission of the learned counsel for the respondent, I take the view that both the appeals should be allowed. My reasons inter alia are as follows:- (a) The claim by the respondent is not related to CIPAA 2012 and adjudicator will not have the jurisdiction to hear the dispute. In consequence, the decision of the adjudicator dated 14-4-2016 must be set aside. (b) Upon the decision of the adjudicator being set aside, it will follow that the enforcement of the decision has to be set aside. [25] For reasons stated above, both the appeals are allowed with costs. Both the decisions of the High Court related to section 15 and section 28 are set aside. The respondents shall pay the appellant a global sum of RM25,000.00 as costs for both appeals subject to allocatur. Deposit is to be refunded, with a note that the majority have dismissed the appeal with costs. 49 Dated: 15 September 2017 sgd (DATUK DR. HJ. HAMID SULTAN BIN ABU BACKER) Judge Court of Appeal Malaysia. Note: Grounds of judgment subject to correction of error and editorial adjustment etc. Counsel for Appellant: Mr. M. Nagarajah [with Ms Tanya Lopez and Ms Corrine Chin] Messrs Shook Lin & Bok Peguambela & Peguamcara 20th Floor, Ambank Group Building 55 Jalan Raja Chulan 50200 Kuala Lumpur. [Ref: CMS/TML/NM/17658/15/MSB/AM&CSB/07-2022396] Counsel for Respondents: Mr. Sivabalan [with Ms Tharmini Paramasivan] Messrs Tan Swee Im, Siva & Partners Peguambela & Peguamcara Suite D-3A-03 to 06, Block D Plaza Mont Kiara, No. 2, Jalan Kiara Mont Kiara 50480 Kuala Lumpur. [Ref: TSI/S/853/2015/ARMC]	84,763	Tika 2.6.0
W-02(C)(A)-1496-08/2016	PERAYU MARTEGO SDN. BHD . ... APPELLANT (COMPANY NO. 194048-W) RESPONDEN ARKITEK MEOR & CHEW SDN. BHD. ... RESPONDEN T (COMPANY NO. 934713-T)	Building and Construction Law — Construction contracts — Appeal to set aside the adjudication — Martego engaged the respondent, a firm of architects as the Project Architect — Disputes arose— Whether learned adjudicator had acted in excess of jurisdiction — Whether Act 746 has no application to claim in respect of the architectural fees — Whether there has been a breach of natural justice in the process of adjudication — Whether the decision of the adjudication can be reviewed on its merits — Construction Industry Payment and Adjudication Act 2012 [Act 746], ss 15 and 28	15/09/2017	YA DATUK DR HAJI HAMID SULTAN BIN ABU BACKERKorumYAA TAN SRI DATUK SERI PANGLIMA DAVID WONG DAK WAHYA DATUK DR HAJI HAMID SULTAN BIN ABU BACKERYA DATO' UMI KALTHUM BINTI ABDUL MAJID	https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=7cea4448-8c82-437c-a2a8-33b20ccc044b&Inline=true	1 IN THE COURT OF APPEAL OF MALAYSIA (APPELLATE JURISDICTION) CIVIL APPEAL NO. W-02(C)(A)-1496-08/2016 BETWEEN MARTEGO SDN. BHD . ... APPELLANT (COMPANY NO. 194048-W) AND ARKITEK MEOR & CHEW SDN. BHD. ... RESPONDENT (COMPANY NO. 934713-T) HEARD TOGETHER WITH IN THE COURT OF APPEAL OF MALAYSIA (APPELLATE JURISDICTION) CIVIL APPEAL NO. W-02(C)(A)-1497-08/2016 BETWEEN MARTEGO SDN. BHD . ... APPELLANT (COMPANY NO. 194048-W) AND ARKITEK MEOR & CHEW SDN. BHD. ... RESPONDENT (COMPANY NO. 934713-T) 2 [In the matter concerning the Kuala Lumpur High Court Originating Summons No.: WA-24C-39-06/2016] Between Martego Sdn. Bhd. … Plaintiff (Company No.: 194048-W) And Akitek Meor & Chew Sdn. Bhd. … Defendant (Company No.: 934713-T) Coram: David Wong Dak Wah, JCA Hamid Sultan bin Abu Backer, JCA Umi Kalthum binti Abdul Majid, JCA Hamid Sultan Bin Abu Backer, JCA (Delivering Dissenting Judgment of The Court) GROUNDS OF JUDGMENT [1] There are two appeals by Martego (respondent to adjudication decision) before us related to one adjudication decision under appeal No. W-02(C)(A)-1496-08-2016 (1st appeal) and appeal No. W-02(C)(A)-1497- 08-2016 (2nd appeal), which came up for hearing on 27-03-2017. We reserved judgment and invited further submissions on two main issues which goes to the jurisdiction of the applicability of Construction Industry Payment and Adjudication Act 2012 (CIPAA 2012) itself. The questions posed by the court were as follows: 3 “(a) Whether the subject matter of the adjudication was based on interim payment claim or a final claim; (b) Whether statutory adjudication in other jurisdictions makes a distinction between final bills and interim bills. [2] The 1st appeal is Martego’s appeal to set aside the adjudication under section 15 of CIPAA 2012. The 2nd appeal is also Martego’s appeal to set aside the enforcement order made by the learned High Court judge in respect of the adjudication decision pursuant to section 28 of CIPAA 2012. If the 1st appeal is allowed, it will follow that the 2nd appeal must be allowed and the enforcement order given under section 28 will have to be set aside. [3] It was contended before us by the respondent to both appeals that it was wrong for this court to direct the parties to submit on the two issues related to jurisdiction, which was not raised and argued by the parties in the court below. And heavily relied on the Federal Court case of Dato’ Tan Chin Who v Dato’ Yalumallai @ M Ramalingam s/o V Muthusamy [2016] 5 MLJ 590 and RHB Bank Bhd (substitution Kwong Yik Bank Bhd) v Kwan Chew Holdings Sdn Bhd [2010] 2 MLJ 188. I take the view that both cases are good law but there are a number of exceptions. That is to say, the Federal Court in Dato’ Tan’s case itself recognises the exceptions. His Lordship Arifin Zakaria CJ had this to say: “[14] While it is true that the Court of Appeal can consider a point not expressly taken in the memorandum of appeal or argued in the court below based on the broad wording of s 69(4) of the CJA and r 18(2) of the Rules of the Court of Appeal 1994 , this is subject to the overriding discretion of the http://www.lexisnexis.com/my/legal/search/runRemoteLink.do?A=0.6928939624843388&bct=A&service=citation&risb=21_T26062235893&langcountry=MY&linkInfo=F%23MY%23USM_PA%23act%2591%25section%2569%25 4 court to do justice. Where the justice of the case requires a departure from the rule that parties should be bound by the grounds in the memorandum of appeal, the court may allow a new point to be argued (see Luggage Distributors (M) Sdn Bhd v Tan Hor Teng & Anor [1995] 1 MLJ 719; [1995] 3 CLJ 520; Cheow Chew Khoon (t/a Cathay Hotel) v Abdul Johari bin Abdul Rahman [1995] 1 MLJ 457; [1995] 4 CLJ 127; Mohd Azam Shuja & Ors v United Malayan Banking Corporation Bhd [1995] 2 MLJ 851; [1995] 1 CLJ 861). In so doing, it is however not the duty of the Court of Appeal, to invent or create a cause of action or a defence under the guise of doing justice for the parties as it is also trite that parties in litigation are bound by the four corners of their pleadings (see RHB Bank Bhd (substituting Kwong Yik Bank Bhd) v Kwan Chew Holdings Sdn Bhd [2010] 2 MLJ 188). [15] What happened in the present case was that the Court of Appeal in the purported exercise of its discretion under s 69(4) of the CJA had substituted the defence of qualified privilege with that of absolute privilege, a defence which was never pleaded nor raised before the High Court. From the authorities set out earlier and the plain reading of s 69(4) of the CJA, the power of the Court of Appeal is only to draw inferences of facts and to make an order which ought to have been made by the High Court. The power is essentially limited to making of inferences of facts from the facts as found by the High Court. …”. [4] The question posed by the court is related to jurisdiction and in consequence both the cases will not apply. Whilst it is trite that as a general rule, a new point cannot be raised in an appeal, which was not pleaded or argued in the courts below, this rule is subject to more than two exceptions. Some of them are as follows:- (i) first, a point of law could be taken up for the first time on appeal if it raised a question of jurisdiction; http://www.lexisnexis.com/my/legal/search/runRemoteLink.do?A=0.8276290406767306&bct=A&service=citation&risb=21_T26062235893&langcountry=MY&linkInfo=F%23MY%23MLJ%23vol%251%25sel1%251995%25page%25719%25year%251995%25sel2%251%25 http://www.lexisnexis.com/my/legal/search/runRemoteLink.do?A=0.2176335363601838&bct=A&service=citation&risb=21_T26062235893&langcountry=MY&linkInfo=F%23MY%23MLJ%23vol%251%25sel1%251995%25page%25457%25year%251995%25sel2%251%25 http://www.lexisnexis.com/my/legal/search/runRemoteLink.do?A=0.45808365447683885&bct=A&service=citation&risb=21_T26062235893&langcountry=MY&linkInfo=F%23MY%23MLJ%23vol%252%25sel1%251995%25page%25851%25year%251995%25sel2%252%25 http://www.lexisnexis.com/my/legal/search/runRemoteLink.do?A=0.020034647449424958&bct=A&service=citation&risb=21_T26062235893&langcountry=MY&linkInfo=F%23MY%23MLJ%23vol%252%25sel1%252010%25page%25188%25year%252010%25sel2%252%25 http://www.lexisnexis.com/my/legal/search/runRemoteLink.do?A=0.34493729279063656&bct=A&service=citation&risb=21_T26062235893&langcountry=MY&linkInfo=F%23MY%23USM_PA%23act%2591%25section%2569%25 http://www.lexisnexis.com/my/legal/search/runRemoteLink.do?A=0.7834896390657271&bct=A&service=citation&risb=21_T26062235893&langcountry=MY&linkInfo=F%23MY%23USM_PA%23act%2591%25section%2569%25 5 (ii) secondly, the court of appeal would entertain a point of law not raised in the court below if it would result in the rectification of an erroneous order; (iii) thirdly, if the decision of the court is a nullity based on the principles enunciated in the Federal Court case of Badiaddin bin Mohd Mohidin & Anor v Arab-Malaysian Finance Berhad [1998] 1 MLJ 393; (iv) fourthly, when issues such as illegality or public policy are raised first time in the appeal provided there are sufficient materials in the appeal record to entertain the submission. [See Merong Mahawangsa Sdn Bhd & Anor v Dato’ Shazryl Eskay bin Abdullah [2015] 8 CLJ 212; China Road & Bridge Corporation & Anor v DCX Technologies Sdn Bhd and Another Appeal [2014] 5 MLJ 1]. [See Yong Mok Hin v United Malay States Sugar Industries [1967] 2 MLJ 9; Manharlal Baichand Gathani v Perwira Habib Bank (M) Bhd [2002] 2 MLJ 139, Tommy Thomas v Peguam Negara Malaysia & other appeals [2001] 3 CLJ 457]. General Jurisprudence Related to Construction Law [5] The respondent’s case is not just related to law of contract but relates to construction law which is seen as an evolutionary jurisprudence to the law of contract. It may relate to tort, commercial law, planning law, employment law, oil and gas law, etc. and covers a wide range of legal issues related to contract, bonds, guarantees, liens 6 and other securities, tenders, consultancy contract, as well as many regulatory framework, etc. A construction dispute may not just involve the parties to the dispute but a range of persons and/or professionals whose evidence will be relevant and/or material to adjudicate upon a construction dispute. The conduct of parties during the progress of work as well as instruction by relevant parties may determine the outcome of the dispute, notwithstanding the contractual provision may not cover such instances or certification for work done has been denied, etc. Standard form contracts have been a norm and trade practices of the construction industry had carried much probative force in judicial decision making process as well as arbitration, adjudication, etc. In consequence, the jurisprudence relating to law of evidence and decisions related to breach of contract and breach of construction contract or construction dispute may not be necessarily the same. Relying on judicial precedents without making a distinction will tantamount to comparing an apple to an orange. [6] It is important to note that CIPAA 2012 deals with construction contract and periodical payment for work done. Primarily the relevant law will be law of contractual obligations. CIPAA 2012 is not meant to cover construction disputes where the law applicable may be wider than law of contract. If this distinction is not appreciated in the right perspective, it will lead to convoluted jurisprudence. For example, interim payment will relate to contractual obligations and final payment may encompass more issues and law and the jurisprudence is not one and the same for both. 7 Brief Facts [7] The facts and law have been well articulated by the learned High Court judge in a 69 pages judgment. [See Martego Sdn Bhd v Arkitek Meor & Chew Sdn Bhd & Another Case [2017] 1 CLJ 101]. This judgment must be read with the judgment of the learned judge to appreciate our reasoning in the proper perspective. The brief facts in my own words can be summarised as follows: (a) Martego engaged the respondent who were architects as the Project Architect for the Project. (b) The clear provision of the Architect Act and/or Rules requires that a dispute as to fees of the architect must be referred to arbitration. (c) Martego terminated the respondent before the completion of the contractual obligation of the respondent. Respondent accepted the termination and filed a claim under CIPAA 2012 for professional fees and services rendered. (d) The matter proceeded for adjudication under CIPAA 2012. The adjudicator granted a sum of RM258,550.00 only with pre-award interest, post-award interest and costs of RM20,585.00 to the respondent. (e) To set aside the decision, Martego before the High Court had relied on two grounds, namely that (i) the adjudicator had acted in excess of jurisdiction; (ii) there has been a breach of 8 natural justice as the adjudicator failed to hold an oral hearing despite three separate requests from Martego. [8] The Memorandum of Appeal in respect of the 1st appeal reads as follows: “1. The Learned Judge erred in law and in fact in dismissing the Appellant's application in Kuala Lumpur High Court Originating Summons No.: WA-24C-39-06/2016 to set aside the Adjudication Decision dated 14.4.2016 made by Ir. Lai Sze Ching ("Adjudication Decision"). Statutory Interpretation of CIPAA 2. The learned Judge erred in law and in fact in holding that the Construction Industry Payment and Adjudication Act 2012 (CIPAA) applies to all parties who provide construction consultancy services in relation to construction work when in fact the Preamble of CIPAA specifically sets out the objectives of CIPAA as being connected to or in relation to recovery of payment in the construction industry. 3. The learned Judge erred in law and in fact in holding that the definition of 'construction consultancy contract' under Section 4 of CIPAA is inclusive such that the words appearing after 'include' must mean either a single component of the services referred to, or a combination of all or a few of the services referred to when in feet, the said definition under Section 4 of CIPAA is exhaustive. 4. The learned Judge erred in law and in fact in holding that an expansive reading must be given to the definition section (under Section 4 of CIPAA) where as far as the purpose of the CIPAA is concerned the High Court in Uda Holdings Bhd. v Bisraya Construction Sdn. Bhd. [2015] 5 CLJ 527 held that the definitions found in Section 4 of CIPAA are "unusually definitive and 9 exhaustive in their defines as opposed to the practice of drafting general or non-exhaustive definitions". 5. The learned Judge erred in law and in fact in holding that to require one to say that the definition of 'construction consultancy contract' under Section 4 of CIPAA has a reference only to 'Design and Build' contracts would be to put an undue strain to the definition of the term, when in fact, that reference was intended by Parliament. 6. The learned Judge erred in law and in fact in presuming the existence of a casus omissus in the interpretation of the definition of 'construction consultancy contract' under Section 4 of CIPAA which is contrary to all rules of construction when in fact, the definition under Section 4 is plain and unambiguous. 7. The learned Judge erred in law and in fact in construing the phrase construction consultancy contract' under Section 4 of CIPAA disjunctively rather than conjunctively despite the use of the operative phrase '...and includes...' in the said provision. 8. The learned Judge erred in law and in fact in holding that the term 'architectural work' is to be read as a definition of 'construction consultancy contract' under Section 4 of CIPAA when it is in fact an extension of the phrase 'construction consultancy contract'. 9. The learned Judge erred in law and in fact in according a broad definition of 'construction consultancy contract' pursuant to Section 4 of CIPAA to include the provision of architectural consultancy services when in fact the definitions in Section 4 have a particular and peculiar but limited meaning and understanding. 10. The learned Judge erred in law and in fact in holding that the Contract satisfies all the requirements of a 'construction consultancy contract' under Section 4 of CIPAA. 10 The Contract between the Appellant and Respondent 11. The learned Judge erred in law and in fact in holding that the Respondent was able to avail itself of the remedies under CIPAA when in fact the Letter of Appointment dated 22.8.2014 ("Contract") between the Appellant and the Respondent is not a construction contract which triggers the application of CIPAA. 12. The learned Judge erred in law and in fact in failing to consider that the Respondent's scope of services under the Contract was for 'contract administration' pursuant to Section 3(b) of the Contract thereby rendering the Respondent a 'contract administrator' per the definition of Section 4 of CIPAA. 13. The learned Judge erred in law and in fact in failing to give the term 'contract administration' its plain meaning when the language in the Contract is unequivocal, unambiguous and needs no explanation. The Architects Act 1967 (AA) and the Architects Rules 1966 (AR) 14. The learned Judge erred in law and in fact in failing to consider the mandatory dispute resolution mechanism under Sub-Rule 24, Third Schedule, Part One of AR which provides that disputes between a professional architect and his client which require settlement shall be by way of arbitration. 15. The learned Judge erred in law and in fact in applying the established rules of construction expressed by the latin maxim generalibus specialia non derogant which provides that the specific legislation or the special provision in the specific legislation, namely the AR read together with AA, will exclude the operation of the general legislation, namely CIPAA. 16. The learned Judge erred in law and in fact in holding that the Respondent was entitled to avail itself to the adjudication process under 11 CIPAA in contravention of the mandatory dispute resolution mechanism by arbitration provided under the AR. 17. The learned Judge erred in law and in fact in failing to give effect to the intentions of the Parliament by holding that merely because there is a procedure for an architect or his client to proceed with mediation and arbitration that by itself should not exclude them from the adjudication process under CIPAA. 18. The learned Judge erred in law and in fact in failing to consider that the Contract between the Respondent and Appellant is a contract between a professional architect and his client which falls under the purview of the AA read together with the AR. 19. The learned Judge erred in law and in fact in failing to consider that the appointment of an adjudicator under CIPAA falls within the jurisdiction of the KLRCA whereas the appointment of an arbitrator under the AA read together with the AR vests with the President of the Board of Architects Malaysia. 20. The learned Judge erred in law and in fact in holding that parties are at liberty to have the procedure under the AR running concurrently with adjudication when in fact, the use of the word 'shall' in Sub-Rule 24(1) of the AR makes it unequivocal in its requirement that the parties refer their dispute to arbitration. 21. The learned Judge erred in law and in fact in holding that there is nothing to prevent the Appellant from proceeding with arbitration under the AR even after the adjudication process is over as the language used in Sub- Rule 24(1) of the AR makes it mandatory, rather than directory, that arbitration must be used as the mode of dispute resolution. 22. The learned Judge erred in law and in fact in failing to consider and/or apply established principles of law that where a statute creates a right and, "in plain language, gives a specific remedy or appoints a specific tribunal for its 12 enforcement, a party seeking to enforce the right must resort to that remedy or that tribunal and not to others. Natural Justice 23. The learned Judge erred in law and in fact in finding that there was no breach of natural justice from the Adjudicator's failure to hold an oral hearing despite the Appellant's 3 requests for an oral hearing to present its case and meet the case against it. Appellate Interference 24. The learned Judge erred in law and in fact by making findings that a proper and thorough judicial appreciation of the factual matrix and the law would not have lent itself to, and fell into plain and obvious error, without a proper appraisal of the said factual matrix and submission of the law tendered, and consequently by erroneously dismissing the Appellant's claim with costs.” [9] The Memorandum of Appeal for the 2nd appeal reads as follows: “1. The Learned Judge erred in law and in fact in allowing the Respondent's application in Kuala Lumpur High Court Originating Summons No.: WA-24C-47-06/2016 to enforce the Adjudication Decision dated 14.4.2016 made by Lai Sze Ching ("Adjudication Decision"). Statutory Interpretation of CIPAA 2. The learned Judge erred in law and in fact in holding that the Construction Industry Payment and Adjudication Act 2012 (CIPAA) applies to all parties who provide construction consultancy services in relation to construction work when in fact the Preamble of CIPAA specifically sets out the objectives of CIPAA as being connected to or in relation to recovery of payment in the construction industry. 13 3. The learned Judge erred in law and in fact in holding that the definition of 'construction consultancy contract' under Section 4 of CIPAA is inclusive such that the words appearing after 'include' must mean either a single component of the sentences referred to, or a combination of all or a few of the services referred to when in fact, the said definition under Section 4 of CIPAA is exhaustive. 4. The learned Judge erred in law and in fact in holding that an expansive reading must be given to the definition section (under Section 4 of CIPAA) where as far as the purpose of the CIPAA is concerned the High Court in Uda Holdings Bhd. v Bisraya Construction Sdn. Bhd. [2015] 5 CLJ 527 held that the definitions found in Section 4 of CIPAA are "unusually definitive and exhaustive in their defines as opposed to the practice of drafting general or non-exhaustive definitions". 5. The learned Judge erred in law and in fact in holding that to require one to say that the definition of 'construction consultancy contract' under Section 4 of CIPAA has a reference only to 'Design and Build' contracts would be to put an undue strain to the definition of the term, when in fact, that reference was intended by Parliament. 6. The learned Judge erred in law and in fact in presuming the existence of a casus omissus in the interpretation of the definition of 'construction consultancy contract' under Section 4 of CIPAA which is contrary to all rules of construction when in fact, the definition under Section 4 is plain and unambiguous. 7. The learned Judge erred in law and in fact in construing the phrase 'construction consultancy contract' under Section 4 of CIPAA disjunctively rather than conjunctively despite the use of the operative phrase '...and includes...' in the said provision. 14 8. The learned Judge erred in law and in fact in holding that the term 'architectural work' is to be read as a definition of 'construction consultancy contract' under Section 4 of CIPAA when it is in fact an extension of the phrase 'construction consultancy contract'. 9. The learned Judge erred in law and in fact in according a broad definition of ‘construction consultancy contract' pursuant to Section 4 of CIPAA to include the provision of architectural consultancy services when in fact the definitions in Section 4 have a particular and peculiar but limited meaning and understanding. 10. The learned Judge erred in law and in fact in holding that the Contract satisfies all the requirements of a 'construction consultancy contract' under Section 4 of CIPAA. The Contract between the Appellant and Respondent 11. The learned Judge erred in law and in fact in holding that the Respondent was able to avail itself of the remedies under CIPAA when in fact the Letter of Appointment dated 22.8.2014 ("Contract") between the Appellant and the Respondent is not a construction contract which triggers the application of CIPAA. 12. The learned Judge erred in law and in fact in failing to consider that the Respondent's scope of services under the Contract was for contract administration' pursuant to Section 3(b) of the Contract thereby rendering the Respondent a 'contract administrator- per the definition of Section 4 of CIPAA. 13. The learned Judge erred in law and in fact in failing to give the term 'contract administration' its plain meaning when the language in the Contract is unequivocal, unambiguous and needs no explanation. 15 The Architects Act 1967 (AA) and the Architects Rules 1966 (AR) 14. The learned Judge erred in law and in fact in failing to consider the mandatory dispute resolution mechanism under Sub-Rule 24, Third Schedule, Part One of AR which provides that disputes between a professional architect and his client which require settlement shall be by way of arbitration. 15. The learned Judge erred in law and in fact in applying the established rules of construction expressed by the latin maxim generalibus specialia non derogant which provides that the specific legislation or the special provision in the specific legislation, namely the AR read together with AA, will exclude the operation of the general legislation, namely CIPAA. 16. The learned Judge erred in law and in fact in holding that the Respondent was entitled to avail itself to the adjudication process under CIPAA in contravention of the mandatory dispute resolution mechanism by arbitration provided under the AR. 17. The learned Judge erred in law and in fact in failing to give effect to the intentions of Parliament by holding that merely because there is a procedure for an architect or his client to proceed with mediation and arbitration, that by itself should not exclude them from the adjudication process under CIPAA. 18. The learned Judge erred in law and in fact in failing to consider that the Contract between the Respondent and Appellant is a contract between a professional architect and his client which falls under the purview of the AA read together with the AR. 19. The learned Judge erred in law and in fact in failing to consider that the appointment of an adjudicator under CIPAA falls within the jurisdiction of the KLRCA whereas the appointment of an arbitrator under the AA read together with the AR vests with the President of the Board of Architects Malaysia. 16 20. The learned Judge erred in law and in fact in holding that parties are at liberty to have the procedure under the AR running concurrently with adjudication when in fact, the use of the word 'shall' in Sub-Rule 24(1) of the AR makes it unequivocal in its requirement that the parties refer their dispute to arbitration. 21. The learned Judge erred in law and in fact in holding that there is nothing to prevent the Appellant from proceeding with arbitration under the AR even after the adjudication process is over as the language used in Sub- Rule 24(1) of the AR makes it mandatory, rather than directory, that arbitration must be used as the mode of dispute resolution. 22. The learned Judge erred in law and in fact in failing to consider and/or apply established principles of law that where a statute creates a right and, in plain language, gives a specific remedy or appoints a specific tribunal for its enforcement, a party seeking to enforce the right must resort to that remedy or that tribunal and not to others. Natural Justice 23. The learned Judge erred in law and in fact in finding that there was no breach of natural justice from the Adjudicator's failure to hold an oral hearing despite the Appellant's 3 requests for an oral hearing to present its case and meet the case against it. Appellate Interference 24. The learned Judge erred in law and in fact by making findings that a proper and thorough judicial appreciation of the factual matrix and the law would not have lent itself to, and fell into plain and obvious error, without a proper appraisal of the said factual matrix and submission of the law tendered, and consequently by erroneously allowing the Respondent's application with costs.” 17 Oral Hearing and Breach of Natural Justice [10] On the issue of oral hearing and breach of natural justice, I wish to say that the adjudicator is a master of the proceeding and he has to exercise his discretion fairly and justly taking into consideration CIPAA 2012 is meant to be quick and summary process. As it is a quick and summary process, Parliament in its wisdom has been careful to identify the qualified persons to hear dispute relating to CIPAA 2012. One category of persons that CIPAA 2012 directly and/or by legal construct recognises as competent and qualified to hear CIPAA 2012 disputes are arbitrator and/or judges and will necessarily include arbitrators in KLRCA panel as well as ex-judges. [See Citibank Berhad v Mohamed Khalid Bin Farzalur Rahman & 2 Ors [2000] 3 AMR 3475; CIT v Hindustan Bulk Carriers (2003) 3 SCC 57]. This is set out in section 13 of CIPAA 2012 itself. The other category of persons will relate to the appointment made by KLRCA pursuant to section 32 of CIPAA 2012 and ordinarily will relate to professionals who need to be trained to appreciate legal niceties and ability to write adjudication decision. The law having provided for qualified persons to hear CIPAA 2012, the decision of such persons on procedural matters will rarely be a subject matter of intervention of the court. Being a competent and qualified person to hear CIPAA 2012 dispute itself is not sufficient as the sole right to appoint a competent and qualified person to hear a CIPAA 2012 dispute relating to adjudication is vested solely with KLRCA. [See section 23 of CIPAA 2012]. If there is constant justifiable complaint against an adjudicator for conduct or misconduct, it will be unlikely for the said adjudicator to obtain further assignment through KLRCA. In essence, the law provides proper check and balance for competency, qualification as well as appointment sufficient to say that the Director of KLRCA will 18 only assign cases to appropriate persons taking into consideration the nature of dispute and the expertise required. In addition, parties themselves can appoint any person as an adjudicator of their own choice. That is to say, party autonomy in the appointment of adjudicator is well recognised in CIPAA 2012. [See section 21 of CIPAA 2012]. Having appointed the adjudicator at their own choice, the court will not ordinarily entertain the decision of the adjudicator on procedural matters. [See Ng Chee Yew Sdn Bhd & Ors v IJM Corporation Bhd & Anor [2009] 10 CLJ 378]. [11] If the Director of KLRCA compromises his discretion in appointing adjudicator, it will cause grave injustice to parties and there is little court can do to remedy any form of injustice arising from the appointment of adjudicators who are not proficient or who do not subscribe to impartiality principle as well as the concept related to natural justice itself. Such appointment will have damaging effect if CIPAA 2012 is made applicable to final payment. Jurisdictional Issues [12] If any party is dissatisfied with decision of the adjudicator they can re-agitate the issues by way of arbitration or litigation as the case may be. The issues related to jurisdiction will be the real issue which will determine this appeal and I will deal with it in details. The grounds taken by the appellant read as follows: “(a) the Adjudicator has no jurisdiction to adjudicate a dispute under CIPAA when the Architects Act 1967 ("AA") read together with the Architects Rules 1996 ("Rules") specifies a specific dispute resolution mechanism where the fees of an architect is in dispute; and 19 (b) the Contract is, in any event, not a 'construction contract' under CIPAA.” [13] On the first issue, the learned trial judge had spent substantial time in justifying that CIPAA 2012 is applicable, notwithstanding the provision in the Architect Act read with the Rules, by statutory formula has to go for arbitration. What I wish to say here is CIPAA 2012 is not against arbitration or litigation. It only gives a statutory formula for compulsory adjudication to be able to decide the issue summarily. If the Architect Act and Rules says it should be sent for arbitration does not necessarily mean that CIPAA 2012 is excluded when CIPAA 2012 itself does not say so. I find merit in the reasoning and decision of the learned trial judge limited for the purpose of the instant case only and in consequence I will not labour on this issue further, as CIPAA 2012 also gives the option for arbitration. [14] On the 2nd issue whether CIPAA 2012 applies to ‘construction contract’, the learned trial judge had dealt with it extensively and held it applies. What I wish to say here is that CIPAA 2012 defines construction contract very widely to encompass all and every work which has nexus to construction and will cover pre-construction work and also all form of consultancy work related to the proposed construction, provided it is in writing. The crucial element of the contract must be in relation to construction work. This is well articulated in section 2 of CIPAA 2012 which reads as follows: “2. This Act applies to every construction contract made in writing relating to construction work carried out wholly or partly within the territory of Malaysia including a construction contract entered into by the Government.” 20 [15] The interpretation section gives some clarity to what construction work will entail. The relevant part of the interpretation provision in section 4 does not appear to restrict the meaning of section 4. Section 4 defines construction consultancy contract, construction contract, construction work, construction work contract and contract administrator, in the widest form, as follows: “"construction consultancy contract" means a contract to carry out consultancy services in relation to construction work and includes planning and feasibility study, architectural work, engineering, surveying, exterior and interior decoration, landscaping and project management services; "construction contract" means a construction work contract or construction consultancy contract; "construction work" means the construction, extension, installation, repair, maintenance, renewal, removal, renovation, alteration, dismantling, or demolition of— (a) any building, erection, edifice, structure, wall, fence or chimney, whether constructed wholly or partly above or below ground level; (b) any road, harbour works, railway, cableway, canal or aerodrome; (c) any drainage, irrigation or river control work; (d) any electrical, mechanical, water, gas, oil, petrochemical or telecommunication work; or (e) any bridge, viaduct, dam, reservoir, earthworks, pipeline, sewer, aqueduct, culvert, drive, shaft, tunnel or reclamation work, and includes — (A) any work which forms an integral part of, or are preparatory to or temporary for the works described in paragraphs (a) to (e), including 21 site clearance, soil investigation and improvement, earth-moving, excavation, laying of foundation, site restoration and landscaping; and (B) procurement of construction materials, equipment or workers, as necessarily required for any works described in paragraphs (a) to (e)\ "construction work contract" means a contract to carry out construction work; "contract administrator" means an architect, engineer, superintending officer or other person howsoever designated who administers a construction contract.” [16] The learned trial judge’s deliberation on the meaning of construction contract has merits and I take the view it subscribes to the wide definition endorsed in CIPAA 2012. However, whether a construction contract in writing was in existence for the matter to be referred to adjudication is a jurisdictional issue. Further, whether the claim is related to interim payment or final account or final payment, will also be a jurisdictional issue. In this respect, final account or final payment or final certificate may not be one and the same. It may all depend on the facts and circumstances of the case. I will deliberate on the said issues further based on the non- controverted facts. Brief facts and law related to Architectural Consultancy Contract [17] In this case, the architectural consultancy services contract was terminated and accepted by the respondent. That is to say, there is no dispute that it has been terminated. Once it is terminated, there will not be an existing contract for the matter to be referred to pursuant to CIPAA 2012. However, if the termination is not accepted, then there is a 22 dispute for the matter to be referred to adjudication. I find merit in the submission of the learned counsel limited for the purpose of this case only. To save courts time, I repeat the submission of the learned counsel for the appellant which read as follows: “B(ii). The obligations of the parties post-termination of the Contract 15. It is worth reiterating that the Respondent served the Invoice for payment on the Appellant after the termination of the Contract was accepted by the Respondent and when the Contract no longer subsisted. What then became of the obligations of the parties under the Contract? 16. The answer, we submit, is found in Section 63 of the Contracts Act 1950 (see IA(P) 3- Tab 20). Once the parties agree to rescind the Contract, the Contract need not be performed (see also, Ramli bin Shahdan v Motor Insurers' Bureau of West Malaysia [2006] 2 MLJ 116 at 134 -135, IA(P) 4- Tab 35). 17. Indeed, this was the intention of the parties going by the strict letter of the Contract itself where at Clause 6, the obligation of the Appellant to make payment to the Respondent based on the schedule/mode of payment under the Contract was expressed as UP to the point of termination only. Beyond the termination of the Contract, the Appellant is not obliged to make payment to the Respondent based on the schedule/mode of payment prescribed under the Contract. 18. A somewhat similar issue was ventilated before the High Court in Econpile (M) Sdn Bhd v IRDK Ventures Sdn Bhd [2017] 7 MLJ 732 at 752 (see IA(P) 3- Tab 25) where Lee Swee Seng J took the view that "just because there is no express provision in the CIPAA to say that it is applicable in cases where the construction contract has been terminated does not mean that the CIPAA is inapplicable when the contract has been terminated'. 23 19. In this regard, we respectfully submit that where there is no express provision in CIPAA providing for the question of law and/or issue at hand, the Courts ought not go beyond their judicial role and interpret CIPAA at will. The interpretation of CIPAA ought to at all times reflect the intention of Parliament. 20. In Duport Steels Ltd and others v Sirs and others [1980] 1 All ER 529 at 541-542 (see (l(A)P 4- Tab 34) (as affirmed in the Federal Court in R Rama Chandran v the Industrial Court of Malaysia & Anor [1997] 1 MLJ 145 at 218-219, l(A)P 3- Tab 24), Lord Diplock held that: "... Parliament makes the laws, the judiciary interpret them...the role of the judiciary is confined to ascertaining from the words that Parliament has approved as expressing its intention what that intention was, and to giving effect to it. Where the meaning of the statutory words is plain and unambiguous it is not for the judges to invent fancied ambiguities as an excuse for failing to give effect to its plain meaning because they themselves consider that the consequences of doing so would be inexpedient, or even unjust... ...it is for Parliament, not for the judiciary, to decide whether any changes should be made to the law as stated in the Acts, and if so. what are the precise limits that ought to be imposed ... It endangers continued public confidence in the political impartiality of the judiciary, which is essential to the continuance of the rule of law, if judges, under the guise of interpretation, provide their own preferred amendments to statues which experience of their operation has shown to have had consequences that members of the court before whom the matter comes consider to be injurious to the public interest..." (emphasis added) 21. In applying the foregoing, we respectfully submit that the stand taken by Lee Swee Seng J in Econpile (supra) at 752 (see IA(P) 3 - Tab 25) is erroneous. By interpreting CIPAA so as to effect a change in the law when there are no express wordings in the legislation to the same effect, his 24 Lordship had effectively gone beyond his role as a Judge (which is to interpret a piece of legislation to mirror the intention of Parliament) and into the realm of law-making. 22. In any event, the facts of Econpile (supra) (see IA(P) 3 - Tab 25) are distinguishable from that of the present case. In the former case, there were two payment certificates, in the nature of progress claims issued, both dated 24.3.2015 and 31.3.2015 respectively ("outstanding invoices"). The contract between the parties was terminated on 17.4.2015. After the termination, the claimant served its payment claim for the outstanding invoices on 20.5.2015. 23. In short, the outstanding invoices were issued before the termination of the contract and accordingly, the High Court determined that the subsequent termination of the contract did not preclude the claimant from making a valid claim under CIPAA. 24. By contrast, however, the facts in the instant case are different. Here, the Respondent issued the Invoice dated 8.10.2015 for claims well after the termination of the Contract. The Invoice is not a progress payment as it was not made during the currency of the Contract. What then was the effect of the termination of the Contract on the Invoice? 25. In Gantley Pty Ltd v Phoenix International Group [2010] VSC 106 at 46 (see IA(P) 4 - Tab 30), the Supreme Court of Victoria considered the effect of termination at common law and said that:- “144. It is well accepted that when a contract is terminated at common law by the acceptance of a repudiation, both parties are discharged from the further performance of the contract, but rights which have already been unconditionally acquired are not divested or discharged unless the contract provides to the contrary." 26. This does not mean that the 'wronged party' is left without a remedy. It merely means that the remedy available is no longer to be sought for under 25 CIPAA. Instead, the remedy of contractual damages on the basis of a quantum meruit ought to be pursued by the 'wronged party' who has accepted the termination of a contract. 27. At paragraph 146 of Gantley (supra) (see IA(P) 4 - Tab 30), the Supreme Court of Victoria aptly summarized the position thus:- "146. On this analysis, the first question becomes: do the rights to make progress claims under each of the relevant contract up to the date of termination accrue such that they are not rights which are divested or discharged on termination but rather are rights which are "unconditionally acquired" and thereby survive termination? If this is the case, the Act will apply. If not, it won't." (emphasis added). 28. In summary, the amount claimed by the Respondent under the Invoice was not a valid progress payment under the Contract. If it was, it would have been a cause of action which survived the termination of the Contract. However, since the Contract had already been terminated by the time the Invoice was issued, CIPAA will have no operation in relation to it.” Brief facts and law in relation to interim or final account or final payment [18] The architectural consultancy services contract was related to 4 Towers and 3 stages of work and each stage the respondent is entitled to a percentage of remuneration as follows: Element Scope of Work Proposed fee based on progress of work Podium car park structure  To manage the construction from Ground floor up to 5th storey podium Monthly progressive billing over 14 months Tower 1  A. Contract documentation – 35% 26 upon completion of tender drawing Tower 2  A. Contract documentation – upon completion of tender drawing 35% Tower 3  A. Contract documentation – upon completion of tender drawing 35% Tower 4  A. Contract documentation – upon completion of tender drawing 35% [19] It is not in dispute that the termination took place before the completion of the construction of the towers. If there has been no termination or unilateral termination, their claim would have been for interim payment and the matter can be referred pursuant to CIPAA 2012. If the contract has been terminated and accepted as in this case, then the claim of the respondent will relate to final account or final payment and in consequence CIPAA 2012 will not be applicable. My reasons are as follows: (a) CIPAA 2012 deals with construction contract and not the rights and liabilities of parties related to construction dispute and the law. The distinction here is not one of an apple and orange but it is one of a marble and pumpkin. The payment in CIPAA 2012 relates to contractual claim and progress payment is based on contractual terms. However, when it comes to final account or final payment, the whole area of construction law and/or part may become applicable. For example, if the contractor is liable in negligence to adjoining owners and in consequence the employer becomes liable then the employer may have claims against the contractor. 27 (b) To appreciate the scope of CIPAA 2012 and the construction contract, construction dispute and construction law, the phrases need to be explained: (i) CIPAA 2012 has everything to do with written construction contract. If there is a breach of the terms which resulted in non-payment, the law applicable to decide the issue to a large extent will be the law of contract. (ii) Construction contract as far as CIPAA 2012 is concerned, it has been defined. The said definition may not be the same as defined in the dictionary or book writers. For example, learned author John Uff in his book titled ‘Construction Law” (9th edn.) makes the following observation at page 1: “The term "construction contract" now has a statutory definition covering most but not all types of construction work, and including both building and engineering work. Construction law, however, embraces all construction contracts, whether or not within the statute.” And also at the same page: “The term "construction law" is now universally understood to cover the whole field of law which directly affects the construction industry and the legal instruments through which it operates. But construction law extends well beyond the law as such.” 28 (c) Construction dispute excluding CIPAA 2012 will naturally embrace many areas of law inclusive of civil, commercial as well as administrative law, etc. CIPAA 2012 is meant only to cover the contractual dispute and not construction dispute. When it comes to final account or final payment, the commercial reality is for the parties to settle the construction dispute as a whole, at least at the stage of final payment. (d) Construction contract itself may have defined what are the necessary considerations to be taken into account for final certificate or final account. Further, in some construction contracts, the meaning of final certificate or final account may have been contractually provided that does not necessarily mean the employer or employee is restrained from making claims which had nexus to the construction contract itself before the issue of final payment is settled. In in the case of Pembenaan Leow Tuck Chui Sdn Bhd v Dr Leela Medical Centre Sdn Bhd [1995] 2 MLJ 57, Edgar Joseph Jr observed: "It is well known to lawyers engaged in the field of construction contract law that the question whether a building owner or main contractor is entitled to refuse to make payment of money to a contractor or contractor, as the case may be, allegedly due and payable under an interim certificate issued by an architect or engineer, pursuant provisions in a RIBA contract and other known forms of building contracts and sub contracts, on the ground that he has cross-claims alleging defective work or over-valuation or damages for delay, is a the question of ever-recurring importance, which inevitably throws open for discussion the actual terms of the 29 particular contract or sub-contract in the case and the all too familiar trilogy of cases of Dawnays Ltd v FG Minter Ltd & Anor [1971] 2 All ER 1389; [1971] 1 WLR 1205, Gilbert-Ash (Northern) Ltd v Modern Engineering (Bristol) Ltd [1974] AC 689; [1973] 3 All ER 195; [1973]3 to WLR 421, Mottram Consultants Ltd v Bernard Sunley & Sons Ltd [1975] 2 Lloyd's ' Rep 197 and their progeny." (e) The word final account is not mentioned in the Act. However, section 36 particularly provides a positive right to progress payment only. This will be consonant to the principle that CIPAA 2012 is meant to be for summary determination where rule of law relating to trial or hearing procedure can be compromised and parties can resort to arbitration and/or litigation if they are not satisfied with the adjudicator’s decision. The said section 36 reads as follows: “36. (1) Unless otherwise agreed by the parties, a party who has agreed to carry out construction work or provide construction consultancy services under a construction contract has the right to progress payment at a value calculated by reference to — (a) the contract price for the construction work or construction consultancy services; (b) any other rate specified in the construction contract; (c) any variation agreed to by the parties to the construction contract by which the contract price or any other rate specified in the construction contract is to be adjusted; and (d) the estimated reasonable cost of rectifying any defect or correcting any non-conformance or the diminution in the value of the construction work or construction consultancy services performed, whichever is more reasonable. 30 (2) In the absence of any of the matters referred to in paragraphs (1) (a) to (d), reference shall be made to — (a) the fees prescribed by the relevant regulatory board under any written law; or (b) if there are no prescribed fees referred to in paragraph (a), the fair and reasonable prices or rates prevailing in the construction industry at the time of the carrying out of the construction work or the construction consultancy services. (3) The frequency of progress payment is — (a) monthly, for construction work and construction consultancy services; and (b) upon the delivery of supply, for the supply of construction materials, equipment or workers in connection with a construction contract. (4) The due date for payment under subsection (3) is thirty calendar days from the receipt of the invoice.” (f) It is trite that in litigation, dispute cannot be taken on instalment basis, though there may be exceptions. [See Henderson v Henderson [1843] 3 Hare 100; Shahidan bin Shafie v Atlan Holdings Bhd & Anor [2013] 7 MLJ 215]. If Parliament in its wisdom had intended for CIPAA 2012 to be applicable for final account or final payment, it would have clearly done so. It will not be the function of the court to add or minus what has been stated in the statute to broaden the scope of CIPAA 2012 to include the final payment, save as to clarify the meaning attributable to the word or phrase based on the principles relating to ‘Harmonious Construction of 31 Statute’. Harmonious Construction of Statute may lead the court to recognise the implied or broad meaning of a word or phrase in a section, taking a holistic approach to other provisions of the Act as well as statutes. [See Citibank Berhad v Mohamed Khalid Bin Farzalur Rahman & 2 Ors [2000] 3 AMR 3475; CIT v Hindustan Bulk Carriers (2003) 3 SCC 57]. Without a proper trial or hearing in the form of arbitration or litigation and to allow a party to summarily execute a decision of the adjudicator may ultimately cause prejudice to the respondent to the award. This is so because the adjudicator’s decision can inter alia be used to wind up the company against whom the decision has been made. (g) In addition, section 29 of CIPAA 2012 deals with suspension of work. At common law, it is trite that a contractor as a general rule will not be able to suspend work for non- payment though he may have a right to terminate the contract. [See Kah Seng Construction Sdn. Bhd. [1997] 1 CLJ 448; Citex (M) Sdn Bhd v Ingeback (M) Sdn Bhd [1995] 1 LNS 52]. Learned authors of Keatings on Building Contract, 5th Edn., at page 157 observes:- “No general right to suspend work. Although particular contracts may give the contractor express rights if certificates are not paid, there is no general right to suspend work if payment is wrongly withheld. This is consistent with the principle that, except where there is a breach of condition or fundamental breach of contract, breach of contract by one party does not discharge the other party from performance of his unperformed obligations.” 32 (h) Section 29 displaces the common law rule and allows the contractor to suspend work and it relates to progress payment. Section 29 of CIPAA 2012 read as follows: “29. (1) A party may suspend performance or reduce the rate of progress of performance of any construction work or construction consultancy services under a construction contract if the adjudicated amount pursuant to an adjudication decision has not been paid wholly or partly after receipt of the adjudicated decision under subsection 12(6). (2) The party intending to suspend the performance or reduce the rate of progress of performance under subsection (1) shall give written notice of intention to suspend performance or reduce the rate of progress of performance to the other party if the adjudicated amount is not paid within fourteen calendar days from the date of receipt of the notice. (3) The party intending to suspend the performance or reduce the rate of progress of performance under subsection (1) shall have the right to suspend performance or reduce the rate of progress of performance of any construction work or construction consultancy services under a construction contract upon the expiry of fourteen calendar days of the service of the notice given under subsection (2). (4) The party who exercises his right under subsection (3) — (a) is not in breach of contract; (b) is entitled to a fair and reasonable extension of time to complete his obligations under the contract; (c) is entitled to recover any loss and expenses incurred as a result of the suspension or reduction in the rate of progress of performance from the other party; and 33 (d) shall resume performance or the rate of progress of performance of the construction work or construction consultancy services under a construction contract in accordance with the contract within ten working days after having been paid the adjudicated amount or an amount as may be determined by arbitration or the court pursuant to subsection 37(1).” (i) Final account or payment may include the exercise to open up, review and revise the certificate and/or certificate of extension, etc. To say CIPAA 2012 includes the final claim is not strictly supported by the legislation. Reliance on the Singapore position or other jurisdictions where their statutes allow final account or payment to be dealt by summary process, will not subscribe to the Rule of Law related to statutes and our case laws. Further, their appeal and enforcement procedure as well as case laws related to adjudicator’s decision may be different. A disputed adjudication decision made summarily as per the case laws in Malaysia will be fatal to the employer as well as the contractor as the decision can be used to wind up the company immediately as opposed to an arbitration award and/or judgment of the court. Pay first and dispute later principle may be a good option for progress payment but not for final account and/or final payment. Learned authors Chow Kok Fong, Lim Chong Fong and Oon Chee Kheng in their book titled “Adjudication of Construction Payment Disputes in Malaysia”, at pages 42 and 43 observes: 34 “[5.4] In each of these instances, the Contractor's entitlement to be paid relates relevantly to the amount certified on the interim certificate but this entitlement only accrues on the date when the Contractor should have received payment. There is authority in Malaysia for the proposition that a progress payment certificate which has been properly and duly issued enjoys temporary finality. It creates a debt due from the employer to the contractor which is capable of being enforced summarily.” and at pages 122 and 123 observes:- “[13.3] In this connection, a question which may arise is the extent to which the temporarily finality of an adjudication decision is comparable with the temporary finality which is ascribed by the authorities to a payment certificate issued as part of the certification process provided in a construction contract. [13.4] It is settled law in Malaysia that a progress payment certificate which has been properly and duly issued enjoys temporary finality. In BMC Construction Sdn Bhd v Dataran Rentas Sdn Bhd (2001), Jefferey Tan J (as he then was) held that the respondent in that case was indebted to the petitioner for the amounts certified in the relevant payment certificates and that since the respondent was unable to discharge this debt, the respondent company would be wound up. This decision was subsequently affirmed by the Court of Appeal in Dataran Rentas Sdn Bhd v BMC Constructions Sdn Bhd (2008). [13.5] In contrast, the same could not be said of the amount awarded by an arbitrator. In Malayan Flour Mill Bhd v Raja Lope & Tan Co (2006), Ramly Ali JC (as he then was) held that an arbitrator's award, unlike an order or judgment of a court, does not immediately entitle a successful party to levy execution against the assets of the unsuccessful party. The successful party has to first 'convert the award into a judgment or order of the court' before he can proceed to levy 35 execution. This decision was cited with approval by the Court of Appeal in Mobikom Sdn Bhd v Inmiss Communications Sdn Bhd (2007). Gopal Sri Ram JCA (as he then was) in particular stated, 'I entirely agree' with the decision of Ramli Ali JC in Malayan Flour Mill. It is interesting to note that the learned judge also sat in the Court of Appeal in Dataran Rentas and in his judgment in the earlier case had stated that the unsatisfied payment certificates would entitle the petitioner to proceed with the winding up proceeding and all 'issues that go to challenge the debt may be dealt with at the hearing of the petition'. It would appear from these decisions that in the event of a winding up of the paying party, the unpaid party may have a better claim on the basis of the amount certified in a progress payment certificate than a sum awarded by an arbitrator. [13.6] In adjudication under the CIPAA, section 28 provides specifically for an adjudication to be enforced by an application to the High Court 'for an order to enforce the adjudication decision as if it is a judgment or order of the High Court'. The stipulation of this as a procedural step suggests that the status of an adjudication decision in the context of a winding up approaches that of an arbitration award the enforcement of which is provided under section 38(1) of the Arbitration Act 2005. As suggested by the decisions in Malayan Flour Mill and Mobikom v Inmiss, it follows that in the event of a winding up of the paying party, an unpaid party may have a better claim on the basis of the amount certified in a progress payment certificate than on a sum awarded under an adjudication decision.” (j) It is also interesting to note that the learned authors are careful to use the word progress payment several times in pages cited above to anchor the argument of material injustice which may arise if a construction of the statute is given to include final account or final payment. Though the learned authors make a distinction between the adjudication 36 decision and payment certificate, the principles for winding up is related ‘debt due and owing’ and it is not necessary for an award or judgment to be in existence. (k) In addition, the preamble of CIPAA 2012 says regular and timely payment. Regular and timely payment will only be in issue if it is a contract which needs to be performed and not to an obligation which has been completed. The phrase ‘regular and timely’ is conjunctive and not disjunctive. The position arguably, may be different if it had been stated as ‘Regular or timely payment’. The preamble relates to overcome cash flow problem relating to construction contracts and not construction dispute. The observation of the Federal Court relating to cash flow in the case of Globe Engineering Sdn Bhd v Bina Jati Sdn Bhd [2014] 7 CLJ 1 is instructive. The court dealt with some of the cases in relation to construction contract, interim payment and cash flow or liquidity and stated on the facts inter alia as follows: “[33] That liability was contingent was also impliedly refuted by cl. 19 in the sub-contract. It should not be lost that "the purpose of an interim certificate is to provide by payments on account a cash-flow to enable the contractor to finance the work" Crown House Engineering Ltd v. Amec Projects Ltd (1990) 6 Const LJ 141, per Slade LJ), to enable "interim payments to be made to the contractor as the Works progress" (Tameside Metropolitan Borough Council v. Barlow Securities Group Services Ltd (2001) 75 Con LR 112, [2001] EWCA Civ 1). "The primary purpose of the interim certificates in this kind of contract is to ensure that the contractor will receive regular stage payments as his work progresses" (London Borough of Camden v. Thomas McInerney & Sons Ltd (1986) 9 Con LR 99; see also Rohcon Ltd v. SIAC 37 Architectural Ltd [2003] IEHC 1133S 01) so "that the sub-contractor can have the money in hand to get on with his work and the further work he has to do" (Dawnays Ltd v. FG Minter Ltd and Another [1971] 2 All ER 1389 per Lord Denning MR, which dictum was adopted by the Federal Court in Bandar Raya Developments Bhd v. Woon Hoe Kan & Sons Sdn Bhd [1971] 1 LNS 11; [1972] 1 MLJ 75). "... the purpose of interim certificates is to see that the contractor is in sufficient funds to carry on the construction as it progresses" (Unpaid Interim Payment Certificates by Vinayak Pradhan [1997] 2 MLJ xv).” [20] In view of sections 29 and 36, any reasonable tribunal appraised with the facts and law relating to construction claim, construction contract, construction dispute and construction law will come to a conclusion that CIPAA 2012 is limited to progress claim. On this issue, I find merit in the submission of the learned counsel for the appellant. To save judicial time, I repeat the submission verbatim and it reads as follows: “C. Was the Invoice for a 'progress payment' or a 'final claim'? 29. It is worth reiterating that the term 'progress payment' under CIPAA is found in Section 36 (see IA(P) - Tab 1) which provides for a statutory right to progress payment where there is no specific mechanism for the calculation of the same in construction contracts. In the instant case, the value of the progress payment is calculated by reference to the rate specified in the Contract (per Section 36(1)(b) of CIPAA) (see IA(P)- Tab 1). 30. CIPAA does not define a 'progress payment' nor does the Act expressly mention whether its application would cover final payments. javascript:DispCase=window.open('/Members/DisplayCase.aspx?CaseId=1959068161&SearchId=3hakim33','_DisplayCase','');DispCase.focus() javascript:DispCase=window.open('/Members/DisplayCase.aspx?CaseId=1959068161&SearchId=3hakim33','_DisplayCase','');DispCase.focus() 38 31. The court in Gantley (supra) (see IA(P) 4 - Tab 30) drew a distinction between progress claims and final payment claims at paragraph 233 of the judgment and the distinguishing features may be summarized as follows:- (a) once the final payment is made pursuant to a final payment claim, the rights and claims of the parties under the contract are settled through accord and satisfaction with the result that each party's obligations under the contract are discharged; and (b) by contrast, a progress claim under the contract does not have this effect. Progress payment made pursuant to a progress claim which turns out to be wrong would not preclude a later adjustment to correct the error. 32. Further, at paragraph 239 of the judgment in Gantley (supra) (see IA(P) 4- Tab 30), the court held that "the provision of a final balancing of account between the contracting parties is a hallmark of a final payment claim." 33. In the instant case, we would submit that that the Invoice is neither a progress payment nor a final claim under the Contract for the simple reason that the Invoice was issued after termination of the Contract. Further: - (a) the Invoice could not have been a 'progress payment' because the progress payment in respect of Towers 1, 2 and 3 only fell due upon completion of the Contract Documentation Phase. It is glaring from the Respondent's Payment Claim itself that the Invoice comprised work done for 'partial completion' of the Contract Documentation Phase in respect of Towers 2 and 3; (b) nor could the Invoice have been a 'final claim' because the contractual process for the making of a final payment claim under the Contract was extinguished upon the early mutual termination of the Contract – i.e. the balance 10% under the Contract would have been due only upon the Respondent 39 obtaining the Certificate of Completion and Compliance. This was not the case; and (c) like in Gantley (supra) at p 72, para 238 (see IA(P) 4 - Tab 30), the Invoice was prepared and served well after the termination had occurred, following which no further work was carried out under the Contract. 34. As such, the distinction between a 'progress payment' and a 'final claim' is, we submit, not pertinent in deciding the instant case. Regardless of its form, the Invoice was in substance made post-termination of the Contract. 35. The jurisprudence in this area is divided - with the Court of Appeal in View Esteem Sdn Bhd v Bina Puri Holdings Bhd [2016] 6 MLJ 717 at 744 (see IA(P) - Tab 15) suggesting in obiter on the one hand that CIPAA's application is only in relation to interim payments: "[32] ...the CIPAA 2012 relates to interim payments and not the final accounts between the parties." while the High Court in Econpile (supra) (see IA(P) 3 - Tab 25) on the other hand suggesting that from the rationale and purpose perspective of the Act, there was no good reason to exclude its application once the construction contract had been terminated. C(ii). The meaning of 'right to progress payment' under Section 36 of CIPAA by reference to similar provisions in other jurisdictions (a) The Australian position - the Old Victorian Act and the Old NSW Act 36. As submitted earlier on, the Old Victorian Act bears resemblance to CIPAA. Section 9 of the Old Victorian Act (see IA(P) 3 – Tab 19) provides for the 'rights to progress payments' and subsection (1) reads:- 40 (1) On and from each reference date under a construction contract, a person: (a) who has undertaken to carry out construction work under the contract, or (b) who has undertaken to supply related goods and services under the contract, is entitled to a progress payment under this Act, calculated by reference to that date." 37. The corresponding provision in CIPAA is found in Section 36(1) (see IA(P) - Tab 1) which although drafted differently, bears the same meaning in so far as it states:- (1) Unless otherwise agreed by the parties, a party who has agreed to carry out construction work or provide construction consultancy services under a construction contract has the right to progress payment at a value calculated by reference to - (a) the contract price for the construction work or construction consultancy services; (b) any other rate specified in the construction contract; (c) any variation agreed to by the parties to the construction contract by which the contract price or any other rate specified in the construction contract is to be adjusted; and (d) the estimated reasonable cost of rectifying any defect or correcting any non-conformance or the diminution in the value of the construction work or construction consultancy services performed, whichever is more reasonable, (emphasis added). 38. In interpreting the Old Victorian Act, the Supreme Court of Victoria had on at least 2 occasions determined that the Old Victorian Act's application is exclusive to 'progress payments' only, in line with the intent and purpose of the Old Victorian Act:- 41 (a) In De Martin and Gasparini Pty Ltd v Energy Australia arid Another (2002) 55 NSWLR 577 at 590-591 (see IA(P) 3 -Tab 26) the Supreme Court of NSW acknowledged that while the term 'progress payments' is not fully articulated in the Old Victorian Act, the court referred to the decision in Jemzone Pty Ltd v Trytan Pty Ltd (2002) 42 ACSR 42 (see IA(P) 4 - Tab 31) where the learned Judge in the latter case concluded that:- "if the Act (the Old Victorian Act) was intended to apply in the case of final payment on practical completion, it would have been a simple matter for the drafter of the statement of the object of the Act in s 3(1) to refer to the entitlement to receive all payments due under the construction contract, rather than only 'specified progress payments'." (b) In Gantley (supra) at pp. 53-54 (see IA(P) 4 - Tab 30), the Supreme Court of Victoria once again delivered its views on the definition of 'progress payments' and took the position that it would be 'straining the language' to suggest that a claim for 'progress payment' can be made upon, inter alia, termination of a contract:- "172. ...There being no definition provided by the Old Act (the Victorian Act) the construction of 'progress payment' in the first instance is to be derived from the ordinary and natural meaning of the words as used in the context of the text of the legislation. 'Progress payments' in a construction contract are payments made by providing instalments of part of the agreed contract price sequentially and progressively over the life of a contract. As Finkelstein J said in Protectavale: 42 Progress payments are effectively payments by instalments or periodic payments made over the life of the contract for construction work a/ready completed. In my opinion, it would be straining the language to suggest that a 'progress payment' can be made following either the completion of the contract or its termination." (emphasis added). 39. In fact, the Old NSW Act which was applied in Jemzone Pty Ltd (supra) (see IA(P) 4 - Tab 31) also provides for the 'right to progress payments' under Section 8. Section 8(1) and (2)(a) of the Old NSW Act (see IA(P) 3 - Tab 17) are almost identical to Section 9(1) and 2(a) of the Old Victorian Act (see IA(P) 3 - Tab 19) with the only difference being the parentheses in Section 8(2)(a)(ii) of the Old NSW Act. 40. The court in Gantley (supra) at paragraph 245 (see IA(P) 4- Tab 30) also held that if indeed the claims made in that case were final payment claims, they were not permitted to be made under the Old Victorian Act. This, the court said, was in line with the core purpose of the Act:- "249. The core purpose of the Act is to provide a statutory right to payment of progress payments under a construction contract and to provide a mechanism to enable the party so entitled to recover those payments. The framework under the Old Act was confined to providing this facility in respect of 'progress payments'. 251. Under this ground, I am satisfied that the payment claims were invalid. They failed to satisfy a basic and essential requirement of the legislation in a substantial and material way, and further that the failures were manifest on the face of the documents. There was therefore jurisdictional error." (emphasis added) 43 41. If the rationale in Gantley (supra) (see IA(P) 4- Tab 30) was adopted, would this mean that the Respondent would be left without a remedy? Surely not - as the Respondent would still be able to seek remedies in litigation or arbitration as provided under the Contract. As explained by the court in paragraph 252 of the judgment:- "252. If final payment claims are to be made in respect of construction contracts to which the Old Act applies, the contractual mechanism, if there be one, should be engaged. If there be a failure on the part of a respondent to such a claim to make payment, when pursuant to the contract it is required to do so, litigation and not the Act, is the last resort for enforcement. Likewise, in cases such as the present, if the construction contract to which the Old Act applies has been terminated prior to the time when the contract permits a final payment claim to be made, and the contractual mechanism for the making of a final payment claim is not, or cannot be engaged, in circumstances where a principal or head contractor refuses payment of what is due, litigation and not the Act is again the last resort for enforcement of what may be due to a contractor." (emphasis added). (b) The Singaporean position 42. The High Court of Singapore adopted a broad interpretation of the Singaporean Building and Construction Industry Security of Payment Act 2006 ("Singaporean Act") (see IA(P) 3- Tab 16) in Tionq Seng Contractors (Pte) Ltd v Chuan Lim Construction Pte Ltd [2007] 4 SLR 364 at 370 (see IA(P) 4- Tab 27) to include adjudication of final progress payments. At paragraph 27, the court held:- "27. Looking at the structure and wording of the provision, it appears that an exclusion of 'final payments' from the ambit of the Act can only be justified by express wording to that effect. It would not suffice to infer a legislative intention to exclude simply on the basis that 'final payments' were not included in a non-exhaustive supplementary 44 definition, ostensibly provided for clarification. If the Legislature had intended to exclude final claims from the adjudicatory ambit of the Act, it could have clearly included a proviso or provision to that effect. In the absence of such express exclusion, the primary broad-ranging definition in the main limb must be determinative." (emphasis added) 43. By contrast to CIPAA and the Old Victorian Act, the Singaporean Act (see IA(P) 3- Tab 16) defines 'progress payment' as:- "...a payment to which a person is entitled for the carrying out of construction work, or the supply of goods or services, under a contract, and includes— (a) a single or one-off payment, or (b) a payment that is based on an event or a date; 44. Notably absent from the Singaporean Act is the 'right to progress payment' which features in the Old Victorian Act, Old NSW Act and CIPAA. It was for this reason that the Singapore High Court in Tionq Sena Contractors (Pte) Ltd (supra) at (see IA(P) 4- Tab 27) distinguished Jemzone Ptv Ltd (supra) (see IA(P) 4 - Tab 31) which was decided on the Old NSW Act:- "44. I am of the view that Austin J's holding in Jemzone ([20] supra) loses its significance once we appreciate that s 8 of the NSW Act (as it then was) did not define or explain the term 'progress payment'...In contrast to the NSW Act (as it then was), s 2 of our current version of the Act unambiguously defines 'progress payments' as 'a payment to which a person is entitled for the carrying out of construction work, or the supply of goods or services, under a contract" - a definition which leans towards the adjudicatory ambit of the Act." 45 (c) The Malaysian position under CIPAA 45. In Tunku Yaacob Holdings Sdn Bhd v Pentadbir Tanah Kedah & Ors [2016] 1 MLJ 200 at 218, (see IA(P) 3 - Tab 22) the Federal Court considered the 'settled general rule' that 'when a statute is susceptible of two or more interpretations, normally that interpretation should be accepted as reflecting the will of the legislation which is presumed to operate most equitably, justly and reasonably as judged by the ordinary and normal conceptions of what is right and what is wrong and of what is just and what is un just. 46. Accordingly, we humbly submit that the interpretation of CIPAA to be exclusive to progress payments only would best reflect the will of the legislation.” [21] In my view, CIPAA 2012 if by decisions of courts is made applicable to final account or final payment in relation to construction disputes as opposed to construction contract for interim payment, it may lead to abuse of process. My reasons are as follows: (i) CIPAA 2012 was meant to assist contractor to receive the interim payment for work in progress timely, as the law was that the contractor was obliged to complete the contract within time frame even if the employer did not pay timely the contractual payments for work done. (ii) CIPAA 2012 mechanism for adjudication dispenses with trial process as well as law of evidence, etc. There is little that the respondent to a CIPAA 2012 adjudicator’s decision can do to refuse payment. To summarily determine a final payment will be breach of rule of law and constitutional provisions and safeguards. 46 (iii) To allow the contractor to enforce a final payment of summary adjudication process will be abhorrent to notion of justice and fair play and will cause irreparable loss to the employer in the event by arbitration process or litigation process it is found the employer is not liable to payment and the money is not commercially recoverable from the contractor. (iv) It is wrong to construe the Act of Parliament to include claims for final payment when the mischief CIPAA 2012 was intended to cure was the timely payment for work related to progress payments and not final account. (v) CIPAA 2012 must not be interpreted by the courts to oppress the employers as that was not the aim, purpose and intent of the Act. (vi) It is principally wrong to read into the Act the phrase ‘final payment’ when Parliament has not expressly stated and the holistic reading of the Act will lean towards interim payments only as explained earlier. (vii) CIPAA 2012 which will be applicable also to the Federal or State Government contracts inclusive of its organs such as Federal and State owned or related corporations, etc. in the capacity of employers of contract can be adversely affected if it relates to final payment and the money paid to the contractor subsequently is not recovered from the contractor upon an arbitration award or judgment in 47 favour of the employer. It will then impinge on public purse, which requires the court to be vigilant when leaning to an interpretation which is not patently stated in the Act. [22] It is one related to common sense to conceive generally that contractors and sub-contractors will be persons who may not have financial strength or capacity in contrast to the employers. To say CIPAA 2012 advocates full payment to be released on final account that too summarily will not subscribe to commercial reality as well as rule of law and constitutional safeguards enjoyed by others in litigation or arbitration process. [23] CIPAA 2012 mechanism has no form of civilised rules or law of evidence for the adjudicator to be bound and/or to allow the court to supervise the adjudication process at all and submitting to the adjudicator is also not a voluntary process. The adjudicator under the CIPAA 2012 has been made a supreme decision maker, where his decision is right or wrong must be complied with. There is also no disciplinary mechanism to check the misconduct of adjudicator. History on rule of law has shown power corrupts and absolute power may lead to corruption, that too when it is related to a final payment. If CIPAA 2012 is ruled to cover final payment, KLRCA will benefit from collection of administrative fees. That should not be seen as criteria to advocate CIPAA 2012 for final payment when the Act does not say so. In addition, as a general rule, the courts will jealously guard its jurisdiction. [See The Abidin Daver [1984] 1 All ER 470; Semenyih Jaya Sdn Bhd v Pentadbir Tanah Daerah Hulu Langat & Anorther Case [2017] 5 CLJ 526]. It will be wrong in jurisprudence for KLRCA to seize jurisdiction for final 48 payment under CIPAA 2012 when the Act does not expressly say so. What has been expressly stated is only interim payments and not final payment. Simply put if CIPAA 2012 is made applicable to final claim, it will lead to travesty of justice in the employers perspective as articulated by the appellant in this case. [24] I have read the appeal records and the able submissions of the learned counsel. After giving much consideration to the submission of the learned counsel for the respondent, I take the view that both the appeals should be allowed. My reasons inter alia are as follows:- (a) The claim by the respondent is not related to CIPAA 2012 and adjudicator will not have the jurisdiction to hear the dispute. In consequence, the decision of the adjudicator dated 14-4-2016 must be set aside. (b) Upon the decision of the adjudicator being set aside, it will follow that the enforcement of the decision has to be set aside. [25] For reasons stated above, both the appeals are allowed with costs. Both the decisions of the High Court related to section 15 and section 28 are set aside. The respondents shall pay the appellant a global sum of RM25,000.00 as costs for both appeals subject to allocatur. Deposit is to be refunded, with a note that the majority have dismissed the appeal with costs. 49 Dated: 15 September 2017 sgd (DATUK DR. HJ. HAMID SULTAN BIN ABU BACKER) Judge Court of Appeal Malaysia. Note: Grounds of judgment subject to correction of error and editorial adjustment etc. Counsel for Appellant: Mr. M. Nagarajah [with Ms Tanya Lopez and Ms Corrine Chin] Messrs Shook Lin & Bok Peguambela & Peguamcara 20th Floor, Ambank Group Building 55 Jalan Raja Chulan 50200 Kuala Lumpur. [Ref: CMS/TML/NM/17658/15/MSB/AM&CSB/07-2022396] Counsel for Respondents: Mr. Sivabalan [with Ms Tharmini Paramasivan] Messrs Tan Swee Im, Siva & Partners Peguambela & Peguamcara Suite D-3A-03 to 06, Block D Plaza Mont Kiara, No. 2, Jalan Kiara Mont Kiara 50480 Kuala Lumpur. [Ref: TSI/S/853/2015/ARMC]	84,763	Tika 2.6.0
W-01(A)-362-09/2016	PERAYU 1. TEMENGGONG DATO’ LAU LEE MENG, THE CHAIRMAN OF UNITED CHINESE SCHOOL COMMITTEE’S ASSOCIATION OF MALAYSIA [Suing on behalf of himself and all other Members Of United Chinese School Committee’s Association of Malaysia except for members supporting the amendments to the Articles of Association of Dong Jiao Zong Higher Learning Centre Bhd which were made on 10.19.2015] 2. ONG KOW EE @ ONG CHIOW CHUEN, CHAIRMAN OF GABUNGAN PERSATUAN GURU-GURU SEKOLAH CINA MALAYSIA [Suing on behalf of himself and all other members of Gabungan Persatuan Guru-Guru Sekolah Cina Malaysia] 3. MERDEKA UNIVERSITY BHD [Collectively suing on behalf of the represented association and the company itself and all other members or Dong Jiao Zong Higher Learning Centre Bhd except for the members supporting the amendments to the Articles of Association made on 10.10.2015] RESPONDEN 1. MENTERI PERDAGANGAN DALAM NEGERI, KOPERASI DAN KEPENGGUNAAN MALAYSIA 2. DONG JIAO ZONG HIGHER LEARNING CENTRE BHD [COMPANY NO.: 292570-A]	Unincorporated Associations — Judicial Review — Meetings — Amendments to the Articles of Association approved in an Extraordinary General Meeting (EGM) — Whether 1st Respondent had conducted proper evaluation of materials before him prior to making the decision to approve the relevant amendments	15/09/2017	YA DATUK DR HAJI HAMID SULTAN BIN ABU BACKERKorumYAA TAN SRI DATUK SERI PANGLIMA DAVID WONG DAK WAHYA DATUK DR HAJI HAMID SULTAN BIN ABU BACKERYA DATO' UMI KALTHUM BINTI ABDUL MAJID	https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=9d76c64b-94ec-4a23-a9c1-c7fd3ea0700a&Inline=true	1 IN THE COURT OF APPEAL OF MALAYSIA (APPELLATE JURISDICTION) CIVIL APPEAL NO: W-01(A)-362-09/2016 BETWEEN 1. TEMENGGONG DATO LAU LEE MENG, THE CHAIRMAN OF UNITED CHINESE SCHOOL COMMITTEE’S ASSOCIATION OF MALAYSIA (suing on behalf of himself and all other members of United Chinese School Committee’s Association of Malaysia except for the members supporting the amendments to the Articles of Association of Dong Jiao Zong Higher Learning Centre Bhd which were made on 10.10.2015) 2. ONG KOW EE @ ONG CHIOW CHUEN, CHAIRMAN OF GABUNGAN PERSATUAN GURU-GURU SEKOLAH CINA MALAYSIA (suing on behalf of himself and all other members of Gabungan Persatuan Guru-Guru Sekolah Cina Malaysia) 3. MERDEKA UNIVERSITY BHD (collectively suing on behalf of the represented associations and the company itself and all other members of Dong Jiao Zong Higher Learning Centre Bhd except for the members supporting the amendments to the Articles of Association made on 10.10.2015) …APPELLANTS AND 1. MENTERI PERDAGANGAN DALAM NEGERI, KOPERASI DAN KEPENGGUNAAN MALAYSIA 2. DONG JIAO ZONG HIGHER LEARNING CENTRE BHD (COMPANY NO.: 292570-A) …RESPONDENTS 2 (In the High Court in Malaya at Kuala Lumpur Application for Judicial Review No. Wa-25-28-02/2016 In the matter of the consent given by the Minister of Domestic Trade, Cooperatives and Consumerism Malaysia to Dong Jiao Zong Higher Learning Centre Bhd on 11 th November 2015 pursuant to Section 24(4) Companies Act 1965; And In the matter of an application for an order of Certiorari, Mandamus and Declaration; And In the matter of Order 53 Rules of Court 2012 BETWEEN 1. TEMENGGONG DATO LAU LEE MENG, PENGERUSI UNITED CHINESE SCHOOL COMMITTEE’S ASSOCIATION OF MALAYSIA (suing on behalf of himself and all other members of United Chinese School Committee’s Association of Malaysia except for the members supporting the amendments to the Articles of Association of Dong Jiao Zong Higher Learning Centre Bhd which were made on 10.10.2015) 2. ONG KOW EE @ ONG CHIOW CHUEN, PENGERUSI GABUNGAN PERSATUAN GURU-GURU SEKOLAH CINA MALAYSIA (suing on behalf of himself and all other members of Gabungan Persatuan Guru-Guru Sekolah Cina Malaysia) 3 3. MERDEKA UNIVERSITY BHD (collectively suing on behalf of the represented associations and the company itself and all other members of Dong Jiao Zong Higher Learning Centre Bhd except for the members supporting the amendments to the Articles of Association made on 10.10.2015) …APPLICANTS AND 1. MENTERI PERDAGANGAN DALAM NEGERI, KOPERASI DAN KEPENGGUNAAN MALAYSIA 2. DONG JIAO ZONG HIGHER LEARNING CENTRE BHD (COMPANY NO.: 292570-A) …RESPONDENTS) CORAM: DAVID WONG DAK WAH, HMR HAMID SULTAN BIN ABU BACKER HMR UMI KALTHUM BINTI ABDUL MAJID, HMR 4 MAJORITY JUDGEMENT OF THE COURT Introduction: 1. We have read the draft grounds of our learned brother, Justice Hamid Sultan Bin Abu Backer. However, with regret and respect, we are unable to concur with him on the outcome of this appeal. Hence the grounds herein are the views of myself and my sister Justice Umi Kalthum Binti Abdul Majid and reasons as to what we think should be the outcome of this appeal. 2. This appeal emanates from the learned Judge’s refusal, in a Judicial Review application by the Appellants/Applicants, to quash the decision of the 1st Respondent in consenting to the two amendments to the Articles of Association of the 2nd Respondent approved in an Extraordinary General Meeting dated 10.10.2015. 3. We heard the appeal and reserved our decision. We have since further considered submissions from respective counsel and now give our decision and grounds. 5 4. For convenience, United Chinese School Committees’ Association of Malaysia, United Chinese School Teachers’ Association of Malaysia and the 3rd Appellant will be referred to as Dong Zong, Jian Zong and Merdeka University respectively. Background facts: 5. The historical background of respective parties has been accurately and succinctly set out by the respective counsel and learned Judge and we adopt them. However, we see no necessity to repeat them all here except to set out the salient facts for this appeal. 6 . The 2nd Respondent is a company limited by guarantee incorporated under the Companies Act 1965 on 24.3.1994. It was formed by the 1st, 2nd and 3rd Appellants with the primary objective to promote Chinese education by establishing a complete education system spanning from the primary level to the tertiary level in Malaysia. The in i t ia l subscr ibers were as fo l lows: (a) Quek Suan Hiang represent ing the 1 s t Appel lant , (b) Loot T ing Yee represent ing the 2 n d Appel lant , and (c) Foo Wan Thot @ Foo Wan Kang represent ing the 3 r d Appel lant . 6 7. The majority Directors of the 2nd Respondent on 17.9.2015 through one Yap Kiam @ Yap Sin Tin, as Chairman of the 2nd Respondent issued a notice to convene an Extraordinary General Meeting on 10.10.2015 for the purpose of seeking the approval of members of the Second Respondent to pass the 2 proposed Special Resolutions. 8. However, on the same day, namely 17.9.2015, Dong Zong held a meeting in which it resolved as follows: (a) that the 1st Appellant be appointed as the new chairman of Dong Zong; and (b) that 5 new representatives be nominated as nominees of Dong Zong in the 2nd Respondent’s Board of Directors for the 10th term from the year of 2014 to 2018. 9. On 28.9.2015, the 1st Appellant in his capacity as the new Chairman of Dong Zong informed via letters to Yap Kiam @ Yap Sin Tin and Chow Siew Hon that they no longer represent Dong Zong on the Board of Directors of the 2nd Respondent. Also on the same day, the 2nd Appellant as Vice Chairman of the 2nd Respondent issued a notice to convene a Special Meeting on 5.10.2015 for the purpose of 7 cancelling the EGM on 10.10.2015 convened by Yap Kiam @ Yap Sin Tin. 10. The 2nd Respondent took up an originating summons to declare that notices issued by the 1st Appellant to convene the 5.10.2015 Special Meeting invalid and irregular. Prior to the trial of that originating summons, the 2nd Respondent had also obtained an injunction to stop the Special Meeting on 5.10.2015 but that injunction was ignored resulting in a resolution to cancel the Special Meeting on 5.10.2015. 11. The High Court on 15.12.2015 sustained the application of the 2nd Respondent in the originating summons which in effect declared that the Special Meeting held on 5.10.2015 to be invalid. An appeal has been lodged against that decision of the High Court under W- 02(NCVC)(A)-53-01/2016. That appeal is pending before us which at this juncture we make no views on it. 12. Reverting back to the EGM dated 10.10.2015, the 2 proposed Special Resolutions related to amending Article 14(b) and deleting Article 18 (viii) of the Articles of Association of the 2nd Respondent. The details 8 of the amendments are as set out in the circularized notice issued by Yap Kiam @ Yap Sin Tin which for clarity we produce herein: 9 13. The 2 proposed resolutions were passed at the EGM on 10.10.2015. However, for the 2 proposed resolutions to be effective, Clause 5 of the Memorandum of Association must be complied with. It reads as follows: No addition, alteration or amendment shall be made to or in the provisions contained in the Memorandum or Articles of Association the Company for the time being in force, unless the same shall have been previously submitted to and approved in writing by the Minister vested with such authority in Malaysia. 14. Section 24(4) of the Companies Act 1965 also provides that: Where the memorandum or articles of a company include as a result of a direction of the Minister given pursuant to subsection (3) or pursuant to any corresponding previous written law a provision that the memorandum or articles shall not be altered except with the consent of the Minister the company may with the consent of the Minister by special resolution alter any provision of the memorandum or articles. 15. Pursuant to the above provisions, the 2nd Respondent submitted the 2 approved resolutions on 15.10.2015 for the approval or consent of the 1st Respondent. 10 16. The Appellants on 2.11.2015 wrote to the 1st Respondent and expressed their objection to the 2 approved resolutions. The aforesaid letter reads as follows: 11 17. The aforesaid letter of objection was then referred to the 1st Respondent by his secretary on 5.11.2015. Having taken into consideration the objection by the Appellants, the 1st Respondent on 11.11.2015 approved the application for alteration and/or amendment to Article 14(b) and Article 18 of the Article of Association. 12 18. On 2.1.2016, an EGM was held by the Board of Directors of the 2nd Respondent to announce to the members of the 2nd Respondent the approval given by the 1st Respondent. Thereafter, in giving effect to the aforesaid amendments, nominations were made for the election of 16 new Directors of the 2nd Respondent. The election was duly conducted with 16 new Directors of the 2nd Respondent being elected. Proceedings in the High Court: 19. The Appellants in the High Court sought the following reliefs: a. An order of Certiorari to quash the consent of the 1st Respondent dated 11.11.2015 given to the 2nd Respondent to amend its Articles of Association; b. A declaration that the Amendments to the Articles of Association of the 2nd Respondent as purportedly approved at the purported Extraordinary General Meeting on 10.10.2015 shall not take effect; c. In addition to (b) above, an order of Mandamus that the 1st Respondent to direct status quo to be reinstated to the affairs of the 2nd Respondent prior to the purported taking effect of the Amendments to the 13 Articles of Association of the 2nd Respondent as purportedly approved at the purported Extraordinary General Meeting on 10.10.2015 as if the same did not take effect before. 20. The learned Judge d ismissed the Appel lants ’ appl icat ion with costs premised on the ground that the 1 s t Respondent had exerc ised h is d iscret ion proper ly in that re levant considerat ions were g iven due regard pr ior to making the decis ion to approve the re levant amendments to the Ar t ic le of Associat ion of the 2 n d Respondent . Grounds for our decision: 21. Before we discuss the submissions of counsel for the Appellants, we see fit to restate the legal position of the High Court when dealing with a judicial review of a decision of a Minister of the Government. The nature of this sort of application is one of “review” as opposed to one of “appeal” as we know it. In an appeal hearing, the High Court of course can dwell into the evidence and form a view of its own and substitute the same to that of the Minister. In a review hearing, the 14 High Court is not concerned with the correctness of the decision of the decision maker and should not interfere with the decision unless that decision is illegal in law or a real error of law. Its only concern is to examine the decision-making process of the Minister. That process would include whether the Minister had asked the wrong question, taken into consideration irrelevant considerations and applied the wrong law. 22. However, the decision of the Minister can be challenged in Court on the principle of reasonableness as established in the case of Associated Provincial Picture Houses Ltd v Wednesbury Corpn [1948] 1 KB 223 where it held as follows: “It is true the discretion must be exercised reasonably. Now what does that mean? Lawyers familiar with the phraseology commonly used in relation to exercise of statutory discretions often use the word "unreasonable" in a rather comprehensive sense. It has frequently been used and is frequently used as a general description of the things that must not be done. For instance, a person entrusted with a discretion must, so to speak, direct himself properly in law. He must call his own attention to the matters which he is bound to consider. He must exclude from his consideration matters which are 15 irrelevant to what he has to consider. If he does not obey those rules, he may truly be said, and often is said, to be acting "unreasonably." Similarly, there may be something so absurd that no sensible person could ever dream that it lay within the powers of the authority. Warrington L.J. in Short v. Poole Corporation (1) gave the example of the red-haired teacher, dismissed because she had red hair. That is unreasonable in one sense. In another sense it is taking into consideration extraneous matters. It is so unreasonable that it might almost be described as being done in bad faith; and, in fact, all these things run into one another.” 23. In his submission, learned counsel for the Appellants set out five complaints as follows: (i) the learned Judge ought to have found that the 1st Respondent did not exercise his own discretion; (ii) the learned Judge ought to have found that the 1st Respondent failed to consider relevant considerations in giving his consent to the Amendments; (iii) the learned Judge misdirected herself from the real issue; (iv) the learned Judge further misdirected herself in holding that the 2nd Respondent is empowered to make the 16 Amendments to the provision of the Memorandum and Articles of Association. (v) the learned Judge failed to rule that the 1st Respondent had taken into consideration irrelevant matters in giving his consent to the Amendments. Complaint (i) – non-exercise of discretion. 24. The learned counsel’s complaint is mainly premised on what was stated by the 1st Respondent in his affidavit in reply dated 11.5.2016 which says as follows: “ (5.2) Pada 6.11.2015, saya te lah mener ima surat dar ipada Ketua Pegawai Eksekut i f SSM ber tar ikh 5.11.2015 bersama dokumen - dokumen yang berkai tan. Surat Ketua Pegawai Eksekut i f SSM ber tar ikh 5.11.2015 te lah menyatakan bahawa SSM te lah menyemak permohonan tersebut dan mendapat i ianya teratur dan boleh d iperakukan untuk saya lu luskan . … 17 (5.4) Saya dapat i SSM te lah menel i t i dan menyemak dokumen-dokumen berkai tan permohonan tersebut… (5.5) Berdasarkan pandangan dan syor p ihak SSM yang mendapat i t iada per langgaran prosedur ber laku dan t idak bercanggah dengan mana-mana peruntukan Akta Syar ikat 1965, saya menggunakan budib icara saya untuk melu luskan p indaan Fasal 14(b) dan membata lkan Fasal 18(v i i i ) Ar t ike l Per tubuhan Dong J iao Zong. … (13) Seterusnya saya dengan sesungguhnya menyatakan bahawa kebenaran yang saya ber ikan tersebut t idaklah bermaksud untuk menje jaskan kuasa kawalan Pemohon Per tama, Pemohon Kedua dan Pemohon Ket iga seper t i yang d idakwa tetapi kebenaran tersebut d iber ikan berdasarkan pandangan dan syor p ihak SSM yang d isokong o leh dokumen-dokumen yang d i lampirkan bersama permohonan tersebut t idak melanggar Memorandum dan Ar t ike l Pertubuhan Dong J iao Zong… 18 (20) Merujuk kepada perenggan 38 Af idav i t Pemohon, saya sesungguhnya menyatakan bahawa saya berpuashat i dengan pandangan dan syor p ihak SSM yang merangkumi tu juan, just i f ikas i dan kesan terhadap set iap p indaan yang mana je las menunjukkan kesemua Pemohon Per tama, Pemohon Kedua dan Pemohon Ket iga masih mempunyai dua (2) waki l d i da lam Lembaga Pengarah Syar ikat Dong J iao Zong dan o leh i tu , berdasarkan syor p ihak SSM yang te lah memer iksa peruntukan d i da lam Memorandum dan Ar t ike l Pertubuhan Dong J iao Zong dan peruntukan undang -undang d i da lam Akta Syar ikat 1965 , saya member ikan kebenaran untuk p indaan - pindaaan tersebut . … (27) Seterusnya sete lah … dan menyatakan bahawa berdasarkan pandangan dan syor SSM, YST mengadakan EGM tersebut mengikut prosedur dan undang -undang . … (29) Merujuk kepada perenggan 45 Af idav i t Pemohon yang saya naf ikan, saya 19 menyatakan d i s in i bahawa kelu lusan p indaan tersebut d ibuat dengan mel ihat kepada pandangan dan syor SSM . ” 25. Learned counsel submits that the averments in the affidavit show clearly that the 1st Respondent had not exercised his discretion as he had “mechanically” followed the recommendation of (“Companies Commission of Malaysia”). The case of Awang Tengah AG Amin v. Sabah Public Service Commission & Anor [1998] 2 CLJ SUPP 40 is referred to us as authority for his submission. In that case, the High Court Judge at page 431 had relied and applied on what was stated by the learned author in Administrative Law of Malaysia and Singapore (3rd edn) and that is an administrative action is flawed and invalid when there is a non-application of the authority’s mind when making its purported decision and this happens when an authority (i) acted under dictation (ii) acted mechanically or (iii) fettered its discretion. 26. In the case at hand, the 1st Respondent’s discretion derives from section 24(4) of the Companies Act 1965. It is the submission of the Appellants that the 1st Respondent had merely relied on the view of 20 the (“Chief Executive Officer”) of CCM in coming to his decision. That does not amount to an exercise of any discretion according to learned counsel. What the 1st Respondent should have done was to inquire further whether the CEO of CCM had taken into consideration of the letter of objection. 27. With respect, we are not in agreement with learned counsel for the Appellants and our reasons are these. The 1st Respondent had before him the letter of complaint which in our view was perfectly in order for him to refer it to the CEO of CCM for his views as it concerned the 2nd Respondent which is a company limited by guarantee under the Companies Act 1965. We would have been in agreement with learned counsel if that was the only information before the 1st Respondent. It is undisputed that the 2nd Respondent had provided the reasons for the relevant amendments to the Article of Association when seeking for the consent of the 1st Respondent. That being the case, we find that the 1st Respondent had conducted a proper evaluation of the materials before him before reaching his decision in approving the relevant amendments. It was definitely not a 21 mechanical exercise of his discretion. Hence we find that there is no merit in the submission of the Appellants on this complaint. Complaint (ii) – inadequate consideration in giving consent. 28. The crux of the complaint of the Appellants was that the 1st Respondent had failed to inquire further into the rationale for the amendments sought by the 2nd Respondent. For clarity, we reproduce the chart set out in the submission of learned counsel: No. Reasons Amendments for Art icle 14(b) Amendments for Art icle 18 1. Rat ionale Increase number of Board f rom 31 members to 35 members. The ex is t ing Art . 18 (v i i i ) be deleted in i ts ent i re ty . 2 . Just i f icat io n Due to expansion of businesses and upgrading of New Era Col lege to Univers i ty Col lege status, the Board requi res more members to ass ist in process , manage, handle and deal wi th the i r business af fa i rs . To remove vague and unnecessary condi t ion for d isqual i f icat ion of Di rectors that wi l l cause any conf l ic t /d ispute in the Board. 3 . Impact : ( i ) Before Restr ic t ion to the number of the Board To avoid unnecessary 22 ( i i ) Af ter wi thout amending the M&A. To Increase the number of Board f rom 31 members to 25 members. d isputes create to the Directors wi thout amending the M&A. The ex is t ing Ar t ic le 18( ix) to be renumbered to read as Ar t ic le 18(v i i ) . 4 . Whether contrary to Companies Act 1965 The 2 n d Respondent is of the v iew that the proposed amendments is not contrary to Companies Act 1965. The 2 n d Respondent is of the v iew that the proposed amendments is not contrary to Companies Act 1965. 29. It is the submission of learned counsel that had the 1st Respondent inquired further it would have become clear to him that the amendments had actually changed the structure of the Board of Directors in that the Appellants’ influence in the Board would have been diluted from 15 directors to 6 directors. 30. With respect, learned counsel had overlooked the glaring absence of any prohibition in the Articles of Association of the 2nd Respondent to change the structure of the Board of Directors. Without such provision, there is no legal impediment on the part of the members of the 2nd Respondent to exercise the rights given to them in the Articles 23 of Association. Had the founders of the 2nd Respondent wanted to have the original structure of Board of Directors to be of a permanent nature that could have been easily done by inserting in the Articles of Association a provision to reflect their intention. And as pointed out by learned counsel for the 2nd Respondent, the will of the members is very much a consideration which the 1st Respondent cannot ignore. In any event, it is not the duty of the Court to substitute its decision to that of the Minister when he is exercising his discretion empowered by law. 31. Learned counsel for the Appellants also submits that there was a mutual understanding among members of the 2nd Respondent that the Board structure should not be changed. With respect, there is no evidence to that at all before the Court and further this mutual understanding was never highlighted in the letter of objection lodged by the Appellants to the 1st Respondent. In any event, the power structure in the 2nd Respondent had not changed as pointed out by the learned Judge in paragraph 28 of the grounds which read as follows: 24 [28] It is noted that based on AA of the Second Respondent, Clause 4, 12(a) and 13(j) clearly shows that in any of the Annual General Meeting and/or EGM of the Second Respondent, both the 3 organizational member (regardless of the number of nominee) and/or individual member are only entitled to one vote each. As such, the enlargements and/or reduction of the number of nominees of the Applicants did not in any ways affects the status of the Applicants in the Board of Director of the Second Respondent. This essentially mean that at all times, the Applicants would collectively represent 3 votes and nothing more out of the overall number of the Board of Director in the Second Respondent. Complaint (iii): Judge wrong on the real issue. 32. The complaint here is that the learned Judge only looked at the voting power of the Appellants as members of the 2nd Respondent and not the change in the structure of the Board of Directors as alluded to earlier. Again we see no merit in this contention. The learned Judge merely pointed out that the Appellants never had control as members in the 2nd Respondent in the first place. Hence there cannot be any ground to complain that they have lost control of the Board of Directors. 25 Complaint (iv) – 2nd Respondent not empowered to make amendments: 33. Learned counsel for the Appellants essentially submits that the amendments were made in bad faith and not whether such power exist in the Memorandum and Articles of Association. Learned counsel in fact relied on the contention that amendments were against the law of equity and that with respect is clutching at straw. Complaint (v) – 1st Respondent took into consideration irrelevant consideration. 34. If what we understand from the learned counsel here, he is saying that the 1st Respondent should not have considered the application for his consent as the 2nd Respondent should have first obtained his consent for the amendments and not after the special resolutions for the amendments had been approved by the members of the 2nd Respondent as in this case. Again we see no logic in the argument. Clause 5 of the Memorandum of the 2nd Respondent is crystal clear and it reads as follows: "ADDITIONAL, ALTERATION OR AMENDMENT 5. No addition, alteration or amendment shall be made to or in the provisions contained in the Memorandum or Article of 26 Association of The Company for the time being in force, unless the same shall have been previously submitted to and approved in writing by the Minister vested with such authority in Malaysia.” 35. What the 2nd Respondent did here was to implement the amendments only after the consent of the 1st Respondent was given on 11.11.2015 and that was done by an EGM on the 2.1.2016 to adopt the approval of amendments to the Articles of Association. Hence, we see no merit in this complaint. Conclusion: 36. We see this as a clear case of the members exercising their rights entrenched in the Memorandum and Articles of Association of a corporation limited by guarantee incorporated under the Companies Act 1965. Further, full compliance of the procedural requirements under the Memorandum and Articles of Association and legal requirement under section 24(4) of the Companies Act 1965 have been met by the 2nd Respondent. 27 37. Further, it is of no insignificance that the Appellants had taken a section 181 oppression suit against the majority shareholders of the 2nd Respondent seeking to set aside the EGM resolution of 10.10.2015 which, to recapitulate, is the resolution approving the amendments and then withdrew the same. 38. Hence, we see no reason to disturb the judgment of the High Court and hereby dismiss the appeal with costs in the sum of RM10,000.00 to each set of Respondents, subject to payment of allocatur fees, where applicable. We also order that the deposit be returned to the Appellants. Dated : 15th September 2017 (DAVID WONG DAK WAH) Judge Court of Appeal Malaysia 28 Counsel For the Appellants : Gan Khong Aik With him Kang Mei Yee Messrs. Gan Partnership For the Respondent : Wong Rhen Yen With him S. Raven, Ahmad Ezmeel & Siti Nur Amirah Aqilah Binti Adzman Messrs. S Ravenesan Mohamad Rizal Bin Fadzil Peguam Kanan Persekutuan Notice: This copy of the Court's Reasons for Judgment is subject to formal revision.	27,658	Tika 2.6.0
W-01(A)-362-09/2016	PERAYU 1. TEMENGGONG DATO’ LAU LEE MENG, THE CHAIRMAN OF UNITED CHINESE SCHOOL COMMITTEE’S ASSOCIATION OF MALAYSIA [Suing on behalf of himself and all other Members Of United Chinese School Committee’s Association of Malaysia except for members supporting the amendments to the Articles of Association of Dong Jiao Zong Higher Learning Centre Bhd which were made on 10.19.2015] 2. ONG KOW EE @ ONG CHIOW CHUEN, CHAIRMAN OF GABUNGAN PERSATUAN GURU-GURU SEKOLAH CINA MALAYSIA [Suing on behalf of himself and all other members of Gabungan Persatuan Guru-Guru Sekolah Cina Malaysia] 3. MERDEKA UNIVERSITY BHD [Collectively suing on behalf of the represented association and the company itself and all other members or Dong Jiao Zong Higher Learning Centre Bhd except for the members supporting the amendments to the Articles of Association made on 10.10.2015] RESPONDEN 1. MENTERI PERDAGANGAN DALAM NEGERI, KOPERASI DAN KEPENGGUNAAN MALAYSIA 2. DONG JIAO ZONG HIGHER LEARNING CENTRE BHD [COMPANY NO.: 292570-A]	Unincorporated Associations — Judicial Review — Meetings — Amendments to the Articles of Association approved in an Extraordinary General Meeting (EGM) — Whether 1st Respondent had conducted proper evaluation of materials before him prior to making the decision to approve the relevant amendments	15/09/2017	YA DATUK DR HAJI HAMID SULTAN BIN ABU BACKERKorumYAA TAN SRI DATUK SERI PANGLIMA DAVID WONG DAK WAHYA DATUK DR HAJI HAMID SULTAN BIN ABU BACKERYA DATO' UMI KALTHUM BINTI ABDUL MAJID	https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=9d76c64b-94ec-4a23-a9c1-c7fd3ea0700a&Inline=true	1 IN THE COURT OF APPEAL OF MALAYSIA (APPELLATE JURISDICTION) CIVIL APPEAL NO: W-01(A)-362-09/2016 BETWEEN 1. TEMENGGONG DATO LAU LEE MENG, THE CHAIRMAN OF UNITED CHINESE SCHOOL COMMITTEE’S ASSOCIATION OF MALAYSIA (suing on behalf of himself and all other members of United Chinese School Committee’s Association of Malaysia except for the members supporting the amendments to the Articles of Association of Dong Jiao Zong Higher Learning Centre Bhd which were made on 10.10.2015) 2. ONG KOW EE @ ONG CHIOW CHUEN, CHAIRMAN OF GABUNGAN PERSATUAN GURU-GURU SEKOLAH CINA MALAYSIA (suing on behalf of himself and all other members of Gabungan Persatuan Guru-Guru Sekolah Cina Malaysia) 3. MERDEKA UNIVERSITY BHD (collectively suing on behalf of the represented associations and the company itself and all other members of Dong Jiao Zong Higher Learning Centre Bhd except for the members supporting the amendments to the Articles of Association made on 10.10.2015) …APPELLANTS AND 1. MENTERI PERDAGANGAN DALAM NEGERI, KOPERASI DAN KEPENGGUNAAN MALAYSIA 2. DONG JIAO ZONG HIGHER LEARNING CENTRE BHD (COMPANY NO.: 292570-A) …RESPONDENTS 2 (In the High Court in Malaya at Kuala Lumpur Application for Judicial Review No. Wa-25-28-02/2016 In the matter of the consent given by the Minister of Domestic Trade, Cooperatives and Consumerism Malaysia to Dong Jiao Zong Higher Learning Centre Bhd on 11 th November 2015 pursuant to Section 24(4) Companies Act 1965; And In the matter of an application for an order of Certiorari, Mandamus and Declaration; And In the matter of Order 53 Rules of Court 2012 BETWEEN 1. TEMENGGONG DATO LAU LEE MENG, PENGERUSI UNITED CHINESE SCHOOL COMMITTEE’S ASSOCIATION OF MALAYSIA (suing on behalf of himself and all other members of United Chinese School Committee’s Association of Malaysia except for the members supporting the amendments to the Articles of Association of Dong Jiao Zong Higher Learning Centre Bhd which were made on 10.10.2015) 2. ONG KOW EE @ ONG CHIOW CHUEN, PENGERUSI GABUNGAN PERSATUAN GURU-GURU SEKOLAH CINA MALAYSIA (suing on behalf of himself and all other members of Gabungan Persatuan Guru-Guru Sekolah Cina Malaysia) 3 3. MERDEKA UNIVERSITY BHD (collectively suing on behalf of the represented associations and the company itself and all other members of Dong Jiao Zong Higher Learning Centre Bhd except for the members supporting the amendments to the Articles of Association made on 10.10.2015) …APPLICANTS AND 1. MENTERI PERDAGANGAN DALAM NEGERI, KOPERASI DAN KEPENGGUNAAN MALAYSIA 2. DONG JIAO ZONG HIGHER LEARNING CENTRE BHD (COMPANY NO.: 292570-A) …RESPONDENTS) CORAM: DAVID WONG DAK WAH, HMR HAMID SULTAN BIN ABU BACKER HMR UMI KALTHUM BINTI ABDUL MAJID, HMR 4 MAJORITY JUDGEMENT OF THE COURT Introduction: 1. We have read the draft grounds of our learned brother, Justice Hamid Sultan Bin Abu Backer. However, with regret and respect, we are unable to concur with him on the outcome of this appeal. Hence the grounds herein are the views of myself and my sister Justice Umi Kalthum Binti Abdul Majid and reasons as to what we think should be the outcome of this appeal. 2. This appeal emanates from the learned Judge’s refusal, in a Judicial Review application by the Appellants/Applicants, to quash the decision of the 1st Respondent in consenting to the two amendments to the Articles of Association of the 2nd Respondent approved in an Extraordinary General Meeting dated 10.10.2015. 3. We heard the appeal and reserved our decision. We have since further considered submissions from respective counsel and now give our decision and grounds. 5 4. For convenience, United Chinese School Committees’ Association of Malaysia, United Chinese School Teachers’ Association of Malaysia and the 3rd Appellant will be referred to as Dong Zong, Jian Zong and Merdeka University respectively. Background facts: 5. The historical background of respective parties has been accurately and succinctly set out by the respective counsel and learned Judge and we adopt them. However, we see no necessity to repeat them all here except to set out the salient facts for this appeal. 6 . The 2nd Respondent is a company limited by guarantee incorporated under the Companies Act 1965 on 24.3.1994. It was formed by the 1st, 2nd and 3rd Appellants with the primary objective to promote Chinese education by establishing a complete education system spanning from the primary level to the tertiary level in Malaysia. The in i t ia l subscr ibers were as fo l lows: (a) Quek Suan Hiang represent ing the 1 s t Appel lant , (b) Loot T ing Yee represent ing the 2 n d Appel lant , and (c) Foo Wan Thot @ Foo Wan Kang represent ing the 3 r d Appel lant . 6 7. The majority Directors of the 2nd Respondent on 17.9.2015 through one Yap Kiam @ Yap Sin Tin, as Chairman of the 2nd Respondent issued a notice to convene an Extraordinary General Meeting on 10.10.2015 for the purpose of seeking the approval of members of the Second Respondent to pass the 2 proposed Special Resolutions. 8. However, on the same day, namely 17.9.2015, Dong Zong held a meeting in which it resolved as follows: (a) that the 1st Appellant be appointed as the new chairman of Dong Zong; and (b) that 5 new representatives be nominated as nominees of Dong Zong in the 2nd Respondent’s Board of Directors for the 10th term from the year of 2014 to 2018. 9. On 28.9.2015, the 1st Appellant in his capacity as the new Chairman of Dong Zong informed via letters to Yap Kiam @ Yap Sin Tin and Chow Siew Hon that they no longer represent Dong Zong on the Board of Directors of the 2nd Respondent. Also on the same day, the 2nd Appellant as Vice Chairman of the 2nd Respondent issued a notice to convene a Special Meeting on 5.10.2015 for the purpose of 7 cancelling the EGM on 10.10.2015 convened by Yap Kiam @ Yap Sin Tin. 10. The 2nd Respondent took up an originating summons to declare that notices issued by the 1st Appellant to convene the 5.10.2015 Special Meeting invalid and irregular. Prior to the trial of that originating summons, the 2nd Respondent had also obtained an injunction to stop the Special Meeting on 5.10.2015 but that injunction was ignored resulting in a resolution to cancel the Special Meeting on 5.10.2015. 11. The High Court on 15.12.2015 sustained the application of the 2nd Respondent in the originating summons which in effect declared that the Special Meeting held on 5.10.2015 to be invalid. An appeal has been lodged against that decision of the High Court under W- 02(NCVC)(A)-53-01/2016. That appeal is pending before us which at this juncture we make no views on it. 12. Reverting back to the EGM dated 10.10.2015, the 2 proposed Special Resolutions related to amending Article 14(b) and deleting Article 18 (viii) of the Articles of Association of the 2nd Respondent. The details 8 of the amendments are as set out in the circularized notice issued by Yap Kiam @ Yap Sin Tin which for clarity we produce herein: 9 13. The 2 proposed resolutions were passed at the EGM on 10.10.2015. However, for the 2 proposed resolutions to be effective, Clause 5 of the Memorandum of Association must be complied with. It reads as follows: No addition, alteration or amendment shall be made to or in the provisions contained in the Memorandum or Articles of Association the Company for the time being in force, unless the same shall have been previously submitted to and approved in writing by the Minister vested with such authority in Malaysia. 14. Section 24(4) of the Companies Act 1965 also provides that: Where the memorandum or articles of a company include as a result of a direction of the Minister given pursuant to subsection (3) or pursuant to any corresponding previous written law a provision that the memorandum or articles shall not be altered except with the consent of the Minister the company may with the consent of the Minister by special resolution alter any provision of the memorandum or articles. 15. Pursuant to the above provisions, the 2nd Respondent submitted the 2 approved resolutions on 15.10.2015 for the approval or consent of the 1st Respondent. 10 16. The Appellants on 2.11.2015 wrote to the 1st Respondent and expressed their objection to the 2 approved resolutions. The aforesaid letter reads as follows: 11 17. The aforesaid letter of objection was then referred to the 1st Respondent by his secretary on 5.11.2015. Having taken into consideration the objection by the Appellants, the 1st Respondent on 11.11.2015 approved the application for alteration and/or amendment to Article 14(b) and Article 18 of the Article of Association. 12 18. On 2.1.2016, an EGM was held by the Board of Directors of the 2nd Respondent to announce to the members of the 2nd Respondent the approval given by the 1st Respondent. Thereafter, in giving effect to the aforesaid amendments, nominations were made for the election of 16 new Directors of the 2nd Respondent. The election was duly conducted with 16 new Directors of the 2nd Respondent being elected. Proceedings in the High Court: 19. The Appellants in the High Court sought the following reliefs: a. An order of Certiorari to quash the consent of the 1st Respondent dated 11.11.2015 given to the 2nd Respondent to amend its Articles of Association; b. A declaration that the Amendments to the Articles of Association of the 2nd Respondent as purportedly approved at the purported Extraordinary General Meeting on 10.10.2015 shall not take effect; c. In addition to (b) above, an order of Mandamus that the 1st Respondent to direct status quo to be reinstated to the affairs of the 2nd Respondent prior to the purported taking effect of the Amendments to the 13 Articles of Association of the 2nd Respondent as purportedly approved at the purported Extraordinary General Meeting on 10.10.2015 as if the same did not take effect before. 20. The learned Judge d ismissed the Appel lants ’ appl icat ion with costs premised on the ground that the 1 s t Respondent had exerc ised h is d iscret ion proper ly in that re levant considerat ions were g iven due regard pr ior to making the decis ion to approve the re levant amendments to the Ar t ic le of Associat ion of the 2 n d Respondent . Grounds for our decision: 21. Before we discuss the submissions of counsel for the Appellants, we see fit to restate the legal position of the High Court when dealing with a judicial review of a decision of a Minister of the Government. The nature of this sort of application is one of “review” as opposed to one of “appeal” as we know it. In an appeal hearing, the High Court of course can dwell into the evidence and form a view of its own and substitute the same to that of the Minister. In a review hearing, the 14 High Court is not concerned with the correctness of the decision of the decision maker and should not interfere with the decision unless that decision is illegal in law or a real error of law. Its only concern is to examine the decision-making process of the Minister. That process would include whether the Minister had asked the wrong question, taken into consideration irrelevant considerations and applied the wrong law. 22. However, the decision of the Minister can be challenged in Court on the principle of reasonableness as established in the case of Associated Provincial Picture Houses Ltd v Wednesbury Corpn [1948] 1 KB 223 where it held as follows: “It is true the discretion must be exercised reasonably. Now what does that mean? Lawyers familiar with the phraseology commonly used in relation to exercise of statutory discretions often use the word "unreasonable" in a rather comprehensive sense. It has frequently been used and is frequently used as a general description of the things that must not be done. For instance, a person entrusted with a discretion must, so to speak, direct himself properly in law. He must call his own attention to the matters which he is bound to consider. He must exclude from his consideration matters which are 15 irrelevant to what he has to consider. If he does not obey those rules, he may truly be said, and often is said, to be acting "unreasonably." Similarly, there may be something so absurd that no sensible person could ever dream that it lay within the powers of the authority. Warrington L.J. in Short v. Poole Corporation (1) gave the example of the red-haired teacher, dismissed because she had red hair. That is unreasonable in one sense. In another sense it is taking into consideration extraneous matters. It is so unreasonable that it might almost be described as being done in bad faith; and, in fact, all these things run into one another.” 23. In his submission, learned counsel for the Appellants set out five complaints as follows: (i) the learned Judge ought to have found that the 1st Respondent did not exercise his own discretion; (ii) the learned Judge ought to have found that the 1st Respondent failed to consider relevant considerations in giving his consent to the Amendments; (iii) the learned Judge misdirected herself from the real issue; (iv) the learned Judge further misdirected herself in holding that the 2nd Respondent is empowered to make the 16 Amendments to the provision of the Memorandum and Articles of Association. (v) the learned Judge failed to rule that the 1st Respondent had taken into consideration irrelevant matters in giving his consent to the Amendments. Complaint (i) – non-exercise of discretion. 24. The learned counsel’s complaint is mainly premised on what was stated by the 1st Respondent in his affidavit in reply dated 11.5.2016 which says as follows: “ (5.2) Pada 6.11.2015, saya te lah mener ima surat dar ipada Ketua Pegawai Eksekut i f SSM ber tar ikh 5.11.2015 bersama dokumen - dokumen yang berkai tan. Surat Ketua Pegawai Eksekut i f SSM ber tar ikh 5.11.2015 te lah menyatakan bahawa SSM te lah menyemak permohonan tersebut dan mendapat i ianya teratur dan boleh d iperakukan untuk saya lu luskan . … 17 (5.4) Saya dapat i SSM te lah menel i t i dan menyemak dokumen-dokumen berkai tan permohonan tersebut… (5.5) Berdasarkan pandangan dan syor p ihak SSM yang mendapat i t iada per langgaran prosedur ber laku dan t idak bercanggah dengan mana-mana peruntukan Akta Syar ikat 1965, saya menggunakan budib icara saya untuk melu luskan p indaan Fasal 14(b) dan membata lkan Fasal 18(v i i i ) Ar t ike l Per tubuhan Dong J iao Zong. … (13) Seterusnya saya dengan sesungguhnya menyatakan bahawa kebenaran yang saya ber ikan tersebut t idaklah bermaksud untuk menje jaskan kuasa kawalan Pemohon Per tama, Pemohon Kedua dan Pemohon Ket iga seper t i yang d idakwa tetapi kebenaran tersebut d iber ikan berdasarkan pandangan dan syor p ihak SSM yang d isokong o leh dokumen-dokumen yang d i lampirkan bersama permohonan tersebut t idak melanggar Memorandum dan Ar t ike l Pertubuhan Dong J iao Zong… 18 (20) Merujuk kepada perenggan 38 Af idav i t Pemohon, saya sesungguhnya menyatakan bahawa saya berpuashat i dengan pandangan dan syor p ihak SSM yang merangkumi tu juan, just i f ikas i dan kesan terhadap set iap p indaan yang mana je las menunjukkan kesemua Pemohon Per tama, Pemohon Kedua dan Pemohon Ket iga masih mempunyai dua (2) waki l d i da lam Lembaga Pengarah Syar ikat Dong J iao Zong dan o leh i tu , berdasarkan syor p ihak SSM yang te lah memer iksa peruntukan d i da lam Memorandum dan Ar t ike l Pertubuhan Dong J iao Zong dan peruntukan undang -undang d i da lam Akta Syar ikat 1965 , saya member ikan kebenaran untuk p indaan - pindaaan tersebut . … (27) Seterusnya sete lah … dan menyatakan bahawa berdasarkan pandangan dan syor SSM, YST mengadakan EGM tersebut mengikut prosedur dan undang -undang . … (29) Merujuk kepada perenggan 45 Af idav i t Pemohon yang saya naf ikan, saya 19 menyatakan d i s in i bahawa kelu lusan p indaan tersebut d ibuat dengan mel ihat kepada pandangan dan syor SSM . ” 25. Learned counsel submits that the averments in the affidavit show clearly that the 1st Respondent had not exercised his discretion as he had “mechanically” followed the recommendation of (“Companies Commission of Malaysia”). The case of Awang Tengah AG Amin v. Sabah Public Service Commission & Anor [1998] 2 CLJ SUPP 40 is referred to us as authority for his submission. In that case, the High Court Judge at page 431 had relied and applied on what was stated by the learned author in Administrative Law of Malaysia and Singapore (3rd edn) and that is an administrative action is flawed and invalid when there is a non-application of the authority’s mind when making its purported decision and this happens when an authority (i) acted under dictation (ii) acted mechanically or (iii) fettered its discretion. 26. In the case at hand, the 1st Respondent’s discretion derives from section 24(4) of the Companies Act 1965. It is the submission of the Appellants that the 1st Respondent had merely relied on the view of 20 the (“Chief Executive Officer”) of CCM in coming to his decision. That does not amount to an exercise of any discretion according to learned counsel. What the 1st Respondent should have done was to inquire further whether the CEO of CCM had taken into consideration of the letter of objection. 27. With respect, we are not in agreement with learned counsel for the Appellants and our reasons are these. The 1st Respondent had before him the letter of complaint which in our view was perfectly in order for him to refer it to the CEO of CCM for his views as it concerned the 2nd Respondent which is a company limited by guarantee under the Companies Act 1965. We would have been in agreement with learned counsel if that was the only information before the 1st Respondent. It is undisputed that the 2nd Respondent had provided the reasons for the relevant amendments to the Article of Association when seeking for the consent of the 1st Respondent. That being the case, we find that the 1st Respondent had conducted a proper evaluation of the materials before him before reaching his decision in approving the relevant amendments. It was definitely not a 21 mechanical exercise of his discretion. Hence we find that there is no merit in the submission of the Appellants on this complaint. Complaint (ii) – inadequate consideration in giving consent. 28. The crux of the complaint of the Appellants was that the 1st Respondent had failed to inquire further into the rationale for the amendments sought by the 2nd Respondent. For clarity, we reproduce the chart set out in the submission of learned counsel: No. Reasons Amendments for Art icle 14(b) Amendments for Art icle 18 1. Rat ionale Increase number of Board f rom 31 members to 35 members. The ex is t ing Art . 18 (v i i i ) be deleted in i ts ent i re ty . 2 . Just i f icat io n Due to expansion of businesses and upgrading of New Era Col lege to Univers i ty Col lege status, the Board requi res more members to ass ist in process , manage, handle and deal wi th the i r business af fa i rs . To remove vague and unnecessary condi t ion for d isqual i f icat ion of Di rectors that wi l l cause any conf l ic t /d ispute in the Board. 3 . Impact : ( i ) Before Restr ic t ion to the number of the Board To avoid unnecessary 22 ( i i ) Af ter wi thout amending the M&A. To Increase the number of Board f rom 31 members to 25 members. d isputes create to the Directors wi thout amending the M&A. The ex is t ing Ar t ic le 18( ix) to be renumbered to read as Ar t ic le 18(v i i ) . 4 . Whether contrary to Companies Act 1965 The 2 n d Respondent is of the v iew that the proposed amendments is not contrary to Companies Act 1965. The 2 n d Respondent is of the v iew that the proposed amendments is not contrary to Companies Act 1965. 29. It is the submission of learned counsel that had the 1st Respondent inquired further it would have become clear to him that the amendments had actually changed the structure of the Board of Directors in that the Appellants’ influence in the Board would have been diluted from 15 directors to 6 directors. 30. With respect, learned counsel had overlooked the glaring absence of any prohibition in the Articles of Association of the 2nd Respondent to change the structure of the Board of Directors. Without such provision, there is no legal impediment on the part of the members of the 2nd Respondent to exercise the rights given to them in the Articles 23 of Association. Had the founders of the 2nd Respondent wanted to have the original structure of Board of Directors to be of a permanent nature that could have been easily done by inserting in the Articles of Association a provision to reflect their intention. And as pointed out by learned counsel for the 2nd Respondent, the will of the members is very much a consideration which the 1st Respondent cannot ignore. In any event, it is not the duty of the Court to substitute its decision to that of the Minister when he is exercising his discretion empowered by law. 31. Learned counsel for the Appellants also submits that there was a mutual understanding among members of the 2nd Respondent that the Board structure should not be changed. With respect, there is no evidence to that at all before the Court and further this mutual understanding was never highlighted in the letter of objection lodged by the Appellants to the 1st Respondent. In any event, the power structure in the 2nd Respondent had not changed as pointed out by the learned Judge in paragraph 28 of the grounds which read as follows: 24 [28] It is noted that based on AA of the Second Respondent, Clause 4, 12(a) and 13(j) clearly shows that in any of the Annual General Meeting and/or EGM of the Second Respondent, both the 3 organizational member (regardless of the number of nominee) and/or individual member are only entitled to one vote each. As such, the enlargements and/or reduction of the number of nominees of the Applicants did not in any ways affects the status of the Applicants in the Board of Director of the Second Respondent. This essentially mean that at all times, the Applicants would collectively represent 3 votes and nothing more out of the overall number of the Board of Director in the Second Respondent. Complaint (iii): Judge wrong on the real issue. 32. The complaint here is that the learned Judge only looked at the voting power of the Appellants as members of the 2nd Respondent and not the change in the structure of the Board of Directors as alluded to earlier. Again we see no merit in this contention. The learned Judge merely pointed out that the Appellants never had control as members in the 2nd Respondent in the first place. Hence there cannot be any ground to complain that they have lost control of the Board of Directors. 25 Complaint (iv) – 2nd Respondent not empowered to make amendments: 33. Learned counsel for the Appellants essentially submits that the amendments were made in bad faith and not whether such power exist in the Memorandum and Articles of Association. Learned counsel in fact relied on the contention that amendments were against the law of equity and that with respect is clutching at straw. Complaint (v) – 1st Respondent took into consideration irrelevant consideration. 34. If what we understand from the learned counsel here, he is saying that the 1st Respondent should not have considered the application for his consent as the 2nd Respondent should have first obtained his consent for the amendments and not after the special resolutions for the amendments had been approved by the members of the 2nd Respondent as in this case. Again we see no logic in the argument. Clause 5 of the Memorandum of the 2nd Respondent is crystal clear and it reads as follows: "ADDITIONAL, ALTERATION OR AMENDMENT 5. No addition, alteration or amendment shall be made to or in the provisions contained in the Memorandum or Article of 26 Association of The Company for the time being in force, unless the same shall have been previously submitted to and approved in writing by the Minister vested with such authority in Malaysia.” 35. What the 2nd Respondent did here was to implement the amendments only after the consent of the 1st Respondent was given on 11.11.2015 and that was done by an EGM on the 2.1.2016 to adopt the approval of amendments to the Articles of Association. Hence, we see no merit in this complaint. Conclusion: 36. We see this as a clear case of the members exercising their rights entrenched in the Memorandum and Articles of Association of a corporation limited by guarantee incorporated under the Companies Act 1965. Further, full compliance of the procedural requirements under the Memorandum and Articles of Association and legal requirement under section 24(4) of the Companies Act 1965 have been met by the 2nd Respondent. 27 37. Further, it is of no insignificance that the Appellants had taken a section 181 oppression suit against the majority shareholders of the 2nd Respondent seeking to set aside the EGM resolution of 10.10.2015 which, to recapitulate, is the resolution approving the amendments and then withdrew the same. 38. Hence, we see no reason to disturb the judgment of the High Court and hereby dismiss the appeal with costs in the sum of RM10,000.00 to each set of Respondents, subject to payment of allocatur fees, where applicable. We also order that the deposit be returned to the Appellants. Dated : 15th September 2017 (DAVID WONG DAK WAH) Judge Court of Appeal Malaysia 28 Counsel For the Appellants : Gan Khong Aik With him Kang Mei Yee Messrs. Gan Partnership For the Respondent : Wong Rhen Yen With him S. Raven, Ahmad Ezmeel & Siti Nur Amirah Aqilah Binti Adzman Messrs. S Ravenesan Mohamad Rizal Bin Fadzil Peguam Kanan Persekutuan Notice: This copy of the Court's Reasons for Judgment is subject to formal revision.	27,658	Tika 2.6.0
22NCVC-688-11/2016	PLAINTIF ACOUSTIC & LIGHTING SYSTEM SDN BHD (NO. SYARIKAT: 205113-X) DEFENDAN GOLDEN AFFINITY DEVELOPMENT SDN. BHD. (NO. SYARIKAT: 934982-P)	null	15/09/2017	YA DATUK S. NANTHA BALAN	https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=615deb9a-a869-41e0-b03c-19a73556c76f&Inline=true	D.u_.m .\lAHKA.\LAll rw<,'(;x D1 KUALA J,U\IPL‘R D:\I.\MV(’Il.\YAIlP K.\l'.KL.'Tl, N,.\h\Lr\ ' ANTARA ACOUSTIC a LIGHTING SYSTEM SDN mm (NU .symu1»;\~r 205113 x) . PLAINTIF DAN GOLDEN AFFINITY DEVELOPMENT SDN. BHD. (NO SYARlK\T 934932717) DEFENDAN ln_n7.dm:uzn 1 Yhese are my grounds ofyudgmznl afrn 3 nu ma! Tim .5 a am by 2 puxrhrn against mg dc\'<lop<1 of an mdu<ma] dcvelopment pn\)L'(r. when me pnmnry tn-Ii;-(1. rm hquxdarcd and nscemnncd damagcs (“LAD1 for lav: dz11\'zn or me (mow um whmh the plaintiff had p\\rch:\|.<cd [mm [Ix dcizndmlt The plaintiff .3 7.1“: vzvcking a nlcclmalmn lhm they m nnl lmhlc xn pay R.\/115,54‘) 13 a. Gum]; xm-1 Survla-A m WGST") for cm of an factor) umxs. Thu plamtlflls also claArnAngfux1us~ of zcnlal Income Io: me pcuod from I3 April 2016 [0 1! March ZUI7 vmzms 2. As an the dciendanl. my mammn am LAD A: not piyabl: :0 me plzxnnff as am wax Inc pnymem xnlrusr am were dug and owmg L, the .,1=.nm m me defendant Funhu, mg dgrmam zlltggs that LAD .. not payable is the delay m delivery ofvncanl pmstaslon of an factory unus w2< czused by me zuduantles, nzmcly Twig: Nasmna] auma (“TNB“)‘ Synrikm Eckalan An Srlangnr Ecrhad (“SYABAS") and Mam Perbnndamn Subnng_]:\1 mars]-3 The dr.-Fmdnnr haw cn\\nr:rcI:Imcv.\| fur :\ sum of R]\‘l1S2.B3813 as law paymmx mzcmu. The p._o. cl 3 The defendant WB ch: dmrlopcx of a pmyecl known as "M2 Coqaomhe lndusmzl Park" In Puchcng Pctdzvu Town, Prmlmg Dm-nct, Stlnngnr (“the prefect") The presml me mnmm thru: (3) fztmry mm: m m: pmjeci whxch um: bean puvthrcd by rh: pla)Im(fpunnnn\| :0 am (3) ml: and purchace agrulncnls um: 26 jun: 2012 ‘me szlc mu purchase ngmmcnu shall bx refund lu Ihc snug". Pursuant In mm: 17.1 of am Sl’A\ (p.10, mllucuvrly a. l3u.nL\|\|: 5), Vacant possession of {he pmperucs welt mu hm hm. delwmd to me plamnfi wmm ﬂurry six (35) months from due am of due SPAS. Undd the SPAS. um: wz: of the esunce »...z..us 19. As on one unparxiuon of G51‘ m um mm of kM1s,549.31. u x.- zllegzd nu: ma nltfcndant have paid Lhr. GST on the plmnnffs bahzli and an muded no sank xcunbnrsanenr {mm the plunun and m um regard, an dnfendant mhzs an clnuse I6 of [I13 SPA; whxch mas 2s:— -15 mnmomu. nus AND cmncrs Nnlwuhsundnngmvtmng m me mum, hmem mmma ms . resah a1 me m..:..am.. 5: my m my by—\|:wz. mu. .., rrgulllnns u! the amsvndmzm w m; laws. by-hws. Mes m mmm mvw tmslmg (M Vuxdm mu bueqmnﬂ m nrhecnmc MAM: u. 9. 7\|)’ nzw uvlddilmn-I1 fvcsnr wmvnsilum w$.Vv:¥lh:I¢«qmI¢d\ ...=m..: .1 «mm rvwll Many such ‘M nun.“ Ms M mgulaums Wh i. am!‘ I): . curdwﬁon mvudum far In: due Ind Wwer nhuwnntn and p=«m..m by a. Vendor M H: hhlxylmnsznd x=.e.:.ms hmmmnc vmm SMVI ply m (be vu..4..,.. mpcnhuunu: pan «(much new or-ddllinml rm. chuun, costs urvmvn: W «pan Ihe pmdmrlmn mm: Pmchasnrhy uh: Vmdur of nleunl mcclpu Furme pnymtnl nflhg same ~ Th: issue: to be Iri:d 20. The pawns fnmul am following mm winch 2;: lo b: dctckmxnsd at «ml, .3) \>.1.emu ma plamuff is enuded to LAD m Lhe sum of RM1,Z39,686.28 pursuant to dzus: 17 at due .\PAs as xhu defendant has bx.-ulma xhc Iums and cundmons ur me SPA due In lhu dcl:yu[1S'l am In the dthvcry of vacnnl [unstessxnn ni me pmp=me.<.> w... n at u E) '1) xmmhu me defendant .5 um: 1., ply LAD m the pbmnli in whether the defendant can rrly on me defence dun :11: am, ‘.1, cnumd by :11: Appropriate Authnrxncs, Le. mm. was. nnd MP5] anal whnhn the Axdmect has gm. :1 mm exknsuon of nme for the ma delay m dr.I.\V'<nng :11. vmm posscsswn of me pmpzrucs‘ W1-mrlwr by vlrmc of :la\.L<Ic l7 1 of the SPA), :11: dtfcndanr ,5 not habl: m pay rhc plalnnﬂthe LAD 2; (her: was o..m.nam,; sum ofRM152.333.13 due ma payable by an plnnnffxo mg dzfzndanl? In an mm, rhc Court hams um uh: mnns ma condmons oflhc SPA: hm-. bran brczchud by the defendant. Khcn whczhcr» 1. mg dcfrndam xs lnbln tr) pay rh: IAD oi RMl,23‘>.(\36 28 an rh: plamnir. .. the plnmulf has 2. ﬁght lu scpulf/wntn kl-w remaining charges of w.M21,z32 on with LAD p2)2h]c by me dcfmdmx fnx each or the pmpzmzm .11: defendant ,5 obhged to ﬁx the dam» m. m: pmpcxuc: 2. {ha dclcnnlnxafx mm ms npmm.-nd Mn :2 ans N am plannufi has . ngl-u .0 clmrn .1.‘ losses suffucd ... mu-ns of mml. pad 1... .u cuuem pzcmucx ....1/0. am 105,- of mm: \|n<umc rm... 4.: pmpclncs. The witnesses 21. The wnnesses who ucmﬁzd .2 Lhc mzl m .. follow» 1 N... Wuneu Nun: Duenpiion "V/1...... ‘ x Slntemcm I V... Kim 5... L‘h\|efExz:umeOIﬁ(er nu ‘ mm of the planar: ‘ TanGuaxNguI\| .\s:uuntSenu7rF\|mn(: PW2 rwu m....5.~. uf [hr ,;\|.......n 3 veoné Kim Fm Sue M....gn o\|'Lhe Iﬁn DWIA nkfcmlmu 'Dw2 .-n; Pay a... (xmmlan; n All 1....m.... Ki. /«..1...¢c. DW3 Evidence and annlynis 22 1.. xn far as am znnrracmzl am Fm dchwry nfvzcanr .-.....~=.mn.. .5 cnnczmcd. me deftndanl ncccpli .1... 25 jun: 2015 .5 am a... for rklxvzry ofvnzanx pus Ion .. per mm sm. Dale 1; all: 23 24 '11.. defendant’: ntctplancn of me .1... .1... for dahvcry or want possession » 2.» b: found ... me ..er<...1....'.« 1..." a...d 2 Apnl 2013 ['1 m7, Bundle B) which .5 .r.. a.:e...1....x= ...po..s. ..» the plzmnffs 1..... dated 5 n.;....b.. 2012 (p.l0(v Bundk B). The plaxnuﬂ‘. dated a Dccemlxx 20:: kids 3., me: vw. reterm ,0... Pmycis 3 mg and w ~...........2nn2 ma me m.m.¢.1... .1... Mike ...u..... . BDK1 I2“‘l)vc:mb¢vZﬂ\|2 u. WUUI .. ...r...... u... WC ... .......¢......... m. a... mm ....a xhe Ilwbulsunent 1...... ammnn-«\l\ m. u;e.w.<..¢ .. um: w. heulryvluuld nu. .. nqusl 1.». mm .3» wk. rxun an 1...... .1... .1... wlllmu z.....,. p....:.,. w.-an ....... .n. .......... ante ..... III-k he ........a .. .n. r .. w. mm... mm»: mm ﬁwnurnhlc ....:_. [gmphasu ..m.a] And the der...d....n. reply (.< .... ......1..... daud 2 .xp..1 2013) .. .. foIlrnw'— -M. rder .. DUI nrogrrss mum am 2:" Nmcmber 2...: and ,.... m... an... 6‘ Dcumha am: T. .1... WE V-Ive 3.. .. ....... wcvwd um my... paymmt .....m.... In nmsmn on fmm ynu r... we .5... 1... We seek your km ....a........ ...r.»..... ...........: .. .m........ We nnlm um mu. .......m .. the am...“ uV\|h= ............... w: gt»: ymmur mu mm... nfr)ur\:0mmlLma1\| .. .mp1... .a..c...........on by W: 4... .. ....... .....,........ ..- .. w 1.... ms .. mu... .. .... me ..a m.on....g.e.........1..... 2s 1.... 20.2 Tmurdx Husnbl\EJlmn.nurma\|ncunm.cIn1 H... 3... Bvuan :4. and m ......a mg .......m...... »...u. 1.. me ........:..... ..«....:......-.4 ...m........u....... Wuhmk y... ..............a... * [cmphnsxs ..1.1..x] (p.107. rs....a1.» H) W n ms And according m the mxmuve ofevnms, an dcfcndant amt a noune [0 due plxmnif am: an Much 2016 (p.125, B....d1= B) asking vh: dciendam to take aa.m,— of vacant possession. The mm": pm! of me defmdznfs mm reads a -— wg nlarm m above mi-Ilcrmd In ymsed lo mfunn um um ufnrcs-lid Imnldmg rm. hum rum campxma ... Izwnianm Wllh llvz (um) and c.wm.a..\..:n.= §IY¢ ma vmm Aurwmtm mm belmcn ynu and .4, zndlhcrdorv II»: Ham puwesxmn ullhesaid huﬂdlng VS new ma, xo he «m.¢.a.uy-v. Ynu .1: n..=:., m... 1.. cnmpl} m uuv: 0 uwnply .u IV: foﬂawmg befme Me an .m. In new mm pnsvcmnn arm: and Ivmldmg u, 1» am nctlpd at the u..¢.....m..g pmgrkﬂ 9.3...." “G mumlllneou cmrzm um/or Inmal ﬂu: mun you vn napotl ufchlliﬁ for .1: news u per Slnleuamuf Amman! .mn.:. m y-mm m m 3: mini: m cnxh \\|V mu. dnm yuyme ... “Gmden um, Devzlnpmznl 5.... aw mm was mu keys mu W v.¢a.x.ma«. ,.... up... sVulnn::n\'chzqIn.\ :; m. mm,» of me nuxnuuﬂng pmgres; pnyAn=1\\ rm. W. ﬁmncvr1(vhlIy7I1l¥Ih\|:In us Pmsulm In Chm: n 2 nflhz spa ym mu m mm In hav: ukm vnunl pmsgm. aim: gnu! hm mg upon me expiry uffalznocn m; 4»: fmm me -tn: oldns nmive whtlhrrnr no! yes: NW mu-allyenmed Into poslesxmu ur urcupmunoflhc xnmpmpnny [hen-Allu any luxsts ar ﬂamngcx m Ihn: um btmdmg nr my purl mnealnv m (he mm; and ﬁxmtcs man he .. yaw own ruk and shall be hum: by yen sold} Ymudcd mu y..uw.msx....:m: the mm aawm onmm Dussaswwl refuted m m the Iongpmg Lhe mum mm mmm cf the sad bmM1ngiha\|\au\y bc d:\|Iv/turd m ,.m [mu Ilw n:1unHuI\|cnmphuu by vmrm.mm.; mmm: m mu mum.’ [emphasis added] (sea [I 123 _ 125. Bundle B) vapexsmu 25, -rm smmnunz or zccuunl am was attached m an defendant’; nunce dawd so Mmh zum (P 127, Bundle 9) xndx 15:, ~aamm Arrlx-Irv nmmmm mm mm .-umm Nu um. mcvm.sx2m nun, mm mm 0) mm; .22)..../~11: war: 5.. m numm Du: m mush m mm/my Du»: 1:1 mm ms ACOUSTIC A Lmumnc svsllm M; Na 1.1.1». Kcnnn In am.‘ mm»: 1. am x Juan mm. mm Puslmng, Sthngm but am nzuvuy or ucmr vosisslox snmvum pmm. I-32 C1-rpvmlz Indusmni rm Fmpn) T)/pt 3—Su>rq Szvm-Dnzzhed lmusmal Fncwr; (wnh Meunmne rum; um. No 7 nsuvn mm Nu N‘ puma nzm Due!-plmn [nu hruncbcl Pumhasensv mm mm y 1.1.: mm For ms 22.000 00 2 TMI\|SumpDmyFurTNB low 1 mm Depmn Fur sums no no 4 mm 5I.Imp ma, rok svnmxs Zn on 5 mm Fwccmngfre m smm TmI\0ms\um1u-g 22 132 2;: Hum rm: max mum; nvtr In: um .. mbpvl N am mu gum..." av Ihepurchase pace (Including yvurﬁnun:I:r‘;;u1nmn)aIIIve pmpmy, ..,_.m_m.,m,. ma .u MIXEIY-«(aux chllps um W. > 7:51 mm 27. 23. fine Amount Wm: 25 per mg smmm of account .5 m2z,232.zo. Howe‘/<1. the statement also cums m endoxsrxncm ma. stipulates um 111 13:: payment mum»: must be setdzd. In an. rgard, u ‘s llnpemuvc to recall um nlnhough pulsumt no thus: m at am SPAs. LAD .5 payable .; mm ,5 me dam, of me propemcs, xx ,5 no: dmmabl: .£:— .1) ma pI:xnn\|TQ'vul:hn<n:K] has not paid all mxmllmzms oi the pmhm pm and any nrhcr mm under me SPA as ma when an: and pnyublc: c) ll-n:rc m mmm of tuna when .1: zllnwnd by the archnccf. 4; dzhy was caused bv rh: Appxoprnte Audummes, The panms Igrae mm mm possession .5 deemzd dnhvcmd on 12 Apnl zom, almough iacnmﬂ}, vzmm pommn W only gwcn an 23 March 2017, when the keys [0 mg umls wrrc hnndcd aver w an plmnuff .: .11: prertuscs of the Km; Lurnpur Cnun Compkx Meduuon Center (p.3UL Eundl: E). But, Rh! fact r:m:\n< that (here were me puutnmt mxmsc which ms dun and payablz and Khc platnnffhad not mrlcd eh. “lax: Wu...“ .n.ms.~* va.. 11 ans Amman.“ m an defendanl, me amount payable is me pqyrnzm mrclcst .5 RM152,33B.13 (see: puaguph 3 or me cuunltrclnm) (p.69—7U, Bundle A) But. u .5 nut m dlspute um me defendant am not Issue my pm now; :0 clmm rm mg pzyrnmt mmmt Ind Ihe only mum for In: payment mtcrcsr m the nmlcts and I May 2016 which art found at p.294,29a Bundlz B Thus, me am qucsnon mm is whether (mull) mm wire delays un (hr plmnusr. pm, m mmng paymrms undu um sum. The pmaang. vu mu dcfendmfs dzcfenc: and counlcwlnun and plunuffa reply and defense (0 wunterdmm, an this 15;.» reads .5 follows 1 ml sum mu. ch: Mme: and u (ads as:— ~m The Ddcndml :..m.« pludx mu ,;..m..: m ,;..msa my in plnxrlph 5 um. um m..m.« \; Lu pa) pmmpuy m mg nermm .u mnalmenls «rm: vunhm: um: and any -..n.m du< undrr mg sud sm bsfare Ihc Dzlermun is In delwer mum pnswsuun nflhc ,,:..pm.=. «a me vlmmn m Du1cMnmpV:\|ds mu m Defmdml .3 n n wnlnﬂullly oblvgc m dnlva vxcanl pusxcsxmn .1 the pmpcnlu In In: r ..nmr lhcrc .« my rmma 4... and puyible by 01: nu "ma lhz mr..m.... pmsuml m the 1 SPA n m Defendnnl pleldn mm as -4 14-dam. mm .3 : ...m .r m.nsz.us I3 du: - paw: hy Ah: Plnmllﬁln the Deimdalll >¢.mr.«m=.:ura. up memuflhcpunchnnprkcwhnchlht vmmm mzmmxn, mm: m pay me Dzleudam mum plaids u... m w. mm mlm/I\eg\e:I:d ....:/.1. "rm In my 1):: sud u... mm M aehax been [H/en. :2 1" vma arm oumnrvdms Wm ﬂu! Iml pnynﬂe by m: m:..mm the Dclmdml, mg Dcfrndlnl um; mm Ihc mramm .5 nm cnmnncllmlx n-I-hr u» dam vxanl Wxsamm uflht vvwemzs m Ihe Plum :1 as the m..m.rrn.§ Vnvlul/nkglecw Am/or Iefusad mmn .».=¢.p»u vmvuo mchzuk m Mm: um s\|> ~~ (pm, Bundle A) we 1: out 31. Next. ch: d:A'¢nd.In( had pleaded 4.. following m an aounlcrdmn-n:— r.......... m cw...» 2,2 o1\|h< md Snlcnnd nmm Auecmenb. m. Dzkndam is mliued «. dlnr 1.. pm... am“... 0! urr. pa ummn on line mam... ....u4mm nf pm... pm. ..k..x....1 M. dmly bass, ma mc nxp1n4\|wwI(wﬂum(H)dlyI [mm m. an. aim: mm uh: P1 .rr mm... far an and ...y...... s r». u.r..a.... mkn .. plngnph n n! 1... .1»... s............ of mg... whazbylherrlx . me v-me... mules! .1 RMISLDI 13 .4... and ply-Ma by m. r ..urn.. m. w...a.... 1». emu; .. m. .........a...g ..e .. fnHow_ Vnvmuﬂu mum... Pamd am... Amaun{RM) «mm... (m) «a. mmn mv/(Moss/ALss manna mm. zmmos 3.. mu um...) mv/musk/ALss zs3,3uoo I312.» m..m.w rm zmn (lblﬁys) mwc».nsw.:ss LSVEO0 n.mz. um um mlzu «mm. mvmnsamss manna loss; mam an mm; msmm n4wcAusarA\|ss mwmnn ms.» sums an 23:14 mm...) INv»GAusBn/no zzmzson 14011» ..ssx-m a.‘ um. .15....» Iy4v»<:Ansm/no mm... mu music 3.2 mm «mam! mwmosan/uo mvsssn um xmm 3.: z1.nn (mm!) m . luv/Gwsa/A\.ss :svzu— msu nu mu mnmm pa.-mm fvmfa/A:.ss 4n:;‘naTv?m Az1111."lj27.tw4v 94 ‘ .21“: ‘ I (Ind: 51 mvwcwsamss zsmm ‘In5v!- .7Anus ‘av mu ‘ awn» ma wvmnsmlss mam» mu. mm- B-\ INV/muss/ALL: zsmnm M1705 gm luvrmrrsn/e/um mnouoo en mi: ’ ’ u (p,6E-70, Bundle A) 32 [n me reply no defence. me plunnff pleaded mg {allowing "Va Plmnnn xehentv-Hy am. .,....,...m m, n and n af m. Ammdd Srzlennaul nH')<[¢rw< and pm In: De1¢ndw\|on mm pmnfllvevml Pllmnﬂ Wllu 1» renames mg plnyuphn m. n ma :7 mac Smnmt nrcmm .s reply Deferudxm his ma wquacd mg Plainurvm my xv. mmu ...m:...m m In: agned not mm. I... muvext H. Ddcndam ha: In: am: an Ind/av vsounnhlhl» :7, may nf wrmxl In drhva Ah: vulm pnssessinn or the Pmpuuei m Wm .rr.. Plwmli doe: rm hive my mnsmnding bump: m be paid :7, Plumiﬂ m DelemInn\| beans: mmm ha: mum neru.a...u m mm: mm muoclhnrvoux (hargu M» um um! bqusdusd A:c¢n:’n Damajex m be pm» :2, me n=r..a.m lo Pmnuﬂ mm. um! me n aﬂoflm thugs. Defendant his in p1yIhc\|w\mc: \|.\|quxd:\|ndAwerum DImuuwP\|:mMT u mum Phunnllsmu mu In: sum nfRM\|52,IJl u mu churned u, (h: Dcfcndanl .5 dwlfzrmt hum the anwunnhnl mod 111 Ill: mremm-.m...a.».4 x 5 mm far m. Lu 1‘ mm mr=..a.nz ms um 11: an M na...mn ulwlxiun on me nnmml gr nMm,m.n mppmau, nudzd a. (K paid :1, n....mv In Defcndmx m mul Ixnmmdmg m. his u. hcwmn/lel nﬁfmm the L ama Axcuu Damages Ihu mm m b: payahle by Du‘=mun In Plunnﬂ vaeiumﬁ 1.. .1... rcgnd, .1 1. mm.-.1 .0 ma 1.: clause 8 of mg SPA; whxch mds ask '1I.1IME r <n1cr. OYCONTRAC1 11.... .1111 11. 1... ..........r.1.. :......... .. .e1....... 1.. .11 .1..,............. 1.1 .1... Agvemvml ...a ... ........1.. .1 .11. ...,......1 .11 1... ...s1.1..... 01.1.: Pummsa Vmzuvlny p...1..=....1...a 11.. ,..y....... 1.1.11 mamas .11. 1...... .1. Imrchascr 1.111.; v=...1..1 1....1.. .1... Au::1n:r11.‘ 11.: (clam-12 (111.15: whldl :.....1e.s : purchxsex .0 claim LAD 15 clause 17 1 of .1.: sPAs. A1111 under clause 17.2 oft]-1e s1>A.<, 11.. .....1. are “de=...=d“ 1.. hm txm .1e1..=1;a arm (kc txpﬂt of fourteen dnys 1...... rhc am nollcz ..< given for cnllzcuon of 11.: kers m 11.. ..1..1.;. Clause 171 also prnvxdes 11.1.1 1..\n is .1... ..a.~.1.1: .1 11.: .«1c1., .« causal 1.. 11.. apvpmpnnu: .....1....-1.... 0...... 17.1 ....1 17 2 ..r m: .s1=A. .11. .c......1..m1 1.=.r...<. 1-11. m;1.1v:1u1 mr v».o.1~11 1-ossssmn 17 1 s..a1... .. .., 1......-1.... ....x1.......... .11.... .. ..... .1. 111...... my I71: A..m.<.1...1 vrvvwdud .1... me hnvh.I.s:r «.111 have .:...1.1 11.. Vzudar .11 ......1.....1. 11.1.. 1>...=1.... 1-..c....1 ..., 111... 1.... 1.1.. 11.15 1g.¢....=..1 n -.a um. .11; ...1 ..-,..1.. 01¢‘ s...1 w1.1.....1 my .1......m ....11... .1.1.1..1..s .1. me 5.1.1 . .1.p.1....1 1.1.. :1...‘ 1o 1.mm..11 5. .........11. cnmphstd 11.. c....n¢a by .11: m1 Avvhllsvﬁ ....1 ht rudy 1... 1.11m. »r......1.1...u=..m..1.11.. 1»..¢1.....w..:....11...1. .. um c.1=..a.. months 1...... 11.: 1.1: or ms Ap:=m.1 PROVIDED ALWAVS 1.... .1. c..1.r...1. af Cumpklmn ....1 Cumplmwe 1......g1..a... nm ..1.1.....1 1.. .1.. .1... .1... .1. v...1....1..111.1.y cump\u1M1 11.... 3.1.1 1.1.1.1.... ....1 11.. 1:11.... .11 vaunx Wiwsxwn «-1.». sud maen. u. .1. Punchlwl heyund me .1m..1 12:21.11 11.. Vznduv .1..11 p-.1 In .1; 1>....1...~<. .......1 1...... ..1...1..1..1 [mm .1....,1..y .1 11.. .... of 1... pm .....1..... 111m an -M... .... .1.. .71.... pm .11.... and Pmgcny 1...... .1... ......<..1 .1... 1.. 11. .1... ..r.a...1 ... dsvmed 1.11.... ..1 mama n vm mm am mm-no ...a zsozm Dcfenduu hm reqnltslad Ylannulhn an the vault powesnw an (M Pmpmics upon me paymemalmmczhmcbm chlrgtsonbx ma xsumxm me In: mints! mg ml been mud by-ax: n<r=1.a.m :4 lluwevcr. Dckndlnl his :..ua nu mm m. 0»: km r.» we Pmpelms n. mmm man Ihuugh n....mv has rs]:-med dcfrndml m scInf1‘1oovx\|\-the Illulwllununun ch-run wxlh lb: Lamam Axurmn Damaggs payzlzk hy Ddevlrllnl w rvmmv. nngm VIIMIHT ms nu! hurt my uuuumlmg an mg wnmclhneouschaqgexmd :>:m.«rn.sm: nﬂu lomvrxhvanrn pmxusmn unmz Pyopcmeus small nmmr; Irxmzuszom and 25 1,2016 (P 86-87, Bundlz A) 33 1=m1u::, me plmnrf mu pleaded in me dciencr. m me sountctdnm as follow» ‘ "#7 A; m :21: mm; In pusmmn 2 ma .1 n( ma Amrndnd Cwnler:LIvm.Y\|u1nnNs\n¢s u younm, a) PI-mmr slmex um uh: W...-5. zmmmmg Io lMI52,nLu mm Dclcndnm N cllxlnmg .. dﬂlcwm rm... me mmum mmlmoed from Dcfnmam: lam am-1 :s2nuara.mv.msu..m..a; nu rxmw dmyn-d mg um.m by Dclendanx far the -mew -mum-nu W wnszm vs xh suvwsedly ws mm: Imn Ihr Plmnnﬂm Dzicndznl. 1 ma mumam inm on v: mum. {mm Phi IWI-1 Drfmdlnl. lhzvl (ht mmmdmg mm an m canuu/sex all mm. m: mul um m... .. pnynhh: {mm n¢:=..a.m m m....mr, =» Plumvﬂ Ilﬂrmtd Ihn lhlwnuuh mm “ m mm mu Snppnsedly m be pan! by flatnllﬁxu Du-.1':ndnnL u L-annm pvuhwbﬂ (Ix m...._v nf um. ...mman.. [mm n¢:...u.... m w..m.rr M...» ptlmum in me was and so x mm and Mums‘ Defundxnx has only mlmmrd rxmrl an aemi ng m: uunl posxsxinn for 0\|: wmm with 01: mmmnn mm nu ma nmu...=.m clvxrgts nu tpnsll v-mm 10 Na. sumv my chnrlts an lhc Illwmml helueen ms, dzposn paymun m sums‘ stamp my mama an Ilwr -nun-vr-I wuh svmms .n ....m...u m RMzux2 zn 4“mAsce\\|aneuus margts ; 31: paid ,«»~m:y for m 7, : cl a ma L4: 9‘ »..umu m; Pllnnxuﬂhax only required wpuy Ihrmmcilanmux-zhugu w Deﬁmhnl to «am. I»: vpcam poysssimu ...a key‘ for the Pmptlues‘ ...a n F'lawm!TMx m nnmlndmg sum mm H mm: [mm vlnmun u. Dzfwvdw hsuusc rvnumn hm kquukd Ddzndnm m deduci [ht rnuce\\|u:ou.< nhuges mm Ihc mul no yuug W suppmudly mm In be mm by m. naem... up nmmr Q) 9293. Bundle A) Wniver onm payrncnt imerut 34 Dunng the mal. 1 am cuunscl far my plnmL\ﬂ' whgzhu me dculls 7\|)( mm: m cl-A: rJ::fcnLI.Inl's mm drum! 1 M2} zmz, (P2947295. Bundlc n) on nrlunou » mm; ar /an fa)!!!”/J) m accurale. And counsel for an plmnuif vcry czndidly wnﬁnnexl um mg dzmnls as smcd m (hm: Ieuus 1:: mdecd coma. Hence, m (:n'ns of me cnlculauons. an u-mum clalmzd m Ih: deizndznﬂs cauntexclmrn m zcrunzc But (H: plmurrs posmon ‘s um hm mmm pn3.11'\:n( is um clan-nable :5 ms has been ‘Waived". And u-. rh » rcgud. no doubt. “\va\|ve€' was implmdy pltzded m ,.m,m,,h 1n 0: the plmnu\|Ts rtply and defmc: m munurrdatm daud 4 January 2017 n reads as follows» "I‘1nmm‘ vclkmgnlly .:m.. .;....mr. uv, n .....4 :2 uflhz Amrndtd Sulzmem M‘ Defmcz and pi! Ih: rxrwmn rm mm mm Ihrmof !'l lHI\»nnL~ M; I» ..w...x (my w.» ,,....,‘...n m, H mu n on»: Smlnmenl M‘ Claw .5 reply n.ma.... nu ma ...,..ss.a as n mm m py uh: Ilhuul lnxullme-A or nmgma mu m .r...;¢ can - [emphasis wage] q. ms, Bundle .\) van 2; M .5 35. The mu: of In payr1I:nun(:xtsns clcarlr a cnticzl Assn: m ms (23: lndwd, yr me plamuff 1: lmhle for ht: payment mlezest (hm u is quzm unnrguable am an plmnuffs mudzmcm to LAD mil not ans: because Claus: 17.1 of me sms would not hzre been fulfilled by me plzimifi (as pmchm) The mg of mm khertfnre Issumcs a plvnnl pnsmnn m um case. Clam: 33 SPA 35 sum me plmnnff r=1\|<s nn ”\Im1x¢(". I( .< necuiary u. mm now to H1: ¢..m=m1 [arm n. on “waiv:r" and (h=un\|'oe: no uh: uml/dacumcnmrg mndcncc on llus tuplc. in am ug1X4l,\\| u relevant and ..ms,..,- lu zunsldu dnnu 33 of am .5? \« (p.15, Uundlc Is). 1: mu. :5 mum-. -cm. n Wnlver Fwbelnnzc kmwlodzc .n;q...mm by uh: vtmlnr nfm in ..., mu. nfzny aflhe r.4mdI\|u7n: m wvmlnts hcrun wulnvmd M In: Purchase: 5 pun N n.- perfumed mu mu uperllr us 0. u delmetl m b: . mm .r such wndmnns nr wxmuuls mm amlzmed an me PInc\\.:2\|’5 ...n no he Dﬂlbnncd mu nu! ovem: .. or In .:e..m . wnnu L7! 541:): wndiuony nr avvrn-nu Hf my of Ihem and rwlMIhxuuduv\| ma: lnﬂxaluxc knowladjc a. zzqumsmnue me Vmdur mu I1: mum In mm In nghlx mu lhu Agrcumuvl mu m rvqmrv sum y-«Immune hy an Pnvvh-kvaﬁhz mans ....1 cundwianxhuetvf.‘ me :3 ms W1‘; evidence 37 1 mm mm m ﬁn: mdmce of Lhe plannuffw Em wltnzss, sh Yw sq... Sm (--rwr), He .3 a dnecmz ..: am plunuif. H15 wlmgss mm-.:h; consists of 5; qutsmms (15 me.) But whzn he was (mss—:xzn1.\ned an Lht mm; of (h: sm. bu "Ewes wczz mostly mm’: krmu7'. Hz kept smug um myLl-nng to do \-nth Ihz mm; Ofthc SPA, he had to consult his lawyer V/‘hen asked whethcr he agreed that the dcfmdznr 11:: me right to Ixnpast Inc pnyﬁngnr mrercvt. he said “I f;l/PVE_)VJ)' He vsnndhdly signed that that \s an amount uutslandlng wlmch nx due and pnvablc by the plmnrxif In thc dcfmdznt .\ml H mm: put tu I"\‘V1 dun rhc -lufundnm mvur wzuvcd In: pnvmcnl hmmx. x=\v1'. mpamc ms nu: me developer “mom wmrdm/rm/' ax. mm agrezd uh." he has no docurntnmn cwdmze cu pmve that Lhe d:f:ndnn( vzrbaﬂy wawed the lm pnrrnm: lnl’CXI.\'( Again. 1: 15 worth mcilhng um whus: "waxvu" wax unplxcxdy mscd m an puhhurr. rzpk and defcnc: lo munlerdrnm, (hm H15 no mcnnon of any “v::l~ml" waivcr hr lax: paymem mines! or any pamnulus ... drmlx .5 m rh: Idennty Of the [Ieﬁnn from HI: d(rCnd{lnl’ whn ma zlﬂiulﬂlld the WIWEK or. due ncclxltln/vcnuc when .h. purpunud vuxlul wruvcr wax mcnuuncd. v..¢2AMu 39. A. 1 ...c.......ud =..1.¢., eventually, me kegs was gven .0 .1.‘ pI..m.r: .. me c......'. Mcdnuon Cenue on 23 Maxch 2017 ....1 u... ‘us captured ... :1 letter dmd 23 March 2017 @301 B.....u. B) rm... l\.I:.=szs em :5: z..1 2.. MM; Shu y.... T:h a. 75...... mm wncedtd am 1.. .1... ..... gt! H15 keys bmus. “I rim’rm2g¢/ 1.» 5...... I a.a....,»._.,. »._, ..m.zz.....w 1 =1... ...... .1... ... a la... dated 29 August znm by me p1Mnu\|Ts xnlxcnnrx, nu...-... 5,1. Y... m. .3. Tamg ... the dcfendnnl Q1168, a.....u. 3), .. ‘.... ......» xmzd .1... lhcrc W .. xralvcx, 1.... [hum ...... .... ............ ..r...,v vcrbnl wuvcx: -m n.......=\|.=... ndupunng Iheulcu ...“... ...y.......n.... am... mm. v-no Wu on-.s....ny um... .. ... -...... .,, ynn ma wnlnlmg .... payment a! .... as: ..............g m ums.uw .. ..q..=,.=a Ivy ylm ... yvur um. Iddrcxszd ... ocec am AM.Iaysm) 3.4.... ma 3. as me Thar: .5 ...» p...m.... ... .... Ell: .... Purchnsc Avvlmenu sun... .... x..mI.u nfme v...u...¢. .. pay c.sr ' [....p....... ;dd:d] vwzv. evidence 40. Ncxr. I xvfer In me zndzucc of V5 Tm Gun Ngnh (“1'W2"). Jun bk: l’\‘</1. she was also a.-(med m rh: dncumems m p.294—Z'}(1 Bundl: BA, and agrvcd am that wen‘ we interest pnymcnrs um were due ....1 pnynblc by um pm.-.urr... :1.» M.-.-..:..... »...zs..m 41 W2 Llya mi um: wax a wmm" bu: Whtll shown mg lean dated 4 Dccemba 2012 was Bundlt B) from mg plunnff m defendant “vtqtmttng/or mm (3; junk: exmmvnﬁnrn J14: /bl: mam u.:m.apm/gr ma an defcndmfs reply dma 2 April 2013 ([7 107 Bundle B1), she agrcad ma: me deftndanfs reply letrzr dots not mcnnon any“1uan * of Int: payment xnmcst I ~hnuId add am I gencxally fnund PW2 m b: a snmcwllar rvauv: wuness I fnund am when 511: Wis bung (ms)-cx1m1ncd.<hc zlzamptzd m mmum out 01' the qmmms Lhal wcrc pmm to 1m and sh: wok : vcq lung um Io nmwcr mg snnpl: qununn than {lure ‘Mil: payments whxch were due and am; by the pmnurr m me nlzfemlznl. and um LAD .5 not payable .5 am payments were not made. A: my rate, u is signiﬁcant m um: um pwz agreed am (based on clzuxe 17 of mg spas) .1 am xx any outstanding amount paphle 5, mg plnnufi to an defendzrm on dcfmdznl ma not deliver vncnnt possession mam mm six (36) months (W hne 27730, Notes ofE\1rlen(c .. p 51). sun on me top: of walrzr, PW2 auemplcd m zmculnte am the defmdzm ma ‘waned’ me panncur xnz:r=sr by r:Fn.'n:nc= m rhc ,.1;..m.n< lzuv.-r dnznd 6 Dcccmbu 2012 Q1 we Bundle 11) and the dafcnulanfx rrply dated 2 Apnl 2013 ['1 I07 Bundlc E). Huwuur, P'\V'2 zgxcud (hut th: .1.-rmmnn mm mm: nu menuun of any "cxzcmlon of ume" oz xny “wa\|vu". y...u..us oz. On: of me pomls mm was ma d\:.nng mzl ms mm mm ch: noun: dated 1 Mar zuw (P294-2-as Bundle B) were xssucd. ma dzfmdmt nrver demanded fox payrncm of lat: pivment mmesz Hoxxcver. ms: it is mm due Ihc dafendant am not pursue my payment of In: pajrrncnr xnluest unul 1 Mn 2015, u ..« equally clcm mm based nn clam: 33 sm. me deL'endam’< fallul: m demand for m: pnyrncnr nflam pmfmcnl tnleresr (prior m I May zum) .5 not a wxuvcr and it Is not fatal to thc r.Ic[em.L1nz's clum (Inn tlwsm outsundlng (huge) hm m hr: paid by me plunuﬁ And m conLncmzll)', u apptaxs mu me rm Lha! [he dnfmdanz mu not make my pm. duuznd fox mg arnounts which are due am owmg um; mg sms, the lame pa}-rnent mum»: rannut bc decrnud to have bean wmvnd As such, me pmmrrs subrnI»Im\ mu m; defendznfs lener am: an March 2015 (ma smrancnt of account ntached to it) consuruxzs 2 5.11 and am: senlemenr no\1ce,vs quvxe ufthe mark and .. ﬂlu 1.. the sac: of Claus: 33 SPA: ma 1! I! at odds mm m: cndrvrscmem‘ m m: sta(=m=nKnfac:nunI\vh1ch nlvhmtgs me plzunnff m enxum {hm all me pnym=nr u-nerezt m mm-a 1. 15 .;,..,11, mnxplnccd [or Lhc plain-mi! m m_ an casss tnwvlvmg puxhnsc of pmpcmcs whxch m govcrnzd b_\ m: Hmmng Dcvclupcn (Cnnuul and :_.mm..,; Act was) and {he Housing Developers (Conuol ma Lwcnxmg) Rules or Rzgulnuons 15 mg >PAs here are not govemnl by m: sud Iagjslauon. »;..mus 43 44. Hence, In my new, daus: 33 of me SPA; efftcnvrly xeplldnies me plamuffs asselucm :5 pa pmgnpn 10 nr ch: punmnsrs wply and dcfzncr. to wunzerdalm dnzd 4 january 2011 refexr-:d to eaxllu. In any (rum, :5 obszrved earlier, pnngnph [U of me reply and defence to caunlnclalm mnkts no mention of my -um: waiver” The ,.I;.nn:r.« xvvmessex (P\i'1 and W2) zgxtd am 15 my no dncumnnlary m back up the plalnnfﬁ suggsnmnn :1... than nm nn alleged vcrbnl mm. In an nmnp. at <nl\':g\|ng am Lhznn, an» pmnuri mnmumnd (rm paragaph so, 51 nnd 52 of me wnlten submissions um Lale piyment mlemst was fully wmwul n, the defendant In consmcmuon of I11: bulk pulihase of 4 unus bv rhz plzmuff and annthrr wmpzny ownzd by the plamnffs durcrox known as San Fm: Sdn Bhd whu: mg pmnuzr purcl-mscd mm (3) units and the lite: purchased one (1) nnm. Ir n nllegtd by rhc plalnnff :ha\ 111 \1:w of on bulk putcl-nsts, an defmdmv ma. upnn me p1:unnff'.< mqucsl. mbnly prnmmd to \m1\'I: nu Inc pznymcnr xnrrxrsl for nu uh: fnux (4) umls Bu! um was ncuhcr pludcd nut put to DWI during crvvsmrcxarnlnznnn .-\n am» 111:. um. wan zbsululcly nu menuun at’ this n. any or me tumanpuunguux document» mu w my nnnu. am; n clearly In uf(:nhoughL me an al“ 45. 1. .5 uuc am pm): to th: dcfendanfs leuu med 1 May 201:. (p2‘}4» 29¢ Eunzllc B) mm was nu dmmnd for late paymznt \|n(ezesL 1-nmm, 11:: mm: of a punt demand by me defmdznt for sh: um pzylnem Inrzxest does no! «mount an mm (see. (lam: 33 sm» As for me efﬂcaq of: mm :lause.I need only mm m (h: (as: nf Tafm Jml Carp M. W 1/ mm mm Ma/gnu my [mm] (V Mu 1 m pages 27 and 23. whu: Abdul Mzhk mm. 1 deal: mu. (I1: zffcu an wmver clam‘: and hzld mm. "M The uulerk: ufwnwrr um; mun bx .....w.1 m favuw MIA: dzfcndlm. by We rkfcrldant Vi rmillrd m «min an mm mm mmplnnnc um: lgume nmuuhmnding the mdmggnot gum by III: .:m.:... - Haze. fzduzlly [ham 1; no rudcnunl ms xo support the so-czllcd waiver theory At any mm. clnuse 33 SPAs grrmml, zmasculaus (ha WNYEK Iheo .. As such. m the ulnmztz m1,u... nukwrhivandlng mm mm ns nu rnmml dermnd fnr me pmnmr vntucx: hy ch: dcfcndznl [mm .0 ﬂu‘ Ixsusulce at the mm dual 1 May 2015 (p :94, 296. Bundle E). the plzmuff an-mxmm run-uuned luble fur (I1: pnymunl of mm charges and Lhrrc W no wnlvcr .. my ﬁme Haws, mm on an factual ummnnm and me om and r.locummun' :»1d:m:: and me mlzvanl legal pnndples I have no hesxrznorn m rqecung me waive: theory »...mm 41 In ch: result. since me mm dszoq has bcm dcmohshtd and smc: thus: 33 SPA: negnnes any mm, I ﬁnd am am ,5 1.1: pzymznt mbcrtst ma. .5 due and payable by rhe plnnuff to I11: defendant. Hznce, pursuant m clnuse 171, an defendant Is zbsolvtd of any I..b.1.w .9 pay up. Conscqumtly, me plaintiffs nlmm for LAD ..= Ilntrmbln Delay by nuihnritiu 45 Itum nrrw m me 155“: nidelay bv the auIhru'I\|1e< which 5 mg stcond prnng ni defencc m oppzmc an (lmm rm L-\D. 1 «mu ~‘r:m\-.1zh lhc pluxdu1gs In (hr dufznu-. Lhe defmdzru I-And sum: eh: fullml-xng: ‘L1 [mu whherc a< -may m delwrrg ufvlum p1Igcs!\m\|(vJud\Ihn Drfendanl dunes). the Ddemm pklds mm xh: Ddmdanls n-min; In M an .; sum. m UK cxpvlxs pwvnc m c “E m mm sand xv; Lhu IR: d:\|Iy wu rm umzd :1, mg Appmpﬂllt Auimnha :4 m Ddeml-M um: um 11 3!! rnnlmxl xlme. men war! m.,.< by We mu, sv/um Md Mm u.= pa ruhrs nfdvhlyx an n fallawr 3\| . delay M51 days n, m TNB u, vzrfvlvn nu: subrxlaﬁun Inspemm, . dclly M72 am by nu: ma u. «mum IN llymﬁ of exlzmﬂ um: supwyung tlncmmy m ivmldmg. . any «rs: an n, In mu m mmpkle lhc Insullnuun al my. . deny um am by live Mrs: fun mud mu... .,....m, and . my ufw am by m: sums on m. dumm nfmz [mm ofhol uppmx pvml. »...mm vnum pouusum of m: an mum m In: Purduscr 5 hzmruﬂer p-mm. whlrhtvzv dun: sh“ he mu: enrher pxovman ALWAVS mu m: delay was an unused by Its: Avwvt-nil:/xutrmma 172 um um ax.-mum nffnumtn un d-ys rmm lhc amm. mm m wmmg rm... [he Vcndur mﬁvrmlng Ihe I’u\|vh:uer u. mm mm, cl uucnnl ymvmzumn ..: the ma Pmpcny 4..mwummmg» um {he pm.“ my um "I ha an posxnuun av aumly enlual mm oewptvion uflhe Fmpcﬂy} lb: mum: mu Ix deemed m have lulu: mm possaxvnn afllw nid Pmpcny Ind m: Vendnx lhtrexﬂu mu nm be lam kn my H»: m damage u» Ike slvd Pvuy-cny audhv w the am.“ ma ﬁlxmgs mm. ' In H common ground um undcr the sum. vacant posxc\sInn ought to havc br/en drlsvucd :0 (III: pl.-unnlf 1;, 2:. Juan: 2015. Howevu. vacant puncsslun W1: nut .n (m d<\|xvcr:d by 26 jun: 2015 Th: amount clmmcd as L\D for me drJ.\\':ry of \'n::m\|L possessmn as per dam: 17.1 of am SPA! Ix RM1,23‘1,(-86.23 mm 1; cnlculatcd {mm 27 June 2015 (O 12 Apnl 2016 (mm u my (far: my mmnl pa.rm.rmI1 u “dmnd"d:lxwm). In an smtrrnenr ofclmm dnzd 7 Nova-nber 2016 rsoc"). the planntiffhas claimed the fnlkmnng relmf; . "-1 A ds=<Lxrnnon nu: mg ddrudml M »...cn...s me Icrrm ...: mm. mm: \|hn:< (3) ,c....... 5.»: ....a pm.“ A.....m;..., anma zmmz xrm: sum m1M\1x9.m2x u¢\|e\iqu\|da1:d mm. dumgc; Far um Jclmry arm... pwstexuun Fmm a. me n\'Z7 6lmSm :2 a ma rum 1A7\Inu1n5)7lnpel\\|es. V) A mm mnmm mm I: eluted .mmi.: 1.:-on (wuh munmn: ﬁner! mm. ad .5 u..am» lm 1. ‘.22. Corwllk‘ lndunn M mu undcr Mm. Till 7-7 am 54073. Ln 5. mm Puchnng mam Darnh m mg, Ntaen Selungnnmd mm pun! nddruxu/‘No 204.1." mm 2A. mm Pznnduﬁrun Puuhvng Uuml. mm mm»-g. s¢Im-gar Wllh me mm pun: of mam: IH2.W(h:v!mnﬂ2<\ rzfuvud .5 '01:: L017") muuus me Defmdau Mil mm m Ihc rzlzunl documrm m xhww the d:Iay 5, lhenfomsaud ..m..m.:..r..‘.«..v um M m Delendnm man mu Ihe mm‘. Hf mg 3.“: mm s... wmwd me Czmﬁme af mm Primal Complcuon M II»: sud mm an n n -nu n..- Del:-11d\|n\| mun pnm mu me (‘zm!iuI= olhnlﬂ Pncuu! Cnmplamu Arniﬁns WK {or mam m.m.y.. Walk WIIMHY sub-kn mm.~, exclude uh: fnHAuw' ,; .17 EIemi::n\ lmmrﬂnldininn. b) mm now am mum fmnhcs. c: Lnndiume WHIKV av l'NB»Sub«suIxon, .7 v.,u.., um En-vu Wark ...., um fur lm . [Vex us In Dnlendzm dud: max Izunmnl In ma Ccniﬁuxe at‘ rm: Pr-mm Cnmplcunu the Dclcndzm has cmuvlele-1 me cnmlmmnnoflhrmambmldml ws 11» Y)cFcud.I-1\| pluds um. um ma ....1 sums .. n. Appluprlzle Audmnncs cnmemplned in live and swx for IJK ‘s.‘..m ..: ¢=.‘.m..u or Cnmplusm md Camplmuc: m Derermzwt ¢...-mu plads Ilm mm ma xrd sums an responsublz nndhr the m m cm-My mu me win! no ele-:1ncn_\ mum.» r... been snnlnlmsd 1»: ma zmiﬁsuiwrs m usenual ,....;mm....m baht: (I1: Czn um: cf Cumyklwwl ma (‘umphlnse can he wiwrd m Th: n=w..u runnerplcndsmnlIheMPSl:<n\sAzlhs/\Wl'1Dr’ c Alllhumlrs wmwnphlcd m m: sun sm :5 II: MPSJ .; \txpm\x4hV: unrlu the law nu ma -vwvvsﬂ .1 ,.u........,; pamn) .. olhuﬂdmgvluns. :7 Hume lh: w=na...- max mu m: Dcfcrvimt sun law be we u. pay my up .s. mnammy by m: kvvlwnuk Aulhur .1Na..svAaAs Ind MPSJ '- (p.65—(I5» Bundle A) 49. 1.. response, me plannuff mm: (m nbular form] me following by way airtply no me dticncr. 7 vaueuuui so. Pmluuvh m.y.,m.. Suumenl of wm. Axlulha r:p\y, 7'\|nm\IIh1nl<x max Ihu:VIun\| fmm TNEm umiergnlhe mspedmn rmIh¢TNE mbslnlmn (lull) sham; n... ma n.ru.a..m his mum m fulﬁllemhe mndlnnnsmd/M rmdm mmplcleuui pmvmelhe Ialnldmg ma rwilm: mm -«mm fmm ma \|>mguV\ I3(I~>oI\ix s..m..=..u B1Dl‘k1!€£ mm‘ mm, \|'\|Iumiﬂsm<um1 I1v:Defem:IK ha; men laprnvdnanr-Iy ullhc rwd:nIIn\ dvwnrnls m Plunnmn mm mu m: d:\|:y .. r.-uwdby mu fur\|h:¢ubnlm1In\ln\>ovu\nI: mm ms nu gwmz mm‘; work upuum VII .c=m...« [mm \|h:cunInLwvTND\|n-1 .u mnecpondtnct ... bzcweuull w Ampm Aulhodl um. um .14. Pmmvh IA (Challis: SI1Iunemn!Dzfeum Asmlhc mu. Ma. 5121:: am Dcfzudam mm m [wave In mmlnnom cvmenual 4<tcwII:n\xou I11: am, an In Dmcccdme clung: ulpohcy by ms nu ma msmhumn on mzmeltr ....: ,n..m»=...\|,u..=x..< ..,...r.x..u..., r. edloxnﬂallnneherlnaworduuuulhe cnndllmm mqnurd by ms and unused Inc flmhzrdzlu Pnrzgmph 1: (mm lhn: summ 0! Deluxe As m.n...=,,:,, m.....n suns n... mm...( Mhhe mam inlmmnuvn rm». Pnnxyuph :4 (rinflht Sulunem nf Defence A: ... the Iqaly, Phunlvlhmu mu o=w....\| mam gw: mum mfwmlmnnun live my mum m smns anllvedslxuan mu: u».n.». ulhnl uwm: pain: No doubt Lh: defmdzm called us consultants who dnlt u-uh zh: appvroprulz xuduonnzs, Io nsufy dunng the mm and my gave in explanation cm on delays. Th: dumuon of ddzy which Wu: atmbuuble to (he nurhnnnzs xx :5 follnwsv vaueazmns 51. D:A‘:nd21m’s Aﬁpmpnane’ lkawn ofdnhy my. omuay wunulcl nuIhon'Iiu m r... 34 Pm -mu Delay m was 5: din ” ’ fnwz) whxunun ...,p.wm m Tan Br; Pm ma Dd2\|}'xnh}1ng (DWI) mcmmngcnbl: IR '1». Ba» Pm ma mu.) m mslallmon [n\¥/1} nflnd Jul m:nv< AR Lu Moon Kn SYAB.-\S new m “mm: for to dim mm) hat uppmg point .\u=s; mu, m mad mm: .52 um zppmml In rumx nf me cnntempnnnmuﬁ documents. n 15 In In nmnd mm m 1 leuer dmd 13 Mm" 201!» [mm TME Englnunng cunmlmm In she dzfcndnnl (p.159, Bundle B), uh: d=f=n.Jnm‘s cnmul-nun «mm» um Aelny mm mum] ma "rm 1.. mu: m mu rub-ilnuun \|n:pe:Iivu dspin: we hm whim! mg ...m..on lcnerm ma an 2: Aug M. n. Iddilmn, rm; Suhlng rm 5p\|Il mm ma Suhang g m; Plxhvux. m mu. our pmiect H mm. n» ma mm ma mum, wul mu 3 nmnllu m ma. our um «um boxes. Dzhy an ma able llying zvcn many: Ihe elxmcal mun-nclm ma mum .u wmmrmcd mm Imm mu -nu ma.» vmlx n mmman: 5, ms an m on nu. ma cm mm: um... 2 ....m:.s Mm: lnuvmplowmzcnhlc Vnymgvmrknn Wm me mu nwmhlly -wum 3 wuks m wmvlenc Dclly uFTNB mclzr v..mm.m. mm m we may m...:m... has um. chmgpd m mm m our pmgm .5 mm...-1.5 Mlnw HEW ma meta req-nnmml rm... hudquxtlcl ma rucnrr dwuﬂrvrnl m pvotml mm rm. 2 Apr I5 uni! an 0:! x5 m wmcn um. mmx sun. Ihnul 3 mnnlh; Hm: .. .«w.¢.« kn crl“D\u:" vans: mu 52. Next. m 2 letter dated 2:. .m3- mm mm LN]. Sdn Bhd, uh: ddzudan - architect wrote is A'o!.lo\v< — »cu».~<cn MEMBINA :2 mm mwm museum: 3 TIIGK/n‘ s£I11A \| nuamr ymzzmn: mm 1 um nolmu. cummz TNB suasnnon nx ATAS L01 5 sums us mm ramu PUCIIUNK; nnmm, mum: vnamc. sumcon run cmnnx Avnvvnv mcvl-:mPMl;NT sun nun cmmnam: Evculon mm 0! Handling our war. ..c..mu.. gwrqlurltinn 0:: mm nwnlmu. nuvcnmmcnlxnvc .< belaw Buscd NI mlrmwanlrr wuh I71: mxmm yum. nbsmuwon Ind ltcmdx .. me -1:1 In: msumrrm m prwrsumv. Wk’ Lnuﬁlm \|Im\ \|I\|:m ., rnumzhvcdelay uuxeﬂlvy Ah: rekvnnlzulhxvrnxexzx mum v ms am am, on mad wovk And my ﬁm Insveninn — Mm : mprcsenmme hm msnmnad m w apen up mg m. cmrawe mm mm m: wwxenu. mm Ilmldlng vmrks Ind ms nu: msulum m ms 3 mpnesenuuvt Iefuse m mm mm the sue lur Kim .n-mm, Iluungd mmcml mm. mu mmu, mm mln ma Subzng v . and ma Yudmng Dcpanmeul am In: file vrlminx u. lhls ,,m,',. Wm mnslund [mm subang Mike In mm; om»: znd me Inltn\|aV mm", cause lb: Ii]: w in m\:\|7\n¢\l and look 3 mm bcfurc may can pwrgss ,0... mm 2 51 mm m-I-y ll! mu w-, up cnhk — 1‘!!! mm mm m... 2 mnmhs m mlnpme me Vumg um; u mmpm w uh: amw mu Wlvrkmg ;¢.m..u .n wuks m mmpnman mu.“ xnmmr pwjenummg 3 H0 days may on ma m nbum mntr. Inslud M I01: mam pvuwdur: «I3 rnnulhs wmkmgmn: mcumplehe the mm. n my nl-Mm-nu! nu am for mu m we um: and an Itnwu (hm: my Ihnm .. murmz hnschzngad .5 meter palm) ...a can pmjtu me MK Hun vuducsu-d la we no ...m..4=,,..m.=,.. For rwrmunng van 1. Mn 53. ¢. only am the tnlrupmxan Mm: work» m nuns :, 2 ma 3 nbovr ﬂux ma um ma xuyvpnnlng Vem cm 5: tuned and we ca-«ﬁrm mac mu nudﬂzy rm. me Imam: nun ma suppomng mu WIS!‘ rd unnl me nvwm n, was: mling In mu .u..=. w. .1» wnfmn Ihal lbllmx up Warn :1,» m: Cummm am 0:: E\a1\l!\n)lIm5 u. 2mm x mam Whhm mg mvgded um: s 7» um am a» Mrs: on mud .a.:.=;. appmvll (her: was unkwunled far am) vy MPSA m nhlxm me mad xddless nppluvnl WMI lhzmmpansonafl wbek sundvd mxmgm a 27 am ddly an smns du: m chug: 0! ha: V-Ippmg pow locnnmv SVAE/\SudmmmmI\|L7n WBIK mm dccumnnn lull-mu mu mm m delayed mLemn\\|y .5 mmymed m 1 mm VI-«dun! pn-«u...c Wm um. 1 um, um u.. ev/mu ... xterm s and 5 can we rckvnu works he uvmmencnd and wmplzlnd In VLEW nflhenhnve. we ﬁnd nu. Iharcxwmll dd-IV: my Vwwnsvdnvd .5 jxmnﬁable ., than amhami 4.1.; VS mm-1 me wnlml of n. cm.;..u..m and c......m.u. u. we m. M. quwu ... Inward Ind pm. ccmzu us mm M havenny query" Despite mg oral mam: um Wu adduced m D\Y/2 ma ms’; and me documenury mama um was relaxed to by these wilnesscs, the plnmuff mnnnams mm m: defendant has nut 1:: fun mum. um um: Wm am,.< winch were “mus:d" by me rmrhunuzs. Instead, an plmnnff supzgrsts am the delay ms causzd by the deftndanfs own mum m comply w-uh the zequurmznlx and speclﬁzannns nfrhc zukluonum. In em «gm, as an nxample. uh: plmnuffmade wfercncc m . lcuu dared IB Scptcmbu 2015 written by TMC Engineulng Conxulunzx which wads 1,-- vane 15 ans 54. me Enlvuenia Cunsnlunn mg. I: Scyl zuls A. 24 1... ...., . 1.. a.m.....:. .u m:1I:vy1m:\ 1... “Alli.” A .m............. . fowl!ouIa\lubl:m:\|d:m:vzvv1nr\ IotTNBwxm1aIlnwlrrCT:AL ........: wmnll A: E 1: Scm 15 mxgacnon. . r.» mu wuvfler wool ...m was ..=...min; in ms m... .......:..u Iwferm bdowl n... ....u.. put! u. h: .......u¢.. .. mu... ...:.=.c.....>-m..¢... v............a.u ....... Isntvdtd -- {p.222 Bundle B) .\r,<:o1d.\ng .0 an p.....urr, .1... lcuu i, ... txamplc of me defendmfs ra.1...¢ use a “wuzthu pnmf mg... pma" and um dgmonw-Arc.» the defmdnnﬂs ...c....-W...“ men. 1.4 m m. dnlny .....:... T!\'B's appmval In nmplxﬁanun. cuumel f... the ,.1a.....;; argued am dnlzy should ..o. be ..m.b...ea .9 the nurhonuzs and ma: the r..11m....g pomls m his \vmI:n subnusslnns (whxh are wprnduccd mhmm) - as Th: x-n......« xubvmlx nu. me mu... wen ..:...u, CIHSBI1 W Ihe D1-fcndum .. mmmeunu m m.......:..... mm. I.. (mm =........... ow: ma ..a......=a dclny by the u.r=...:.... .. y....a..... DYE! m. ...x......m. ... mu due .. .....rm........ vuwkx lK)l .....-ma... by um n¢r=..a.... .ru. 2 .nsp».....= by ma on umzma a. smou Ivy .u¢.....3 m c..g....a ...m.m...... am Is Iozuu .2 mm Infnmung Rciuhx ..r lnqxcliw am 5.2 20M ...».,.1mu..¢ 224: ....u N. m n... 1-15 .1 In: Nor. vz-m..us n zu 2: u.. crass umwtmlnun on ma mmmm mm me.» new 3 winecmm dun: on (he subslano In vozau. 512.2-no .1 Iu2.NH Otfnrml pp angumx Innmeuon am In v-mm pl]: 707 m Eundlc an ram 7: was mll cauldrrl up M-Mal uv:rwTNB Au: u.m.r..m.. v-mots nolcomplzlnd 2: ... M: m n. 1.33-ml pup nu n... 1.5 uﬂhe Nor. um um admirwd m we um Insptrlum :4 ma I-Inch ms wwased to p; dun: um um mquen by Delcndmu mp m mm mm 2: rm zou mama‘: pp dun: mml Ia m.2mA “H: .5 mu m (be (mum l)1£\|MPSlrz\uA«edm open mg haznmng to man amen .5 up mﬁ-mmcluwen me man had ml been wmrﬂeled and rm: .v.. mummued mxomplue hmlmng Mvrk \a the -amp-~ .. mp Izsllnztaoudx-InIunnz\|-7u1(uNoI>. m I:mssexIul\|mlAImY,DW1 M ulmmed on the dam the am mspecmm aflhesubsulmn -4.5m huh: r:lu5alofMPSl -.1 opal um homllng beau» =m.mnp.. wm W15 nul‘7l1‘/n pu...,.m.u m plll us in: I-12 um: xor. m rn.mumm..m max 0\|: Drfendml hn am In mam nu ma nsuhs 1:! .5» pm m5p¢cAiA7n5 Lexwpl kl»: mspmpn pp 5 12.2111: n, VNB) nr lulled m tall nu: nmm up luxfy u. cant! expmnmg me maiﬁmxon wnrks lo pp $011: or am, ... pp. mam; uvzr alum ..m.m m Dckvndnnl mum mu .,..I, max cvlnmzms we zwzn Wm art Just have avennmu m mrpmm: Ilsa mm to vvudxxe aM...m.. pmumg Ilm Ins impaclian iv: TNB ma lhrhlndvnu mm nnhe subsmmn m we axp-gel29In:I0~14u\|'\|Iv:Nl)P. Dwz nan .um.m mu map p. no Ada): by me my um; Luhk Ind xh: an, m we mmxlmg aver «I ma Kwsllunn \l-I5 III: pvnblun which m: min dun m-n um mm ms m m. w.m...z :... rpm to men me Immmuemp Fm ﬁrs! .n;pm.a.. my-J n... 5 mdn III: Iuclwﬁcllron ppm.‘ page m um um urmuor. In xcplr m um: um ufTNB amen m upuunann M mdMduI\ mans m In 5. Prwtmes mm 5, me Delendam. xhe Plwmll mhmm um the nerrmnm Um mm ﬂux p r... we dnmmnvus up pmw ma {hinge «(meter polbcy I7} ma .1 .n:g:a by them :1 pm us n.u»:.com.. Nor TM pm, dm.um:n\:eh=4hyxm D¢F:ndzn\| p ... Elngmcer Inslnmwns am IEINZDIS Wm ma slur!) mu meurs ...s..up.: um .p p. mma beclxue unthcvproofpaml ma nm beanuxnd by m: D¢fa\d:nL Paueavous m uma... um m......m ..... me ....... 9...... Wu! 5...“... .. be pnpnred r.ya.....4.. M. um um. um. .-a plu m II»: .4 0! me mm but M D/HIDE! pmofpzntlx WEI! Wm... .5... A: an .....¢.a.....¢ .»....I...... hm hm ..a.....»a am he um be ml: .. ndvm Defmdmn u. xxx ...¢ ........« 9...... pan... and ﬁns ........;....:.., mu. .. .... u.r.......... .. a.. W. 2.: .: ... Ekanuly Swpb Appllulinn Hzmbmk Secnnd a1........zoc-7. Am... a. (an /‘mm Ihz pmute x. m. \|1ngmt¢r\|m\mcnnn)dAm1 mmzuvs me .-as :22 ul Banana 9.. nu ma... WEN .. ... msullm ......a. .1... :>...p.........1 ...1.m. pm!»-mu. .a....m n. ma bm ms w....:.... 1...... .. .;.....a. .>.. vmvctl ......n. can ng Ihe .:...s..u....... .n....¢.s...a ..... nu on-....:..r....v..y -rxn ...n...¢u ra, .2... ner..»d.... Th: Dcfendml nhu .. a 4.... an 21 a.,. .7, swuns .. am.......g 1.... ..,..,...g pun! now... ... moss uamuulmn um um ..s......4 ..... ﬂue Lona Fmm muus ma 3: as zmz Iwlming .v.. "A... ...,.....g ..rm.....x_. vmlid r... 2 yang exwrtng .... xn M2014 .. pg: I38 In 641 .1 m. ND? and .... :a.r....x..... ma .1...» Mﬂunx ... M... ... w... ..w p.....- ......\| summons. Am. .... cxnrry .1 n... 5.... mm, .... o.r...a.... hnd rnquului Fm ......... .w.....: rm... swum ma. i.. Lu... ma sum ms "1: lawn 1... ma zklzy m mm the ................. mm: 1...... Kay smms .......m oo.2m.- .. mm -1.. ............... cf the Fmpenies m. nut ruched 9.. 5...: ..r .:...-..........g 1... up"... ,......s- w.. nu. ma ...m...z.m ...¢ Dtfendam nan rm... andor ddlvd .. Incl! g .1»: --1... ..,.p.... p.....- .1... .. ... W. -klay ... mm omsuuamn ahh: r......m Th: u.1e..a.... rm .1... nvstd .... vswe of may in Mm .. lppmvnl uni»: ma Hume) mu -1.. r-1...... hm ....u....a .n... .. pm... .5... -1.: MP5! ma usuad Mun ma 92.2015 ..........., .... u.r...a.... .. campiy with .x....... ......g. a... we Defmduu Iavlzd .0 .....:.... documentary ewdenne aim calnplunse .. p... m n... my .1 u» war, 1.. ma 5...: .........;....m .p. I»r...a.... r..u.a .. ymu a.v..m MP5! 1. V... nfltuc ...:....,...... made .. me ............ .: uw: nwz ...a mu; ......».:. wnh Lhe nm..a....~s mm mm :2.os.zms z ms mm. Illwum ,.n...... u... the Aclnyn WEK u.nl\y «um :7, me n.rw:...u,.....m Khtﬂleged awmvtiale ...m........ mm...-5 21 u.. ngm ol II1: um‘; :1/mcncu during nus:-c‘<amImmm uwx cwﬁrmtd nu: u my the Ddcndnms scum m mmmsm mu ptevmlad the Alleged appmplia: xulimnnes frnrn mung than Mark and lb: my um «I , hy Ihr: Iﬂcpcd upprmpnulz mlhomles in m as,“ {\|f\|ny)(5ee page in nu ma ofvle Nor). H mm unhmxu \|hll mm x; ... ungxplmnm up ..r m dnys bawem the 29: am Inc delwcry chvnﬂ by the Flamuﬂ .,,...m m: m a.,; my nu ma nllegm nppmprulexulhamlu .5 cxphuhlrd 5, the my (which Plamufﬂus dlswlcd and pmvzn zhnvewhenehyxbyme Dcfmdmlj 22. 11. wmm 1: also dwsvulmg "K p4:..a..n‘s ukuluuvn or-u Phys m Iﬂlgcd «:1» by Ih: Apgmpnnlr Aulhnnlus n. um); uzmummn uws failed Ia exvlnm um: ms 0! Ih: an M :Amm:vn:emm\ ohlulny I1) ms «nu 9.m zms mm! me we 1:! culnmmcervuu nllhtuhhng an zumous .1 pg: 114 n.. is :4 pig: M: n... mzum. N0? “mm nu pnmn mm In: due uhn V: cm zms M: mm. M mldrup I1} aw: F«r\|h¢d\|A:oV 2: 2 ms chaxenhy lht um, Ilse am .5 ulw pmvzn wlwxgugun ind ..1...m.a hy uw) 1\| .-u ms n... mu .1: n.. .~«-n> .‘ Ihe ubhnghax been camvkledm 2.03 ms, 29 In the vcumsunszs. [he Pllmhﬂ his yrmrn man the ﬂehy M mac m ueramam am we uvsulnmm o\’d<\|n,»s Dy nw; .. Wm; 10 In lhcul:uVll\|unoI\|h: deny m :nxI.1llalmnnHhrm:I:rs 5, ms. aw: M: =.\c..\|...¢ mg dehy M51 days mm zeamms um w mzols aw: um agam m mu (hr MW of mm] 29»: ms .5 [In an 0! wmmmoement of dzlzy ma admmzd u.. mm W: ,..g. nn exnmumn in pay: us hm: 2: .25 ND? yu nulflvxx also pmven mu nu: dung: olmaerx .3 xlgn mm m Ih¢ dalny m Defendml fur umlg nu wmng rum mm pmof Dllrek. 3\| In rcspwl mucus.) by sums mu MPSI, nwa ndmmad um me d¢\|Iys by III: and zummmex W!“ not "trust -mm-..,.. ..r am, hrcnuw ufuvelllqxpingnl 1111: 1541 n... 445 nmmv-‘or.’ memm 55. 55. To kcspitulara, on the xssur. of delay, n .5 clear um meee wet: delays .n Inspect of (11: appzouls by me zudionnu, nzmzly 1\l'PS],'1NB md swans, bu: nu cnncil and naggng qnesnan Is wherhu Lhzse aelnp wtre “ennseew by me zurhonhza or whelhcr 01:‘; war: du: (0 me dcfzudanfs or [hell consn1nnne' fuhlrc to adhere to or comply \-nth the eeqnnanenn ind epecmeannne of me audlnnnu. In um kgnnl. n n In be nmcd II-mt me pames who xemﬁead ne me engineer am 2) ma architect mm) on the pnuccl nnn new Wu: plainly pnslnng une blnmu [u the mil-umuzs. But \|\|v.~rc wm no wnneuen [mm the Aurhoullzs to ounﬁzm and nlxdnze um Lhcsc dc were m cm caused by me aulhunues Indeed, xfwlumssts mnn 3155], -nus and synsas Ind been called In mesL\|f3‘.1(\|s possible or probable even am my may hav: dssagxted man the derenuenue suggestion may the delar ms censea by vha zuthonnes In fact. kh: Count has not has the oppnmmuy of hearing me auzhc-Xmas’ sldz nfdwe narntwc In (In: mgnrd, me buxdm \nx ckarly ml the defendant to call me relevant \I.1tn:ssrs [mm ene am]-mane: In nrder .n hnktrr (ht theory um n we. tllmr authunucs men nennd nee delay Aim, 1 an: no! (cc anyll-ung u\ the cmiwmpunnuuux dncumcnlan‘ c\'1I.\|cx-Ace pnenng buween zne ccnsulunts nna Lhz auzhunun’ wluch xuggesled they (Lhe nuLhonur.s) weze cnnnng me dzlav w the wmplcuun of me prvkct memnm m A mm «nm: .3; am m..v.1e..a.:a .m.....n mm, mm n.=u.m=«mn w-1tnm'>¢dAsUnIlNu Lat! ‘.22. Cmvome Industrial um um undzr Muux lulc no Gcnn sum. Ln: 5. m... Yucliwlu Pcldlnl. D-mu Pauling, mm Sﬂmgnrmd burmg pmx address ohNu. Ix, mm mm IA‘ Tmmn y-...m«:..m mm; Uuum mm mm-g Ssllngm am. an p...¢»...¢ prnl M llM§,\|K).Il00lhemnnne:mfmedn"xI:LnlK ;, mu an A uml nfwvz m xlmvy sumvdcucned undmmm Lmxmy lwxlhmezuninrﬂvw) dennﬁed :sUmlNn Lnl‘? .32. Curpomt :..a..m.: Pm new um mm. we nu. om. sum. L01 5 man Puchung ma..n.. Dicuh Peuhmy Ncgm Selmgnnnd harm; poslal Ar1\hc:$A7lNu Is. mm mm ’.‘A. um... Prvlndunnnn v..=».m mm. mm Fuchong. Salmgnr mm In yum pm: 0! RM§.\33.l\|ﬂDﬂthmmllkrrclerrad-5“\|Ie\|.ol9") A deslnmhnn mu the .~sm.:r s.., ». mm In mm..mu all -4.. mi5ce\\|an¢om nhuges 2m\onl\|\|mg m num.szzzn fur tack nfﬂx La: 7, lnu : Ind Lox a mu m .,.,.m. In the aelcndam by we p:.munwm.m now: am lvquvdlkduazminnd dlmlgufar D»: 1.. my Er) ..n..m ..mm.au; A um... Ian mu m .sm..am.. .; mm m M m: mm ..y Runs saw 1) for we was Ind ycnwts vnx (~‘as‘n mm in am arm: mm, Lm I-ml u» v. Aggruultd ﬂaw-gas .g,...m we mm...‘ r... wraunamly .=uw-z 0.: km Var lh: L91 7. Ln 1 and Lu a mum lmx of in:am:an me ranuls and/Lvlmmior M...“-um mam. Dc-fgndxm mm mm war mm W far Lm 7, 1»: 2 mm but u m mnplamlwﬂnllkwnsnvcn Whlnys {mm mm nhmundwwnl. fkfrndml mu ﬁx .n ma dcfccls rm Lm 7. Lax I ma Lo! mm... mm (30) up from the am 0'I'Ii1jLI1y!1tl\|lilId/Bl ’d:fcndmI Ix um mum Wilhm um m..u.».« (um: mm m: nkfrvsdnnl N mm m but nhcmxlsunhcnparr vwnksta be isscsscd b'yS:m1>l Axvul-M Rexxsn-1. luucren u sv. M Imwm ll! (11: Jullymnl mm from me am ..« Ihi$[Ildfmc1\\|\m\|V\| xneamorruun szllkmznl. Cm1s:and Sud: funhn ur ulhzr mm as rkemnd In n, Ihvx Nnmmrablc cm ‘~ Q, 4445. Hundlg A) Pagrswilﬁ 58. 59. In fan, me dei':ndznI's \I'uness:s appraxud m wggm um wine of an nnsuucuons 0. duccurms by the xunhonues wm “\zrbal". ms .5 an easy enough sugg:sI1on :9 make bu. dxfﬁcu]: to acctpt \v\|Lhou1 my mrmlmxanve exndnncc. In mr view, gzven am clause 17‘! sms (um um delay by anthnnnes) L\ a cnnzmclunl pmvmnn wlwuch mm. -he purchasers mntmcmal tights lu clxum mu, m: defendant (dwtlnpcr) has the hurdcn or pm‘/mg .0 [ha xauxizcuon ur um Conn um um delay m damn, Oi mm: poasrssxon was cnuscd by ﬂu: mhunm Although me dcfaulanfs xvimcsses have corn: run-ma to usufy mu have zssened am me many; were zzmbutahle 10 an aulhonuts. at me cm: of me day, I am not convinced mu u .5 me zudwnuzs who war. ksponsxblr. for an delays. Thu: .5 2 mggng doubt m my mm as to whether 11 was Lh: dzfmdam's or that consulun(s' own mcompuence ox lethargy ov Iackzdmslcal nmmdes, wlnch causui the am, m a m me Ippxnwd by an zulhondes Clfcnune, 11 u any enough In: the defendant to :ss:n um rhry were undnr vubnl mvmrucuuns and amcuum by an ofﬁczxs from Tue, symms and MF:j, bu: am I.» ,m no crcdublu papa mu oz wnobonnv: mama to eslzbhsh on a mm: of pzobnbilmu, am me delay was (anon! :2, me aunhonues vzaunou .50. 61 61 As such, lusnd on L1): 0111 and documenuxy zvidence, 1 am xmprlled m an vxzw am am d:f:ndan( have not mbhslmx on 2 balancc of pxobabilznes mu me delay was caused by me zuLhm1ms. In the mum ﬁnd mu me delay r»¢.r1i—m -rmax SYABAS and MP3] zppnvval wcrc nnr uused by rh: aumnnm. Hence. me defendant 1; not minded m :21‘; mu m: delay 1:) me autllnnzlex a« an exmxr m nvonl mm; LAD Hawever, my cnncluunn Lm lhu pom! m zcadzrruc ..< 1 hnvr .1m.a,- found um smoe =1». p1m.rr1w.: not fully uculcnl All sumx Lhn zm dun and pnyablr tu Lhe defendant (ax tbmeﬂ /y 1/» defudaulperthur muuttrdamr), dw plznnuﬂ as m enuded to my mm mm, m vxcw ofmy ﬁnding, on me plxunuffs dlsenndemznr :1; LAD. dmm .5 no ucccssuv to mnsxdez an p1..mrrs claim for loss or mm; and other loss:s In Iny rvcnr. 1 W\|.“_ for complcleness, add am LAD .5 me amount mu parties ma zgmed 1: the cnrnpzusnnnn for me dnlivn-y of the pxcrmses In um regard. I ngret wnh me xubmlsxlnn nm was mad: by cuunsd fur the dcfcndnlil am the [AD clnuae xx m rm a uundird muiuxc of dunagc: W1-uch 1-ml ban agxccd by (11: paruu m cnmpznulc um plunuffas an» purchner. an 10.»: orme use uf =1‘: pmpmm and/or ﬁndmg zlzenmuvc rncms to compcnnle [oz me us: ofzh: pmpmm. mm ms 1.3. 111 11... 1:31:11. 1. 1. relevant 10 11111 to 1111 case of an CbAu7n mum Fa:/up :14... BM. 1. L11, 5.. Ma: [1976] 2 ML] 14 PC whgze 11 ms smtcd 1. P. 16- »-1.. ....,..1g.1..... 1.1.1.1.. .«..¢...1. 1.. 1.1"... 111......“ 1... dday .1. .1. 1.1.11.1... .1... ..a.....,.1w.11... 1........11....1 1.. 1.1.1.1 ..c...p.1..1... 1.1.1.1.. 11.; Hm 1...... .11». .11. .1 11.11., . a..m1.1. 1115.11. 2... :41.-11.1.1111... ..........11 1.... 11111:... ..m.......1.11.... .. 1.1.1.1 =1g..1.:.¢ 11.11 twang m.........,1... .1 M1 1.1.1.... were .1 1.1. 11.1.1.1. 1s.. Bqvw . M:(‘11nxh 1111115119111 .1211: 1121.- (.4 Hence, 1 .11. 0111.: VIEW am up caters cm 111 am. md ....11.¢c. or 1.1115111111111111 11. 0111:: lossns. 111151111; our uf .1111/1;. 1... connection 111.1. 13.: delwery or 1111 11121111311. As such, 11 .11: 11.51.11: of any conmctual P11111111... 11. .11: s1>.>1s (.1111 time 1. new .11 the JP/Ir) 1111111111,; for any 111111.=1 .11 othzx clalm for losses 111.111,; 01.1 or me dehvery. the ,.1..1...1rr. ¢1.1.11 for 1.11.. 11.1111, 11 plainly .1...c...1.1=. 1.. 11.1.. regard. 1. 1. ma 1... 1.1 .....c .111. 1.. .\‘EA Ham; cm.../.1. 5.11 3121/ V Ln Pub Cm [W821 2 ML) p 31 FC 11 ,1 35 on Federal 51.1111 11.111.11.111: 111.1 damages 1.11 1.11 1111.1-:11 ~11 ...1me.1 11 11 /umpr!/7:rrn1»e — andprrrbtdu 21.1 purrbuter /1... 1.1.1.1111; 1.411 1,». mu m; riamga 11 1». .11.: Ma). .1 121115 .11 b42_pued ma." vuuaauc 65. 66. I\':xr,l l\llI1 I0 [ht pavmcni of (EST llllll Acmrdlng m all fﬁlilntﬂf, d1C as-r sum lll me prestnt cast 15 HCII a llectssar)‘ Davmzut ma lh! dlrtndﬂnl Cannnl chug: [0 llle plallllarr, Lhc an 551' Snl'lL 111: plalnnff CIELIIIS Lhzt (ht dcfcndanl had made Lhl unntfessiry [V1yﬂ’I(nl’ ll: GST and Lhexefoxe It shall be at (115 crisis of (he dtflﬂdﬁﬂl’ lllll lll= pllllllllrr sllnlllll llrll’ be llcla NIH: In pny the L‘('F£\|'IdfII1l for [H656 \1nlI(‘C¢§‘m')‘ palmum. .\s such, lll. plllllllrr aullghl fur lm unlcr cl-Au thc dclun-llml xllzll mfund the sum uf RMl5l54‘1 33 (U: such unn to the plmnuﬂ But ll wax submmcd for (hi; dnfcndnnl l.ll.l Ll-my had pud GST EL) Lhr Jzbaun Kasum lxlllal-slz. And counsel rol mg dmlluml had tefened [0 lb! doculntllury‘ zvldznm :1 9,275,277 mll 231 Bundlz E I'D Exmhllsh llllll these plylllzlm were lll rm made. PW! also agrtcd that osr had been paid by (he dle[:IIdal\|l(5t¢‘1\l\€ 324 p 34 NOE), lll my VIEW. Khc payrncnt lle GST bl; Lh: defendant (OI! Ethalf of lhe plmnllff) was 1 ]’\ﬂ\'n1lI\I llllllcl. ha< In fulﬁll a legal Xtqulielnﬂnlil Alla ll K110 plalllulrl. unllc VIEW mm CST nugh: nn! bc charged. llml ll li fur YJIY.’ pllllllurr lo take lhlﬁ up nll Sucunn lzls of ll1C Coulis lnd Sunlxm TEX J\¢l 2014 by lodging an appeal lu IHL uolllls ll-lll atrvlccs Tax Appczd Tﬂbunﬂl. mu.“ 57 1.. mr vmw, nlnhongh mg Goods ma Seniccs Tax Ac. 2014 ‘ms nu ... force and Gil‘ ms not paubl: when mg sms wan cmcmd mm, by vmne of chusc 16 of uh: sms, any charg: am .5 .0 1.. m-‘posed 1.,» 3... my 1.~g.s1...o.. (such as payment or CST) would an w.u.... the punnzw nfd-u< a....:c. mm, the agrmm... who had pawl GST .. «he Jaw... 1<..«...m M.1..)-5.. for and an b=r..1:..m.e plamtiff, is ......1ca by vxnuc ..r cum. I6 of ch: svm m cm... .1... ........m rm... um plnmuff A. xuch, :11: p1......n".« clam-1 for miund afGST m mg prastnl mu .. 1 nunquncr Oulcomc as For me reasons a. xmcd and :1.bom<.1 :bu\'c:— .) The plmnnffsclaxm ..<a.s.... «.1. n.) 11.: defendant’: counmdmm L4 zuowtd. C) Th: g1......zr .. .0 p..- .0 Elm .1.r=...1..... 2... sum Dr RM152,E3E I3 mu. Interest :1! 5% [mt .......m rm... 7 Dezembcx 201:. until the am of full pzyrnmt or mmauon. .1) The plsnnuff .5 .0 pay tests of m 30,000.00 (suhjccz [u 4% allucnwx) In zhc dcfcndanl. Order accordingly. mﬂsuus mu. :5 S:ptemb:r 2017 { WM s. Namha Balzn /_', Judge High Coun Kunlz l.u\-npur Counsel: Johan l'amg Chg: Fa: rngzrher with Foo Shm Shm (Messrs m Ym, Tm 0 '1 mg) for ma plaxnuii. Shzﬁham blnn Md Ah rngtd-Au wuh Nabxlz Znkana and I. v Gan (Amm Gall c< Zm) fox me defzudnnr Scum: smmn 126 Gnnds and 5:n'I(<« Tax An 2014 Cuts: ma. Ire:/Cur}: Ida may Hm mm Mu/a)rﬂa BM [2004] 6 ML} l HC 13” C//mm Ru/mJ=m.m :4». W 1, mm Jan! Wm 11971.1 2 ML} 14 Ft‘. J'E/1]Iau.vmg Coqwmm/n :4» EM u L:e1’aI7 cm [1952] 2 ML] p.31 FL wuuhus 7 As stated mm, A: 15 nllnged by me defcndznr am me LAD [5 not pﬂynbl: .5 the pmnurr had not settled (he amounts mm were due ma pzyzbl: under me SPA: as and when [hry fell dun for mm“: :\s such. rm aermam rm coumextlaxmzd rm 3 sum ofRM152.E38 13 hung me amnunrwhlch .5 ma [0 be du: ma pzyable under the spas m Kespecr of the Emory unm wluzh wet: purchnsed by me plamncc Th: den-ndann cnunrcrclalm u fnr lh: fn1Iow\ng- “5 M such, (Ive ddendum .»u..mm:..m ..m..;. m. plunMYWv .s fallouxu (al m omunam. sum of RMlS2.x3s n Id be .,.ia by m ..um.n n. KR: drlendnnl. m Imam in ma nlz ol 5% pa unrmm on In anmum xmvsuxn vs from IN: mu: .4 Elm: mu Dtfrntc um Cmmlcrvluln unm mu s<1\\|=Inml by Ih:pl\|mI\|ﬂ‘: rn Cr/sAs.md my AH mm mm ﬁmhrr mwr; much nus Hnnmlmblc Cmm d-emu n. ...u pmpzr " (p.7o:1. Bum: A) I"lzinIifFs synopsis 2. The puma; and thc dcfcndant entued mm the SP:\s whemn the dcfzn-dank agxeed (0 sell md mg plmnuff agreed .0 puldum 3 um» of smuduachnd xndusmzl furor; units (“me pmptrlies") on me mums and condlnum is sllpulared m the sPAs. mum 9 The plnmuff zlkgcs that Ihr. defendant A: In bunch of (11: Iran: and condmolb ofrhz sms, mung. dame 17 (hercofwl-uch sums mm m: propane; shall be mmpmea and Vacant pa mm wldun Lhmy SD: (36) months fmm me am of :11: SP.-Ks falling winch me defendant shall p.1yLr\D calculated from day a. day at the on w bc handed xate of (tn per ccnmm (1%) per annum on me puldusz pm: of the [Imptmcs fmm rm cxjury Am unnl am of mm or v.\|e:x-and dnlnuy nf vacant pm. m1 of the pmpcmcx -rm pI...mrr comma.» um um dcfzndzm had .1a.m1 cumzrucunn uh]-1: pmyccl and mu mm m ddwex vncant powcsnlun of an prupumrs on ur mm: 21. jun: zms m accoxdmxce mm the S1’.-\s 10 ‘Th: defendant mu xssucd . nunt: and 50 March 2016 to who pmnugr {m the dclwcnj of ucanr possession of me pxoperues ...d nqucsmd the phmuff :0 mm paymenl nf mwcellancous chaxxcs an-munung .0 xM22,33z.2o for cash of the pmpuues ("me misocﬂancous charges"). 11. As such, mm: posszssxon of an properties um accordingly dccmcd no be delxvexcd mu am am nf14 an,‘ frum 111: am of (h: ma mm, ma. fallt an 12 April am (sac: p125 — 134 Bundle E). Accordmg :0 my plaintiff, mm ,5 n 4,.-1., nrzm am from 21 jun: 201:. u. I: Apnl zow m me d=ln/an, ur vzcnm puswsnun of mg pmpexrlcs by the .1er=na.m to Lhc plnnuif »...mu 12 13. Aim: xecuwng me defu-Ad:n:'~ none: of delwczy of vacnnk possession dared an .\md. 2016, me plxunuff Issued a lean «ma 6 April 2016 (p236—2E3 Bundle 3) nnd kqutsted «he dcfendanz m undcnzkz 71 “con\n—pnymcn[" of the mmnlmmus a..;g;.: «mm the LAD paymzm wax}. is saxd In be an and awlng m me plamnfffoz me dzhvzry afvacam possesnon mm propcmes but the dtfmdznl has famed and/at rcfuscd m dn in. n .< nlkgcd am an dcfendanr max .150 fmlcd, neglcctcd and/or mum: m hand-aver me up of the pmpcruts to the p1..m.n. The dv:A'I_-mL1m mxpumlud m Inner Jam! 25 Apnl 1011: (p 146 — 147 Hundln E) and mud mu LAD pnymcnl and Ihc chargu of lLM22,332.2LI for depusil and sump duty [or TN}!/S\’.\B:\S ..e squat: mamas. The plmnurrm. askcd :0 sad: dz: nuaczllancuua charges bcfcre the kc}/S could be relcascd Th: plamuff mm Sm! a mu dazed 3 May 2015 {p.143 Bundle 3) nking for 3 LAD cmcrnenc. to um». um defmdznl responded vm mm amt 2 May zm (pm — 150 Bundle B) and stand max Ihr mm“. a..m..mm ma rrfusul to inspect and zpprov: 711: buildings mu mfmxtruclumx which czuud uh: Lklay m dchwry of vacant poxauxxuln of Lht proptnlzx Paulwllﬁ 14 Quite npart [mm ﬂu: um oi Inc dzhv v m: plamuii also connmu. dm ch: defcndnnt has w-mngmly damandnd [mm .11: plunnﬂ me payment of GST m me sum of mwa,549 33 for men of (11: propemes mob '3 not Specvﬁcnlly provided in an SPAS Accoxdzng In me plamuff. me xinposmun of GST xs contrary :0 {hr Grands and smvum Tax An 2014. 15 Th: znul m....m. urmn clmrncd 1:) :11: pmnnrrrm um scum, nf vncanl puasuanun of mg pmpcxucs Imuunzs m m1_239.z.sa 23. Th: pmnum “mu c\|aIm§ m dcclanumb am [he ddcndanl has bread-ml :11: 51> \\ and I0 xmrr/comm mg xmsceﬂantous chzxges mm LAD dzmagzs, loss of m-ml xnmmz (mm m: pmpemcs calculzrod from :2 Apnl 20m 111: plamuff also sed(s [O obtmn in man for the d¢f:cr lmbulur pmoa for die propcmes whxch luv: been ptcsnnned .9 hnve expired on 11 «mm 2016 .0 xx exlzndcd. Th: plunuff also scan ngxunvmtd dnmzges. the kzys or the pmpemn m b: handed (war m the plat ' . mrertslt md mus as prayed m pnmguph 30 (1) {n(\)afr\|1e soc Defzndnnh Iynuplil 15. Th: acrcnaanvs pnilunn .5 mm my m not cnumncnully habit no pay LAD m the p1m.mrr\|m.-4 on m. pmvlsnx m dam 17.: us H1: sms mm .1 .. xupnlnunl um L“) Li nut p:ya\|>ln: wl-n=rc:— Pines:-:16 15 (71) mm .5 an extension of name gunned b\ me Arcl-urec: ﬂy) thus ..« outstanding sum due “.4 awed by rhc puxdluers pursuant to me said sm; and (:2) mg ddav was Aunhuuum mused by me Appmpum According to zhx dcfemlzln pursunnl I0 dam: l7.l ul Lhr Sl’.\>:, LAD .s not conLrnc\|unl.I\' pnyablc on [ht ground: mm mm wet: extensxonsofL\me\|:yd1:2rchueudut toLhe delay by nus, SYAB.-X5 and MP5] being me appropmlc zuzhoxmes as conmmplnrod m an SPA; n .5 zllegtd am thc umtfnmz for rh: defendant tn delwa ‘mm pmsmxlnn of am pmpernzs was lhuefoze, txtemkd pmpnmonztely hf wnu: of rh: extensmn gums by me pmm axchnccr Funhermoxr, me defzndznl claims mm (hex: ..< an oumsnsllng mm nfRM1Sl,838.13 ‘.+..ch ;< due and Mam by um pxmnnrnn [ht defendant puxslunl m SPA.<. As such, the -lcfcndnm ukux :11; laourlon (hm ch.-3 art. no! cunrncnnlly obliged m dclwer mum possession uf me pxopcmcs [0 Lb: pmnurr. And mg defendant has coumcrdanmed go. um outsumimg sum of v.M1s2,s3x 13 wl-nth ,3 due and papbl: by rh: plzlnnffro Lb: dzfendant pursuant (0 Sims. vzgunoui	60,799	Pytesseract-0.3.10
WA-22C-28-04/2016	PLAINTIF Tan Chang Yong Holdings Sdn Bhd DEFENDAN Corporate Sunrise Sdn Bhd	null	15/09/2017	YA DATO' LEE SWEE SENG	https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=259f0bc4-3afe-452e-880f-99817fcb63b4&Inline=true	1 IN THE HIGH COURT OF MALAYA AT KUALA LUMPUR IN THE STATE OF WILAYAH PERSEKUTUAN, MALAYSIA (CIVIL DIVISION) SUIT NO: WA-22C-28-04/2016 BETWEEN TAN CHANG YONG HOLDINGS SDN. BHD. (Company No : 446487-H) ...PLAINTIFF AND CORPORATE SUNRISE SDN BHD (Company No : 746879-A) ...DEFENDANT THE JUDGMENT OF Y.A. LEE SWEE SENG [1] The Plaintiff had in 2008 purchased an 11 storey building in Johor Bahru, Johor. In early 2009 it decided to renovate and refurbish the said building into a hotel (“the Project”) to be known as “11@CENTURY”(“the Hotel”). The location was strategic for the purpose as it was located in the centre of the city within the prime commercial areas and about 2 km from 2 Singapore. The Plaintiff had plans to commence operation of the hotel in January 2010 and so everything was required to be done in a hurry. Project [2] The Project involved Architectural works, Civil and some Structural works, Mechanical and Electrical works (M&E Works) and Interior Design and related works. [3] At the invitation of the Plaintiff and under the direction of the Plaintiff’s M&E Consultant JPK & Associates, the Defendant prepared a Schedule of Tender Price for the M&E Works for the quoted sum of RM10,074,124.80 (“Quoted Sum”). [4] The Plaintiff appointed the Defendant to do the M&E Works by a Confirmation Letter dated 1.9.2009 (“the Contract”) which has annexed to it the Schedule of Tender Prices for the Works. [5] The Contract does not follow any of the standard forms in the market and indeed is quite rudimentary and contained in 4 pages excluding the Schedule of Tender Prices submitted by the Defendant. The understanding given to the Defendant was that it was to be a fast-track job to be completed within only 3 months. 3 [6] Quite glaringly the Contract does not contain the standard clauses on submission of claims and certification, issuance of Certificate of Non- Completion and Certificate of Practical Completion, application for extension of time and Liquidated and Ascertained Damages (“LAD”) clauses. [7] All the Quantities indicated by the Defendant in the Schedule of Tender Price are provisional only and that the “Tenderers are to determine at Site the actual dimensions and site conditions and price accordingly.” After some negotiations and at the request of the Plaintiff, the Defendant agreed to a discount of 3% from the Quoted Sum, thus reducing the final Contract Sum to RM9,780,726.00 with a fixed payment schedule stretching from September 2009 to March 2010. There was also the provision of a retention sum of 5%. [8] The other salient term was the Contract Period where the commencement of works was 1.9.2009 and the completion date was stated as “by end of November 2009”. [9] The breakdown on the M&E Works (“the Works”) cover Electrical works, Plumbing, Sanitary and Hot Water System and Fire Protection System works. 4 Problem [10] The Plaintiff complained of various breaches of the Contract by the Defendant and in particular the failure to complete the Works by 30.11.2009 and the failure to install the air conditioning system correctly so as to ensure that the system is fully functional for the entire hotel. [11] However at the end of the day after the amendments made to the Statement of Claim, the Plaintiff had only claimed for damages to be assessed for paragraph 8.2 of the Amended Statement of Claim. Thus the Plaintiff’s prayer in the Amended Statement of Claim in paragraph 10.1 is for damages to be assessed for loss of Room Charges for paragraph 8.2 which reads as follows: “8.2 Loss of Room Charges 8.2.1 The Plaintiff was unable to allow full occupancy of the Hotel due to the problems relating to the Air Conditioning system. The estimated losses in revenue are approximately RM3,823,960.00. 8.2.2 There are also numerous complaints of the Hotel guests and many of them will (not) stay at the Hotel in (the) future. As such, the intended development of the Hotel’s reputation and good name has been tarnished.” 5 [12] The Defendant denied that it had breached the Contract and in reply thereto stated that it had executed the contract works with the approval of the M&E Consultant appointed by the Plaintiff and that the M&E Consultant had approved the works done by the Defendant including the Variation Orders. The Defendant further averred that the M&E Consultant had inspected and verified the M&E works done before approving its payment. Based on the Statement of Final Account for the M&E Package prepared by the M&E Consultant dated 11.6.2010 the Final Account Sum after taking into consideration the Variation Orders is RM9,624,049.54 and as only the sum of RM4,857,863.00 had been paid, the balance sum claimed by the Defendant was RM4,766,186.54 in the Amended Defence and Counterclaim. [13] The Defendant had also claimed for interest at 8% per annum from the date of the Statement of Claim on 11.1.2011 until settlement. Previous Proceedings [14] This would be an opportune time to state that originally this suit had been tried in the Kuantan High Court and the learned Judge had allowed the Plaintiff’s claim of RM3,794,000.00 for loss of Room Charges and had dismissed the Defendant’s counterclaim as having not been proved. 6 [15] On appeal by the Defendant, the Court of Appeal had set aside the said judgment of the Kuantan High Court and had ordered a retrial before another Judge presumably because the remedy given was not what was prayed for. [16] The focus of the Plaintiff’s claim as pleaded in the original Statement of Claim had been on a claim for damages to be assessed for the wrongful presentation of a winding up petition by the Defendant for failure of the Plaintiff to pay the Defendant the sum claimed by the Defendant under the Contract. However the Plaintiff had conducted the trial with evidence being led on the Plaintiff claim for damages for the loss of the Room Charges and the Defendant for the sum due under the Statement of Final Accounts as prepared by the M&E Consultant to justify the sum that it had sought to wind up the Plaintiff for non-payment of what it claimed to be an undisputed debt. [17] It fell upon me to hear the matter upon the Court of Appeal ordering a rehearing. Parties were amenable to amend their respective Statement of Claim and the Amended Defence to Counterclaim and so the amendments were effected to the Pleadings by consent and a Bundle of Amended Pleadings was filed for ease of reference. Both parties also agreed that there was no need to adduce fresh evidence and that this Court may 7 proceed to decide after perusing the Notes of Evidence (“NOE”) of the trial in the Kuantan High Court and after reading the written submissions of counsel and hearing both counsel. [18] After studying the NOE I agreed with both counsel that this was a matter where this Court could decide based on the evidence adduced which primary evidence was in the written letters, documents, statement of accounts, minutes and reports filed with the Kuantan High Court and made available to this Court without any disadvantages that may be had arising out of not having the audio-visual opportunity to hear and see the witnesses. Principles Whether the Plaintiff had proved the Defendant’s breach of the contract and the damages arising naturally from the breach in the loss of the Room Charges for the relevant period [19] To begin with there is no LAD clause and even if there is one, it is for the Plaintiff to prove its loss as stated in Selva Kumar A/L Murugiah v Thiagarajah A/L Retnasamy [1995] 1 MLJ 817 which was reaffirmed by a later Federal Court case of Johor Coastal Development Sdn Bhd v Constrajaya Sdn Bhd [2009] 4 MLJ 445. 8 [20] There was also no clause on issuance of a Certificate of Non Completion which is normally issued upon the expiry of the Completion Date so that the Defendant would be put on notice that LAD is payable if it can be proved. [21] Bereft of these 2 clauses normally found in construction contracts, there is difficulty in the Defendant completing the M&E Works by 30.11.2009 when along the came Variation Orders approved by the M&E Consultants. The rudimentary agreement is also devoid of any clause on application for extension of time. [22] The Variation Orders were to the tune of RM879,762.84 as can be seen in the Defendant Core Bundle of Documents page 32. As there is no provision for extension of time, it has to be implied that a reasonable time has to be granted for additional work done. [23] The term implied here would pass the officious bystander test stated in Shirlaw v Southern Foundries (1926) Ltd [1939] 2 KB 206 at page 227 where McKinnan LJ described an implied term to be “....something so obvious that it goes without saying; so that, if, while the parties were making the bargain, an officious bystander were to suggest some express provision for it in their agreement, they would testily suppress him with a common “Oh, of course!”. 9 [24] This is more so in a construction contract where variation works are not uncommon and that there would generally be an extension of time clause in the event variation works are instructed by the Superintending Officer. In the absence of such a clause one can infer and imply that a reasonable extension of time would be granted. [25] This reference to an implied term can also be justified by the Business Efficacy Test as propounded in Luxor (Eastbourne) Limited and Others v Cooper [1941] AC 108 where Lord Wright speaking from the House of Lords at page 137 described an implied term to be “...there may be cases where obviously some term must be implied if the intention of the parties is not to be defeated, some term of which it can be predicated that “it goes without saying”...necessary to give to the transaction such business efficacy as the parties must have intended.” [26] In BP Refinery (Westernport) Ptd Ltd v Shire of Hastings Council (1977) 16 ALR 363, the Privy Council helpfully set out the principles upon which the court will act in implying terms to the contract. i.e. 1)The term must be reasonable and equitable. 2) It must be necessary to give business efficacy to the contract so that no term will be implied if the contract is effective without it. 10 3) It must be so obvious that is goes without saying. 4) It must be capable of clear expression. 5) It must not contradict any express terms of the contract. See Yap Nyo Nyok v Bath Pharmacy Sdn Bhd [1993] 2 MLJ 250 and the Federal Court case of Sababumi (Sandakan) Sdn Bhd v Datuk Yap Pak Leong [1998] 3 MLJ 151 where the Federal Court applied both the “officious bystander test” and the “business efficacy test”. [27] Learned counsel for the Plaintiff had cited the above cases to justify importing implied terms that the Defendant as contractor would properly carry out the works with proper workmanship and materials. That is already a given and in fact the cases cited would be more relevant to importing and imposing an implied term of extension of time if additional Variation works are instructed, in this case by the M&E Consultant. [28] Time is generally not of the essence in a construction contract and if the Plaintiff had wanted to declare the Defendant in default after 30.11.2009, one would have expected a Notice of default given to the Defendant. As no Notice was given time becomes at large and the Defendant as contractor should complete the works within a reasonable time. 11 [29] The Defendant handed over the building with the works duly completed on 6.1.2010. In the circumstances I do not think that the Defendant could be said to be in default since 1.12.2009 till 6.1.2010. [30] This is also a case where the Plaintiff had agreed to a scheduled monthly payments to the Defendant but had defaulted in the payments. The final Contract Sum after negotiation and with a 3% discount given from the Quoted Sum was RM9,780,726.00 with a fixed payment schedule in the following manner: Gross Retention Net -Sept’ 09. 3,000,000. 150,000. 2,850,000 -Oct’ 09. 1,000,000. 50,000. 950,000 -Nov’ 09. 1,000,000. 50,000. 950,000 -Dec’ 09. 1,000,000. 50,000. 950,000 -Jan’ 10. 1,000,000. 50,000. 950,000 -Feb’ 10. 500,000. 50,000. 500,000 -Mar’ 10. Balance [31] The Plaintiff paid the initial first few payments according to the agreed payment schedule in the Contract. However the Plaintiff defaulted in November 2009 at a crucial time when the Defendant had a balance one month to complete the Works. 12 [32] The Plaintiff tried to make it up for the month of December 2009 in the sum of RM1,057,863.00 though this still fell short of the combined sum of November and December 2009 of RM1,900,000.00. [33] The fact that the Hotel commenced operation on 16.1.2010 was admitted by the Plaintiff’s own witness PW 1, Mr Tan Wee Lee, the Manager of the Plaintiff as follows at page 50 NOE: “113) S: When did the Hotel commence operation, isn’t it 16.1.2010? J: Yes, we announced it to the public on that date. 114) S: And it’s also posted on your website that the Hotel commenced business on 16/1/2010? J: Yes, it was” [34] In a case like this where there is no Notice of default, no Certificate of Non-Completion and delay in the agreed schedule of payment by the Plaintiff, it can hardly be said that the Defendant as contractor was in default from 1.12.2009 to 6.1.2010. [35] Assuming for a moment that there was breach on the part of the Defendant in failure to complete the works by 30.11.2009 and only completed by 6.1.2010, has the Plaintiff proved their loss in the Room Charges for the year 2010 from January to December based on total of 13 non-saleable rooms amounting to RM 3,823,960.00 as claimed in the Amended Statement of Claim? [36] To begin with the damages has to be strictly proved. In Popular Industries Limited v. Eastern Garment Manufacturing Sdn Bhd [1989] 3 MLJ 360 it was highlighted as follows at pages 367-369: “It is axiomatic that a plaintiff seeking substantial damages has the burden of proving both the fact and the amount of damages before he can recover. If he proves neither, the action will fail or he may be awarded only nominal damages upon proof of the contravention of a right. Thus nominal damages may be awarded in all cases of breach of contract. And, where damage is shown but its amount is not proved sufficiently or at all, the court usually decree nominal damages. When, as here, the claim is for the difference between the contract price and a clear and undoubted market price, absolute certainty in proving damages is possible and therefore the court will expect precise evidence to be given. … In all the circumstances, reason and justice pointed to inevitable conclusion that although the plaintiffs had shown the fact of damage, 14 no evidence or no sufficient evidence had been adduced as to its amount with the perhaps unfortunate result that it is virtually impossible to assess damages. Accordingly, all I can do is to make an award of nominal damages of US500, that being the currency of the contract.” [37] There is no basis for the Plaintiff to claim the gross Room Charges because if at all there is loss suffered by the Plaintiff it must be confined to the loss of profit attributed to the Rooms Charges that could not be charged because the guests have to be turned away as a result of the rooms not being ready. [38] However there is no evidence led as to the costs in running the Hotel when divided by the number of rooms. The damage suffered must be limited to the loss of profit and not loss of Room Charges or loss of revenue. To charge loss of Room Charges to the Defendant would mean there is no costs element at all in the running of the Hotel! That cannot be right. Costs in running a Hotel would cover staff costs, food and beverage costs, utilities, marketing and promotion costs and the like. [39] From the documents prepared by the Plaintiff to substantiate and support their claim for loss of Room Charges there is clearly a case where going by rooms available for the various months from January to December 15 2010 there is not full occupancy of the rooms available. See pages 733-745 Tab O of Plaintiff’s Core Bundle of Documents. [40] From the evidence of PW 2, Miss Laura Daniel, who worked as a secretary in TCY Century Management Sdn Bhd, the company that manages the Hotel, we learned that the occupancy rate of the Hotel even based on the rooms available, according to her, was 20.44% in January 2010 andincreases to 53.05% by December 2010. As she only started work in August 2010 she had no personal knowledge of the so-called loss of Room Charges from January to July 2010. When asked why the rooms were not let out she was candid to admit that technically she did not know. [41] That being the case, there is no basis for charging the so-called Rooms not available to the Defendant when the Plaintiff themselves could not fully let out the available rooms. It is of course not unusual and indeed quite common for a new hotel not to have full occupancy during the initial years of business. To charge the Defendant based on a 100% occupancy when that was not achieved throughout 2010 would be to require the Defendant to pay for what the Plaintiff could not achieve on their own and that would amount to a windfall and be against all known principles of assessment of damages! 16 [42] Learned counsel for the Defendant advanced yet another ground as to why the Plaintiff is not entitled to a claim of RM3,823,960.00. The Plaintiff has entered into a management agreement whereby one of its subsidiaries TCY Century Management Sdn Bhd (“TCY”) shall manage the Hotel and pay to the Plaintiff 30% of the net revenue as provided for in Clause 4.2. The agreement is at Tab V of the Plaintiff’s Core Bundle of Documents. [43] It is trite law that even wholly owned subsidiaries are separate legal entities from its parent company. To make it even clearer it was provided in Clause 4.5 that TCY was not operating the Hotel as an agent of the Plaintiff; in other words TCY was a separate and distinct entity operating the Hotel in its own right. [44] If authority is needed one can cite the case of Mackt Logistics (M) Sdn Bhd v. Malaysian Airline System Bhd [2014] 2 MLJ 518 where it was observed that: “[24] In Malaysia, the Salomon principle was applied in Abdul Aziz bin Atan & 87 Ors v. Ladang Rengo Malay Estate Sdn Bhd [1985] 2 MLJ 165. There, the issues that come up for determination were whether the estate was sold and, if so, whether a change of employer took 17 place. The court dismissed the appeal and held that an incorporated company was a legal person separate and distinct from the shareholders of the company. At pp 167-168, Shanker J had this to say: It is trite law that an incorporated company is a legal person separate and distinct from the shareholders of the company. The company from the date of incorporation has perpetual succession and the Companies Act provides that the liability on the part of the shareholders to contribute to the assets of the company will be limited in the manner provided by law and its memorandum and articles of association. The whole point of forming a limited company is that the shareholders can have in their hands the management of the business without incurring the risk of being under unlimited liability for the debts of the company. ……. [26] Zakaria Yatim J (later FCJ) in Bank Bumiputra Malaysia Bhd & Anor v. Lorrain Esme Osman & Ors [1987] 1 MLJ 502, rightly held that a holding company and its subsidiary are separate entities.” 18 [45] There is no evidence that the Plaintiff has not received the agreed fees for the year 2010. On the contrary the evidence led is that the Plaintiff had received RM2.477 million from TCY in 2010. The evidence is borne out by the testimony of PW 1, the Manager of the Plaintiff in cross-examination as follows at pages 137-138 of the NOE: “6) S: Do you also know that from 11/12/2009 whatever income collected from the hotel ought to go to TCY Century Management Sdn Bhd, correct? J: Yes 7) S: Do you also agree that from 11/12/2009 whatever monies that Tan Chang Yong can collect in respect of this hotel will only be 30% of what Century Management has collected, correct? J: Yes. 8) S: Therefore, do you agree with me if you look at Enc 61 page 72, about the revenue of the company and the group and do you agree with me that at page 72, in respect of the hospitality income of RM2.477 million which goes to Tan Chang Yong Holdings, correct? J: Yes. 9) S: So, therefore in 2010, RM2.477 million if this agreement is accepted is only 30% of the revenue of the Hotel, correct? 19 J: Yes.” [46] There is a yawning gap between the sums as given by the Manager PW 1 in that 30% of the gross revenue of the Hotel in 2010 was RM2.477 million and that of PW 2 the secretary of the TCY that manages the Hotel as based on her evidence, the whole of the gross revenue from the Room Charges is only RM2,265,363.39 by adding up the revenue from January 2010 to December 2010 from pages 734-745 of the Plaintiff’s Core Bundle of Documents. [47] At the end of the day one cannot escape the observation that the documents produced by the Plaintiff itself do not support and substantiate the Plaintiff’s loss. In fact the contradiction in the gross revenue from the Room Charges between the evidence of PW 1 and PW 2 would cast doubts of the reliability of those sums from which the Plaintiff is trying to project the loss of revenue from the Room Charges for the whole of 2010 attributable to the breach by the Defendant of the Contract. One is reminded of the dicta in Sony Electronics (M) Sdn Bhd v. Direct Interest Sdn Bhd [2007] 2 MLJ 229 where it is summarized as follows in the head notes: (1) It was clear that the statement of account exhibited were by themselves not sufficient to establish the respondent’s claim for 20 damages. They only showed profit for 1996 and 1997. They did not show how the alleged loss had come about. The respondent failed to prove the contents and show how their contents were related to the alleged breach of the agreement. No evidence whatsoever was led by the respondent with regard to the computation or breakdown of the loss allegedly suffered therefrom flowing from the breach (see paras 53-54). (2) The respondent’s failure to produce or tender the account books or the necessary support documents upon which the audited statements of account were based is fatal to his claim for damages. Thus, the audited statements of account and the respondent’s oral evidence in connection therewith were inadmissible (see para 55). (3) In a situation where there is an infringement of legal right such as this but where there is no basis for ascertainment of the amount of loss suffered, a nominal damage may be awarded (see para 97)…” [48] From the Plaintiff’s own documents stating the number of rooms available per month. one would notice that even assuming for a moment that the unavailable rooms are attributed to the fault of the Defendant somehow, there is still no 100% occupancy of the so-called available rooms. Therefore there is no room for the argument that guests had to be 21 turned away because there is full occupancy of available rooms with the result of loss of Room Charges leading to loss of profit. [49] This is the case every month for the whole year of 2010 and even though the occupancy rate has improved by December 2010 it was just 53.05 %. To calculate loss of profit based on loss of revenue in the Room Charges would not only be contrary to all known principles of assessment of damages without taking into account the costs factor but it would also be totally unrealistic to calculate based on the projection of 100% occupancy for all the rooms every month for a hotel in the first year of its operation. [50] The Court of Appeal in Lay Hong Food Corporation Sdn Bhd v Tiong Nam Logistics Solutions Sdn Bhd [2017] 1 LNS 708 rejected self- serving summaries of losses suffered by the Plaintiff without the empirical base documents to substantiate and support the base data. The Court of Appeal astutely observed as follows: “48. On another note, the basis of the claim by the Plaintiff (TN Logistics) for damages for loss of profits is based on an average of sales multiplied by 6 months. The Plaintiff (TN Logistics) is relying on the average gross sum of the invoice value. This cannot be an accurate figure as overhead costs such as petrol, the costs of hiring of drivers, 22 operation costs and maintenance has to be factored in, to arrive at a net figure. Only then can a realistic profit figure be arrived at. To allow such a manner of calculation as adduced by the Plaintiff (TN Logistics) would be to allow the Plaintiff (TN Logistics) to claim for more than what it was entitled to, which is plainly wrong. The Federal Court in SPM Membrane Switch Sdn Bhd v. Kerajaan Negeri Selangor [2016] 1 CLJ 177 had occasion to deal with this point when it held that: "However, we do not approve of the appellant's method of calculation for the loss of profits...This calculation does not reflect the principles of compensation for loss of profits and will put the appellant in a position well beyond that which it would rightfully be in, had the contract been properly performed. A calculation based on "commissions", that is to say receipts, is very different from a calculation based on "profits'. To award damages based on commissions would completely disregard the fact that had the contract been properly performed the appellant would have had to incur expenses and costs of operation, among other things. The proper sum should therefore be net of all the expenses that would be reasonable 23 incurred in the remaining 20 month period. To do otherwise would give the appellant more than they would have obtained had the contract been performed, and therefore more than what they rightfully deserved." 49. It is also to be observed that in making its claim for loss of profits, the Plaintiff (TN Logistics) had produced a sheet of paper (See CB Vol 3 page 503) known as “Lay Hong Billing summary" in the sum of RM1,555,675.14. This sheet of paper is unsigned. There were no primary documents or audited accounts produced by the Plaintiff (TN Logistics) to prove the facts and the amount of the stated sum as loss of profits. Nevertheless, this was accepted by the learned JC as adequate proof of damages for the claim in loss of profits. Edgar Joseph J (as he then was) in his judgment in Popular Industries Ltd v. Eastern Garment Manufacturing Sdn Bhd [1990] 2 CLJ Rep 635; [1990] 1 CLJ 133; [1989] 3 MLJ 360 which has since been adopted by the Court of Appeal and Federal Court observed that this is not the appropriate method in proving of damages when he said the following at pages 366-369: "I now turn to consider the crucial question: have the plaintiffs proved their claim for damages as alleged or at all? With regard 24 to this part of the case, I would preface what I have to say by referring to certain well-established principles. It is axiomatic that a plaintiff seeking substantial damages has the burden of proving both the fact and the amount of damages before he can recover. If he proves neither, the action will fail or he may be awarded only nominal damages upon proof of the contravention of a right. Thus nominal damages may be awarded in all cases of breach (see Marzetti v. William ). And, where damage is shown but its amount is not proved sufficiently or at all, the court will usually decree nominal damages." 50. In Popular Industries Ltd v. Eastern Garment Manufacturing Sdn Bhd (supra), the Chartered Accountant who was called as a witness to prove the fact of damages, produced a sheet of calculations, P76 which was to show the estimated losses suffered by the plaintiffs therein due to the non delivery by the defendant of the goods. This method of calculation without any independent evidence was not approved by the Courts as enunciated by Lord Goddard in Bornham- Carter v. Hyde Park Hotel [1948] WN 89: Plaintiffs must understand that if they bring actions for damages it is for them to prove their damage; it is not enough to write 25 down the particulars, and so to speak, throw them at the head of the court, saying. "This is what I have lost, I ask you go give me these damages". They have to prove it." 51. This method of calculation by using a sheet of paper consisting of summaries of billings without more has been repeatedly rejected by our courts. (See Sony Electronics (M) Sdn Bhd v. Direct Interest Sdn Bhd [2007] 1 CLJ 611; [2007] 2 MLJ 229: Wasal Construction Sdn Bhd v. Boh Huat Chan Timber Products Sdn Bhd [2013] 1 LNS 1269; [2014] 4 MLJ 294). 52. The Supreme Court case of KPM Khidmat Sdn Bhd v. Tey Kim Suie [1994] 3 CLJ 1; [1994] 2 MLJ 627 established the rule of evidence that "when documentary evidence is tendered, primary evidence of the said document must be adduced except in cases under section 65 of the Evidence Act 1950. 53. PW 2 in his evidence admitted that the “Lay Hong Billing Summary" from January 2008 - March 2009 (page 503 CB 3) was produced as proof of total sum of RM1,555,675.14 and that he was not the maker of such summary. 54. Balance Sheets or Summary of Billings do not by themselves prove the facts stated therein. It has to be proven like any other 26 fact, be it affidavit or otherwise. The facts as stated in the Summary of Billings are mere statements and it cannot be taken as proving that the statements are correct. It has to be proved by calling the maker to explain the facts and the basis of the calculation of the amount which is being claimed. In our present case, no evidence of the basis of the summary of the billings was adduced. 55. In the upshot, in proving damages, real or factual evidence must be adduced as opposed to mere summaries or general estimations and conclusions before a party can succeed in its claim.” (emphasis added) [51] There is also no basis for saying that the Defendant had failed to rectify the air-conditioning problem in the Hotel rooms resulting in the rooms not being available for guests to use. There is no written notice to the Defendant setting out the rectification works that are required to be done and rooms and floors where these works have to be done. [52] The Plaintiff said that a lot of guests had complained of the air- conditioning not being cold enough. If that be so one would have expected the Plaintiff to produce the complaint form or at least the Job Sheet form duly filled up by the maintenance staff attending to the problem or some 27 contemporaneous reports of the maintenance team. None of these were produced and so what we have is the Plaintiff’s mere “say so”. That falls below the proof that is required on a balance of probabilities. [53] The only written complaint of air-conditioning being not being cold enough was made only in October 2010 some 10 months after the completion of the M&E works and it was only at Level 9. This was admitted by the Manager of the Plaintiff PW 1 in Q&A 111 at page 49 NOE. [54] The Defendant had duly attended to it and the readings taken of the temperature showed that the problem had been rectified. The representative of the company that manages the Hotel, TCY, had also signed off on the “Air Conditioning Testing Sheet”. The Discharge Temperature and Room Temperature of all the 24 Rooms on Level 9 of the Hotel were tabulated to indicate that the problems had been rectified. After that incident there has been no other complaints that the Plaintiff could produce in writing. [55] If indeed the Plaintiff had to attend to the air conditioning problem by calling outside contractors to attend to the problem, there would have been invoices and receipts of payments made for the repairs for it was alleged that the air conditioning problem was not just the 9th floors but other floors as well affecting a few hundred rooms! 28 [56] None of these were produced and the Plaintiff has stopped claiming for the period after 2010 signifying that whatever problems were there, they had all been attended so. [57] As the Defect Liability Period is 18 months from the date of completion of the whole of the M&E Works, one would have expected any problems with the Works to be put in writing to the Defendant and if the Defendant did not attend to it, then the Plaintiff would proceed to engage third party contractors and deduct the costs from the 5% retention sum. [58] At any rate there was no 100% occupancy of those rooms available to guests if one goes by the Plaintiff’s own summary and that certainly does not justify a claim against the Defendant for the loss of the Room Charges when in any event the Plaintiff’s own evidence was that even the available rooms were not fully occupied. [59] This is also not a case where it would be justified to claim for loss of profits from 1.12.2009 to date of opening on 16.1.2010 for it is only too obvious that after the completion of the renovation works there is the need to furnish the rooms and to complete the Interior Design works and some time to get the staffing, marketing and promotion done. 29 Whether the Defendant had proved its Counterclaim on a balance of probabilities [60] I am satisfied that the Contract was a provisional sum Contract for its terms read as follows: “All Quantities Indicated are provisional only. Tenderers (ie the Defendant) is to determine at site the actual dimensions and site conditions and price accordingly.” It was tendered as such by the Claimant in their Tender Documents that included the Schedule of Tender Price and the Summary of Prices dated 27.8.2009 and 31.8.2009 respectively and which were incorporated by the Plaintiff in the Confirmation Letter dated 1.9.2009 that formed the Contract between the parties. See pages 1-15 of Defendant’s Core Bundle. [61] The meaning of a “provisional sum Contract” has been explained in Midland Expressway Ltd v Carillon Construction Ltd and other [2006] EWCA Civ 936 : Vol. 107 Con L.R 235 May L.J said at page 936 para 1: “The term provisional sum is generally well understood in the construction industry. It is used in pricing construction contracts to refer either to work which is truly provisional, in the sense that it may or may not be carried out at all, or to work whose content is undefined 30 so that the parties decide not to try price it accurately when they enter into their contract. A provisional sum is usually included as a round figure guess. It is included mathematically in the original contract price but the parties do not expect the initial round figure to be paid without adjustment. The contract usually provides expressly how it is to be dealt with. A common clause in substance provides for the provisional sum to be omitted and an appropriate valuation of the work actually carried out to be substituted for....but its precise meaning and effect depends on the terms of the individual contract.” [62] As to the mechanics of final price determination it was further held as follows: (1) A provisional sum is by definition a sum provided in a building contract in respect of work which cannot be sufficiently defined or properly evaluated at the time when the contract is executed. In practice a provisional sum is generally the best guess that can be made at the time. It is "provisional" because neither party is held to that figure, if the actual cost turns out to be higher or lower. 31 (2) It is a necessary feature of the provisional sum mechanism that when the actual value of the work in question is identified and added to the contract price, the provisionally estimated value is deducted. If the provisional value is not deducted: (a) the whole system breaks down; (b) the contractor is paid twice over and; (c) the provisional sum loses its provisional quality, the so-called provisional sum becomes a fixed and definite sum which the contractor sum is bound to receive in any event (even if he does nothing to earn it)..." [63] Thus the provisional sum is a guesstimate and at best an estimate and the final sum has to be ascertained and accurately determined based on an assessment and evaluation of work done by way of measurement where quantities of work is concerned. The M&E Consultant, JPK & Associates had recommended to the Plaintiff in the Statement of Final Account dated 11.6.2010 at page 28 of the Defendant’s Bundle of Documents with the details of the Statement of Final Account from pages 30-82. The recommended Final Account Sum was RM9,624,049.54. It was made up of the following: 1.0 Original Contract Sum RM10,013,525.20 2.0 Revised Contract Sum RM 8,744,286.70 32 3.0 Net Variation Order No.1-3 RM 879,762.84 RM 9,624.049.54 [64] It is too late in the day for the Plaintiff to assert that the Variation Orders were not authorized. The M&E Consultant is deemed to be the Plaintiff’s agent at the site where the M&E Works are concerned. As provided for in Clause 6d) of the Confirmation Letter the M&E Consultant shall approve all other works relating to M&E scope of works. The justification for the variation works are as set out at pages 32-33 and in particular pages 34-36 of the Defendant’s Core Bundle of Documents. As can be seen the M&E Consultant did not approve the sum as claimed by the Defendant but did its own verification and recommended for a reduced amount from RM10,013,525.20 to a revised reduced sum of RM8,744,286.70 and the VOs claimed of RM1,002,569.45 to RM879,762.84. [65] However still no payment was made and so there was another meeting held involving the Plaintiff, Defendant and the M&E Consultant where it was agreed that the M&E Consultant would come up with a revised payment certificate assessing the value of the Defendant’s work with the omission of the sum verified by the Consultant with respect to the air-conditioning system. The Defendant 33 acceded to it so that payment long outstanding may be effected to them. [66] The M&E Consultant came up with Progress Payment Interim Certificate No.3 or PPIC/3 dated 27.8.2019 made in favour of the Defendant and addressed to the Plaintiff for the sum of RM6,320,860.81 at page 83-85 of the Defendant’s Core Bundle of Documents. [67] Again there was no payment forthcoming and so the Architect PW 4 Kevin Woo Thin Fook had a meeting with the Defendant on 1.10.2010 at the request of the Plaintiff to resolve the impasse. In the letter dated 4.10.2010 from the Architect, KW Associate Architect Sdn Bhd to the Plaintiff and copied to the Defendant, it was recorded that they had informed the Defendant that Level 9 was ready to be handed over for the purpose of testing and commissioning of the air-conditioning system. It was also recorded that at the meeting held on 1.10.2010 the Defendant had pleaded that the latest certification of payment by JPK & Associates be released and remitted in good faith for work done to-date then. 34 [68] What is of critical importance is what was recorded at paragraph 3.0 of the said letter at page 87 of the Defendant’s Core Bundle of Documents as follows: “Value of Work Done - Independent Audit. (1) CSSB purposed (sic) a meeting be held with the independent auditor to peruse the element breakdown and details of the M&E, in order to derive at a fair and equitable contract sum (revised, if any). (2) In the absence of an agreement, an independent Quantity Surveyor will be nominated by the Architect (as an independent and disinterested party) and appointed to carry out an independent audit of the value of work done to-date. (3) The fee of such appointment shall be agreed by both parties and it is, both mandatory and essential that the parties agree to abide by the decision of the independent QS be final and binding in the interest of finality of the issues at hand. (4) KWAA to propose names of Independent Quantity Surveyor within the next 7 days.” (emphasis added) 35 [69] There is no suggestion by either the Plaintiff or the Defendant that the above does not accurately record the agreement of the parties. Though there was some initial dissatisfaction arising chiefly out of further delay to payment, I am quite satisfied that the Defendant did not protest to this mode of resolving the dispute of the rates and the quantities of the M&E works were concerned and finally went along with it, albeit reluctantly and not so cooperatively and participatively at times. [70] This can be seen in the Architect’s letter to the Plaintiff dated 9.3.2012 on the failure expressed by the Architect PW 4 to get the Defendant to agree to a settlement to obviate the need for the appointment of an independent Quantity Surveyor. This letter was copied to the Defendant. [71] Finally the Plaintiff responded to one of the 2 names proposed by the Architect as the Independent Quantity Surveyor in KW Hinds Bluncian Sdn Bhd (“KWHB”). The Architect duly informed the Defendant by their letter of 9.9.2011 at page 807 Tab S of the Plaintiff’s Bundle of Documents. [72] I appreciate that the Defendant had initially contended that the Contract was a Lump Sum Contract as the Plaintiff had asked for a 36 negotiated price of less 3% for all quotes items. Even assuming for a moment that it might have been a Lump Sum Contract, the conduct of the Defendant in agreeing to the M&E Consultant evaluating and assessing the value of work done and now agreeing to an independent Quantity Surveyor to evaluate and assess the M&E Works done would supersede all previous contractual agreements where the rates and quantities are concerned with respect to the actual work done plus Variation Orders. [73] I have scrutinized the “Final Account Analysis Report on the M&E Works Done” prepared by KWHB at pages 90-115 of the Defendant’s Core Bundle of Documents. I must say it is very detailed setting out each measurement and the rates used and the justification for using the rates. [74] PW 1, Mr Tan Wee Lee, the Manager or more effectively the CEO of the Plaintiff, testified in A 30.1(page 27 NOE) the following: “The actual value if works by the Defendant is only about RM7,091,774.80 and we have paid them RM4,857,863.00 leaving a balance of about RM2,233,911.80. [75] The Report of KWHB states categorically and clearly the value of the M&E Works done to be RM7,091,744.80 and after 37 deducting the amount paid of RM4,857,863.00 there is a balance sum of RM2,233,881.80. [76] Both parties are bound by this valuation done by KWHB as agreed by both of them before the valuation was conducted. They are both estopped from denying the same and having examined the Report of KWHB I have no good reason to reject it, based as it is on reasonable valuation of acceptable and accepted rates in the market. Pronouncement [77] For the reasons given above I had dismissed the Plaintiff’s claim for loss of Room Charges as claimed in the Amended Statement of Claim and allowed the Defendant’s Counterclaim of RM2,233,911.80. The above shall carry interest at the rate of 5% per annum from date of filing of Counterclaim i.e. from 14.6.2011 to date of realization. [78] After hearing parties on costs the Court allowed costs of RM120,000.00 to be paid by Plaintiff to Defendant. Date: 15 September 2017 - signed - Y.A. LEE SWEE SENG Judge Construction Court Kuala Lumpur 38 For the Plaintiff : Jacob Goldie Messrs Jacob Goldie S. S. Chew For the Defendant : Ringo Low and Ting Lee Ping Messrs Ringo Low & Associates Date of decision: 28 April 2017	45,905	Tika 2.6.0
JA-22NCC-10-01/2017	PLAINTIF Collin Wong Her Shenq DEFENDAN 1. Seng Fan Tien (NRIC No: 740912-01-5621) 2. Great Eastern Life Assurance (Malaysia) Berhad 3. Affin Bank Berhad (Company No: 25046-T)	null	11/09/2017	YA DATO' DR. CHOO KAH SING	https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=654013f9-2807-4628-b1c7-f3701e0f1052&Inline=true	Page 1 of 7 DALAM MAHKAMAH TINGGI MALAYA DI JOHOR BAHRU DALAM NEGERI JOHOR DARUL TAKZIM GUAMAN SIVIL NO: JA-22NCC-10-01/2017 ANTARA COLIN WONG HER SHENQ PLAINTIF DAN 1. SENG FAN TIEN (NRIC NO: 740912-01-5621) 2. GREAT EASTERN LIFE ASSURANCE (MALAYSIA) BERHAD 3. AFFIN BANK BERHAD (COMPANY NO: 25046-T) DEFENDAN-DEFENDAN DECISION (Enclosure 11 – striking out) CHOO KAH SING Judicial Commissioner High Court Johor Bahru Date: 11.9.2017 Page 2 of 7 Introduction [1] Enclosure 11 is an application filed by the 2nd defendant to strike out the plaintiff‟s writ and statement of claim pursuant to Order 18 rule 19(1)(a), (b) or (d) of the Rules of Court 2012. [2] On 14.8.2017, this Court allowed the 2nd defendant‟s application. The reasons for the decision are set out as below. Brief Facts [3] The plaintiff has relied on the cause of actions of fraud and tort of conspiracy against the defendants, and in addition against the 2nd defendant, the plaintiff also pleaded negligence on the part of the 2nd defendant. [4] The salient facts of the plaintiff‟s case are that the plaintiff bought four insurance policies from the 2nd defendant between the period December 1993 and May 2005. [5] Sometime between the period January 2008 and February 2010, three of the insurance policies were used to take out a loan from the 2nd defendant, and one of the insurance policies was terminated/surrendered. [6] The crux of the plaintiff‟s claim is that at all material times he did not take out any loan from the 2nd defendant using his insurance policies nor did he surrender any of them. The plaintiff only came to know about the status of his insurance policies on 5.1.2011 when he went to the 2nd Page 3 of 7 defendant with the intention to take out a loan using his existing insurance policies. On the same day, the plaintiff immediately lodged a complaint with the 2nd defendant (see Affidavit Helen Quat dated 15.5.2017 – exhibit „GE-1‟ [encl.12]). On 21.1.2011, the 2nd defendant replied to the plaintiff and explained to the plaintiff what had happened to his insurance policies. The plaintiff was not satisfied with the 2nd defendant‟s explanation and proceeded to lodge a police report. [7] After a lapse of six years since the date of discovery, i.e. on 5.1.2011, the plaintiff took out this civil suit against the defendants on 17.1.2017. [8] The pith of the 2nd defendant‟s application to strike out the plaintiff‟s claim is based on the issue of time bar. The 2nd defendant‟s counsel submitted that pursuant to s.6 of the Limitation Act 1953, any action founded on tort the limitation to file an action is six years from the date the cause of action arose. The counsel for the 2nd defendant contended that the cause of action (tort of conspiracy) in the plaintiff‟s claim had arisen during the period between in the years 2008 and 2010 when the loans were taken out and upon the surrender of one of the insurance policies. The counsel for the 2nd defendant further contended that the plaintiff only took out this action on 17.1.2017 and that it is crystal clear the 6 years limitation period has set in since the cause of action arose between the period 2008 and 2010. Hence, the plaintiff‟s action is time- barred. The Finding of this Court Page 4 of 7 [9] The events revolving the timelines in the suit are not contested, therefore, this Court is of the considered view it could determine the issue as to when the plaintiff‟s cause of action arose without having to go through a trial to determine the same. [10] The plaintiff‟s claims are premised on tort of conspiracy and negligence which are subset of the law of tort. It is trite law that an action which is based on tort, the cause of action arises when the plaintiff suffers damage (see Ambank (M) Bhd v Abdul Aziz Bin Hassan & Ors [2010] 3 MLJ 784). [11] In this instant case, the plaintiff suffered damage when his insurance policies had been fraudulently used to take out a loan and surrendered by the agent of the 2nd defendant. The agent who committed the fraud action was the 1st defendant, the plaintiff has alleged. Since the time of damage could be determined which was during the period between the years 2008 and 2010. It can be said that the cause of action arose sometime between in the years 2008 and 2010. When the writ was filed on 17.1.2017, it was after six years calculated from the year 2010 when the last event had occurred. Even if time had started to run on the last day of year 2010, i.e. 31.12.2010, the six years limitation period would have set in on 1.1.2017. [12] This Court could not agree with the plaintiff‟s counsel‟s submission that the plaintiff had suffered damage only when he was officially informed of the position of his policies insurance on 28.7.2015. This Court is of the considered view the latest date when it could be said the plaintiff suffered damage was on 5.1.2011 when the plaintiff was told that that he could no longer take out any loan from his insurance policies. Page 5 of 7 [13] Regardless whether the cause of action accrued on 31.12.2010 or 5.1.2011, the limitation period had set in when the plaintiff‟s writ was filed on 17.1.2017. [14] The plaintiff‟s counsel has submitted that the plaintiff was not in the position to file his case without having all the proper information on 5.1.2011, therefore, the cause of action could not have begun. This Court could not agree with the plaintiff‟s counsel‟s submission. On 28.1.2011, the plaintiff had lodged a comprehensive police report (see exhibit „GE-2‟ encl. 12) detailing all the information which this Court is of the considered view are sufficient to make out a claim in the nature of fraud and tort of conspiracy against the defendants. In fact, all the three defendants were named in the police report. Despite being possession of all those information, the plaintiff did not take out a civil suit against the defendants until after six years had lapsed from the day he discovered the status of his insurance policies. The plaintiff had taken a lackadaisical attitude toward his claim against the defendants. [15] With regard to the cause of action of fraud, the learned counsel for the plaintiff submitted that the cause of action has been postponed by operation of s. 29 of the Limitation Act 1953 which permits the period of limitation of 6 years to start running when the plaintiff has discovered the fraud or could with reasonable diligence have discovered it. The learned counsel for the plaintiff further submitted that the relevant documents pertaining to the events that transpired in relation to the insurance policies were only given to the plaintiff in piecemeal after 5.1.2011. Therefore, the limitation period could not have begun to run on 5.1.2011. This Court is of the considered view that even though the documents in relation to the events were given over a period of time, the reading of Page 6 of 7 s.29 of the Limitation Act does not extend to cover a situation where discovery of information in stages could postpone the limitation period. The wordings “…the period of limitation shall not begin to run until the plaintiff has discovered the fraud….” in s.29 of the Limitation Act 1953 envisage the moment the plaintiff discovers the fraud, and not the continued discovery of more information of the fraud, as the starting point for the limitation period to run. [16] The counsel for the plaintiff also submitted that the 1st defendant, being a bankrupt, has through the insolvency officer informed the court that the 1st defendant is not defending the plaintiff‟s claim, therefore, the plaintiff‟s allegations of fraud and conspiracy against the defendants has been proven. In addition, the 3rd defendant did not plead limitation period in its defence. Hence, the 2nd defendant‟s application ought to be dismissed, the counsel for the plaintiff submitted. [17] This Court could not agree with the plaintiff‟s counsel‟s submissions in relation to the 1st and 3rd defendants‟ positions. The fact the 3rd defendant did not plead limitation could not mean the 2nd defendant‟s pleaded defence of limitation ought to fail. Likewise, if there is any admission by the 1st defendant of the plaintiff‟s claim, it does not preclude the 2nd defendant from relying on the defence of limitation. The issues are distinct and ought to be dealt with separately. The 2nd and 3rd defendants have pleaded denial of such conspiracy, that suffices to contradict the plaintiff‟s claim, and therefore, the burden lies on the plaintiff to prove his case on a balance of probabilities. [18] It is trite that “an action brought outside the limitation period to commence the action can be struck out for being frivolous, scandalous Page 7 of 7 and vexatious and also an abuse of the process of the court” (see Malaysian Civil Procedure 2013, p. 244; see also cases cited: Tan Sri Dato’ Eric Chia Eng Hock v NKK Corp (Japan) [2005] 2 AMR 343; Lim Lek Yan @ Lim Teck Yam v Yayasan Melaka [2012] MLJU 546). Conclusion [19] Based on the above reasoning, this Court allowed the 2nd defendant‟s application to strike out the plaintiff‟s writ and statement of claim on the grounds under Order 18 rules 19(1)(b) and/or (c) of the Rules of Court 2012. This Court further ordered that the plaintiff to pay costs of RM2,000.00 to the 2nd defendant. -SIGNED- ……………………………………….. (CHOO KAH SING) Judicial Commissioner High Court Johor Bahru Plaintiff‟s counsel : Desmond J Louis Tetuan Imran, Shahareen & Co. 2nd Defendant‟s counsel : Andrew Teh (Sara Anthony with him) Tetuan Wong Lu Peen & Tunku Alina	10,204	Tika 2.6.0
22NCVC-352-07/2015	PLAINTIF Dato' Aishaf Falina bt. Ibrahim DEFENDAN 1. Ismail Bin Othman 2. Kerajaan Malaysia 3. Majlis Angkatan Tentera	null	11/09/2017	YA DATUK S. NANTHA BALAN	https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=1b8f5511-35d0-4b51-8d26-2b0cb3c3de44&Inline=true	D \1..m .\lAH1L«\Vl.\H IJNUGI M.\LA\’A DA 1\u.u_.\ Lu,\ll>n< m\H.x(:1.x\I SIYIL} AMA 2 AM ,\k.\ DATO’ AISHAF FALINA BT IBRAHIM (No KP 63092131 in 2; ...FLAINTlF DAN L ISMAIL am OTHMAN (xu, I(P."2ﬂ1I9 02 50:3‘, 2. KERAJAAN MALAYSIA (lviuxgunm mu.” 1.“ Dxrzm .\L1la\>xa} 3. MAJLIS ANGKATAN TENTERA (Mcngcnm '1 mum Lm Dms. .\laIavsm, ...DEFE.\IDANvDEFENDAN OF UD ME H/mp mo Tzhlc of Conlcnls Page InumduL an .. . . . Thc panics and pexsonnlilirs. . .. The problem... . . . The pmmarr; claim (pzr me staxemem of claim — sec") on role .. Issuts la b: tried The evidence rmmmn. I.-vldcnce minurrs police «pm. First defandanvs response . . . Second mu -mm aermdam-s {espouse Dcicclvvc source conk- F;_::5‘:°?‘>'F‘!-".!’!°.-‘ §B3EE::\la\‘&L.-iu we 1 or 52 13. Analysis and cdncxugon 1:. Defzmulinn. . . 15. Waslhere publication? . 1.5. Dnmages ioxdcfamuion. 17. Ncgﬂgence 13. Drspmpen Kym boa 19. 0uIcnm:—Negl.igcncc. 20. Misuse drpdme inloxmnlion 11. Cami‘: ruling Im the isnucs 22. Ordtr Jmzoducuion 1. Them an nu gxouxunls afzu 2 full mal of (In ncuun Th: ma! wuk plmcz on 26 Uczobcr 2U16, I" and 24 .\u\'emb(x 2015. TIME: wunesses mama 11.. behalf or rhe plmnuff and ~Ix wnnzsses 1esuﬂ¢r.l on behalf um: dekndznts. The plnnnffs pleadcd case agam {he defendants 15 for (1; Invasion of puvncy. (.1) mhusz of personal \|n[m-rnmun. <11.) dcfamnuon. my xmslcpxesenuuon md 4v) zl{emnt1\1:}y_n:gh;;Enc: 2 The plmmrr and on ﬁm dzfendanr (“D1") WCIVJ marncd for dvmm mm (7 1:“. mm they wcrc duvorcrd D! 1.. an ofﬁccr um: -nmm Lnux mm. M11 Vm (“'l'LDM") The plalnnff mzxmcd D1 un 22 Ocwbcx mos ' ll.» 1.11 me plmum tlmd mmnngc A: for D1, um. was Ins stmml nurnage. 111: plmurr. marriage .0 D1 cndcd m d.I\.-arc: on 29 April 2010. .=...:.m 21. Counscl fox mg p1mum1..u wbvmrted mm 11 1s unbdxcvnblc and/or unusunl um sud: basxc pcrsoml pnmzulzrs uf 11.; plzmtiff an be In me domzm of .11: HR Info systtm wind-1 1; zcccsublr by 111 111: mcmbexs ofTLDM from about 20111 and 21113 mu] about 111: urn: 11.1; suxt wns med 1.. 2015 .2 for such 1 long mm wuhout Any mmrdlal acnon by 11.: dtfandznrs. pamcularlxf DI 111.1511: 22 Cnunxc] tmphalsxzcd um Dl wnuld 1;: awzn: nf 11 2nd would run: luv: allowed such 'wn-nng" and/or “unz1—uc" pnruculnrs .0 uﬂccl about 111.m1r nnd nughl 10 In (en-mvrd 1. much urhrr, unless of mun: 1.: Wanted am “wrung" parnculns 1a runam 1.1 due HR Info system. 111 support of 11¢. theory 111.1 D1 was “:t5punsihl:" 1'01 111: mtenuon of mg umneous mfonmuon 1.. 11»; HR 1.150 Systrrn. 111: plmnnff ha further pleaded am 131 1.: prone 10 mfcnmng um pnruks um he 1s me son—m—hw of 111: um Tan 5:. 11711111111 Mohamed (ylnxnuffs mm) and/or pmn: m usmp an p\|:11111f('s nzrne (sec: pnugraph 15 nizhe soc). [mm to be Irizd 23 A1 the ml of am ml, Lh: Issuns to bc med was reformulated as follows:— (1) 1.: mac anr cndcnce 1:1 show mm D! was “:espunsxbl:" fox me enontous Infuxn-anon bemg xtmmcd an 1111 HR 1.112. >).<(en-1 mg. 11.5 mam vml-1 1111 p\|:11nufF 1.1111115; 0:) Is (hue my evxdcncz mu D1 “b:ne£\|t=r.\|" (mm me erroneous mrumuuon bung (named m me HR Info syxtem am‘! In: dwnrcc [rum uh: plzlrmfl? (C) I» (hire evxdence am ms chances of pmmnnon would be nffectcd 1f the HR Info sysnem shows am hz had bzen mama! 3 um:$7 (d) Dn m\ulw:mcnr — whether [hr plnnuff 1m pmvzn rm »\ 531.“: of pmbablhlles on Involverncnt at culpzhxlxry ULV mg relmlion of erzontous mforrnaumn wnccmmg Lhc plamnff m me HR mo sysnzvn’ (uy Ir p\|:\nt)ﬂ' dam nu! xucrccd m rm chum zgmnu Dl. «rm. am nzrm lmble for \|1Ic kcmnhnn of erroneous xnfomuuon conoemmg an plalnnff \|n due HR Info mum: (0 Bzxzd on zh: evldmrr, are D2-D3 liable for. a) Invzsmn nfpnvacy; and/or b) Misuse of personal xnfozrnalion; and/ox c) Deﬁmanon. and/oz d) A/Lmpue.-emuon; and/or c) Neghgenc: (,9 Dnzi on have 2 am, of mm mwardx plainlxffto msuzt am p]2mnfFs am: Are pmperly undated m 111: HR Tnfn SVSKCII1? v... :2 mx (h) (1) (1) Hus TLDM plmcn um me azonwus mromunm cunccrmng due plaxnuffwns n. ma HR mu syncln (u:«=r vurw) bccmxic an gluch caused by Lhc mum: cork? Do“ TLDM own 2 duty of can 10 the cx—spous: of m omen m ensnr: um Lhc pexsonnl dam]: of m ax-xkpoun uc plupuly upamd in the HR mu xy<:cmF 15 an nssocunon ox iuxvaposmon of :11: plnmuffs mm: and dcugzuuon mm mm. Su)a1h\|.h's photo and her residuum! addrcss, "d:innulor3"' of Lhe pkunnfi? smc: rh: HR Info syszan has hm. updated (nftcr rhe sun was mm), ma. m Lhe mm the plzmuff untczcdx m my of he: causes of mm against .mma...m, wh:rJ-Aer she .5 gull unndul m Lhc rzhcf: m pirzg-mph 35 (I)-(V1) SOC? A.-summg the plzmuffsucoeeds m any of her causes of uuun agzlnst me defendants, am. what .5 mg appmpnnc quantum of nlzmagn am uhoul-l 17¢ imrded? p... n .4 s: (m; Gwen um 71:: plmnnff was unaware um me H11 mo sysmm mu conlamml cuuntuus uuformznon (nncermng her mzmzl snrux mm m. unnl sh» wzx upped offby sameon: m TLDM on 27 Apnl 2015 (see p.14 31 - plunuffs palm: report) » What dznnggzs has she suffncd by “non of the xnformnuon bung kg,» m an HR Info system until u was nscuﬁnd sumtum: m 2012.. lite: on sun: was ﬁl:d? The evidencz 2a The wnmgsm who (esnﬁed m as Iollawx . Witness 1 Name Witness Slalemenl mwl om Am; Fzlma BI pwm ‘ Ibrahlm vwz Dua'Mnhadh1rB\|n Mzhxdxn P\}v2A _ PW3 Leon Mun Foon P\W3A DV/1 larmul Em Ozhmnn D\X'1A ‘ DW2 LI Kdr. Sluhml Effexldv bm D‘X'2A Slpnn , uws Komzndel Mahd Anf hm own Yumf mwa .\bdulRaziklu\|IV7xgim:un owe». nws Tt.Hnsnnl.\z1zI\|._un_Zul.\|giﬂ1¢ n\w§¢ ‘Dws V ‘L -\2rmb1nAn[m Dwe.-\ me 1: M51 P'la\|nliﬂ‘s evidulce 25 '11.: ..1.m. pans of me p1......;r. cvxdmcn are .. mun...- ~n.mv, .... y... a..:...... mu Cuurt ..., ,.... mu: mi. ... A n-ma .... ..../... ...... zwzms .... ..., ...... ma \d:rmly .... hem wonzfully used ... .... Hurnnn x.......« w............ Sy .... nun... .r ...: mm. M. yxun Nmy nu ma n..ro........... 5.5....) vzhung .. .... ... Drfmdln a... Man: rah: ....u... mum: ...:........... rm mu pubhxhed ... .... mi... pxmex nrnnngsl am... that In: m u.:¢...1...u .... : wmxlxll ..p.=.m... ...... p.......,w.. ... . hum ..s....: ».r...... .u.wu, mu ... ...; lagelbtr A: 199:!“ .; Ms/zms, me am my ...a/.. ......“ ..v............ .m...ea .. .... 3.... In1mrmu<m am... nicmv ... ...... fmm .... wamhal oh}: ma Inlmmalmm 5.5.... .. sin n..- a....... u.....». ....m..«.. 1.: Dvfendnikwu x.....n..az n .. ...... \ag>ca\ um .... Iu n=r...a.... suwlied my ........ .... ... .... ..e.w..: ...r............ ... .... 5... u(....a... .. mg. .. cmnplzle .. Dvm .4... .. ». sud \|..r....mi... smg... Apart rm. uh: Isl w...u..... rm .... (Is: wuld dn mu rm... me Isl Dcfmvdnnl hem . my. pmvhnm .. m: mv. . ma... semm Prnguvuxln mm. now and/or -mp... Pcngulusln MndwIT\|.DM’ ...... ms mm. .5 wzll, Ah: 1; n:re..a.... has uh: vwpenmy ... um ..., ......e W... .. Imvrﬁl from my ...... ..¢/... 1...... x.«xg.......a an ......“ above Hm ...u..:..a ...: am n.vre...s..........:..a~ .... Royal mww... N... .5 ....1...r. pm. .... n.\pmsnh\|hl;- .1 m: 2...: n.«...:.... rc...v=......... Dr M. ys ...a Ihc 3... r>.r...a.... xM.x.ys.... A.....a rams m.....n...a my... yapmmblr 1.. m wrung ...... «..:.¢ ...:............. .. .... ...... :..r............ Syxmu ... .... .1... .....m... ... ma... .... .........» V». v n... ludgad .. palm: «pm .... zmsams .. ammo stalmg amungxl mm am my ..¢.;.....1...r..........o..n.; rm. .....m n., .... In nmm... y... x... pnsmvnl ...... ...: amen; pmvnled mw....u... ...-.....a...... m .... xmd v..(............. Sm... ...... ...... ...o..;'......... ..r............ rm ham M ...u pubhshui ny .... L>¢r....:....: ... ... e.....= mzvnbclxnflhr Raul Mz\|aysuznNavy v... .5 ... sz Subaequenﬂy. . M... .. .:.. mu Mahys.-1 NW; emu .... 5/5/21: 2...: mi med ... W... and g... m. cnnecl xnfnmulvml 5... =.u=q..e...v.. 3.... ........ ..... .... lnlmm .. .5 5.... Ike same and WVWV! .... um: um ...r.m.. .o.. Sywun. m. an .7. cleady a... ham .... Ay.....r.c.....- mum hum m. uid ....m...... Sgxlrm .... 6/mlns .. am, wma. .5 ....e a., uV\:1V W... .. me Rwy!‘ M.:........ mm. mm: mm. .1... 1 haw: .........u.. my 3.. an. new 1.... v...... cm»... ... Wing .. um mu... .........m am 20/5/zols ... an/v-\3 .=;,n..».., m m. ... Defmdmx ...a ...e um. M..-m... N-vy demnhdmg .......p. cm. 5... lb: 5.... ..r.........o.. tn 5: wnmzd ... mg 5.... ...r.............. sm... mu m ....a.r..k¢ ..... .... ..a.... W... ..... m .....m.. -2.... ma/nr ....:....... fnrnsumnfmmxry oﬂerod by Ihesand Dd¢ndm\|5Ixd:nuges M, .......m.s m ...... puvsuzm .. ..., ...............s Issued ........ .c.... mm .a/s/2rns .. ...; ... .xr=...s... m..»....,. .r.= mm. ...... am 20/5/ms hy w., .. ‘‘c¢...nn.: of m..r m the u,. cum... 5.... V1: urlm In... .. ...... 2... hy wly ohegmcred poll ..... bum ..a....... T... an be Soar. .. .2...-no mw........ made ....¢n.... .. .=......... .0 m. »....... ....=.. .«........a vaxuzd .. than bdnrz ....s 5.... nag»... my Ix-mcally ngwowd mun Th:wTnle.l «I... n... s... 1... mrmum ..... pnurtu lhls s.... Ihud) ..........=.. rm.../..........-e in(armaAmn usmg In: 5.... lnlnmm .... Syslun ran lung ...... ... .. um. .... m......... nilhe m.y..~..., W... noes: m. ...... I R... ..».... ‘prInl—ycrvzn" ukzn r.......... mm ...m........... sym. .... A/5/2aI5m.d-ysrzmsn am .5... ﬂawdnnﬂvt ...r.;........... .......... m. ya... ............s.... Syvtm .....u. .5 available .4 pm and .......:r... .........k B;/AH m:vnI1:1)4IfIh:NIvV, . ...........u..,... olhuuhnl ..) Iwm ........ ed .. ..=....«... MI: ......: ... n:....a.... Wm. .. . ms: mu... ......m ...r.......... ..n I M: pnnnyrd u mhnbwming M... "1: .r. Drizndlm .. Ihc nddlnsknawn .. -N... a2u..x.:, v... s........, No 1,1...» 5...... ma». 5. sum .<.... L..........‘ rum Snmvn Addlvss w...... .s. rm and/ar .......z ............a... ..... [was ponn_~¢.l .. hm/mg ....n.... m. lsLD:imdnn\|o-1 2m/znu umch .. .. .......a/..........c ...¢.w........... ..v. m .s. n.r......... r... ...............,- mlnind m. m .... "2... mamqp“ ..c..... H .. r...=...a/........... ...r..........., and o... .s Mil m m ls: Ddenduu xx cunermy manned mm mm: mm) m. holds the puxmm nl’"M-ugmg Drccwv «I Wuma Davuiﬂn“ um. I: . msemd/wrunlnaz infarmalmn ﬂaw 1:... -n ilcse -(team yo 1 ms u...m.ma uvd Ml buuyed My wvm}. dlyuly and yzrsonal mm ml rm be-an inmdcduther: mymm: Ind Idvenlny WI! mm «IV. glvmg III}: rzpvextnuunn mm»: pdﬂndlmrd yams Ixnw aﬁecled emulmnally Ind «mm as my rspmmmn and tmlnhxlvly nu h::vI .rr:m< lam M .n mum-I mm-5 .. busm:>xw«u:n and mu . mm... vavmlu ol gum repulnmn Ind the (me man umme ...rm-ma..." m (he gm Inlnrmalwn smm Wm. rxlslrd Iml wtm pubhﬁhud rm . wrmdernblc um: his gently prcjudlrzd mm unwind mywpuulwn. TVK mu wmng mlnmlmzn mm \| luv: bun cuhabmnng wuh me vs: ogrmm m m.» S-llxwn Mm. u aha m, hnmlul Am-1 dumgiu‘ m In: and my Iepmalmn Hm: lung mu umma m.m...r.... Systcln w n ymr .. ., iianﬁly ,...a palanlllnfmlan ...,.mm...s: :.c..m.:...-..n.. s,m...: s...« lhnm: -mam: - um; ‘.. m umuuhul mm“ lnfammumx Syxlnm m an Iwd m 3 am. I kmm mm m he the dam nflh: ls! Del:-nd-II‘: 1m wnlnay mu. hi: nme1:\| wi .my ind nam:.\|denI1ly Ind pawn!‘ mlmmxmm u><z\d luv: .1 Van rm yubllshzd m 111: um lntwmnian Sgsmn m mm games mm. on/xx mm zm/20:1 ......x mm mm m. mm am Sun W n ed Drl/IVY mm July zms mm Khan 2 yam Wm :..p,.n.¢ nlx\|? Only um um; Sun mm, Lk Dzfcndlms wok hzlnea scum: u. ..«a.... nu: mm (M) mmma the rum mm... mm xnlnnvuﬁml m In. mid lnfomlurm S_vsI=m mm can z. .msm n, ...:mm .n (M member; af xh: mm a... mph culwclmn “ dun: law In: nu! my .......=. with person! mrmmm am. am has mud) um vnwuly uxd mm :4: am m the nu! lufolmwmv Syxlan Vor . lung um: bcfnn ma. Sm: WI: mlluled ms cu. I7: scan in the mm [mm nunnpl mu “Cab/znyn Pemndxngmv Mnrkas new. Lu!‘ and 22/4/am m sum; Wm 01: am Defendzm dlcgcd Llnu m, person! a... has kxvn rerrmved fmm mg -mm .«mr and pm I”gulnn\|=:" mm mm vmuld not be mpwm ana.rmm.mn wan!-«HIMm><=I\|Iumm1IhrqvIﬂ:cvv-holsfrumd n:ﬂAgcuInru1I2nnau\|\3 ustdmdotdiscmnmlad mnmamu am Pan :7 .: sz Inn unh: ucw mu um: Venn and lhzxclmn mm b, m an Dzlzndnm In lemme mv pawn! am rm. mc sud Inlnlmanmw Syﬂcm .5 m udmuxmn mu Ila: 1m mm. am Dtlrndanls was wmng ,.. hlwmg my prnnnﬂ a... Inswdtlhc wd Inlwmnlmn Sysmm In my cvivmlhe «am mg and/nrunwcvn(wrmllu;n.mnmnrI1mine sum Inlurmalmn ayxlem m ; rzllhwly long \iln= and . wrung has bum cummllkvl a, nu Defcrndnnlxvzspbcnvcly wmanm lllnk In an: kuan why .u (hue r.-u luppennﬁ M, ywm.v mfnnnalmn ......1 hurt u... ..r... 5, [he I-A n.r...a.. u . nnlxl-cuhlk mm/or Imposf e m inch mu um/nr ..,.m.» \|n4urnuI-an m M. m nu! :.nm...u.. swam far .1 Ion] nnlax n-m.um.: n. be unm/or uusndto m.. u to by -he In n.n...u..... m m Deleudxm r..m.:. .....m,;.: mhul mm I)»: ma pmmnn 0! ‘Km: Sckrvurm Pnngvmszn Mama rmw mun “Pmgwnh Ptnguluun mm. (Law rue m ogrmm m use pron: Io mm mm paﬂmofmc n._\ max .5 M5 nil: I711/DVGX-‘Mk II» M m Hnpttsxmu hcsumss Imm . ‘vanhhy bukgmund“ Tn: In lkhcndlm i; (hum!) mm : knuw ... ma Royal Mlluysun my whvcould um jwmvxdcd (71:51 miurmllvlw u 1: nkn uuhchrvzblr out In: um um (heck his QWII mfmvrulmn xm/or um: um pg gm mm In ....mm rm... Hm: um um: n nuphl In be my am July Imdwl rtswnslhtlwy m dn in m Dafevndulls .;\m.=d mu samaune who unsgd LN: ’:nm’ mdbr n 15 nnuxcd u, M "mun s.» {um um "rum n.u..m..m... mute My tense and ar an Iagncﬂ m me lclalm .w.m Defrudlnls fvramcmglmhers (1. Inusinnalpnvacy (uy Mmneolpersmahnfannuuyn, m mr..n.m.n. rm M\s::prexa\mIun,uId m mum and/m .. .»...:um.4.»¢. Mgligzns: the nu: Delendam mm M Dzfeminnx ulralsn vrsvurmbfz and Jnmlly rvspltnwbk wam m u: Ikfrndlul m :mm:um\ ma/.. under “ucunws \..wu,- and/or under up In» for me wnduu ahbe m Dgiwdunl I anly kncws m. Isl Ikfzndnm n (M pawn omen .. Ih: Navy whn y.p,.n.« such personal ...¢om.m. ind :v:v\| xﬂwmch -s-gm Kins Cmm mm mm Lhc m Defzndlnl usual me mnm.m.x mxgwnsuhle, ma 2M uam... mm me am Dcfmdml wank‘! suﬂ be mm: fav such wm.,m m ...1 am} (My knew Wm, .: n. nmxuvnvnulvod vaexlmsa .......... .. .u .....‘.a..x ....... mg ,....1 :..r.......um _...... .. wxlhw we cnrlnﬂ alxhelnd Ind/nvnhc am Delenhmx .r..m me ISA Defrndalxl Wbyduyoluln .. :...m.-...a/o...\|.....u . ....;.g.....7 A. the very lean. mm .....n he ..g:....« .. me ...n ..r m u.:...u..... r. us... ...y ......e. ..:......y ...:/0. pcnannl a..r.............. wmm. .>. Mid m.......u... Ryxkm r... V; In... 11.. n.r¢..a....« mini .. W1... and/or cnxm: pmyzr ...a...ng .1 the ...¢.........m. ... me mm :.«............ s_...c... ...a.xma.ra...m .... 11. u.r...a...u a \|... In n.. — ... virw" ;. .mr...-... r...... m t-.a......a.......m.<.. - 1...... I)“ ...a hr...-.... Synem? \|.... V... mnctmxi ovrr m: ‘'...«w mu cm he seen a. me mm vulva .. v-Ilmr)1eR4\ynl Mn... N", and nun:-........w A1 r.....v .... mnzemed m. Dcfzndunu have ...;....«,.1 my ......e, ..1¢.....y and ,.........x ...n..mm.. .. m. .....n :..r........... M... .,..m..m ...a .4».n.;m u. at land! .......u>..s rim: Rnyal Mallynan N2‘) lloyou um. um: ..._m...;7 W5: nluesud ms: max... .....m mlannnuvn has been puhhxhed .. the and :.:........... s_...=... m .u Ihe memhew .: lh: Raw um... N“, M...» .5 numemus). gvvmu lhzm ....s.:p..=m...... ....m.. fllw mprueulnlnan ....a..,‘;. vxhux mm x .... Amway! cums sml ........a ...a ..r..r,......g mm the \|s1 omu... 11.. uublwauon .; w.a..- .. the max Mﬂnysm N. , 71-: many members m Delmdmu luv: no my... .0 do 50 um um. 5...-.w b: prrvumnd mu... rrsl nﬂl rm... "ms... Indbt wukmn WKWI5 .e,...~m......... ..m.. mwneu penmul ...r............ nm. ...e I 5.4. dlmagts ... he ....ma by IN: Cum {M me .:....up.\ sum am! an r<MsmL»Mvno r... m. hvﬁ «rm. ............... am... . ...a u.. m. x..mm.....: .. my dmm -~ [cmphasxs added] 1=1az...irr. pulicr: upon 25 1...... now «. thc p1a...nrr. pulls: report 20 my 2015 (V m _ 1r. B1) ... mpm nfhzr discovery of me =.m..=....s ...r............. I: rzads .. f0Unw.~- Pu: 1! Ms: vs.” .ma.,.x mm 9.4. 21 mu znls yemnu ..,. mu. umlh 51341 .x...... xcpav dmu. mm. mm »....,.,». nlma dun bulmn pzkzuun W mm ummauumcm oleh mg m..." ,.y. KDR Iswn. am ommm {Nu m-y.m.« nutlwz-5015) m mom L-mar; um kwaxlnnun mm. mm. dun warn :...gmg m...b=..k.,. Mmnmr msu dv am xixlem mnkhmnl um. beluu .p.n. yang mm diam dzlam smm M.u....... Sumhzr M.u......x <.s....,...» mm M-klmvm mi Juan a..;.m.m Mm aumrk-n om» Ismaﬂ .1. mm k:padnSELuRL'H ...gg.,u ILDM Nam: say: usmp m.m.« are ummm 7 am am... p<kcnlm saga, V mam Umun Wmna Dcnmul<— mu. duhm SVIHVYHIBIVAZJ1 knlnm V Kahuna — srhnm meri m....v ;/In knumlnyl asxxmwm \)wc.AN scum pm . 1\|/M/2m) — scdlngkzn kumn xudzh \|..... hswczm mm. mm Am! mm Gimhur M, dlplpalknn pm. ..a.:.n 53...»... men lsmul xlurnng um: sumrun 375 ABDUL ommz (Na K/I’ ua1\|un-5100).‘ pm klumnl mungenm snyl ueluh DISALAHGUNAKAN oleh zmu \;.Wmz mm um um unluk kwcminpn xzmxm PANGKAT helm m min ..m.m W Mznynlnkm mum mm... nmx buhawa my... mum BERKAHWVN su:nmm< 3 mm Ikm mtluehskan xmk... plngkx helm" Fun. dclendznfn xuponlz rm pnsmnn wls um 11: .5 not llahlc ox ruponnblc for the mm.” or [ha errnncous mfumuuun m TLDM’s HR mu .3 m;m and Ll-\.ul1e had done wh:m':v W nccussnrv to updazu Uh: Aniormnnon by numg up me xelu-am forrm nnd handing dam-n to TLDM law (11: rams Wert not produced in CourL coma for ch: plnnuffczsl doubt on D1’: dcfcnc: md emphasised that D! had nesnfud from nm: to me he had checkad an HR mo syuun which hz descnbnd as “pzrmnnl Mme’ znd was smsaed 21-m I11: xnforn-uuou contmned Lhemn m. mntcr mucus: 2 On 21 April 2013 D! mzxucd smmm. nu Abdul Gl1a£zr(No K/P: s3zm.s.oz.s1oo) (“I’u.In Suiaiha.l\|"). D1’: marriage to Puan Sumhah 1: ms Lhud marungz 110.-.1 mzmvalns 1 human resoulces Inforrnanon systan mm. contains m am: pm nzl drtmls ofus ms; Including dam]: of .11: tpouacs and ex—spcu 4. 111: plamnff ;.11¢.z=: [hm ms: and unrme inl'm-nutinn Icgardmg hex pm!-divorce rnantn] su-u.< with D1. um kept m TLDM's human rcxnuxcrs mfnn-nnuun gyszcm for ;. period nf um am my 2nd D1 hm! hccn dwumed. Th: Palm and untrue mfun-rmuun m the human znsuulcr mlormzuun pmmmd In an plamulrs mme, mama] mm. mm her ex—huslnmL rm dzslgnntian and Iesndcrmzl nddxss. For purposcs of rhxs \|udgx-nem, 1 man refer to the Lnfomnnun collecuvely as “the umneolli inlormalion". I «an new protezd m dumb: m detail. the pzmcs and \d:nufy me problem. The panics and pusonnlirics 5. 111: plzmuff .5 a busmesswnmzn ma .s me managing dlrzuor of V/\|srI\n Denmark Sdn Bhd Sb: .5 me dnughrcr of on me Tm Sn llzxahnm Mnlumed who was mu known m the Mn1ay=mn corpnnlr arena. m 1: 2 s:u\ornA'ﬁcex' nfTl.DM. TLDM u under me purvlcw of the Cavernmenk nf Malngsm (llw secnnd Jdendnm — “D2") and me Annud mm Council (Lhu um: acrcnazm V ‘‘DS’‘). »...:..«n 28 F >1, them \|s no rudzncr of anclhu levrl of vncwmg called zhc prrsonal vm\\'ex. Sernndlr, n"Dl dxd chtck an HR Info Syslzm dun nu would um m:.n\blr»d upon the tnuncous xnforxnzuon Counsel rm me plaunnff refuted (O mums aspects of ms mam» which shmvtd mconsxstentv on his part Thus, counsel urgvd um D1‘: cvidtncc bc rqectcd and um lmbslm for (11: ermnmu: Infnrmannn mould bc mubuxed m mmm. D1. Second and mud defendznfs mpunse 2-2. In so far 2; DZ ma D3 are toncantd, nu whole defence ofD2/D3 tulrnmnlvs 1:1 mm bung nn allegcd source mdz cm’): which purportedly nngnares from me munmn. who nkvnlnpcd mu executed am HR Info sxsmn ma mu pnmculm‘ cuntmcmr purpnrrzdly chccktd ma Mcnuﬁcd :luul1= mu: nf rhc ma prnblcnu u the murcc was emu’ u-. um HR Inru S\':«\|cm. Dtﬂclivr suurcr code so The pvmllnn mu. was mm. by DZ/D1 u found In pampznph F\|(v1)ni the defence which Kudx aﬁ Fnl1n\I'.< "Pamaxalalum uu um. njm.numh;_um1:_\|nmn\|suu_un memhn: unlmn .. mu m. gm... ~ um . mrukl mcnitsnhhn bahawn puma dn nnlnlalnn - . nkibu dun Id: ml; .. tun .- . - ma. ,...uua.xuuuumuu..». ktpada mxklumxl pelklhwman pvgnuxl ymg um. mum... okh Penludlursxsum ~ [emphasis .da«n Pagenafsz 3\| Bur. counsel for m: plxunuiinttxcked D2/Du thzory ofsouxcc cod: problem He sax (A) The commuor who dzreloped and txtcuwd thc HR Info syskrn ,5 not Mncrobumx smm. And Eervlces (M) 54.. BM ("Miuobumi") not Abdul Rank hm \‘C'agIxn:n rowa] purpoxlcdly (mm Mlcmbuxm. Ram: accnrdmg m Dwz (L: Kdx Shahrul) 1: “ms analhu m-mnmcd contractor who developed the HR Info xystun (NOE/450); (u) 1;. tau, :1 war: mu xcvcalcd by um um u was not . conrnclur whn -Jcv:l0p:d the HR mo syxuzm rm mu“ m: HR we «scam x.—..s dcvzlnpcd through "c:»opmuon“ hdwun TLDM and ummm. Tzknologz Malaysia ("UTM") (set NOE p.555). mm (at NOE P557) and Dwz gm NOE P495) wnﬂnnad mu ix .. TLDM and not due mnlncwr whu devriopul ("m.1mg.mm'j and ma-a1 ("am/:1’) -he HR lnfu system and Lhc mum cork. (Lu) Ooumcl rm me plzmnffsud ll-ntpzxaguph W) as’ D2/D3‘.< defence .5 . blnmu 1.: as am AS no such cnnrncmx and further Mxcroburm dnl nm drvrlup (“m¢In\|nngunI<an") such : nxlcm ma mum dud such a "cnnn:\;1nr" Mm purpnrledlv created mc HR Info system do any "cl-Atclm-A n... n afiz 32. (iv) Even A (man 1: damn!) um ,5 such a "(unLm:mr", um am not gm zvdcnce and than 1, also no cndmrc cf "u-r.w doing the fun.hu chucking which nssulled ... purported plczd:d "mt .u»vakmt". the mm: code error was puzporrediy conﬁn-nan‘? (V) Pangnph am) of am Defence ms to push me Lulnm: to a thud p:r1)"'cnnu'.I€!or"but Dws whzn cmscrcxammed, agxezd man then .5 nn blam: on me mnrnzmr for the allegtd "scum: (ad: error"; (V1) Funlxer, no such cunuactor who cmatcd as: HR Info sysmm mu cvu "mtngnubkﬂn mm puma Iupm [mama/u/ml: nu mm aleum dmpada /cal/npall /u.1,W..;.mmm.m,. M, Prlgymz Bum": ma ow/3 (me legs] ofﬁtcr of TLDM) pmzmcmx when asked why me nnmz of such "conLtac1o(" .. nut in we deicncc (set NOE p sax) Thus, toumzl for me pmnurr argued am paragraph am) of D2/D3‘: delmc: ,5 unlruc and smce pamgaph am) As the very faundauon o1'D2/D3’; dzfznce where am purpomad "soume code :1-101" was ﬁm alleged. 1: means um am who]: smry that :11: D2/D3 W15}: :11: Court (0 behcvc. ‘s simply untrue pm 1: urn Analysis and co..c1...1.... 33. .1. .11. ........, .. .. .....1......1.1. .1... 11.. umneous ...;o........... ...'...a concunung .1.. p1.1.....'1(.1... 1... 4...... 1...... D1 on 29 Apnl 21110) W .. .1.. 1-1111.10 .y...... 1... ......e am. 5.10.... “-25 .....a:d 1.. .1.: 11.... vmw" of am 1-111 1.1.. system, .1.. p1......r1 WIS poruayed .5 .1.. cuntnr Mfr. of D1 .....1. . .....1......1 ..1.1..s.< .: No. 1-22 D483. 11.. s.rr.o.., N01 1.1.“ 3...... 1...1.1. 1=...«..s111oo 1<...1. 1......,.... «.11. ....e 51.1.1 1. .1......»a .1... .1.. .m..... wuh .1. ....... .1 .1.. ..1......r11...1 .........1 m on 21 .1....1 21m ....1 .1... .1.. Mr. of 1... sczrvnd marking: 1. .1.. punnn ../1...: p1.<.1..g...p1. appcanx ... 1.59 Bundle El 34. 1.. ....a., .1.. p1...........p1. .. .1... or 1-..... s.....1..1., who .5 .1.. ...1 c........ w... .1 D1, whose .-.......g. (wk P1... 0.. 21 :\pn.I 2013. Q...“ .1...1.; .1.. ...r....-......... .pp......g .. .1.. 11.5.. new ..1.1.. 1111 1....) system .1 umneous. T... phu-mff 1.... .~1.s...1..d .. .5 1.1.. ....a ........= 1-1.. 1.1..1 .. not 5. ..,;...a..... 11.. 1... .5 .1... me user .....~ pomiys 11.. p1......1r as D11. ...r.. 11.. p1......:1 51...... DI 1... .1.. xvrcnuml of (he rrmnenus mfnnnaunn In Hm HR lnfn Syvtem Sh: 5.1.: .1..... .. 01 who 5.1.1.1.... (ll: ...1............. ...-r1,m.1.....1 .1... .. .. xncnnccwablc .1... 5.... 1... ........g. .1. Pum s......1..1., 1.. ....1 ..... bud... ... :1-ncck w1...1... I... 1..-,.y....I .1....1.. ... me HR mu .,....... 1...1 1.... updated corxecdy. 1 M11 ....... back .0 .1... .0... .1...1.- 1..... F... ....\..,1\...11.J...1...1. .1.. ...,... ..r.1.;.......‘o.. P... 24 Mi] Dzlnmalion 35. Accnrdlng m the p\|:mu\|T. she W25 defnmad by me nrkunuon Ur me enuneona mﬁn-mntlon 1.. an: HR Info syxlan and us “puLwlI(am)n" m me said syslern. 1: ..- mt: am for dcfnrmuon .0 succezd me plmnuffmust embum. am we unpugnrd ma. 1:: delaxnatory and lhcy refcr tn sh: plamuff ma um um wns pubhcmon to 2 person or ptrsnns mm [hm the pmnurr 5;: Am hm rm: :1. TI smumbmm. [1929] 1 cu (mp) 321, p 324, pins [c]—[d]). 35. Th: am qursuon is whulm rh= enmumus mrnnmrmn is dsfulmmry of mm plzmnff mww hzr mm-ml mm. The quzslinn m h: a<k: ' whtrher xx 1; defarnamry to Irnpulz Iu 1\| pcrsnn . rnznul mm: wm. ..- unuue. Thc yzldsuck .0 mznsure lhv; dn:[arnnl0ry namxc ofnn unpugncd mu-mm .5 1.: lendtnty .1. mm mg ad‘/use oplmun ofudwcrs agzmst me pmnurr, 37 IL 1: munnttnal whrlhcr Ih: person: who rad dug Amclc will bellzvc m us mxdafulness or fom\ a ncgxnve petccpuon towards the plamnfﬁ As long as Lht tendency Is t11zre,Iha[aJang mm:-2 as Mohamed Azmn ]‘ m xym I-{tum Al: x‘. 5/um: rmm/W Um-an .m/4.4 sum [1973] 2 M1,] 6 smd m dzrzrmlmng me a=s.m...m, niuulc mi 3 xlarcmcnl, the nppmzzh m b: ukeu ». mzsuu 3‘) AU. -‘n...., .n.. hen .r.:.r........,., ....... ..r...u.m. .. ... tendency .. m... ngzmsl Ih: .;:.....n .5.‘ ldvwsc mi... af ..v.=.; .14»;-gr. nu unc ...<.m. m: ....m... ... 5. m Anmhrr .3. .. ........: .r.. ‘NVMX mm .0 1m. 9.. ..x.....n... me e..........;.. nfn§h\-khmkmg membtrs nlwcmy g...=..n.2 m W... Iypl ..ra.r.......... .5 M ......n. W... me "M. .n....... ..v m. ..u.s....vr ..............g ....... .1..2..».=s._~. ...........r......., ...g.......s. nrcm:\|l) " 1.. dns regard, .. .5 also apt .0 recall . passage fmrn 4.. ...a.g..e... of H..m...a.. s...,;h JC as he .1.¢.. was) ... Dam :».,4......1b...;.».. «N... mm TwmPmr (M) 54... BM [2010] 2 MT.) 492. w..... .. pig: 503. H.» L....«1....,. xavd: “"1 demvmary .......c of .. ...pm........ :1!» ......... 5. ..a.;..1 .. ............. n. has ... he ...:......=.: .7. reference ... lb: mmll M m... sllndlvds ..: xlvcitly yenenﬂy Th .. ... ........u... p... ..r m. cunxidaiuon of wml w..s......5 dmmllary nun: 5...» saw... .....a.......... ..... ........m= .. .v.a.......,~ prvnl u wm be uplo me ,..a.,., ... mmukr the .e......... .....:...1. when dblarmmmg mm“ . mm .5 =.u.¢.a....m¢..ru=..... dehmllnry ... ..... /'uId:f-V1-Katy" Hencc. .. .. cantulded ma. :1 public s....=...=... .1... zssoclaczs .. woman ... 2 man who .5 ..o. o. .5 na longer her spousc. would unduubwdl} bung dssreputc and dxshonaul .0 1... I. .. suggcstcd .; me gm...-.¢... vrpressei .1... sh. .5 an wife ofa ....... whom 5... .. no I...-.,;.. .......ad .0 A1... .1... w....1a xubjeci her .0 public mnaan and ..a....... And .1... W... W»... r..p..:..=a .0 :h: p (:5: musmiz 41 Quilt obv-lnusly ml. 5 mml sttnzno IS 1 “my. But A! does happen md mostly II 1! due to a nusuke or fmlur: to azsczlnam ch: corrtcnon of the ldennuts of ch: pzmonnlmes mvolved. Sud-l . fzzrual mmuo IS not Wﬂhout preczdent and me Approach mm by m: Engilsh Conn ofAppeu.I ln am following casts rnzy pmvlde some mudance In Iesulvlng me lssue unda dlgcutslon. Th: ﬁrst cast .3 cam, » Dm_ly .VIm'vv l\'m.,:a,>u 14.1 [1729] 2 KB 331 The (nus of rhc (nu. M sucnncrly m nm In rnlluws (I) (U) crulrnn L] at pug: 337, may be xummlnied ..- The plnnnnff, on: Mrs. cmlay. also known .5 Mrs Cnrngxm. wns lI\l'fN.\|\' mamcd to unz M. Czsmdv vrhn W alxn knnrwn WIS Mr. Curngnn: Ml. Cﬂssld‘/'. who was an owner Df a mung hnrrt, mmul . mm hols: own: on a ccmam daze; IIL was Mn In Lhc cumpzny of: Indy: A mm photographer cmplxlycd by me Daily Mum: (defendant) rtqueslcd to ukc pl-lomgnph sf Mr Clssldy znd me vmrnzn together: Y\\|L Cmxsxly allngull)’ zulnl du photographer. Wrlle lady Is um. 1 M11 glve yr-u lm name and ynu can announce an rngzg:nIenl."; v...mu2 42. (0 (h) (0 Th: photo WIS taken and M: Csusidy dxsdosnd am “am: o1'Lhe lad} m Lh: pnmogupxm, wl-uch was mfzncd m lh-: Cum‘! protccdlng u Mm x. The photographer wuhonr my (mm mquxry sum the photo (0 mg Dally Mum: mu. an Inscnpuon --M. Mcnmgnn. m: we hm: uwnunnd Mm x. Mm. cnyymcm ha: rm .....u.ma - the Daily Mme: pubhslmed mg photograph mm um ma Imcripuon 111 ns m-.\vspap(r; 11.. plaxnnfflnsummd mxl mam. agxxnsr th: Dmlv Mmor on the basu um I11: ntwspapex company had printed and publxshzd m the newxpwpu 3 pholugxaph of Mr. cmuy and Miss x Kogethtr xnth lhc afomsmd Amcnpuou, and The plmnnff alleged mm sh: ma suffered dlmagt m consequmc: of Lb: pubhrauon m as much as 11 was mm-.deLL and by mm: pm:-pl: undnstood, no mean am an said M. Cnssidy was not me plamulfi husband but was llvmg mm her in xmmoml cohabitation. A: dug Hugh Court. McCnzdAe _]. zllnwnd the plamnffs clmm. 11.: rm; Mmnx nppmled to the Crmrr nf Appeal, The Conn of Appul dlsmxtstd me appL'aLRu.<‘:l1IJ held (at pug: 352); mmasz "um In: pnbﬁsmed mum ., . >1\|xem:mIlI.IlAE\|: ... unmnrnd mm, m. AB'sw\Ir xutxexxfully uumvhln nflhll m a mum dchrmlur) af mm Thu mun dqxnd upnn (H mm: m slzlcmml Ilm A8 a 2n urmurried mm m zapnldc of mm delnmuary »r AEN W”? ma :2» whexherlhealzlcrv-ml vs in 1x: defanmmry uf»\E’xwI(:"‘ 43 The Imma judge tlabonud funhtr. “Lubcl carmsls u. mg Vlngung: which mm; Imowing III: surounvuancb would rvnsmubly mm m rx dcfnmamry on»: pawn romplxi ng ufnnd m,...=a ivy iv A person changed wnlh mm unnnl defmd mmscll by shnwmg mu he "mam m m; own has nm In dzllnm. « um R: mkndvd ..u w deﬁzme Ilse pVnmMI', .r ... nu he and mm." 44. Scrunon Ly, then Expressed Kh: fvllowlng view (ax pag: 339); w Imdemand Ihallman .3 hiblrfunhrlusmwable infacncesw txdrlvvu {mm III: wnmx h: ma. whahal pg [mes-an (ham or not. ...: IM u be mm mama: and .mgum.s nalunzms bmulcau. WMIYIH kvmwmx Bl makmg mqlnry nbaul [mm ...mm u. live xmanemxhe mlkcs Ind H: wmm. mm mzy he drum «um If-em. he mlm he mm m Mum; Wm. kruwung Lhasa hm. drlw lawn-\|1\ein1er=.wes rm... me word‘ he ,mn.m«’ 45. mm at pug: 340, nu Lonlslup quumcd mm nppmvil a passsgz fmm Lhe ,..4gmm. of Fnrwell 1.] m 5. mm» 0- Ca. mm mm} AC 20 whmh mes «rug ml: 1: Mn mum ma LIV: \|m: xmnmon at line vmlu of my dmumﬂll. mu.“ u Ix umlncl, um an mm. 1) mm WW. .3 Ippnnvll fwmu the nnnn:\ xmi ordm Inlapleulwn ullhz wrmm mm. and mu mm mm m Ihc dasmpmn man mxlmdnlh mum the .m=-mm...“ om would be rcuyuvnxhb pm Ilpnn Inns: welds Ivy Fem"; who knew III: pm - Ind m<cn:umIunc:s" v... 1- wax M. The ml ca): IR Hwy; vLw:dwv L7x))r;lrN:wApaptI [WAG] 2 KB 507. The ram arm: :25: may be sunnrnnnud Is iollows. (1) (B) (C) (d) (e) we plmurr, Mxs Hough, war the lawful me of Funk Hnugh, . pmfesslmml boxer. um am-mum wn ale pmpnclnx o[ . ntwspupct. lhc Dally Exprnss: m an Issue of Rh: mwspzper published an 22 December 1937, um appeared In nrucle: »-nm an-..ll-l curl) mama MY: was my ﬁght ‘Y would In mare ... m..a..=.l home she lays 1 mm gel rlelvmlx whml he gm Ul Ike mtg .lll....;». u know )1: W I N mm Nam pills mmuﬂhlsfood Hculv-ayxealnmnkcdnulIrligmuc’ ﬂu: amzlc purported In mm .1 but InmrVlr\l' wlxh Fnmk Hcu;;h’s wlfc. whn wns ducribed zs curly headed. but l.. nuunl relahry, an plunuffwax not due woman who was mtnuunzd In [ht amdc: the plaintiff ﬁled llbzl mm zgamst an dcfmdant on an gmun-is am: (i) me and: W \|'a.ls:ly and mnlmously pnnrzd and publhhcd by the dtfcnnlanu’ of ml cnnumurlg ch: p1:\lnuATbEC:uSc mrlv hcndcd won-an mfzrrcd In m me uncle was mm: woman not lawfully man-led to Frank Hough: wnguoclsz 6 D1 .5 presently a Coxruuandez m uozu The plamuff marnzd an ﬁm defendant (“D1”) on 22 Oztobez 2003.15: p1....urrs mnmzgt (0 D1 mm mu: Kv:n yrzls. ‘rm rnamagt wax dmlvgd on 29 Apzil zmo bv \~1y of ”.\'tm:1A£ua»1 cmr und:r the lslnrmc Ems, Law (Fcdual Tn-rimnes) Ac\|1‘)84 7 On 21 Apnl 2013, 1:1 mm-nrd Punn SII]:u)Iah \vhn<c address is M D25»1,The snrrm .. Scnlul Em, N01 jnlan Scmul Indnh, K...1= Lumpur. Dn mnnlzgc tn Pusan supulnh 1. uvndcnmd by a "Sum! 1-.mu.m\r./ma" Ami 2: Am 1013. AU nfrhcsc pcxwnnl LIL-mils m- sccmmgly mundane but m an.» context oi me present sun, my :1: zppzxrnllv signiﬁcant as Lhey form ch: \|'uI:uz.I basxs ind edmce of rht plmnuffs clam. In £h1s}uLlgmtm. 2 xrfcxtuc: m TLDM1s 2 collcmv: mfcunc: to D2 and D3. I mm now :0 (ha problem. which plcuptmed me flhng old-us sun The pmbltm 5 TLDM n-mntams . human nsomc: mformznon xyxlem o1"§1sIcm Mnklumnl Sumber Manusn” (“the HR Infn xyslem") contammg the pelmnal dzmls of m pnmnnel and when ﬁpouscv/txntpnuses ma :h1\|dxen.The HR Tnfn mm“ ,5 In mru-nu] system (mkranu system) and .« not npcn m zvmlablc m :11: public As. «um, lhc puma, who nu only. can Hem» ma Hcw lhc sysxcm zn mum x.. mu uF'I Thu HR Info system ha. nvu 1:»-ax of Viewing. On: 13 mg "adminiuuIor's new" and Uh: odxez 15 the “nsn vizw" van Am 51 47. as L.) m. words ... an uncle man: and wen ....4c........1 ... ....... .1... .r..~ p1......rr W. . a........... ..~....... r.1..\|y mp. scnhng hemlr m be ...a ,..<s..... as .\|.. Mr. ofFrank Hnugh: (...) me words ... the ma. mu... and w... undnrszood tu mun Lhll rm... Hough was not ht.-r 1....a....1 and u... .5. wns ... ............a W110 ma :..r..b..e.1 Wlih ....a mu chddm. Ex; .1“ . .1 Funk Hnugh w..h..... bung .........1 .0 1...... (5) due ,.\|a.....rr succecdcd ... the Hxgh 0...... pursuant ..: whmh Lhl: .1.rc..d..... lpptdcd. 1.. dlsmxssmg :11: zppcnl,51:i<:r LJ held (n me 514). ‘Temple wnlh k....u4..1... ﬂux Mrs Many. .....m...a ....s.u.. 5. u.. WWII ..rm....:. mu m... .. lhucuumry, . ...... ....., unly ......g .... w........ .. . ....... ....y.. kcry wmuy WM: u. m. .........~.... u... .5. ml. .......\...a...u..=.s..... ..m. m mam‘ ohautur -- 11...-. Goddard L}, .. pig: 515. explum:d' ~nw...... m uscu wmch mu... dnmedmble mndm In .... lnmd. us his bun .m.....a m M.‘ .m.....:. n .1. no! um... lb: ..n........... .4 mavevmknw .................< s...:..m...s..r;..>.....:.s.Io.ge ..... wmrnns are w......,. .. .... ....:.s... 5. nu... .. ... m... Ihey belmwd Khrchﬂlsz x: them, he 2...». . mnmed ....... .. 5 5... nfmm ~vm.a., he ........'.a Mm x .:.r.m.s s..... ....m. \|><uh\|: »»........w lhu he lhudy ms . MI: run .1 .5... am ..... m...» 1.: ma ..._uy :ummil\|:d bwguny.‘ »...a..m 49 50 In bum m Above cam, n “'35 mg Mfg who ma (he publlsha of me ncwspnpzr for nmcles um zssomtcd the husband \»1Lh znonher woman By puny ofreasnnmg, I am of the wax um u should be no d.\A'[c1enz ma the sum: 1:331 pnnupl: slwuld apply m the us: of a woman who has diverted her former husband and who )5 being wrongly pnn-nynd as sull bung rmnied m mm smd on me yurlspmdentc cmhlvshed bv m: mm :1<cs. u mum nm Ihar, rm one mu belncve mm :11: plmnrxff ,5 mll mzmzd m m. 1: ix ml! dcfirnntnry Io xrnpurc m the plxunuff a m.m..1 gm“; w\|Lh DI, \\|/hl€1'I me no Inngu has It .5 contended am 111;‘ nuggzxuun um: H1: plmnuffn Lhc WIEE arm at » pazuculnr mam Invites me mfutnce of mammanlal co—hnbxuuon ﬁl Lhu mug In mv mm, m 1\| 1: sugguud am am plmnnff .5 snll mg w\|fe oi D1 Ind sumg .. a [varucular nddxess, 1! ma) 1,: mfcxrzd am in Lhe mdumy mum: of Lhcir mlzuarnshxp um 111:2: would 5: carhzbuzncn .5 park of conjugul blxss bclwem ﬂu: pames I mrw: on m (nnxldu (ht next i. -e. «In: 1:. whrlhcr me crmnmus Information rcfcrs m the p\|..m.rr. Her:, 1: .5 plum logic xv... uh: ermncaus Infnmunnn refers to the plaxrmff .; 1: makes expmus ,.;u.mc¢ to I11: plnnuffs mm: ...A dzslgvuzion as the rnnnagmg dircuor oi \X'm-nz Dmmzrk 9-genus: Was mm publicadmﬁ 51. The um quuuon is wlmxm than um! um»: publlcnuuni ‘nu. mu: L: cunuovcnul. Hem. Lh: cnuncoux Infornuuun WIS relalngd for I pannd of mm: m ()1: HR Info sysum 1-mtonly m the "use! mu". Them .5 no evxdencc um nnyonc wlvhnn TLDM who has nccus, am ... rm open [ht usu wow and saw me erroneous mfomunon. But nevcnhtltts, th: zrxoncous mfon-natmn wac xzulned m m: HR Info xysmn and \\'«s avmhble for all (hm: who ma acccss w 5:: -ram, rh: opportunity for \'u:w1n_q vm (vet present 52 The quexnnn than mm m this cm for cnnqdcrnnun md dcrzrrnmnunn is whctl-1:1, In New nf dun [nu mix the rnuncom. miurmnuun um reumcd m um HR xnro wyswxn and dcspxc mm bung no evndrnct um anyun: mm Muss zcumlly saw me mfonnztion, that 1; m law, :1 rcbunnble or any pztsumpuon ma: enmles ; clnmmt (0 any am rhere was publuzanon (D a subsmnuzl but unquanuﬁable nurnbu of pcople wmn Lhc yunsdscuon Bf xnfonnmon posted ... (ha mnrmcl or as m am (an. the manner. 53. Th: pmpomion am am: was xudl a prcmmpnon was dmmxcly rrpudlaivd by Gray J m AlA»mn1xx Brmzrr/¢'Armr [zoom EWHC 1041 (QB) (12 .\c..,— 2095) [mm] 1 W/LR 113, [2001-] F.\'</nc 1052 (QB), [2006] 3 All E11 29-», W07] WLR 113 HC whuc ht uni: »...amn may 1n: qutslum mm : Ihuemlw: have I» damn: u whuner as Clamum ws nghl m uy mm mm xs . Mxnuhl: pvuumyimn av Vw. in me ncnxewhI:hlhIv:indicaud,\h:1 Lhepulzhmlum unme mm 0! Ih: my ivemx mmpluvned ofnai lo . xub«l-mu] Ina Imquululruhle number ofpcvplt mm... Iheiurumcmvl 112: As in Ihnl lb: gmcrﬂ Me. .5 mm by the emmu arm mm!!! mm. uFGaIlay, .. ,.n.y..uu ax And 3: s. n ma lh: mam.“ bars III: mag. army” m. a.. word} cnmphmcd -2! W6! mu mun: by . Ihmt put) Imm nun pmpasmun lxuvuldippezr Ia loilaw on m thrust olun lnumex mu. u would be fovlhz c m. uvpvvv: mu m: mmmx m quesnon nix uczsed ma dnwrﬂmded 'I')Ir< .. mm m. uiilnn ..rrau., wuss! .: mm» 32 . \| an nm xoepx Iha rm». us Imhnmy for my mnlrnry pmposnlnnw, il mm M mm: mm u... my me‘ ,,...p:.= ofﬂaimg puhlialmn m . cm: mm m. cmmnnx Ielws an ... mnuemn rnunhlg ...;.ur.c.=m foul»: cmrlum lo myeullul live wbluainn was m . smm..n but unwx ab‘: number ol nzadux paxcsﬂng mg knowlrdgs ofexnumc [ms necbsury fur Illa“ mundemurrﬂ Ihewnm m mm .m....¢., mm... my 1: is ntll kmwn (am yum my .u..u-my -a din-:m1H>m inn»: cm are nmblt cram ma whxu: ndwers muy pmpcrly be pmved by inllrer-cs. m... puhhmlmn a! me uuvnx camp nu} HI 1.. the pram! use Io: pIl\\|I;u\:rmdMdua.1 wuld he plvved by mHmgIhI\|IndW1duA‘ m :1) u.. n. N sh:-cusud In: men: um mm“ A wdcr pubhcluw may mg a platinum M has from Whlth um mhuuul .7: 1.»: could pmwuy inf: mm mbnnn-I jwuhllsldun mm... the yunyamm M5 um pm As : rad ma .m.y.m.s mm mm.» My Stdiry u my rvfusmn In npphtllrwn fur permlsamn m Hagen! milemberg. n: was slmplyxa;/mg than on Ii: «.4; .ym»..x uu‘ m. ...rm..« max . mum...‘ nmnhrr afpewplt would huwzcczsd Mr smmgz mm was Inesxsvtﬂe. He m mu my my vlrw mggmllng man than wk) my prrsumplmrn um um arm [371 Farmeahnve vumns um .....\um Icczmlhzl Imdu English my . E‘: .... in . nu»: um 01! in mam puhlvsntlrm .. minded nu My 5.. . prcsumpuon of my than mere ha: been mhslanml p-nblmmnn lam no! a mm hum Inn vmw ny HI: nukulvw nf Oh: snaluhe u n plcvmusly brought by Mr Mxhlmn aymsl the uncut Defmdmu ~ w... an .4 s: 1.-. Sxngzpoxz, Llw pm-.uon Is claufml by the dzcmon of the 14.5.. cm... m 2:... Ywg 2»... .-Am Iugapm P». DJ and mm. [mm] 2 SLR 47s("z1..r. cue") ma. fnllmmd -2.. pasman ..1.=.. 1nA/Aamndz . lirzmrd c-A... (supra) and whats me court (per cm 5...; Onn) hald .. 1421.951, [46], [as] ....d [49]: -[421 1...». ....m......s m of gznzul x:-yum... ...a m rquﬂly ......... .. a¢v.......... rm lh: n...m... 1.. Mm... coua..,,n-. an o(D¢ﬁ1Manon M m. 1...»... (0x(uni Umv:rxi\|y rm x... .,.1,zmnr.....m....a.......s»4 \|......« mu.-........ Pmol xv... lnlunu wmmumummu hue bum pum..n...: .; .smr.»....... uruIH)« .a.m...uu.. Ev:ye~ ..x msslpc ma. hrs M Ma .1 .....1 55.. by 2 m..;m.. mm: nu... .n. pusnn .:.r.......:. W»... .. uplbhz ulundcrilnndmn .., s... bun pubhxheli Somahasevcrymessugz pm... .... . mus... am mdevuy wdv mg umch u mm... .. z......... mm ./1. run ». pmvnl mu W .»....1 pernm ...,...m. .1 ....a.........4.... u hm a.p:.,..z ....4 m me Mvnugr .. .... ,...... W... »..m..., . ....... ......,;. h... n... om ..... ., ..., perm): ...»... .».. ... mm ...a .... ..:....a M...‘ ... M M. ..4.;«...;mm....1/,» vcwlxrbl: M .... A... .......u., M ,..,... or/Vrr Man .. ....:m. .....x .».. 4./an... ,...,.. 1/not ,.............. Mil ....»..m ....w..:.....,.. .. s....:..a pg; 1.. we mm. cue. no a.....« gym... n... ...... nddlmcd .. Show (In: Mdm zm. blag ma um Iuwswd Ivy mm 9...... N.» ....w.. n... 5.... called .. gwrrvxdmczm l)ul eﬂm. m blag ....w...p...s n. we new .............a by ......m. .. n" 1.... mm HEB hmwsur 1...: makmg mums nﬂhzprmlmn As ﬂu: blag ma um um . weh .......... a... lay um ......na or ......=.<in...1 ......m, u .. .... ,......m. .. .sw...... whellrer 1... bhg rm been mm by m: Inna me prm .. m. nude Tim: M... -Isa ....u...»a hyvﬁlmh .. “............ pagzs what .r...a p1n\etmu\dI\r0mr~1rws.I7ulnA:h link stowslhnl ... wmmcmi were mu. m wuld hnvz go... bayund 1... blog Md! r...a..=. me... of p..au.=...... pm... by ........ dnsnovrry ..r m ..m,1.:.< an ...n might we bean ....x...:. m In .4... vrmcrn W. M .... ...... U7 Ivnls m.a.:.a I». (M hum mm... or .7, dsrnanwalmg m... mm pm, wtbsms um hnslmg um m M Ma! n...........:.... v... as vii: 55, m. M. x... men bum Iddwed ..., :v..d:ut»e rm. which a. c... be ...rm=.. .n.. ma nu... hm hm. amused by . pzmes AIA could Mm .,..m...1 such mam: by, r... eumplg uuhhsmng .... ymmmznc: mu. m .... M... .., 2..."... sclrch annmrs Mm: mlrv-11: mu. (arms we annvd 1.. Slcmbdrg .» .-....:....4 Eng/Mal:/1.1/TIWII Lmo wuguu. Ihe (mm ..m..,..... .1 England ...a Wm; hdd mu .. wnfemutr of ....;........ pub .u...... ..r.. .............. ...... an Inn: a=.e..a....‘. WEMIKE V... ~....;.s..m.- mu» .. Wu mcesnmz .. ....,»..... whn n... Inc :I........‘. ....... mm ........m uwth Eng)»: wwhn screwed ms aevc..a...r. .-4...... (z. [2 . 1. " \|u\| .. 01: mm Inﬂym, Kim .......a:........ afdnllmnlnry ....m... ......m not b: ussumrd, cam cm: .....y. It ..a........... .... .3 rm. m....u.... my hdplully be dvvwn .. me ........u.... modes ur m.......;........ Fnrrumple, .. 5...... .>... rm rm ban aweined .. ...,. vary ....r...... rm." . lmzr ... ... ........:.... mvclopc Sumﬂrly. aa..........,. .......... that .... hm: placed .7. 1):: from pig: al . mass m»... a...... such .. .. 0...... nzwxplpcr Inc ....v........ ... ....=... .. .. ...a.......\| .m.-...e.. m .... Infwvrwe mu .. has hem pubhshcd m In: mans cf m... ....1.. .-... .........myw..... ml Hnwever. .... .......... ...., VIE" ....c....= new .«...m. .. Wm {M ......a.. afymbhtamn .. mu dezrly m.:...;..... m was!!! an mm . 5...... wmdnv. ..<..... r... ween .5 ....e 5.... soenlrw Analhu .m..... <.......o.. .. Whﬂlt .m.......m maurul .. mud: .«:...me .. . M..;..n>... .5 mg"... well pummwd, x.... ..u... man hung on the fmnl pa... ..=. .. .o.. run of . mm: 0? hypzrhnks ..... ntewz .....=... mm...... A dzlrndml may mu p. .....= ... .....a.... a... .. xhnw ..... mg (nIVeLed\y> u.r........., paapdld .... .m..=...y v1:iInu' my cm and 3.. junxprudznc: .1... was e......m.ca ... AlAz»m4n& . B/xmrrl 0 A... ms followed by Belmda Ang J ... Qmgdm Balm: Corr:In<m'an Gm C0, 1...; am Or: 1/ Ga/7 we 5...; and M.» [2016] 4 SLR 977 wh... the 0...... mt. r...as.m 56. ‘-m n.anm.u.. (or III: pwpunnofme In urdnmmalmn WI: bululznl in name Thuefnre. whhuuml rm Iwu camwnanu m In .« mm mm: ID: defummry y..m..\| ;_-..x.m¢ m a nun pmy m . wmprdtermble mm. mm ﬁn mmponI:!lK‘)‘ ...a 4:» Ihe mum DI the mkmnmvn n. . mam party m such . WI) Ahux VI val und-:rswod\|‘1hesumd m...mmm n whnlwnweunry farm! p..mmn Io um oncurr:-d WHNVI Smgapaue aA[)5] [21 Tnxamfy Du: .e.;...m..ms.mMm cnmpnncm nfpubhutxon m the mm. gr Inland a=r.m.m.. me plamhﬂ ma u. uublish um um rkfervdum n (W: lmemrl user m uplmded or mm mm w...¢.,.: an m: Imrmzl The secum mum.‘ of puhlwcu-an ..q...m: (hr pmmmr 1.. uubhsh ﬂux . mua. puny mm duv/Nmded Ike mnxenal VI Smgpor: Pubhcalinn 0.. me lma-nu: maid x mm mm dummy or mduwﬂy “urn was an pvcsmnpnmw oi Irv. mu mI\|rnI\ zppeanng an the :..;.m ma been publnlnd. Ind « M; mmrm ...m:r..~m rm . phumirfln sumply MI:-5 xhn (hr dzﬁmatnry nurgnﬂ ms mm on list mm and mummaxe m Smgome That mu m 5; mm: fuels ... mam: m supvun an wnftrmm of ,..mn.an "- Smgnpore Ia . s..w..m.\| mum ollhml-pm} mndns II [as]. 1:wc11....m;sw Howzvcx. an Mmym, the pwsmon sezms to be quite dxffzvtnr, In Tan Ab Ham 1/ CTOI Dara gym» my BM[2016} 3 AMR 457 the Coun of Appeal monk th: pnsmnn am there .5 publlcnnon 50 10.1,. mm is an nrpportumty in mud pnmzx m have acct to she puhhcanun via ma daubaac. Hence. (hex: wzx 2 presumplmn ofpubhcznun, wulmul any proof ut anyone ztmzlly having me); at downluadmg zh: nrmncous mrunmuun. n... :1 I116] 57 58 59. T1“: ..- .1 vanznce Wm. the posmon nm was muncm:-J xn me dccmon of the English ma Singapore Courts relnucd to carhzr. 1t 15 slgmlimnt to nm: am am Conn of Appeal m TM All Hang » CTOJ‘ um sjum Ida B1»! was nor ask:d [O consndtt the pnncxplz mm ms enuncxmtd by m: Engush Couzt m /IIA/wmix 1/ Bruani a.-Am (supra). Em mmmmglv. Tan /1» Hm; u 0'0: Data Ky/M M 3;»: ma rcfcnrd m m earlier dccl I2»; u a'oLm J4. BM [2012] 5 ML] zns when an plamuii nu ma by me Cnun 01'/\m\|¢Il m Jo» cm succctdcd m euubhshxng am 1‘: ma hm ddnmtd by min" of Lhc Ancox-zen zxcdxr miornuuon m an drfcndanﬂs umbm. rm was unabl: (O delnomrxalt um h: ma xufieud any damngts as a result of uh: pubhcauon of the mmnrcr xnfonnauon In me pvxestm c2s:. K 15 relewnnr :0 note am an plamnff ma clearly ma unzqulvocally admmd um sh: am not suffer my damages By rznson of mg ermnmus mfmmumn In In}: cm mg n CTO.fv~vrSd/r B124 [2012] 5 ML] ms, nlzhough ch: nppcnl unl1zbAll[I'w\|s ullnwcd. the Cuun u[:\ppc:\l uph:b.\| dw H1511 Court’; ruling um rm dnmngcs m m be “mam M non: Wu plovcn. maeuarsz 60 (:1 In Tart Ab Hang » am pm 1).“... :4»; ma, whilst :.o1a;..,; am mm was pubhcnuon of mfumuuon whach was dcfzrnztory of an plaintiff. dethntd m zwaxd any subsmnml damages and nwaxdcd a token at nomu-ul sum of \|u\15.0oo.oo :< zh: plmuima not pmvcn any ncmal damzgu In ans cnsc. an plalnnffwas candid enough to conned: am she did not suffer from an} dumnuuon or loss of mmam by mason of an relenunn of H1: cvrmlcnui mfnrmnnon m uh: HR Info mam (,..2u7 Nnws of F.» cncc-"NOE"; nu plmnrmnl, nu am on: M: Mun-u 1-ua sun Lh: um: View (p.206 NOE) but Ida Mum: was not called is I wuncn Eullcr dun-mg hm zesnmuny Lhu plamuff and max sh: am no one mm could come [orwud 2nd :2!‘ that thc\' slw Lht ermnguux mfonnauon m d-Ac HR lnf — Icrn [p.N5 NOE). On Lhe qucsnon of am plamuirs claim m dzfzrnzunn. lookmg at 1.11: evxdmt: in (h: round, based on an {am am Lhe erroneous Infnrmanon was rtmned m uh: HR Info syxlan for some um: unnl u xws rrcuﬁed around 9Junz 20m and n refcrted In the plzlnuffby mm: and dcxlgnimvn and wax deemed pubhshwd (pt: Ccun of Appezl m 7,... /m Hung 1 crox um. 5,./M I/1,. BM), 1 ma llnpcllnd m the cuncluslon um ua» plunuii bu xuccced 1n eunblxslung Liability fur dufnmnuun vmssmu 1.2 63. 54. The qutsuun in against whom and for how much Before 1 get u. Lhc Issue ofqunnkum, I should nddnss Lhc Is.~u: ofwho :5 mspansxblz In dus rcgazd, Lhe pm singularly responsible {or the maintenance ma mteguy of me HR lnfo syslzrn Is TLDl\I1rsdi and by extension D2 ma D} In their deftntz. D2 nnd D3 have msed Stmons 5 and .5 of me Gornmmem T’n:u::edmgs Act 1955. In xhnn. :11: dgimdmts have takcn ism: xmrh me im chm rh( pxmnnmm no! mmma rhc lortftasor mu m um case, the pmnm complamt u not based on the m nfmw particular ofﬁmk wlthm TLDM. nrhcr n .5 ; complamt of t-“mm failure" on Khur pan Thus the [nlurc .0 mm: (111: ofﬁcx-.r(a) m not fun] s=.~ K11/anlwlta/pfﬁgu/)_))a C/mm» M Eng Bang om/Wm 54» BM [2015] 3 ML] 660 at paragraphs [931 no um] CA Huc mpum.bu.zy [ox mg HR Info W5... nu Mm 132 and us, nLht1 Ll-an DI. Although .1" plzxnliff Appeared w supzesr am 11 W25 91 whct supplied mg information m TLDM such um :11: mm would feed me mfonnnunn mm (he HR Info system, um plzlnnffwas shnn on cvudn-nc: tn Imphcalz m m .1» ﬂu: m...um. of me crrnnnvus inrm-m.-mu m the HR Info <v.:t:m. Th: plmnuff herself wax nu: nble xdcnufy who mmy ma enwud me mfunnnuun mm Lhe HR Info system :>..un.~Mz 10. 11 In Hus sun. the plmnnff xnnnlly nmde nu Lhxuncnon benmn Admnnmxztar new and usex vlzw and alumni an. an HR Info systu1'\ contzmed the erroneous mforxnnnon. Homm, dunng the uni, an plnnnrr zzccpted (hm when she went in the TLDM‘s ofﬁcc to (huh on due mfommnon, sh: was shown (11: adnnnmmm \'1:\~ nf ‘he HR Info system whnh an: nm comam any Incnnrzt Infnnmaunn it rcgyardx D1's rnamal mm; and infcnnmon regarding hns spnuse. The gruwzxncn n[ the plnnnrrs chum m the prawn: ncuun L: lhil alllmngl-1 :11: dwuxul Dl on 29 .\pn.\| 2010, me HR Info syslcm conunucd m penny the plaintiff as still bung mzmni n; 01. Homm, n .5 qmtt dczr nhar uh: exmneous miorrnanon was only ztﬂecned m the uni vuw and not 111 khc zdnulmsuatc-['5 new. The plmnuffs cpcnﬁz mmplzmx is um uh: HR Info sysram (until n W mcendy rccuﬁed — zftcr um sun wax ﬁled), showed um .h¢ plmnnff Wat ml] manned in D1 and has an new at D2S—1,Thc Saffron IR .<.nn.1 Em. No.1 jalan Scnrul Indzh. Kuala Lnmpur Qulrc nhvxuusly. bmh these (mm are nnmm Apan [mm the Inn-n: n-.4 addrcsx of Dr. Kpnuxc, an pl-mmgzph of D1’. ipuus: in also shown In an» HR Info x\'srL'l'I\. In um xcgzld. lu zdd mmll. to nnury. uh: photograph of Dl's we :25 depxcted In the HR xnro .<ysr<rn Wis that of Puan Sumhah, whilst the name of the :\|70LI.VC WIS am of mg plnlnuff so. sum In my vlcw, mm 5 no zvldmc: than D! had the ahlhry to mxke any znrrizs mm the mz Info sgstem. No doubt D1 dxd mesnfy am h: gavz all the xcltvanx mformnucn to TLDM hut he W25 no; ablc to produce ch: relevant {on-ns by wmd. ha nppzrtntlv nauﬁed TLDM ofd-1: mfonnanon whxch 112:! m be updared.D1 said am I1: mwed ms own “personal ncw" and the xnfonrmmm was cmrrct. nm .3 qune m-.p1m.bI¢ as (her: 15 no thud layer nf vnrwing n n mm “admin vlcn" or "user \'\c\-I". If DI xaw ll-Ac “utcr view’ than he would haw sum the ummcous mﬁnmunnon lam nut 11:1: to {mhum ho“ D1 cuuld «cc mg mum xnfounnunn m his su—cal.\|r:d ptnunnl nzw H: 4.4 no! product a “acrzcn mus‘ of mg sotdlcd "pzrsuml mm" or me an we xyxtun 1 am mercfrvre not at all xrnpzrssed mu. D1‘. cnd:n:>e. But this does not mnkc hun culpable for me nutrition of mg enonmus Iniommciun in mg u.<:r view. The suggmtlnn um: Dl lxncﬁtcd by mmnunmng rm ermncous Inforrnanon .5 the usu mm I: quit: preposlcmus. Em though he may be 1 nmmus permn, I dnub\| very much whether 1.: wnuld actively at pasmrly allmx me :n'nncm\s Infnrmarmn m I): m uh: HR Info Kyslun whvch .: Embzrnsslrlg or unznrnplsmcnlarv m rm «mm \\1fr, Puzn Swahili In all pmbnbxlm, D1 am not bother tn check the user \'1uwn1 an Fur u ova: on. m rm wnmesscs from TLDM also could no! product 111: rein-ant forms. or course, on the whole, D1 am not Ampxess me a: vnnoua pom. dunng ms msurnon}: But, D1’: poo: pczformznc: m (h: witness box does no: pm»: um h; was responsible for an rcrmuon of mg zrromous mfon-mnon m me HR Info system I an (ngmsznt ma: m am: defcnce. D2 ma D3 had sued in pmigraph 13 of mg dzfzucc dared H Auglht 2015 um me umnmus mflmnannn was dL\‘pL1ycd "1 my system due to rm "failure m chtckxng ms uwn pzxwnil mfutrmmon " nm plmnun aha raked 1-muly on Dr. 50- ullul xupolmbllxry no check tor Lhl vurnury ind accuracy of um prrwnnl duals. or counsc, lugtally one wauld check the personal duals rm: 1: mm a “duly :0 chads" which 3.: mcoguscd by law’ ms 15 unlik: 2 ommmm durv m chock to. me nccuncy of me cnmes m one. bank cuuznt account stzmmtnn for lnsrancc. A150 and qmt: sxgnlﬁcznrly, me plamuffs sutemcm of clmm has no. mudga m my such “duzy" or brtach rhcxcof vir—a—w.v D1 m (guns of checking me xnfonnanon whit}: 1; \n me HR Info Svsltm. Arm an, DI ls nnly m: pxm 1d:r nf mfnrmannn. Whereas TLDM 1: the cuxrndlan of Ih: HR Inﬂ) xyslem and anyd:\|'1u1( that talks plum mm. me <y<l:m ml: or -my expnsl: TLDM m Inhxhry. At any mm, 1: 3 am defence ct’ D2 and D3 mm the erroneous mfonnanun wns rcumed m me use: vxcw u; m: HR Info sysltm bcuusz of 3 much" \vl-uch most out of . faulty “sauna code" which W zvenmally recnﬁtd. »...n.an es sun on Lhc mpxc u!r:sponsAb1J.At}' for the nnznnorn or me erznnmu: mfon-rmzon, u ..- my mew um ulurnatc xespons\|bI.L\zy rm an: unfortunate debml: hes wm. TLDM (D2 and D3) 1 mm now :0 dm-mgts for defamaunn Dnmnget for defamation (.9 On me (opxr of dmrnzgts For defamation, since (hue I.» no zndenc: ofany actual mm; by anyon: who had access .0 (11: “use: new" of «la: HR Info System, and pubhcaurm us at hm “de:med", and the p1.mu(nmmg mmma (hm sh: sulTcm<l nu mngﬂzl: lam .« «ml- of lh: retcnnnn of the cxmnznus \nfnxm:mnn In :11: “met vlcw" nf me HR Inru xyslunl, uh; qunnnun ofcumpcnsnuun which would bu rm. ms: and nquxmblc would be RM50.0ﬂD.O\l I luv: nmved at this amuunz baxcd an, mm mm, the 51.“ on Lb: plaxnuifs zcpumuon mused by xmpuuuon um xx cast on hu by me portrayal um sh: .s sull muntd :0 D1 and .5 sull [wing and (ohzhnznng wgediez at me addxms a mud .n the user vxew On: of Lhz mm am 1 have «km mlo account m Llm rtgnrd .5 mg pnamurrs standmg m an mbmhcd busmexswoman ma managmg dxrccmx of 2 company whxch owns a mu knnwn buLId1ng.\‘('xsm: Denmark Sdn mad 1 mm nnw m the mu: nf negligencn n...mm Nzgligznce 70. On ncghgzncc, u xx mv vxcw Ihnz u would u: Ear mo rcrnolc to suggest um TLDM uwod )1 dun’ ufcu: to ﬂu: :x—»<pr)us¢ of one of us ofﬁtax for umncous mfon-nauon mu: m: ex—spous«c‘s "rnsnml mm". In .5 pm loo fancniul 2 poss1b\|I.Aryrhaz 2 xzchmcal gush of Lhxs mm could occur wnh the result am (h: umnwus mfozmanon wmxld be zeumcd Ill eh: “my vxcw" of :11: HR Info srstuI1.Thz( xornnd-mg hk: dus would happen is um not fouseenble I: occuntd dug .0 mm: urn! ﬂung me way, whuch V41! zmnmilly ncuﬁcd. 7:. or mum, Ih: phmhm cxpcn. Lenng Mun Fnnng NW3") had znutl-Ac: thcory. H: mm that chm must have hm mm: human mII:n'cn\|Inn, Bu! 11¢ ncctpled that h. \\'I( 2: . d.I<nd\'nn1age bnczusr h: am not have access In mg HR Info .ymm and ms opmnun was muxr nlun w an desk tvaluauon. H: 1150 cunt:-Rd that he was not In-mlxar w\|rh'1‘LDM HI! Info sulem and had no malznzls to back up ms um»; whch posed w\|Lh a quesunn from :11: Conn (P769 NOE) vm agreed am that W : “;¢l\|(:h" whxch he deﬁned .5 3 “soflvlatc bug" He also ncccptrd [hit when there 3 2 mxgnnwn from on: sytttrn m annther, “glIKch:s" can ocmx. H: md u could hzppan but he muld um cnnﬁxm whzther u hnpptned m II-1\|: cast hmuxe he dud not have mm m .11 uh: Infnrrnanrm. Dan 44 1:76] 72 73. But un Iuxmu qncsuunlng by hxs own counsd, x-W3 sud um am: ,5 no mug pmofof 2 ghtch In (Ins regud, u L; zppzmnr um um .5 not an xsolatcd use as (here wcne mm TLDM ofﬁocxs w-ho Wu: m me same prtdlczrnuu as me plalnuff In rhxs regard. Lt. Hnsnul Am: Bm Zu1luﬂ.1c(“DV75”) (Pegavmi SmfT<knolog\| Maklun-m) (nnﬁrmed um um: were “pml>km<" \-.1111 me personal mromum of Pen./Kdx Mohd Emma; Em Mohd 5l1uib (.<<-c‘ p.64 and 65 B1) ,1... Kd: Zalful Hahn Bin 7.1inu.ddIn (sag F66-G791) \IIl1L'1'cAn zh: Same rypa 0r¢l’I’mIa:()us xnfnnnadzvn amxeamd m uh: "um vmw" arm: HR inn. “mm. According to Abdul Rzzzk 13... \\'ng\|n-mn (“DWI")(]um(em Kamn — Mxcmbun-n Svslzms and Serums (M) Sdn Bhd) me pzoblcrn W du: .0 due “sonic: mag" and um hc xecuﬁtd an problnn. 1: ms suggtsttd by counsel fur mg plunuff am the uszpvlcxv xmpsl-mu for me mm TLDM ofﬁczxs what: ptrwnal Iniomlanon m the uszr \'1:w wer: also trmnmus may not 1» aulhennc. Hnwtvcr, I am not cr>m1nced um mm are we snapshnit whxch um: created by TLDM solely m xhnw a pnltcrn of em)nmus mfnrmaunn‘ -mm ts nu bzsu funlnubung :1.» nurhcnnclq nfthc mu-mw mpshans for Lhz nffuclcd TLDH ufﬁrcrs. n..us.m 74. Cindy, the erroneous lnfonnmnn of ma conoemlng mg plnumff md Dl LS not conﬁned to D1 and mm were mlm Dram who were ﬁrmed. In \'l:\\ of d\( an am an: 15 ml an lsolzted case, l in’! lmpellcd to the concluslon mm A! Is more I.l.ke]y man not rhat the erroneous lnionrmnon xv-is xetmned m we HR Info sysum dug in 2 glltch m (11: “mm and this could have happened quit: possibly Whul thzr: wsls a mlgration m the xysrtm 75. Hnvmg heard the rcsllmnnl uf mu, 1 fund that he 15 I Lrulhful wmm H: smd am [he pmbleln “uh caused b\’ a dufzcuw souls: (ad: or cnursc nu deitcuve souxct cod: could hm bcm bnckzdv up, uvul and ptcsenttd m m: Court ind/or I0 Lhc plalnuff for lnspzccion. But Apputndv H’ was “cK:s:d" or “cvm-lllsm" after It ms yecnﬂcd. But ow/4 who xemﬁad the ‘-ralllq" some rod: and not gm cvldtnne of am’ cnsuz: or m: old sourcc code. lmlm, K was DW5 who We a slide prtscnuunn [0 me Coun ml who sald um: um old ~oun:: (ad: was erased DI‘: pmpcnsiiy Io hon»: 75. 1 mm now m the plamurrs atttnlpt at demnnlslng DI and holding hlrn vtxponslblr for uh: mmlmu. mrnml.-mun. In r « rzgmd, qnmc apsm from r\cKl'\‘hmg clie,l ﬁnd than n lnav \-ml! he l’l'\\t -lm D1 Plus )I zcudenzy to Lmm zbnul lm cx wlr.-'.« \\:7\lr.hy blzkgmund m (mic: n. lmpm. ulllm lnunnd hm. musdsz 75 And, xvlulsl um wrre mm-nad to each other, DI may well hm cagokd me plamnffm buy a Muczdca Em: sax and used :2 for ms own b¢n:ﬁ( and ﬂaunlzd n » xns own D1 my well haw 2 pminpnnnon to duawtng around the mm: of ms mg Katha m law and mg. of Ms :x-\\1fz (the plundﬁ) 1! 7h: Um: whcn they were Inamcd Th:-5: Lhmpx do hnppzn .n ccmun mammonin rvlnlmnshlp. But to sumzul am D1 did nu nflhts m mm 7: btncﬁr In rmm n :0 my nnna, ran fnncA\|'u\|. I'nx—F:n:hcd and unplauslblc n deﬁes 1:-gt: um Dr, mm ndvnnccmcm m rlw um: n or was uuully and \|nm\|-mtely cunnccud wnh Inn sums as me husband of mg plamufi at snmn-law of mg lam Tzn sn nmm-n Mohamad I new Ll-nnk that [h1SlS more mnguntd um 1:11 \( any xa(e.d1er< 1: zbmluuly no evidence arm such czrzu advznccmenz (ax D1 winch xs nnnbulabln :4: ins sum: as the plnmuifs husband That: is zlsu no zvxdence to supvpon I11! plnnnrrs theory Lhaz D1’: caret: would stag-nate xr the HR Info nwzm Shaw: that he had been mamrd Fm the thud rum: As for mg plnxnnm second mines». mm’ Mahadhxr Bln .’\Inhu.l¢rn (“FW2").l nrhcx thunk am he Inn! in -an m gnnd" man DI. Aim: .11 th: plnnnrc ma sued mm for Lkfzrnnuml LN my uk Kuall Lumpur S:s>'Lon> Court Sun Nu 553530710/zms ("sun 50") um hr (ould well be tcllmg an Lmth whnn he ma um whl.-n h: and D1 were fnmds and when D1 WIS sull mamed to am plainnif, D1 used (0 boast about :11: plnxnnifs wukh I>n<47a1u 79 30. El. 52. nu: um 40:. nothing (0 support me plzmurrs unsuhsrznuzned Ih:m'y am D1 ms rnponsible for me retention of Lb: cnonmus mfommnon m the um mm of thc HR Info sysmm. In ms mnnzcunn, \|n ms mply Io defame 121 Sun 30. D: had stated am ha has In “mwiie {mm [he wealthy this". By his sand plcadmgi m sun an. m may well hav: bun ufemng m the plmrmff. :\gxun.T do not scz haw um cm be rnmputcd mm uudcncc am a .5 bccauxc of sumclhing mu D1 an at am not do um caused me uzrmumus mformnnon la Luz ymmd m we HR Info system. In ans regutd. .1 ,5 zurnman yound and slg-nﬁunx am me “ad.nun\|s\1z2om nu!/' or me HR Info systcm am not conum Lhc zzmnmus Anfomnuon and Am the Infonuaum m me admmmmes new was coma. Thus, am can only mean um thc xnfannmon am went um um zdmlmstmiors vxcw was infnrmznon ma: emnmlcd rm. m The quesncn In be askcd ls’, hm-v then .s D1 :0 b: blarnul rm ch: u(nnenu< mfnn1'umnn bring nztalncd m mg “uxer v\:«-r". M 1 ma uxllcr, mm ,5 no legal or urhu rzblxgauon on D1‘; pm to key ma. ul thz nc:urncyof[hL'\|nfum1Iuun mm .5 1:4 me me HR Info >yuern. Thu u not me sum: 1.. wnying am D1 pmvkled wrong Lnformanan to mom. Whkh L5 qnltc mother mm; .1mg=um. »...u..uz 33. 54 A1111 111 any rvunl, .1» rm am 11.: “:d.numsIrarox‘s naw comm: 11.: mncct xnfonnndon supports :11: xnftrenbe am 131 1.11 supplud the corner \|nfcm1auon, zlbm um :11: [onus ccmzmmg ms: mfom-mnon mg not produced in Court, Hence, tvcn though 1 17.1311: 13:11:11 the p1=u.nrr and mm on then cv1d¢nc= mm D1 I-1:5 . pmpmxlly m ﬂaunt .1“ name of .11: plzmnff. who was 1.15 ms: :1 the marerlnl un-1e m1 am nfhcr f:m1.\|y. .11;-or mar =11.c.»- nut translate mm pmni um D1 was m,xm1,1e [at .11: K -nuon of [he uxmncnux mfnmmtxun In the uscr \-mw 01' lb: HR Info iyslcm Ulumnzely. Lht 15.-11: of Expo 11,1111; for :11: 11ccumc_1 of the Inforrnzuon In the HR Info s}'.~'(:rn llzs wiLh TLDM md not D1 Hume. nny qucsnon of nzgllgenct mu likewue an on Lhc shouldzfs of 11.13.»: 1 am no: uusﬁad am um am my duty of car: on 1-1.1311/1: pan 1»/mu-vi: :11: pmnurr. Indrzd. no such duty ofuxe ms been pludzd. Accozdmg 10 me mm of :\pp:al 1n mm Dthmm 27 Co 1. Jada/haramani u//cm.4m._y 12017] 2 CL} 665. [2016] 5 AMR 797 .11 an Clements ofneghgnncc must b( prnpuly plendzd In any zvem, zren 1; a duty uf are (In bu culled rmm w\|Lh1n pnrxgrnpll 2-1 of .11: Stzlzrncnl uf Chun 42.1.1 1 ju\|\ 2015, 1 am of L11: view 111.. no nuch my of m: can 1» Mmhuled lo 'l'LDM 2. 11 1., (on remote, unfurcsuablc ma qunc Dnzmus vuusutiz so 37 BK. Howwu, on me fooung am 1 am cfcnx: cxnls. than the ntxw mu: .5 whcllacr the am nfczre was bnachezl The pludcd :15: xs as pex paragraph 2: ofnhe Smtnmenl ofclmm winch ma. as:— --24. won mu/.1... u.. nhcmnuu mm: It-u\r,I)m l'I:umnmuc; Dcfzndamu Wm mg Igun ... Imng the ..m. wdzmry ma .m.....m ar xhe I'I-mm! wmngluﬂy ma an In: fnlluwmg p.m..\|..s mlemliz 5 mum — mmmmmnu m m mrmam. mm W "pan lhc mfnrmllwn m um um Anﬁumuunn System on The Defawdnms Tanled Io rtvrzw Ind/Ur mvauple me mfamulxon mm pubﬂshlng .r.- M. m UK sud wm.u.m Symm (my ms nu:-.a.y.u ma mu mscmd me mmmam mu) xh: sud lnﬁvmulmn Syxlem neglngcruly, mlhmu any um dncumenla ...a “am an) mam mfmmuhnu and upmsm/w=mm.nm.q.. ea" \ssulmng am TLDM ms neghgcm m fading to hnve a system m plus: much would (mm: 111: zccuucy or an mfonmuon m (h: “user mm‘ or the HR Info aysrzm, um. u {ouows mm mu would I2: 1:: bzuch or mm duly (cu ensuzc am (he mrnmuuon mrntmned dlemn 15 mmm The nut quesnnn .5 whether the plnnnff .5 cnnrlcd m my cnmpensznnn fnr dun-mgr: pmsnom 12 13 As such, me plzmuffwzs hvnl um Lhc HR Info syslan zuntmns such umruc mfoumtlon wmh regards to her asldxcas Ind he: manual mum mm: D1 .\cwrd.Ing to the psmurrs plcaded mt, the erroneous mfrm-nallon m the HR mo <y.sm'n ma barn pubhslxed :0 mm pames Hencc. me plalnuffdiums am 4.: has bcnl dcfamcd and/nr put :0 mcnral (news and mm. The plaInIuTlh=rcfurc mmmd .1... claim .g..m [hr dcfcndnnu 1.1.“-(1 on the ruuuwmg cnnwx uFncnun:— (1) lnwx.<I<:nofpn\'aCj«'? (u) rm.” ur.m<um1qun-me) mrmmuun; (In) Drhmauum (IV) Ahxr¢p1ts¢nral1ox).znd (v; l‘nn.hu and/or m the alremzuve. ncgkgencc. The plmuitr. cm.-.. (per lh: slanemcnz ofclnim — usocv) H I tum now to an p\|.'unufE\ plcndud cm Wu...‘ D1 The amrung point m an ulnm zgmmt D\ my bx. gleaned (mm (11: followmg paragraph.» m (11:50 . -‘7 Thucfme, lhr Plamuﬂ ws clnnmng mu u.. 1" n¢r<...:...‘ and 2" Ikier-dim mver uh» mung!-lly .a.....a kr mm. mm, ....a m pmm. form: n invaunn ulpnu s...........u..r.n...-nu .,.. ..,..am.. wknmy nd g(v g ms. repvnsenullun m n. F. m ...m=. vueimsz 59. Bus 1, mg plamuff has hnwlf rcxnﬁed um sh: am nu! xuffu my damzgcs a. :1 rcsult of ch: mmon of nu uxoncous mfou-nzuon 1n ch. “user vmt/' of me an mo systan, 1 am gr me new um fnllmmng the yunspzudencc csubhshzd by me Singapore Cnun of Appzal KE H1/bum: » Tm! T....ggm [19721 2 ML] p.94 ca, dzrnzges .5 an essmual and m.=,m1 put of the cans: of mm for nqzl\g:IIc: And without prnnf Of damagex. mm .5 Im uusc nf men for damzgﬂ 90. In K:}un4I:rmw E/am; 101 y» [lag-ant BM Ahmad H.425». mm, [2017] MLJU 520, I had occasion to consider um issue and my conclusions on rm pom: m to be found in pnmgupha [so]-[as] or me gxounds onudgmm. wmh mm repmducad saw for convenIu\|ce:— «mu m m: mum at .n, ...¢.,:wm endenne, : hm In and um plllnllifhus nul pmvm ..., dalvugzs 24:11 my Ilm u.....ua mm. the mu! 5... ,; wmm I an nlInw'Vxnm1lII\ mun me, the upminnwasdwidm Cmlnsel form: Acrmd-nx xeftmd Ioﬂmclse uf 1:5 H!/Dorm: u 2,. rm 2.“ m2 2 M R2; .1 p91 mmn H mm culumnl and we A-Dﬂeh munnn» m..:n was =...m=.u.a mm . cllmum wlm sneezed; In csubhshvllg mm. of mnlv-ul tun mu, m pmv: dzrnzun 1; emnm Ia “mmmal dnmngs Bun . am for Mgﬁgmce ml r..u xldamagcs .-cumumm. ml In mu aw Ihc ,u.amn..a ma me mm. m cam and ... um tnaglvgmu) um (mud Iv vmv: my Ins: and Wu mm “mama! ﬁ-mugs m mum Ind ml n. ma vn. Iolmwmg mm [mm III: yudxmuu .7: pmmrnl and dzserve «. be pn:duu<dinfu\\|- "Wuh mm m Ill: angumznl on cam: ul Mrﬂnlhume mu u. . Mghg:m:: Ixlum mhrre M Van .. pmved m. uuan mm m hm dammed ».= .1 of IDK “mu. mu m: nus: ofxlinn in me mm. use :1 brad: m.m... ...a M M We wk! WWW Wm: loﬂzrrkry nu Snhcixnvstémﬁd 7 vmeruhe “mm ma u M: m; tr-pesnuiz "Ncghgencz M bcendeﬁmd u Ihenmuwce-hlwch av: .. .u was the duly «rm: dcicndinl m mm m rm Inn . prohssuvruﬂ mm has been mjlugcm or lhm nu am y... suﬂcrul dnmlgc dnzs M ofluzllmvnruc In 2 umxenl-alum. (or ruuhnence .m..=.m. ml yv: anus: nfacuon. ma amp: am does nut give a caustol .«.m. xhc \|wn mm (.7 arm. Bu! «me ...m.m can mm 11 mm 17! mnmn prtwmalﬂy om must be a cause nfmnon yr ....:, TI-rnuminI\ dnmlges m..»..m= neghgerwc m, In: said m nous mu: sxcnml mxrcdlmls mg mmpkx mncuul ofduly. am» :77 mg duly. and dlnugzsu1l:nﬂ Hy me pcrmn m whlwn lhednny vasovwmg In me us: 07- whcilotlnd ma dim! w:hncahp:n:: mum 4.: . my my (mm m. a min. u to exerci-e can In mu, .» rm a brach mnum by Ihe sol (01.1: . mm 1., “um .>.:y..y.a.m ormmsun pvacnba bylaw md (C; max hm Ioukchmt islhedmu vesullolmch mum. Whue mm .3 pmrmm.\| nzgluuwz an me pm a! a mlucmr nu cﬂmu am ..n.u..m u Much arm-M um unuon um nclmn nu... -wring m m.u.=. ma nnl 1.. (on me prmcnple .5 u... . pIuInulI.:\m1 mm he "1 Int hu mam nu pecumlrp (as; mung Irom . ammmx mm ofcomnu or run; In pnw: my Pelumry loss nlluuﬂy ﬂaming (Mm In mm. nfcunlrxi. ‘. m prncril znuﬂed In nommnl dnnug. See mu, m. Cmm-an am ea; In punyiph um. Whllh Iuds -~N.m.a dlmlgei. Wberevu A puny u mun rm a bum .r mm, kn exprcsx or v....;M mg pummn vs m [mail emmed m mmm .1.m.g.;...s...u, um, :r..\|m..n .1nm.g no mu dung: VS pmvtduhe vuvlxlvon m . nyul .1 mmmun law wﬂl oﬁcn .-mu: Ah: pnmmm nommal dawmgpx cw/an wmm pmdvfr/I .;.¢..u dung: Usullly um «mm min wm me defuudnmk mush .rmm..m r... m rmuusea no Iossmlhe plnmuﬂ an u may Also mac Mum lhryhvnlvﬂ. .1m.-.5». n: his m M mum Imx. Imls In plum my last VII“-mg {mm I]: mm. a! mum nv ml; m pmve me am: ummnl onus ms Th: mxmll uscnl nmnmnl .:.m..5¢; howcvar, .; 1. mnbluh the mfringelnuvl af H: vblmﬂfx legal right ma xammmes uzmer: peg on Much mhunuaxu »...n..n [:11 Hencz. u wuugued mm defumm mu Iflclmmzn who we wen, m nqlwgerke in do“ nolvwvz dnnuges. mm: tlarm m nzglvgmce bu; Hue. Ih: pmnlvllx (mm was ma pulﬂy ... mﬁhﬁyvlliv nm 1: w h: nhnnd mm. ,,...m,.m 2a. m, 3: ..a :2 of me Sulzznem .1 Claim Ham. on m. premix: n m camemgxl (ur lhcdcfcwdnuls um nnnmnm d-mlxn dues Ml mu, mm mmluhosueswn mmmemapmsmnmaramym 2. lnprmnlmnngcs gal on m: nlhu mm :1 Mn ugm run)»: p\ImnI\‘lhulc\/en mg» won.mm dumps mm M pmnn. lhryhmlvﬂwli man“; an mu m namlnﬂ dlmnaes. In um: “gm munszl for In: p nmr reﬁned In II: dcsnmm «I the Cum 9! Awenl m (mm z.-.»a.....wmAm. um Ballad 120:5] v MU .; 59 u whcrv III: L-mn arm:-I mm mu m: hm Wm. mu nnd the xallmma rm prnfrsnmxnl mgllgence ma 12.1.4 m pm: dnmnga um: um ..»...a al\|LM£,SZu,13b77 glven :1, D5: mm (‘mm Ixeeulﬁin Hmvkﬂzrhadv ChandMrv0Narrnnd Orr [mm ocu péémwm sci min. The cm afAppm.1 menptomcdcd m Mdnv 'imminI\ Humane; nrRM5n.nnorm Bu! n a‘ \M\|J¢FllU/E m nnl:\h:Al(EI-Ivlborm v Tun 1langQue4[Y?7Z]2 MU pm wumn velenud w lh: co...‘ ur A,,,;=.x 1». Cum! .»v Apwan rmurul: far zmzdmg nomInI\ damages may he culled mm the Tnllovnmg swmnlry vflhuudgmml 51 Ahmuyn me nspnmknl lmled u. mm: m: dlnlngps n ma mama‘ me mm vecngnned In: In .« must rm mum: mm: ammm of ms mmugh mg .Wn.m~ Inglwgulcz a m: 1:5;-uvldenl WIS Wm, unnbl: la rxuvw-ny mnmri mm mm ymrm m mm: :hm\|a:s nf msomo .w..u.« w.. nulhr-r mxmsculn nar :xc:vsw: ... lhv ..m..m..=:s bu! vuwrublr given ﬂux .. ms mm:-uh. .¢ nnl ImposmbI:. m mm In: mm m In: wnlen ah}: evl cnceadduncd nnhe Ink \hawH5<¢ ms 19 n m. mu] 1.. an m u Ihc dwvslun oflh:Couvl u(AppeaI ... ChardnznG mm as: .5 amlcenkd I an me new that mm we .. “um: pvmhly wnﬁnsd up In mm pmm. rm. ax mm In: C044!‘ of Aw“: .n..a=a In the cm mm qumnﬁunon ofdumgcs Wu: mmmn UI’lll\|pB)libltW71€rII5’V£V! mu: mm mm Hmaedwmml [as] r..nn:.,x M. .m.¢ vxtw nu. ma. pnqbr ..g......nu um: an xz ﬁﬁlbvrlvlr use um: um um. up b(Tm: me Cmm ouwuu. n..m.m......;.s m., run h-ve am mduwt ax 1h: cnnszolnuian neglvgmtc wouki luv: kw Imsuxuimhlz = mg my mm {mm ... prmrmglhil u mum lug V-gessaosz [ks] In any name .: .; am Ihu ... (Wain/run G.\u/VJ use, mm..." gr Appul am ..m nuke . clar m ntho-1 human ﬁlming damlgﬁs m cnmucmnd ptm/mg danng m mnnn at nzgllgcncz mu m: wmbquuvtﬁ max MVI mm». ln me we af nmun what dzmagtnrc nol pmvm in an ‘mum Mast ' Outcome — Nzgligencc 91 Thm my pun-mt} pnnuun .. um lhc plunuffhns fulcd m hn am an nL-gl.Ig:ncc 1.,» kulson uf mg ubwncc or any duty of car: un TLDM‘s pm ma mg plaintiffs fnluxe to prove damages Hmvzver, 1 2m of me View am evzn .r a duly of care mma and me duty of cure was branched by TLDM, me plunnﬂ fads m rm claim for M : as sh: has not pmven any darnzgm 91 For tompklzness, 1 would sub: am in had .0 award any damnges m lhe plmnnfﬁ {hm u would not 1.: mot: mm m2o.ooo.oo and ms amount would have been . bsumed m me ward ﬁvr dcfamannn m any (vent 93 Next I wul um w\|Lh um (aux: uf ncuun (ox mmpmcnmmn. mvmmn of pnvncy and misuse of pm-at: miornuutnn 1 End u unnecessary [D dml wan. {hr dum band on nusrtpkscutnunn and me rorLof\|nvas1on or pnvncy as dues: aspccts ofrhc plamnffs clzuns setm (0 havc bcen dmppcd from :11: plamuffs submzsswns am: 23 Deco-nhzr 2016. plunuffs reply subrmssxons damd a jmuuy 2017 and ma plnlnuffs further clmﬁczuons subm.1.«sI(ms darzd 25 Jnnuary‘ 2017 »...smu Misuse ui pnvale information 94 As such, 1 Med [0 deal only wuh the (lnm bzsed on the ton of “nuns: of pnvau mfon-nzuon" 95 In Lhzs xegald‘ (chance was placed on me Iollmmng cases , (:1) Appbum mp Pmdummr 11.: and 11107. p mm: [2003] EWHC 17211, (I2) Campball ;- MGN Lzmlrd [2004] UKHL 22 95. In /[pp/mu: Dar! an Court mm rhu then: was mm: Di pnmtc mfunnnuun visa 7. Facebuuk png( relnung m uh: d:nmam‘s sexuullly. In Cam/10:11 uh: House of Lords rultd Lhnt Lhe plamuff, Ms Naomx Campbcll ma esulzhshed am am W25 numse or pnvatr. mfonnnuon whcn an defendams publxahzd fans pzrtaxmng to ma uealmcm (fox dmg zddxcnon) which she was xccuving and dcmls of me mmm The Anfomnnon related to tln: duukmn and frequmcy and thc daily urn: schedule For the ucntment 1: also gavt xnfonnmon of hcr znmxmtmtnt to the mmm process ma 1.su,— 7. vtsuzl pnmm by means as phnmmpm of her whrn sh: was Invmg rhc place whm Hun-m:nx had hm. tllung plzcu In detunumng wlm um ml was not panic mfunnzuun, Lunl Hop: of Cnxghezd sud [92] V Fan 55 Ms: 97. as -192. The ...1¢.1>..... an-swan .11 (me: 1-«hem 1. 1..11¢.;.1 .1... ma: 1... 1.... . 17.9.1. or me my .1 mnfderme .s w»..n.. 11.. 1............... .1... was a..c1...¢.1 .... pnvalz um um ....n1.=. Thu: .......1. ........n...s1.1. ....v.... ........ n.a1.1.¢ c1.......... wlshvs mpm.-4 1/ 131.4 ms 91: 195.211. 9... 11 1...) 1.. same uscx. .1! .1-. Cnun ufAw<I\ ..... .. 11.... use. 1... mm. .n 11.. .1... W11... me ..1.-.......a. .. pm»: ... pnule ....11 pg ....1.... w1........ .....,.1..1..u.1.=.... ...1...1...a1..1......; 01.1.. ...1............. .5... .1.‘ ...a....1..1 rw» u«...1a gm ...1,.......1 .11....» m A.n§s.1.m1n§\hu A wu p1....1 .. ......1.. ................. and was: pm......1m......_. .¢....1..1..... Hmcc, havmg regard .0 .1.. approach an. was ukcn 1.. .1.. casts xzfened .0 above .1.. q...s...... 1...: 1. , am the ermneous ...;......me.. have .1. quzhty of pnvacy .1»... .. .....1 .1..1 .1.¢ phlnnff have .. lcmnmnre zxpeclauon ..1 pnvacy ....11. .:.;..a .0 .1.. e.m..m... ...1............. 11.... was smn-d 1.. .1..111z Ina. ........> Clurly, .1..- .5... 1.... .. ..... whether .1.» ermncuus ...r....-......... .3 private ...ro........... m m: s:nsc of 1. bung c....a.1......1 1...1¢.-.1. cren .1.= p1......11 acct.-pm .1... me erroneous ...r.>..m.... .. ..o. .....1i.1e..u..1 In mm ....1 .n.1.1. .mp1. .1... .. an 1». obmmrd via mg publx: dommn. And so an quesuon as .0 whcrhcr .1.. .3 still mzmcd .0 131 and ..1.¢.1.¢. me .5 0. was .1.. w\|fe of 1... second or .1....1 xnm-nag: m .11 1-1-arms .1... ... ... .1.= public domun. so .0 .....1.. A. 2 mm. of plain 1...... and reason. these mauns 2.. ..m, ...a ......... 1.. ..........=a .. “punk: mfnn-1-1auor1" vnpeseuvsz 99. ‘me am quzsuurn u whuhez an plnnuﬂ had an cxpecmuon um me Infourmrmn of and concen-ung ha nunml smtus wuh D1 would be kept pmm. In dus xegnxd me phmuffdxd nm go so fax as m tuggzst am sh: ma such m expecunon. In {an her complaint .5 not even the an am such mfoz-maucn is ktpr m the HR Info svstnn Ha mmpmm .5 Ihax “x'a.Is=" xnfrmnznrm .5 being «ma m an HR Info sysrkm mm. {hm the rm man u u noted m m: HR Info symm. 100. Accurdmg to mm: rot uh: plamnff. Although the um am he .s relying on x. dnscnbml as “n-mus: ufpnvzlc mfonnauun", dmm ,. no ncussnty to pmw: m “m\|xux:" I dlugnc. In nu. u 5 of am very nsence or the ma mm mm must be rmsust. 101. Hem that \|s no suggesucrn mm TLDM misused the emmeous Anfommnon in any way In an TLDM gums nuthmg by mmlmng (I1: crmneous xnfnnnztlun 111 th: HR Info system. In fan as rh: current lmgannn has shown. TLDM pagxxvzlr rtmmd me enonmus Infnrrnannn m an HR lnfn <}'<(:m much to mm dunmmt and pcn] 102 Ham, rm the Kcasunx dlxcussml :\\|mvc, u u my wncluslun um Ih: umnum: mrunmuun .5 not pnrnle xnformauun, mum u :3 cmxnzuus infomuuon which was wmngly zrmnzd m m: HR1nfu sgisttm. Pap-579052 103. Funhu, mu: .. no zvxdcnoe of 2n_\ mm: The exmneous mformnnon was merely zcmnzd m m: x-m Info system m n pnsuv: manner No one knew zhuuk Ah: mnsrzke until the plan-mff wus alerted to us cxxsltntc. qmm possnbly by someone withm 1-mm 104 In all m: cmun-Nantes. for me (anions as dxsmssed above, I ﬁnd rha: uh: plmnnff has nm :sr2blxshcd the nemmy glcmems For the ma ormmm nfpmzu: Infnxrnlnon Cnurh rnlmg on the inputs 103‘ My ruling 011 (he Issuts an as rnllnwsz. (2) Then n no cvxdencu to show um DI wzs "mvnlved wuh" or “x:spnnxIbl:" or “culpable” fur rhc crmncnui \n Formation bung rcmntd m lb: HR Info Wm am his drvmc: mm the plamuff (b) Ibex .5 nu evidmcc um D1 “bcneﬁ\|ed" ﬁom me nrmntuus minrmauon bumg rammed m :11.» HR Infn syncm afru um nlwmvc rmm thc plnxnnﬂ. Them .5 no cndrnoe mu on clmm of pmmnunn would 5: affected .1 the HR mo system am“ am 11: had been mnmed 3 urncs? me :1 Mil (4) DZ—D3 are llablr m dzfnmaucn [02 mg mmuon of umncous mfurmauun cuncrrnmg rhc pumurr m an HR Info «yuem as H1: macuuun or yuxtapoxlnnn nfrlue plmum name and dcslgvmnnn mm Puzn summm photo and her rnsxdennal man” 1s“d¢farn2(0ry" of me pmnua. (n) D1 dues not have a duty of cat: Iuwudx pmnnrr Io mum thnrplzxnufh duznlx arc pmpuly undated m nu HR Info swtcm‘ (h) TLDM has pzoven am an grmncous infnmuauon cnnuming me plamuli was mmncd 11: um HR Info :)1t:m (use1'\'\|ew) because uf: gmh caused by aw tours‘: oodc. nlbrn that that soumc cudu hurl not ban pmduczd m» n ma rm. pur[vnrtcd1y“enw:d" 9) TLDM dens not out 2 dun of car: to the u— spouse of .5 omms to ensure an: m: pezsoml :.I:ud> uran cu;-ouse are pmpzrly updalul m me HR lnin .<yx\cn1. (k) Sine: me mz Info sgakem hzx hm. updnrzd (after dw sun was ﬁlcd) ch: plnmuff 15 only mulled n) damages an Lhc sum of msumw no fax dnfmnnuan. van ss 1:151 am: we Th: plmurrs clann zgmnsl D1 15 dmnmed mm CD55 or M/£40,000 no (subycc! m 4% zllomror) rm ylaAnnff's dmm for defamation zgmnsr D2 and 1:3 .5 allowed D2 and D2 are m pay 3 Sum mulling mso.ooo.uo .5 dz:-mgr: rm dcfzmanun mm mm: Ihrrcnn at .11: mm uf5"/{rpcrnnnuln fmm me darn nfrhls judgmml unul mu pmfmrnl. n: ml m are no pay am nn1MJu,0oo.oo .0 ch: plnxnltff (Nu :\1lr>czrurIs pnphlc by D2 ....\| DJ us put om. -)1 Rulc 1 (b) Rules uinvun 2012) Order ucnxdmgly. Dirt 11 Sepmnbu 2017 S. Nnmhn Bnlsm Judge High Court xcum. Lumpur »...smu 2 hmhzr, Ho: rmmm U .x ......g mm the n.:...u... w... -an n ......,..u.......e..auniny Idnnfnnmnn-nfvte m. -.....g..uy um... tie n.r.......... mm 1.. ...am 4 .n... .n. ...n........... u. us. uld u..r...... 5.... Syllun ...z......m..n ....«r -; m 2* ua..m.... mm. 3"‘ n.:...a.... ....» my. rhpunnbh: ma v.....u yespmmblc mm III: ahevemummwed P o=r:........ .; pnncxphl Ind/nr Imdn -......... \|m..I.\y" for m: u.....;.. on... 1‘ ner...a..u -’ [empl-nsxs ..ad¢a1 DI’: mlc Throughout {hr (ml. the plaintiff appnred to be qunt cnnvmced \|\|-mr DI was behind Ih: xctennnn of lhn uvnnen\I< ...«...-.....r... m me rm Kysvtm. 1.. thus regard, .. .« mlcwmt m refzr ... nu» fnHn\\1ng paragraph: u. 21.. soc when the ;n....:.rr..11..<:.-.1:..D1', alleged mlc ... raped mm. nrmneuus mﬂmnzuun ... um HR Info system‘ "H nu: n......n...... um Inn um: n... 1.... ........... .. fnllmtx \m n.. 5:-eh ... xhc um... Rewune m...-........n s,...... ..: ms may mm... um (h:n\|nlA:r refund .. ‘um and lnfnnlulmn am... ) mu m. m n=r¢..a.... . rum: mm (M: m n.r.«.....r. p..».....:..s an mm. 2015 Mm. can In gm“. .4 mu: -1.. any Mn. ..w......w... .. m. Rnynl\1nII)$u:nNuv\. "kuluwxu .vm.....1..».:.1. ;'m..»... mun Awvw mm Suurm uumrv /mm )1/w/29:1) usmr mum 51 um mM m:1zI<.4 mw.w,»c mm; P:/vauu n uum N mm pmuux No :2». 11.3. ms :4 rnmlv m 1, 1.4uN:£N1Ul. muuzur. sum; r.;.ma..,. rum<....... Alumni 1./w.:v...».. nmu u/um: /.....z..» Anal I 0120:. ,x.. m mu;.«.u..s 9:.-vmn Counsel: M: jusun Voon mgcd-1:: w1r.h M1. Chnsuna Cl-111-1 (Mumjurnu Vow: cm. 0 [mg for Lhr. plmnuff Mr. v. 1\1..gum11an zngcther wnl-1 F.n::1k Mohnmmnd Nzxxcr hm Ynsof md Enclk Mnhamad Faun bm /\bdu\| Samad (Th: 1.,» Clmrtlww Afﬁmgr $- Nanm for Lh: ﬁrsr dgimdznz Puan 1-131311.21» 13.: Hamn (mm 1~'mm/ cam: . Azwmg Gmmn Cmmm) for .11: second and um dcftwulanz Cnel: Ayzl; M 5m 1; TJ‘ xmmmmmml [19119] 1 CL] (R(p) 321 1,14 Hu.rmA/I 1. mu/ea: l’rrmakar1 Utxumx ﬂr1!@’u Barbed [1973] 2 ML] 6 CA Data In! Annw Ihmbmv 1 New SIv1z.1'Lr Tim: Pm: am .01». EM [2010] 2 M1] 492 HC Czumiy 1 Dag/y M1nw1\':m..pnI4«1[1<129] 2 KB 331 CA E. Hxliwr ¢‘7 Ca 1' jar”! [1910] AC 20 11.314» 1 Lmy. Expmr Nzwqiaptv [1940] 2 1:13 507 /II Amy. 1 Bmarrf 29 Anal [2006] IZWHC 1062 (QB) [12 my 2006) [2007] 1 WLK 113, puns] EWHC 1062 (QB). [2006] 3 .\11 1111 294, [2007] w1.x 113 He Z): YM5 Zbzn 11/HA .\‘mga/>117: P1: Md and armr. [2013] 2 SLR 473 HC Qrngdm Balm cmmm cm; Cu, ud m on u Cub me Hug and my. [2016] 4 51.11 977 Tan/M Hang 11:70! Dam .\')Jf:rn :11» BM [2016] 3 AM.R 457 CA m cm mg rCTO_Yvnn.\'tfv1 w[zu12] 5 ML] 20: ca 1<,.,.mm a/p Mgyappa mm 11 51; mg Um/o;>n:»1I .14» W [2015] 3 ML] 13511 c A wrnwa mm Debmm v Ca 1: Sadarbammant 0/1 Ca:/indaxany [2017] 2 CL] 565; [2015] (. AMR 797 CA KE Hmm ]/ m Tin/]g]Q~¢1[l‘17Z]2 ML] [1 94 CA K;/xmhman Eleleml KM 1/ Humm smAmmt mt //wt: mm. [2017] ML] U 520 HC 4»;/gm rm Prmluma~.rIJ-14M arm. a Rap/um poms] EWHC 1751 Canpbdl u MGN Imuni [2004] UKHL 22 Flu :2 .m am urIm1aU¢mn>4@r>avy .... WI’ - ‘III: ru......n mu... ....: gnu: m . me 1.. n.z....a.... ma inler m ...a un. .. . ....s m. ..r..... ..r..r....»- am. n.......n....a lie 1» “M _...=....: npuullau and fmlixann hmdll .. We mm. Mnlnvw: ~..,. ...a...1....; 1... m. .....m ..rpm......... mdmobn lgnodnlmz n.. s-:......n hm .:... .m.....a m\'omu\|mI n... I11: m Dclnmlam .. .n .....m.v um. myum mud puma: mu m .5 (Ir: sun In 1... ..v 1... s.a umm. Mnlmnea and the I’I.Im\|\|!I‘s ....... .3 me ...m=..n... wk am .... lire mm :..r.s......m syn... .. yurnguph u Ibovm IPVIEV .1... 7 m w vxmu wrpancdly .; albged u. M m: cunrnl M1: al m. 1.. Delcudml M...» M. hlxcnnd/urumm: ...r.........m. n.» W: FhInl1\|Vpnrpo1Ie-dl) VS .n:..=.: .. xx nulried u. Ih: lu n.(...a.... .... zwum: WYMSV1 .. . Ms: mvﬂﬂnr ........= ...:..........n. mm The ls! perm... was am... y. be cunerm) m 0»: “scvond .m......v WV"! me m.....n, ..»..... .. bthcwd .. u. .. nu: ma... umme information. M The .5. Deluxdanl pmpnmadb .. mmca WYIH sunbeam haldmg the pwnon u!Muugmg cm .1 Wlsma Dmmmk Much wxnlm .m.e...a/... ........c ...r.»........m: N 1.... the mm." ,............m hm . ...' mm; ullh me m De1mdanlmn:nL\yn("lu s2u.:x.3 D1eSaﬂ‘mn,No v. 1...... 3......‘ W.» mm, mm: x...n.. L....,,.. .....(....n.« ..¢....a m as ‘Ike saw! s-mm. I41dl!55'\ Much .. also . rm ...m.. mum: ...m.......w., ...a my tr... pm-pqnadly and give me .mpns~..... mu m: w......w .3 mmu, unylngvnlh lhe us. D¢1¢II¢IHl\|\“hMshlndnrvd WI .- 2. uh: xsvd Snﬂmn mm wnnh mm. 2 ms: and/or ....m.= ...r.............m....s..... n. n.....m ....... mu .n. ulal ..v............ ...a me ulll L ...1/... .....m . w * c... m mrIjIr:;u mzum. 1... m. cm. gun Ind m. n.....mx perm n ...r............ Ind/nr mg abmcmmlxrmxd .....m...o.. W: inm- wvonyy lrpvesenled m m: Deleudnms .: txyhvncd »...»u>.m »..u.m u rmrm, um: I'l.mmW nun max m. m n;r;,.g..,. and/m ll»: xm Delendam (Mm W rcsponsxiﬂc Far the mma..am.n... of nu: um: Mnlaymn yum haw mun- uy Wrnnglullx K 1,: n..... ntmng mg Emmi! 3.,;.._.m_m nflhe vlmnurr. no :.....a..: u. n.. . rm‘: ...u a n -r mm... ..n...m.gg. um . m» V! ... .. u ...a. .> ngmg idenligznd pemuul ...m.; -9,. ,1: III: 9 mt. m n:.«..a, uuted m: pm my uxmg me 11:11:, xdrml um gwmrml mramum nfuhu PImmhll', mlhnul my Ium\IIedg» mr...h=...,,..m.:. no Pasxd all (he w......rn nlmc and mmmy » mg m. Ind wdemuy mm 151 De!ennaru‘xwi[:.\|nd um m...mm mscand/or unlms mlurmaxinn and/nr wnguessnon to am puma. .:um um it xx lmpuullue m n.. ma ...w... .. m on :.um.a.au.n. mm. 4... W...“ In Mnmwcr. mg Plmmll‘ mm; Max In: m perm.“ WK lhc cmer S-ecnurv nflh: mm. Managemzm and/m the Dneclvr oflh: mm mum Mnm:y:mu\\ mlhc Rap‘ MM: my rm, [emphasis addtd] Fm hm part. I)! xmlnmncd may hr ma nn ml: m manna m “hm gnu mm the nu ma 3 «cm And m w ﬂu an m ma D3 arc cuntcmcd, men common pu.V\|L\un ., um mm was :1 gJ.\|(ch In my mz Info system and um ghlch was caused by 2 “sonrcr code". A. such, Dl 5:‘: he xx txoneulcd D1 also mmnvams Lhm hr denvcd no bencﬁz ilum using Lb: pLunu\|Ts name 141 an HR Info sywcm Pun QM sz 17. 13 19 20 Fuzduer. he maintained on: he 15 onlv m charge or medn nunns In TLDM and has no ynnsdlcuorn ovcl mztrtzs pelhming to me records of (J1: Royal Mzhysxan mm; In oppnnng an dznn, coumd for D1 ma man (11: cause of «man um an plamnffus rr.ly1ng on nnmnn. ofpnncy) 15 not nrnnnahlc m M.1ay=n as it 112: nm hccn tecnguwrd as a me I: was we xuggesltd mu me pmnnrr hax nn rvldcnce m lmk DI to the crmnmus Infunnanon m the HR Infu svxzan But, accurdmg n, [ht plnnuﬂ, on cmnel crahbly dtm am; An) he n [he only pury who can vzupply the ncces. ry pumnal Infonnmun fur the HR Inrn tystem sxnc: 11: .5 nu ofﬁtu whn could nlpplr hi: pusonal rm dam and/or details \|n:lud.u-Ag dtmls vfhls Mi:/rx— Hf: for entry mm me HR Info system: (5.) 11¢ hum : mgr. pcmjun m an TLDM whu: he I: pluded as the Ktrun Sekrcunzu Pcngukuszn Mull: aan/mu Ptngamh Pmgumsan Mean TLDM. In Lh\|s kgnni, counsel rtfzned In (ha avcnngnt m [vaugmph 20 of an smtrmcnr of claim which was .pp.mn\|y brushed off and/or avoided In plngnnph I8 nr mu defence Ix bung "\m:l:vmz" cnnnm emphnt ‘:1 am D1 held the pnsluml of “Kctuz Sckrczzrnz Fcngulusan man TLDM“ which ;. vcry hlgh pmuunn nnd/ox In . posmon uf pmvcr in nlnuon lo the HR ln[o wxltzln Fag! 10¢ 52	82,693	Pytesseract-0.3.10
87-1477-07/2015	PENDAKWARAYAPendakwa Raya TERTUDUH KHAW AH NGAN@KHAW CHIN HOOI (DR)	null	10/09/2017	PN SALINA BINTI OMAR	https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=d362862b-76fb-4673-9b4a-86c4575766ae&Inline=true	DALAM MAHKAMAH MAJISTRET JENAYAH (4) JOHOR BAHRU DALAM NEGERI JOHOR KES NO 87-1477-07/2015 ANTARA PENDAKWARAYA LAWAN KHAW AH NGAN@KHAW CHIN HOOI (DR) (NO. K/P : 510827-18-5883) ALASAN PENGHAKIMAN PENDAHULUAN OKS (Perayu) dalam kes ini telah dituduh di mahkamah pada 02/08/2015. Perbicaraan dijalankan dan di akhir kes Pendakwaan, Mahkamah mendapati pihak Pendakwaan Berjaya membuktikan 1 kes prima facie ke atas tertuduh dan tertuduh kemudiannya dipanggil membela diri atas pertuduhan. Di akhir kes pembelaan, Mahkamah mendapati pihak Pembelaan telah gagal menimbulkan sebarang keraguan munasabah dalam kes ini dan tertuduh telah di dapati bersalah dan disabitkan dengan pertuduhan. Mahkamah kemudiannya menjatuhkan hukuman denda RM5,000 gagal bayar 8 bulan penjara bagi pertuduhan pertama dan kedua dan denda RM1,500 gagal bayar 5 bulan penjara dan tanpa kos Pendakwaan. OKS tidak berpuas hati dengan sabitan dan hukuman tersebut dan merayu terhadap keputusan tersebut. RINGKASAN FAKTA KES. OKS telah dituduh di Mahkamah dengan 3 pertuduhan iaitu: i) OKS pada 10 Disember 2013 lebih kurang jam 10.50 pagi di Klinik Gong, 45 Jalan Serigala, Century Garden, 80250 Johor Bahru selaku seorang pengamal perubatan berdaftar di klinik tersebut telah gagal untuk menyimpan dan menyelenggara Daftar Preskripsi Bagi Bahan- bahan Psikotropik sepertimana yang dikehendaki di bawah Peraturan 19 Peraturan-peraturan Racun (Bahan-Bahan Psikotropik) 1989; ii) OKS pada 10 Disember 2013 lebih kurang jam 10.50 pagi di Klinik Gong, 45 Jalan Serigala, Century Garden, 80250 Johor Bahru selaku seorang pengamal perubatan berdaftar di klinik tersebut telah tidak mencatat jumlah stok bahan-bahan Psikotropik dalam pemilikan ke dalam Daftar Preskripsi Untuk Bahan-Bahan Psikotropik sepertimana yang dikehendaki di bawah Peraturan 22(b), Peraturan-peraturan Racun (Bahan-bahan Psikotropik) 1989; dan iii) OKS pada 10 Disember 2013 lebih kurang jam 10.50 pagi di Klinik Gong, 45 Jalan Serigala, Century Garden, 80250 Johor Bahru selaku seorang pengamal perubatan berdaftar di klinik tersebut telah tidak melabel bekas simpanan ubat dengan nama racun sepertimana yang dikehendaki di bawah Peraturan 9(1)(b) Peraturan-Peraturan Racun 1952. KEPUTUSAN DAN DAPATAN SERTA ALASAN MAHKAMAH (di peringkat Pendakwaan) Adalah menjadi kewajipan pihak Pendakwaan untuk membuktikan satu kes Prima Facie terhadap OKT (PP v Mohd Radzi b Abu Bakar, Balachandran v PP, Looi Kow Chai v PP). Mahkamah hendaklah menilai secara maximum evaluation samada kes pihak pendakwaan berjaya membuktikan satu kes Prima Facie. Pertuduhan Pertama Bagi membuktikan pertuduhan pertama iaitu kesalahan di bawah Peraturan 19 Peraturan-peraturan Racun (Bahan-Bahan Psikotropik) 1989, segala elemen-elemen berikut harus dibuktikan terlebih dahulu. Pihak Pendakwaan perlulah membuktikan bahawa: 1) Adakah OKS merupakan seorang pengamal perubatan yang berdaftar pada 10 Disember 2013; 2) Adakah Klinik Gong, 45 Jalan Serigala, Century Garden, 80250 Johor Bahru merupakan sebuah klinik dan menjalankan perawatan ke atas pesakit; 3) Adakah ekshibit rampasan merupakan Bahan Psikotropik sepertimana yang terkandung dalam Jadual Pertama dan Ketiga Akta Racun 1952; 4) Adakah OKS perlu mematuhi keperluan untuk menyimpan dan menyelenggara Daftar Bahan-Bahan Psikotropik; dan 5) Adakah OKS telah didapati gagal menyimpan dan menyelenggara sebarang Daftar Preskripsi Bahan-Bahan Psikotropik yang dirampas. Adakah OKS merupakan seorang pengamal perubatan yang berdaftar pada 10 Disember 2013? Melalui keterangan SP3 yang merupakan seorang Timbalan Setiausaha Kanan Majlis Perubatan Malaysia telah mengesahkan melalui pengecaman ekshibit P4 (Perakuan Amalan Tahunan No: 6262/2013) bahawa OKS merupakan seorang pengamal perubatan berdaftar pada 01/01/2013 sehingga 31/12/2013 di premis serbuan dan fakta ini juga tidak disangkal oleh pihak Pembelaan. Adakah Klinik Gong, 45 Jalan Serigala, Century Garden, 80250 Johor Bahru merupakan sebuah klinik dan menjalankan perawatan ke atas pesakit? Melalui keterangan SP1, SP3, SP4 dan SP6 dan juga ekshibit gambar-gambar premis, kad-kad pesakit dan ubat-ubatan P3 (1-25) jelas menunjukkan bahawa terdapatnya perawatan di jalankan ke atas pesakit di klinik ini dan fakta ini juga tidak disangkal oleh Pembelaan Adakah ekshibit rampasan merupakan Bahan Psikotropik sepertimana yang terkandung dalam Jadual Pertama dan Ketiga Akta Racun 1952? Melalui keterangan SP4 yang merupakan seorang Ahli Farmasi daripada Syarikat Antah Pharma telah mengesahkan bahawa selepas OKS membuat permohonan secara bertulis untuk dibekalkan dengan bahan-bahan psikotropik yang dirampas, Syarikat Antah Pharma kemudiannya telah membekalkan bahan-bahan psikotropik tersebut dan bayarannya juga telah dijelaskan oleh OKS. SP5 selalu Pegawai Kimia di Jabatan Kimia Malaysia juga telah memberikan keterangan berkenaan dengan analisa terhadap ekshibit yang dikemukakan di Mahkamah dan hasil analisa menunjukkan ianya mengandungi bahan-bahan psikotropik sepertimana yang tercatat dalam Jadual Pertama dan Jadual Ketiga Akta Racun 1952. Adakah OKS perlu mematuhi keperluan untuk menyimpan dan menyelenggara Daftar Bahan-Bahan Psikotropik? Di dalam kes ini, berdasarkan kepada ekshibit P2 (Perakuan untuk menubuhkan atau menyelenggarakan atau mengendalikan klinik perubatan swasta dengan nombor siri 005422) yang telah dikeluarkan pada 23/10/2007 oleh SP1 (Dr. Haslina Binti Zamani yang merupakan Ketua Unit di Cawangan Kawalan Amalan Perubatan Swasta), ia jelas menunjukkan bahawa OKS merupakan seorang pengamal perubatan yang berdaftar dan memiliki sebuah klinik swasta untuk beramal. Ini secara langsung membolehkan OKS memiliki bahan-bahan psikotropik sepertimana di bawah Peraturan 3 Peraturan-peraturan Bahan-bahan Psikotropik 1989. Oleh yang demikian, OKS wajib untuk menyimpan dan menyelenggara Daftar Preskripsi Bagi Bahan- bahan Psikotropik sepertimana yang dikehendaki di bawah Peraturan 19 Peraturan-peraturan Racun (Bahan-Bahan Psikotropik) 1989 Adakah OKS telah didapati gagal menyimpan dan menyelenggara sebarang Daftar Preskripsi Bahan-Bahan Psikotropik yang dirampas? Melalui keterangan SP6 (Pegawai serbuan) sewaktu serbuan dilakukan ke atas premis yang berkaitan, OKS telah didapati gagal untuk mengemukakan kesemua Daftar Preskripsi Bahan-bahan Psikotropik yang telah dipertuduhkan dalam pertuduhan pertama. Pertuduhan kedua Bagi membuktikan pertuduhan kedua iaitu kegagalan OKS untuk mencatat jumlah stok bahan-bahan Psikotropik dalam pemilikan ke dalam Daftar Preskripsi Untuk Bahan-Bahan Psikotropik sepertimana yang dikehendaki di bawah Peraturan 22(b), Peraturan-peraturan Racun (Bahan-bahan Psikotropik) 1989, elemen yang perlu wujud adalah sewaktu serbuan OKS didapati tidak mencatatkan jumlah stok Bahan-bahan psikotropik yang berada dalam milikan beliau ke dalam Daftar Preskripsi Bahan-bahan Psikotropik. OKS sewaktu serbuan ada mengemukan beberapa buku daftar (P38-P53) bagi kesemua bahan psikotropik yang dipertuduhkan dalam pertuduhan kedua namun selepas disemak didapati kuantiti yang dirampas adalah tidak sama sepertimana yang tercatat dalam P30 (Senarai Bongkar). Pertuduhan ketiga Bagi membuktikan pertuduhan ketiga pula iaitu tidak melabel bekas simpanan ubat dengan nama racun sepertimana yang dikehendaki di bawah Peraturan 9(1)(b) Peraturan-Peraturan Racun 1952 , elemen yang perlu dibuktikan ialah sekiranya ubat-ubatan yang dirampas pada hari kejadian dalam sampul tidak berlabel merupakan racun yang disenaraikan dalam Jadual Pertama Akta Racun 1952. Sewaktu serbuan dilakukan, kesemua ubat-ubatan yang dipertuduhkan dalam pertuduhan ketiga telah dijumpai tanpa label RACUN dan kesemua juga telah dianalisa oleh SP5 (Pegawai Kimia) dan disahkan adalah racun sepertimana yang disenaraikan dalam Jadual Pertama Akta Racun 1952. Oleh yang demikian, adalah menjadi kewajipan OKS untuk melabel ubat-ubatan tersebut yang mana telah gagal untuk dilakukan. Isu-isu yang dibangkitkan oleh Pembelaan di peringkat Pendakwaan Terdapat isu yang dibangkitkan oleh Pembelaan di peringkat ini. Isu-isu tersebut adalah seperti berikut : 1) Pemberian kuasa secara bertulis oleh Pendakwaraya untuk mengendalikan pendakwaan kes. Pembelaan mempersoalkan bahawa sanksi yang dikemukakan oleh Pendakwaan di dalam kes tidak menyatakan sekiranya Pegawai-pegawai Pendakwa yang menjalankan kes telah diberikan kuasa untuk mengendalikan Pendakwaan sepertimana yang telah termakhtub di bawah Seksyen 34(2) Akta Racun 1952. Pihak Pendakwaan telah mengakui kegagalan mereka untuk menyerahkan sesalinan surat kuasa mereka kepada Mahkamah dan telah melampirkan salinan surat kuasa mereka dalam hujahan balas Pendakwaan kepada Mahkamah. Mahkamah mendapati kegagalan pihak Pendakwaan mengemukakan salinan surat kuasa mereka sepanjang perbicaraan berlangsung di peringkat Pendakwaan tidak memprejudiskan pihak OKS kerana pihak Pembelaan sendiri tidak pernah membangkitkan isu ini atau membantah sebarang pendakwaan dijalankan oleh Pegawai-pegawai Pendakwa yang terlibat. 2. Rantaian bukti terputus Pembelaan membangkitkan tentang isu jumlah yang diterima oleh Pegawai Kimia bagi Inzolam Tablet 0.25 mg dan Apo-Diazepam tablets USP 10 mg adalah tidak sama dengan apa yang tercatat dalam Senarai Bongkar P30. Pegawai Kimia menyatakan melalui keterangan beliau bahawa beliau menerima sebanyak 280 biji Inzolam Tablet 0.25 mg (P11) dan 357 biji untuk Apo-Diazepam tablets USP 10 mg (P12) yang mana bercanggah dengan apa yang tercatat dalam P30 iaitu 290 biji Inzolam Tablet 0.25 mg dan 347 biji Apo-Diazepam tablets USP 10 mg. Menurut Pembelaan lagi, walaupun percanggahan tersebut telah dijelaskan oleh SP7 selaku Pegawai Penyiasat Pertama kes ini yang mana beliau menyatakan bahawa terdapat kesilapan pengiraan apabila P30 dimasukkan dan semakan telah dibuat dengan SP6 (Pegawai Serbuan), ianya tidak harus diterima oleh Mahkamah memandangkan semakan tersebut tidak dimaklumkan kepada OKS dan tiada Senarai Bongkar baru dikeluarkan kepada OKS (Goi Ching v Public Prosecutor [1999] 1 MLJ 507 Oleh yang demikian, Pembelaan berpendapat OKS telah diprejudiskan secara serius di dalam kes ini dan dengan terdapatnya isu berkenaan sama ada ekshibit rampasan pada hari kejadian adalah ekshibit yang sama dikemukakan di Mahkamah, Pendakwaan dilihat sebagai gagal untuk membuktikan satu kes prima facie terhadap OKS (Lee Chee Meng v Public Prosecutor [1992] 1 MLJ 322) Pembelaan menjelaskan melalui hujahan mereka bahawa SP6 dan SP7 selepas membuat semakan bersama-sama telah mengesahkan bahawa jumlah P11 adalah sebanyak 280 biji dan P12 adalah sebanyak 357 biji iaitu jumlah yang sama diterima oleh SP5 (Pegawai Kimia) untuk dianalisis. Keterangan SP5, SP6 dan SP7 telah jelas menerangkan jumlah sebenar rampasan ekshibit P11 adalah sebanyak 280 dan P12 sebanyak 357 walaupun terdapat percanggahan dengan apa yang tercatat dalam P30 (Borang Bongkar). Kesemua ekshibit telah dicamkan melalui tandatangan dan tarikh dan ianya merupakan barang kes yang sama dirampas di premis serbuan dengan yang dikemukakan di Mahkamah. OKS tidak diprejudiskan di dalam kes ini akibat daripada kesilapan pengiraan yang berlaku kerana kewujudan bahan-bahan psikotropik yang tidak dicatatkan dalam buku daftar telah berjaya dibuktikan dan OKS tetap akan dituduh walau sebanyak mana bahan-bahan psikotropik telah dijumpai dan dikira. Oleh yang demikian, Mahkamah mendapati barang kes yang dirampas adalah barang kes yang sama dihantar ke Jabatan Kimia untuk dianalisis [Gunalan A/L Ramchandran 2 Ors v PP]. Tiada keraguan mengenai perjalanan pergerakan barang kes ini. Semua keterangan saksi saling menyokong antara satu sama lain dan konsisten (PP v. Muhamed Ali [1962] 1 LNS 129). 3. Pertuduhan Pertama iaitu telah gagal untuk menyimpan dan menyelenggara Daftar Preskripsi Bagi Bahan- bahan Psikotropik sepertimana yang dikehendaki di bawah Peraturan 19 Peraturan-peraturan Racun (Bahan-Bahan Psikotropik) 1989 adalah Pra Matang Pembelaan menegaskan bahawa pertuduhan pertama ini adalah pra matang kerana butir-butir bahan-bahan psikotropik hanya perlu dicatatkan di dalam buku daftar preskripsi pada hari ianya dijual, dibekalkan atau diberi kepada pesakit. Menurut Pembelaan lagi, pada tarikh serbuan bahan-bahan psikotropik yang dirampas dan dikatakan gagal untuk dimasukkan ke dalam buku daftar masih belum dijual, dibekalkan dan diberikan kepada pesakit dan atas sebab tersebut ianya memang tidak ada dalam buku daftar. Pembelaan juga berhujah bahawa fakta ini telah diakui oleh SP8. Berkenaan dengan isu ini, Mahkamah berpendapat bahawa terdapat pembekalan bahan-bahan psikotropik kepada OKS daripada Syarikat Antah Pharma dan bayarannya juga telah dijelaskan. Namun begitu, semasa serbuan dilakukan OKS telah gagal untuk mengemukakan kesemua Daftar Preskripsi Bahan-bahan Psikotropik yang telah dipertuduhkan dalam pertuduhan pertama. 4. Pertuduhan Kedua iaitu tidak mencatat jumlah stok bahan-bahan Psikotropik dalam pemilikan ke dalam Daftar Preskripsi Untuk Bahan-Bahan Psikotropik sepertimana yang dikehendaki di bawah Peraturan 22(b), Peraturan-peraturan Racun (Bahan-bahan Psikotropik) 1989 Pembelaan menyatakan bahawa catatan kuantiti akhir yang dinyatakan di dalam buku daftar adalah lebih berbanding dengan kuantiti yang dirampas adalah kerana ianya merupakan sebahagian daripada stok yang telah dicatatkan di dalam buku daftar yang mana fakta ini telah diperolehi melalui keterangan SP8 di Mahkamah. Pendakwaan menyangkal fakta ini kerana ini menguatkan lagi hujahan Pendakwaan bahawa OKS tidak mencatatkan jumlah sebenar bahan-bahan psikotropik yang ada dalam milikan OKS sewaktu serbuan dijalankan, OKS sendiri gagal untuk mengemukakan sebarang dokumen yang dapat menunjukkan sekiranya ada terdapat sebarang pembekalan, penjualan atau administrasi sebelum serbuan dijalankan. Mahkamah bersetuju dengan Pendakwaan berkenaan dengan isu kerana sekiranya baki akhir yang tercatat dalam buku daftar adlah termasuk dengan ekshibit rampasan, jumlahnya perlulah sama. Namun begitu, jumlah rampasan adalah lebih sedikit berbanding dengan apa yang tercatat dalam Buku Daftar Preskripsi dan ini menunjukkan baki akhir tidak dicatat dengan betul. OKS juga telah gagal untuk mengemukakan sebarang dokumen bagi menunjukkan sekiranya berlaku sebarang pembekalan, penjualan atau administrasi sebelum serbuan dijalankan atau menunjukkan baki bahan-bahan psikotropik lain yang tidak dijumpai semasa serbuan. Melalui keterangan saksi-saksi pendakwaan, Mahkamah mendapati pihak pendakwaan telah berjaya membuktikan satu kes Prima Facie terhadap OKS dimana kesemua elemen pertuduhan berjaya di buktikan (secara maximum evaluation) dan OKS kemudiannya telah di panggil untuk membela diri ke atas pertuduhan-pertuduhan. KES PIHAK PEMBELAAN Pembelaan hanya mengemukakan 1 orang saksi sahaja iaitu OKS sendiri. Melalui keterangan beliau, kesemua barang-barang kes yang dirampas telah diletakkan di atas meja dan dikira bersama-sama di antara OKS dan pihak Penguatkuasa Farmasi. Bilangan rampasan adalah sama sepertiman yang tercatat dalam Senarai Bongkar (P30) yang mana ianya telah disahkan dan ditandatangani oleh beliau. OKS juga menyatakan bahawa beliau tidak pernah dimaklumkan berkenaan dengan percanggahan jumlah barang-barang rampasan yang terdapat dalam Senarai Bongkar (P30) dengan jumlah sebenar yang dikemukakan di Mahkamah. Oleh yang demikian OKS tidak pasti adakah ekshibit-ekshibit yang dirampas adalah sama seperti yang dikemukakan di Mahkamah OKS juga menyatakan bahawa beliau tidak bersalah terhadap pertuduhan pertama kerana beliau hanya akan mencatatkan butir-butir bahan psikotropik ke dalam buku daftar pada hari beliau telah ‘supply’, ‘sell’ or ‘administer’ kepada pesakit. Namun begitu, pada hari serbuan dan rampasan bahan-bahan psikotropik dalam pertuduhan pertama, ianya masih belum di ‘supply’, ‘sell’ or ‘administer’ kepada mana-mana pesakit. OKS juga mengaku tidak bersalah bagi pertuduhan kedua kerana menurut beliau bahan-bahan psikotropik yang dirampas pada tarikh kejadian merupakan sebahagian daripada jumlah baki stok yang dicatatkan di dalam buku daftar. Bagi pertuduhan ketiga pula, OKS menafikan pertuduhan yang dikenakan ke atas beliau kerana beliau memang ada meletakkan label ‘POISON’ (D64) di atas penutup botol dan kotak merah yang telah dirampas oleh pihak penguatkuasa farmasi dan tidak dikemukakan di Mahkamah dan juga mengisi ubat psikotropik ke dalam sampul uabat berlabel ‘ubat terkawal’ (D65). Pembelaan selanjutnya berhujah bahawa pihak Pendakwaan telah gagal untuk mencabar keterangan OKS dan ini menunjukkan bahawa pihak Pendakwaan telah menerima keterangan bela diri OKS. Kesimpulannya, mahkamah tidak mempunyai apa-apa alasan untuk meragui kebenaran atau kredibiliti saksi-saksi pendakwaan terutama SP6 yang menjumpai sendiri barang kes di dalam klinik OKS. SP6 selaku Pegawai Serbuan telah bertanya sendiri kepada OKS untuk mengemukakan kesemua buku daftar bahan-bahan psikotropik yang beliau ada beserta bahan-bahan psikotropik lain selain yang dirampas namun OKS gagal berbuat demikian. Keterangan OKS yang menyatakan beliau sememangnya ada melabel bahan-bahan psikotropik adalah dilihat sebagai satu keterangan yang ‘afterthought’ kerana ianya tidak pernah dibangkitkan sewaktu kes Pendakwaan. Gambar-gambar yang diambil juga tidak menunjukkan bahawa wujudnya label seperti tandaan D64 dan D65. Adalah mustahil untuk saksi pendakwaan bercakap bohong dengan tujuan menganiaya OKS. Rujuk kes (PP v Mohd Banda Shah (2008) 4 MLJ 556). Apa yang dikatakan oleh saksi-saksi pendakwaan bukanlah sesuatu yang improbable. Keterangan mereka haruslah diterima oleh Mahkamah. Mahkamah menggunapakai prinsip dalam kes Mat v PP (1963) MLJ263 yang diterima pakai dalam kes Mahkamah Mohamed Radhi bin Yaakob v Public Prosecutor [1991] 3 MLJ 169di muka surat 171 dimana Yang Arif Mohd Azmi SCJ memutuskan:- “To earn an acquittal, the court may not be convinced of the truth of the defence story or version. Raising a reasonable doubt in the guilt of the accused will suffice. It is not, however, wrong for the court to be convinced that the defence version is true, in which case the court must order an acquittal. In appropriate cases it is also not wrong for the court to conclude that the defence story is false or not convincing, but in that instance, the court must not convict until it asks a further question, that even if the court does not accept or believe the defence explanation, does it nevertheless raise a reasonable doubt as to his guilt? It is for this reason that in dealing with the defence story or explanation, the majority of judges rightly prefer to adopt straightaway the legally established ‘reasonable doubt test, rather than to delve in the ‘believable and convincing’ test before applying the ‘reasonable doubt’ test”. Setelah meneliti keterangan pembelaan OKS serta hujah yang dikemukakan oleh kedua-dua pihak, Mahkamah mendapati pihak Pembelaan telah gagal menimbulkan keraguan yang munasabah terhadap kes pendakwaan. Oleh itu pihak pendakwaan telah berjaya membuktikan kesnya melampaui keraguan yang munasabah dan mendapati OKS bersalah dan disabitkan dengan kesemua pertuduhan. Sebelum menjatuhkan hukuman, Mahkamah telah mendengar hujah termasuk otoriti-otoriti yang telah dikemukakan oleh kedua-dua pihak, mengambilkira faktor kepentingan awam, keseriusan kesalahan yang dilakukan dan mitigasi OKS serta peruntukan undang-undang yang berkaitan didalam menjatuhkan hukuman. Oleh yang demikian, hukuman denda RM5,000 gagal bayar 8 bulan penjara bagi pertuduhan pertama dan kedua dan denda RM1,500 gagal bayar 5 bulan penjara dan tanpa kos Pendakwaan pada pandangan Mahkamah adalah bertepatan dan wajar. Disediakan oleh 1	19,824	Tika 2.6.0
87-1477-07/2015	PENDAKWARAYAPendakwa Raya TERTUDUH KHAW AH NGAN@KHAW CHIN HOOI (DR)	null	10/09/2017	PN SALINA BINTI OMAR	https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=d362862b-76fb-4673-9b4a-86c4575766ae&Inline=true	DALAM MAHKAMAH MAJISTRET JENAYAH (4) JOHOR BAHRU DALAM NEGERI JOHOR KES NO 87-1477-07/2015 ANTARA PENDAKWARAYA LAWAN KHAW AH NGAN@KHAW CHIN HOOI (DR) (NO. K/P : 510827-18-5883) ALASAN PENGHAKIMAN PENDAHULUAN OKS (Perayu) dalam kes ini telah dituduh di mahkamah pada 02/08/2015. Perbicaraan dijalankan dan di akhir kes Pendakwaan, Mahkamah mendapati pihak Pendakwaan Berjaya membuktikan 1 kes prima facie ke atas tertuduh dan tertuduh kemudiannya dipanggil membela diri atas pertuduhan. Di akhir kes pembelaan, Mahkamah mendapati pihak Pembelaan telah gagal menimbulkan sebarang keraguan munasabah dalam kes ini dan tertuduh telah di dapati bersalah dan disabitkan dengan pertuduhan. Mahkamah kemudiannya menjatuhkan hukuman denda RM5,000 gagal bayar 8 bulan penjara bagi pertuduhan pertama dan kedua dan denda RM1,500 gagal bayar 5 bulan penjara dan tanpa kos Pendakwaan. OKS tidak berpuas hati dengan sabitan dan hukuman tersebut dan merayu terhadap keputusan tersebut. RINGKASAN FAKTA KES. OKS telah dituduh di Mahkamah dengan 3 pertuduhan iaitu: i) OKS pada 10 Disember 2013 lebih kurang jam 10.50 pagi di Klinik Gong, 45 Jalan Serigala, Century Garden, 80250 Johor Bahru selaku seorang pengamal perubatan berdaftar di klinik tersebut telah gagal untuk menyimpan dan menyelenggara Daftar Preskripsi Bagi Bahan- bahan Psikotropik sepertimana yang dikehendaki di bawah Peraturan 19 Peraturan-peraturan Racun (Bahan-Bahan Psikotropik) 1989; ii) OKS pada 10 Disember 2013 lebih kurang jam 10.50 pagi di Klinik Gong, 45 Jalan Serigala, Century Garden, 80250 Johor Bahru selaku seorang pengamal perubatan berdaftar di klinik tersebut telah tidak mencatat jumlah stok bahan-bahan Psikotropik dalam pemilikan ke dalam Daftar Preskripsi Untuk Bahan-Bahan Psikotropik sepertimana yang dikehendaki di bawah Peraturan 22(b), Peraturan-peraturan Racun (Bahan-bahan Psikotropik) 1989; dan iii) OKS pada 10 Disember 2013 lebih kurang jam 10.50 pagi di Klinik Gong, 45 Jalan Serigala, Century Garden, 80250 Johor Bahru selaku seorang pengamal perubatan berdaftar di klinik tersebut telah tidak melabel bekas simpanan ubat dengan nama racun sepertimana yang dikehendaki di bawah Peraturan 9(1)(b) Peraturan-Peraturan Racun 1952. KEPUTUSAN DAN DAPATAN SERTA ALASAN MAHKAMAH (di peringkat Pendakwaan) Adalah menjadi kewajipan pihak Pendakwaan untuk membuktikan satu kes Prima Facie terhadap OKT (PP v Mohd Radzi b Abu Bakar, Balachandran v PP, Looi Kow Chai v PP). Mahkamah hendaklah menilai secara maximum evaluation samada kes pihak pendakwaan berjaya membuktikan satu kes Prima Facie. Pertuduhan Pertama Bagi membuktikan pertuduhan pertama iaitu kesalahan di bawah Peraturan 19 Peraturan-peraturan Racun (Bahan-Bahan Psikotropik) 1989, segala elemen-elemen berikut harus dibuktikan terlebih dahulu. Pihak Pendakwaan perlulah membuktikan bahawa: 1) Adakah OKS merupakan seorang pengamal perubatan yang berdaftar pada 10 Disember 2013; 2) Adakah Klinik Gong, 45 Jalan Serigala, Century Garden, 80250 Johor Bahru merupakan sebuah klinik dan menjalankan perawatan ke atas pesakit; 3) Adakah ekshibit rampasan merupakan Bahan Psikotropik sepertimana yang terkandung dalam Jadual Pertama dan Ketiga Akta Racun 1952; 4) Adakah OKS perlu mematuhi keperluan untuk menyimpan dan menyelenggara Daftar Bahan-Bahan Psikotropik; dan 5) Adakah OKS telah didapati gagal menyimpan dan menyelenggara sebarang Daftar Preskripsi Bahan-Bahan Psikotropik yang dirampas. Adakah OKS merupakan seorang pengamal perubatan yang berdaftar pada 10 Disember 2013? Melalui keterangan SP3 yang merupakan seorang Timbalan Setiausaha Kanan Majlis Perubatan Malaysia telah mengesahkan melalui pengecaman ekshibit P4 (Perakuan Amalan Tahunan No: 6262/2013) bahawa OKS merupakan seorang pengamal perubatan berdaftar pada 01/01/2013 sehingga 31/12/2013 di premis serbuan dan fakta ini juga tidak disangkal oleh pihak Pembelaan. Adakah Klinik Gong, 45 Jalan Serigala, Century Garden, 80250 Johor Bahru merupakan sebuah klinik dan menjalankan perawatan ke atas pesakit? Melalui keterangan SP1, SP3, SP4 dan SP6 dan juga ekshibit gambar-gambar premis, kad-kad pesakit dan ubat-ubatan P3 (1-25) jelas menunjukkan bahawa terdapatnya perawatan di jalankan ke atas pesakit di klinik ini dan fakta ini juga tidak disangkal oleh Pembelaan Adakah ekshibit rampasan merupakan Bahan Psikotropik sepertimana yang terkandung dalam Jadual Pertama dan Ketiga Akta Racun 1952? Melalui keterangan SP4 yang merupakan seorang Ahli Farmasi daripada Syarikat Antah Pharma telah mengesahkan bahawa selepas OKS membuat permohonan secara bertulis untuk dibekalkan dengan bahan-bahan psikotropik yang dirampas, Syarikat Antah Pharma kemudiannya telah membekalkan bahan-bahan psikotropik tersebut dan bayarannya juga telah dijelaskan oleh OKS. SP5 selalu Pegawai Kimia di Jabatan Kimia Malaysia juga telah memberikan keterangan berkenaan dengan analisa terhadap ekshibit yang dikemukakan di Mahkamah dan hasil analisa menunjukkan ianya mengandungi bahan-bahan psikotropik sepertimana yang tercatat dalam Jadual Pertama dan Jadual Ketiga Akta Racun 1952. Adakah OKS perlu mematuhi keperluan untuk menyimpan dan menyelenggara Daftar Bahan-Bahan Psikotropik? Di dalam kes ini, berdasarkan kepada ekshibit P2 (Perakuan untuk menubuhkan atau menyelenggarakan atau mengendalikan klinik perubatan swasta dengan nombor siri 005422) yang telah dikeluarkan pada 23/10/2007 oleh SP1 (Dr. Haslina Binti Zamani yang merupakan Ketua Unit di Cawangan Kawalan Amalan Perubatan Swasta), ia jelas menunjukkan bahawa OKS merupakan seorang pengamal perubatan yang berdaftar dan memiliki sebuah klinik swasta untuk beramal. Ini secara langsung membolehkan OKS memiliki bahan-bahan psikotropik sepertimana di bawah Peraturan 3 Peraturan-peraturan Bahan-bahan Psikotropik 1989. Oleh yang demikian, OKS wajib untuk menyimpan dan menyelenggara Daftar Preskripsi Bagi Bahan- bahan Psikotropik sepertimana yang dikehendaki di bawah Peraturan 19 Peraturan-peraturan Racun (Bahan-Bahan Psikotropik) 1989 Adakah OKS telah didapati gagal menyimpan dan menyelenggara sebarang Daftar Preskripsi Bahan-Bahan Psikotropik yang dirampas? Melalui keterangan SP6 (Pegawai serbuan) sewaktu serbuan dilakukan ke atas premis yang berkaitan, OKS telah didapati gagal untuk mengemukakan kesemua Daftar Preskripsi Bahan-bahan Psikotropik yang telah dipertuduhkan dalam pertuduhan pertama. Pertuduhan kedua Bagi membuktikan pertuduhan kedua iaitu kegagalan OKS untuk mencatat jumlah stok bahan-bahan Psikotropik dalam pemilikan ke dalam Daftar Preskripsi Untuk Bahan-Bahan Psikotropik sepertimana yang dikehendaki di bawah Peraturan 22(b), Peraturan-peraturan Racun (Bahan-bahan Psikotropik) 1989, elemen yang perlu wujud adalah sewaktu serbuan OKS didapati tidak mencatatkan jumlah stok Bahan-bahan psikotropik yang berada dalam milikan beliau ke dalam Daftar Preskripsi Bahan-bahan Psikotropik. OKS sewaktu serbuan ada mengemukan beberapa buku daftar (P38-P53) bagi kesemua bahan psikotropik yang dipertuduhkan dalam pertuduhan kedua namun selepas disemak didapati kuantiti yang dirampas adalah tidak sama sepertimana yang tercatat dalam P30 (Senarai Bongkar). Pertuduhan ketiga Bagi membuktikan pertuduhan ketiga pula iaitu tidak melabel bekas simpanan ubat dengan nama racun sepertimana yang dikehendaki di bawah Peraturan 9(1)(b) Peraturan-Peraturan Racun 1952 , elemen yang perlu dibuktikan ialah sekiranya ubat-ubatan yang dirampas pada hari kejadian dalam sampul tidak berlabel merupakan racun yang disenaraikan dalam Jadual Pertama Akta Racun 1952. Sewaktu serbuan dilakukan, kesemua ubat-ubatan yang dipertuduhkan dalam pertuduhan ketiga telah dijumpai tanpa label RACUN dan kesemua juga telah dianalisa oleh SP5 (Pegawai Kimia) dan disahkan adalah racun sepertimana yang disenaraikan dalam Jadual Pertama Akta Racun 1952. Oleh yang demikian, adalah menjadi kewajipan OKS untuk melabel ubat-ubatan tersebut yang mana telah gagal untuk dilakukan. Isu-isu yang dibangkitkan oleh Pembelaan di peringkat Pendakwaan Terdapat isu yang dibangkitkan oleh Pembelaan di peringkat ini. Isu-isu tersebut adalah seperti berikut : 1) Pemberian kuasa secara bertulis oleh Pendakwaraya untuk mengendalikan pendakwaan kes. Pembelaan mempersoalkan bahawa sanksi yang dikemukakan oleh Pendakwaan di dalam kes tidak menyatakan sekiranya Pegawai-pegawai Pendakwa yang menjalankan kes telah diberikan kuasa untuk mengendalikan Pendakwaan sepertimana yang telah termakhtub di bawah Seksyen 34(2) Akta Racun 1952. Pihak Pendakwaan telah mengakui kegagalan mereka untuk menyerahkan sesalinan surat kuasa mereka kepada Mahkamah dan telah melampirkan salinan surat kuasa mereka dalam hujahan balas Pendakwaan kepada Mahkamah. Mahkamah mendapati kegagalan pihak Pendakwaan mengemukakan salinan surat kuasa mereka sepanjang perbicaraan berlangsung di peringkat Pendakwaan tidak memprejudiskan pihak OKS kerana pihak Pembelaan sendiri tidak pernah membangkitkan isu ini atau membantah sebarang pendakwaan dijalankan oleh Pegawai-pegawai Pendakwa yang terlibat. 2. Rantaian bukti terputus Pembelaan membangkitkan tentang isu jumlah yang diterima oleh Pegawai Kimia bagi Inzolam Tablet 0.25 mg dan Apo-Diazepam tablets USP 10 mg adalah tidak sama dengan apa yang tercatat dalam Senarai Bongkar P30. Pegawai Kimia menyatakan melalui keterangan beliau bahawa beliau menerima sebanyak 280 biji Inzolam Tablet 0.25 mg (P11) dan 357 biji untuk Apo-Diazepam tablets USP 10 mg (P12) yang mana bercanggah dengan apa yang tercatat dalam P30 iaitu 290 biji Inzolam Tablet 0.25 mg dan 347 biji Apo-Diazepam tablets USP 10 mg. Menurut Pembelaan lagi, walaupun percanggahan tersebut telah dijelaskan oleh SP7 selaku Pegawai Penyiasat Pertama kes ini yang mana beliau menyatakan bahawa terdapat kesilapan pengiraan apabila P30 dimasukkan dan semakan telah dibuat dengan SP6 (Pegawai Serbuan), ianya tidak harus diterima oleh Mahkamah memandangkan semakan tersebut tidak dimaklumkan kepada OKS dan tiada Senarai Bongkar baru dikeluarkan kepada OKS (Goi Ching v Public Prosecutor [1999] 1 MLJ 507 Oleh yang demikian, Pembelaan berpendapat OKS telah diprejudiskan secara serius di dalam kes ini dan dengan terdapatnya isu berkenaan sama ada ekshibit rampasan pada hari kejadian adalah ekshibit yang sama dikemukakan di Mahkamah, Pendakwaan dilihat sebagai gagal untuk membuktikan satu kes prima facie terhadap OKS (Lee Chee Meng v Public Prosecutor [1992] 1 MLJ 322) Pembelaan menjelaskan melalui hujahan mereka bahawa SP6 dan SP7 selepas membuat semakan bersama-sama telah mengesahkan bahawa jumlah P11 adalah sebanyak 280 biji dan P12 adalah sebanyak 357 biji iaitu jumlah yang sama diterima oleh SP5 (Pegawai Kimia) untuk dianalisis. Keterangan SP5, SP6 dan SP7 telah jelas menerangkan jumlah sebenar rampasan ekshibit P11 adalah sebanyak 280 dan P12 sebanyak 357 walaupun terdapat percanggahan dengan apa yang tercatat dalam P30 (Borang Bongkar). Kesemua ekshibit telah dicamkan melalui tandatangan dan tarikh dan ianya merupakan barang kes yang sama dirampas di premis serbuan dengan yang dikemukakan di Mahkamah. OKS tidak diprejudiskan di dalam kes ini akibat daripada kesilapan pengiraan yang berlaku kerana kewujudan bahan-bahan psikotropik yang tidak dicatatkan dalam buku daftar telah berjaya dibuktikan dan OKS tetap akan dituduh walau sebanyak mana bahan-bahan psikotropik telah dijumpai dan dikira. Oleh yang demikian, Mahkamah mendapati barang kes yang dirampas adalah barang kes yang sama dihantar ke Jabatan Kimia untuk dianalisis [Gunalan A/L Ramchandran 2 Ors v PP]. Tiada keraguan mengenai perjalanan pergerakan barang kes ini. Semua keterangan saksi saling menyokong antara satu sama lain dan konsisten (PP v. Muhamed Ali [1962] 1 LNS 129). 3. Pertuduhan Pertama iaitu telah gagal untuk menyimpan dan menyelenggara Daftar Preskripsi Bagi Bahan- bahan Psikotropik sepertimana yang dikehendaki di bawah Peraturan 19 Peraturan-peraturan Racun (Bahan-Bahan Psikotropik) 1989 adalah Pra Matang Pembelaan menegaskan bahawa pertuduhan pertama ini adalah pra matang kerana butir-butir bahan-bahan psikotropik hanya perlu dicatatkan di dalam buku daftar preskripsi pada hari ianya dijual, dibekalkan atau diberi kepada pesakit. Menurut Pembelaan lagi, pada tarikh serbuan bahan-bahan psikotropik yang dirampas dan dikatakan gagal untuk dimasukkan ke dalam buku daftar masih belum dijual, dibekalkan dan diberikan kepada pesakit dan atas sebab tersebut ianya memang tidak ada dalam buku daftar. Pembelaan juga berhujah bahawa fakta ini telah diakui oleh SP8. Berkenaan dengan isu ini, Mahkamah berpendapat bahawa terdapat pembekalan bahan-bahan psikotropik kepada OKS daripada Syarikat Antah Pharma dan bayarannya juga telah dijelaskan. Namun begitu, semasa serbuan dilakukan OKS telah gagal untuk mengemukakan kesemua Daftar Preskripsi Bahan-bahan Psikotropik yang telah dipertuduhkan dalam pertuduhan pertama. 4. Pertuduhan Kedua iaitu tidak mencatat jumlah stok bahan-bahan Psikotropik dalam pemilikan ke dalam Daftar Preskripsi Untuk Bahan-Bahan Psikotropik sepertimana yang dikehendaki di bawah Peraturan 22(b), Peraturan-peraturan Racun (Bahan-bahan Psikotropik) 1989 Pembelaan menyatakan bahawa catatan kuantiti akhir yang dinyatakan di dalam buku daftar adalah lebih berbanding dengan kuantiti yang dirampas adalah kerana ianya merupakan sebahagian daripada stok yang telah dicatatkan di dalam buku daftar yang mana fakta ini telah diperolehi melalui keterangan SP8 di Mahkamah. Pendakwaan menyangkal fakta ini kerana ini menguatkan lagi hujahan Pendakwaan bahawa OKS tidak mencatatkan jumlah sebenar bahan-bahan psikotropik yang ada dalam milikan OKS sewaktu serbuan dijalankan, OKS sendiri gagal untuk mengemukakan sebarang dokumen yang dapat menunjukkan sekiranya ada terdapat sebarang pembekalan, penjualan atau administrasi sebelum serbuan dijalankan. Mahkamah bersetuju dengan Pendakwaan berkenaan dengan isu kerana sekiranya baki akhir yang tercatat dalam buku daftar adlah termasuk dengan ekshibit rampasan, jumlahnya perlulah sama. Namun begitu, jumlah rampasan adalah lebih sedikit berbanding dengan apa yang tercatat dalam Buku Daftar Preskripsi dan ini menunjukkan baki akhir tidak dicatat dengan betul. OKS juga telah gagal untuk mengemukakan sebarang dokumen bagi menunjukkan sekiranya berlaku sebarang pembekalan, penjualan atau administrasi sebelum serbuan dijalankan atau menunjukkan baki bahan-bahan psikotropik lain yang tidak dijumpai semasa serbuan. Melalui keterangan saksi-saksi pendakwaan, Mahkamah mendapati pihak pendakwaan telah berjaya membuktikan satu kes Prima Facie terhadap OKS dimana kesemua elemen pertuduhan berjaya di buktikan (secara maximum evaluation) dan OKS kemudiannya telah di panggil untuk membela diri ke atas pertuduhan-pertuduhan. KES PIHAK PEMBELAAN Pembelaan hanya mengemukakan 1 orang saksi sahaja iaitu OKS sendiri. Melalui keterangan beliau, kesemua barang-barang kes yang dirampas telah diletakkan di atas meja dan dikira bersama-sama di antara OKS dan pihak Penguatkuasa Farmasi. Bilangan rampasan adalah sama sepertiman yang tercatat dalam Senarai Bongkar (P30) yang mana ianya telah disahkan dan ditandatangani oleh beliau. OKS juga menyatakan bahawa beliau tidak pernah dimaklumkan berkenaan dengan percanggahan jumlah barang-barang rampasan yang terdapat dalam Senarai Bongkar (P30) dengan jumlah sebenar yang dikemukakan di Mahkamah. Oleh yang demikian OKS tidak pasti adakah ekshibit-ekshibit yang dirampas adalah sama seperti yang dikemukakan di Mahkamah OKS juga menyatakan bahawa beliau tidak bersalah terhadap pertuduhan pertama kerana beliau hanya akan mencatatkan butir-butir bahan psikotropik ke dalam buku daftar pada hari beliau telah ‘supply’, ‘sell’ or ‘administer’ kepada pesakit. Namun begitu, pada hari serbuan dan rampasan bahan-bahan psikotropik dalam pertuduhan pertama, ianya masih belum di ‘supply’, ‘sell’ or ‘administer’ kepada mana-mana pesakit. OKS juga mengaku tidak bersalah bagi pertuduhan kedua kerana menurut beliau bahan-bahan psikotropik yang dirampas pada tarikh kejadian merupakan sebahagian daripada jumlah baki stok yang dicatatkan di dalam buku daftar. Bagi pertuduhan ketiga pula, OKS menafikan pertuduhan yang dikenakan ke atas beliau kerana beliau memang ada meletakkan label ‘POISON’ (D64) di atas penutup botol dan kotak merah yang telah dirampas oleh pihak penguatkuasa farmasi dan tidak dikemukakan di Mahkamah dan juga mengisi ubat psikotropik ke dalam sampul uabat berlabel ‘ubat terkawal’ (D65). Pembelaan selanjutnya berhujah bahawa pihak Pendakwaan telah gagal untuk mencabar keterangan OKS dan ini menunjukkan bahawa pihak Pendakwaan telah menerima keterangan bela diri OKS. Kesimpulannya, mahkamah tidak mempunyai apa-apa alasan untuk meragui kebenaran atau kredibiliti saksi-saksi pendakwaan terutama SP6 yang menjumpai sendiri barang kes di dalam klinik OKS. SP6 selaku Pegawai Serbuan telah bertanya sendiri kepada OKS untuk mengemukakan kesemua buku daftar bahan-bahan psikotropik yang beliau ada beserta bahan-bahan psikotropik lain selain yang dirampas namun OKS gagal berbuat demikian. Keterangan OKS yang menyatakan beliau sememangnya ada melabel bahan-bahan psikotropik adalah dilihat sebagai satu keterangan yang ‘afterthought’ kerana ianya tidak pernah dibangkitkan sewaktu kes Pendakwaan. Gambar-gambar yang diambil juga tidak menunjukkan bahawa wujudnya label seperti tandaan D64 dan D65. Adalah mustahil untuk saksi pendakwaan bercakap bohong dengan tujuan menganiaya OKS. Rujuk kes (PP v Mohd Banda Shah (2008) 4 MLJ 556). Apa yang dikatakan oleh saksi-saksi pendakwaan bukanlah sesuatu yang improbable. Keterangan mereka haruslah diterima oleh Mahkamah. Mahkamah menggunapakai prinsip dalam kes Mat v PP (1963) MLJ263 yang diterima pakai dalam kes Mahkamah Mohamed Radhi bin Yaakob v Public Prosecutor [1991] 3 MLJ 169di muka surat 171 dimana Yang Arif Mohd Azmi SCJ memutuskan:- “To earn an acquittal, the court may not be convinced of the truth of the defence story or version. Raising a reasonable doubt in the guilt of the accused will suffice. It is not, however, wrong for the court to be convinced that the defence version is true, in which case the court must order an acquittal. In appropriate cases it is also not wrong for the court to conclude that the defence story is false or not convincing, but in that instance, the court must not convict until it asks a further question, that even if the court does not accept or believe the defence explanation, does it nevertheless raise a reasonable doubt as to his guilt? It is for this reason that in dealing with the defence story or explanation, the majority of judges rightly prefer to adopt straightaway the legally established ‘reasonable doubt test, rather than to delve in the ‘believable and convincing’ test before applying the ‘reasonable doubt’ test”. Setelah meneliti keterangan pembelaan OKS serta hujah yang dikemukakan oleh kedua-dua pihak, Mahkamah mendapati pihak Pembelaan telah gagal menimbulkan keraguan yang munasabah terhadap kes pendakwaan. Oleh itu pihak pendakwaan telah berjaya membuktikan kesnya melampaui keraguan yang munasabah dan mendapati OKS bersalah dan disabitkan dengan kesemua pertuduhan. Sebelum menjatuhkan hukuman, Mahkamah telah mendengar hujah termasuk otoriti-otoriti yang telah dikemukakan oleh kedua-dua pihak, mengambilkira faktor kepentingan awam, keseriusan kesalahan yang dilakukan dan mitigasi OKS serta peruntukan undang-undang yang berkaitan didalam menjatuhkan hukuman. Oleh yang demikian, hukuman denda RM5,000 gagal bayar 8 bulan penjara bagi pertuduhan pertama dan kedua dan denda RM1,500 gagal bayar 5 bulan penjara dan tanpa kos Pendakwaan pada pandangan Mahkamah adalah bertepatan dan wajar. Disediakan oleh 1	19,824	Tika 2.6.0
83D-4133-11/16	PENDAKWARAYANatalie Chew Qi Wei TERTUDUH 1. MOHD RASHID BIN MOHD RAZALI 2. MOHD HAIKAL BIN ARIFFIN 3. AMIRA BINTI ABDULLAH	null	10/09/2017	PN SALINA BINTI OMAR	https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=b6f1a341-b18b-4954-ae11-0267fa44a928&Inline=true	DALAM MAHKAMAH MAJISTRET JENAYAH JOHOR BAHRU DALAM NEGERI JOHOR KES NO : 83D-4133-11/16 ANTARA PENDAKWARAYA LAWAN 1. MOHD RASHID BIN MOHD RAZALI 2. MOHD HAIKAL BIN ARIFFIN 3. AMIRA BINTI ABDULLAH ALASAN PENGHAKIMAN PENDAHULUAN Tertuduh dalam kes ini telah dituduh di mahkamah pada 21/11/2016. Perbicaraan dijalankan dan di akhir kes Pendakwaan, mahkamah mendapati pihak Pendakwaan gagal membuktikan satu kes prima facie ke atas OKT 2 dan OKT 3 dan kedua-dua OKT dilepaskan dan dibebaskan tanpa perlu membela diri. OKT 1 dilepaskan tanpa dibebaskan (DNAA) memandangkan waran tangkap ke atas OKT telah gagal dilaksanakan sejak ianya dikeluarkan pada 21/05/2017 dan wang jaminan ke atasnya dilucutkan hak. Pendakwaan kemudiannya telah memfailkan rayuan ke atas keputusan Mahkamah. Pertuduhan Pindaan “Bahawa kamu bersama-sama pada 16/11/2016 jam lebih kurang 6.00 petang di rumah alamat No. 9, Jalan Rawa 9, Taman Perling 81200 Daerah Johor Bahru Dalam Negeri Johor telah didapati memiliki dadah berbahaya jenis Methamphetamine berat bersih 12.89 gram dan dengan itu kamu telah melakukan satu kesalahan dibawah Seksyen 12 (2) Akta Dadah Berbahaya 1952 dan boleh dihukum di bawah Seksyen 39A (1) Akta yang sama dan dibacakan bersama di bawah Seksyen 34 Kanun Keseksaan” Pihak pendakwaan telah memanggil seramai 5 orang saksi yang terdiri daripada: SP1 : Insp Noor Fairoz Hisham Bin Esah (pegawai tangkapan) SP 2 : L/Kpl Mohamad Firdaus Bin Abdul Sani (anggota polis mengendalikan barang kes) SP 3 : Puan Siti Zubaidah Binti Hanapi (Ahli Kimia) SP 4 : Kpl/W Nik Aslinda Binti Nik Ramli (penjaga stor) SP 5: Sjn Khairol Anuar Bin Zainudin (pegawai penyiasat) RINGKASAN FAKTA KES. Pada 16 November 2016 jam lebih kurang jam 6.00 petang, SP1 iaitu Pegawai Tangkapan bersama 14 lagi anggota polis daripada IPD Johor Bahru Utara telah pergi ke sebuah rumah beralamat No.9, Jalan Rawa 9, Taman Perling, 81200 Johor Bahru, Johor setelah mendapat maklumat daripada orang awam berkenaan . Setibanya di sana, SP1 mendapati pintu pagar tidak berkunci dan terus masuk ke kompaun rumah. Pintu hadapan bertutup tetapi tidak berkunci lalu SP1 telah mengetuk pintu dan memanggil serta memperkenalkan diri sebagai pegawai polis. OKT1 kemudiannya telah membuka pintu tersebut. SP1 keluarkan kad kuasa dan memberitahu “kami polis” dan arahkan untuk membuat pemeriksaan di dalam rumah. Selepas dibuat pemeriksaan ke atas OKT 1 tidak menjumpai apa-apa barang salah cuma OKT 1 ada memberitahu bahawa beliau merupakan tuan rumah. Kemudian, SP1 bersama anggota serbuan telah masuk ke dalam rumah dan mendapati OKT2 dan OKT3 sedang makan di meja rendah yang terletak di ruang tamu. Pemeriksaan badan telah dilakukan terhadap OKT2 dan OKT3 tetapi tiada apa-apa barang salah dijumpai. Pemeriksaan telah dibuat di dalam rumah tersebut sambil diperhatikan oleh kesemua OKT dan telah menjumpai (1) peket plastik lutsinar di dalamnya disyaki mengandungi dadah jenis syabu anggaran berat kasar 19.34 gram di atas lantai berhampiran dengan meja tersebut. SP1 telah merampas semua barang kes dadah tersebut dan ketiga-tiga telah ditangkap untuk dibawa ke IPD Johor Bahru Utara bagi siasatan lanjutan. KEPUTUSAN DAN DAPATAN MAHKAMAH Pada peringkat ini, beban pembuktian adalah oleh pihak pendakwaan untuk membuktikan kes prima facie terhadap kesemua OKT. Mahkamah wajib meneliti serta menilai keterangan saksi-saksi pendakwaan secara maksimum. Sekiranya mahkamah tidak bersedia untuk mensabitkan kesemua OKT dengan pertuduhan yang dihadapkan kepada kesemua OKT jika kesemua OKT dipanggil untuk membela diri, dan kesemua OKT memilih untuk berdiam diri, maka tiada kes prima facie telah dibuktikan [PP v Mohd Radzi bin Abu Bakar (2006) 1 CLJ 457 dan Balachandran v PP (2005) 1 CLJ 85]. Di dalam kes Looi Kow Chai & Anor v PP (2003) 2 AMR 89, mahkamah rayuan telah mengikuti keputusan kes Arulpragasan a/l Sandaraju v PP (1997) 1 MLJ 1, dan memutuskan antara lain bahawa jika di dalam suatu kes terdapat salah satu daripada dua perkara berikut, prima facie tidak dibuktikan: · Terdapat lompang dalam kes pendakwaan [Abdullah Zawawi v PP (1985) 2 MLJ 16] · Keterangan memberikan/membenarkan lebih dari satu inferens dibuat [PP v Kasmin bin Soeb (1974) 1 MLJ 230] Setelah membuat penilaian secara maksimum terhadap kesemua keterangan saksi pendakwaan, dah setelah meneliti hujahan pihak pendakwaan dan pembelaan, mahkamah mendapati pihak pendakwaan gagal membuktikan satu kes prima facie terhadap OKT 2 dan OKT 3. Alasan-alasan adalah seperti berikut: Pihak pendakwaan gagal membuktikan bahawa OKT 2 dan OKT 3 mempunyai milikan terhadap exhibit dadah tersebut. Bagi mewujudkan suatu kes prima facie terhadap OKT di atas pertuduhan memiliki dadah, pihak pendakwaan haruslah terlebih dahulu membuktikan bahawa tertuduh mempunyai milikan, kawalan dan pengetahuan ke atas dadah tersebut. Di dalam PP v Muhamad Nasir bin Shaharudin & Anor [1994] 2 MLJ 576, maksud milikan/possession diterangkan secara berikut: untuk membuktikan milikan, adalah perlu untuk membuktikan bahawa OKT mempunyai pengetahuan terhadap dadah itu, dan mempunyai kawalan atau jagaan terhadap dadah tersebut. Di dalam kes PP v Mohd Farid bin Mohd Sukis & Anor [2002] 3 MLJ 401, mahkamah memutuskan pembuktian elemen milikan adalah seperti berikut: Therefore, in order to prove possession, the prosecution must prove that there is first, physical control over the controlled drug and second, knowledge of the existence of the thing itself, that is the existence of the controlled drug, but not the name or nature of the drug. SP1 melalui keterangannya ada menyatakan bahawa OKT 1 adalah orang yang membuka pintu rumah dan mengaku bahawa beliau adalah tuan rumah yang diserbu. OKT 2 dan OKT 3 telah ditahan semasa sedang makan di ruang tamu di dalam rumah tersebut di mana dadah telah dijumpai. Tempat di mana barang kes dijumpai juga bukan di bawah kawalan dan jagaan OKT 2 dan 3 kerana pemilik sebenar adalah merupakan OKT pertama yang mana fakta ini didapati melalui keterangan OKT semasa serbuan dan juga dokumen cukai pintu yang tertera nama OKT 1 sebagai pemilik. Mahkamah mendapati adalah tidak memadai bagi pihak pendakwaan dengan hanya membuktikan bahawa dadah tersebut telah dijumpai berhampiran OKT 2 dan OKT 3 iaitu di atas lantai bahagian bawah meja makan yang sedang diduduki oleh OKT 2 dan OKT 3 maka kedua-dua OKT tersebut dikatakan mempunyai kawalan dan pengetahuan berkenaan dadah tersebut. Dapatan Mahkamah ini disokong oleh fakta bahawa barang kes bukannya boleh dilihat secara terang-terangan sebaliknya dijumpai di bawah meja. Oleh yang demikian, Mahkamah mendapati bahwa OKT 2 dan OKT 3 tidak mempunyai pengetahuan dan kawalan terhadap dadah yang dirampas. PP V ARIS BIN YUNUS 1989 1 CLJ 239 Held: (3) The essential element which the prosecution had to establish against the accused was in possession of these drugs and possession has to be established by evidence. (4) Mere possession in premises does not make the person present an occupier as there must be a sufficient exclusivity of possession to make a person an occupier. (5) In the present case the totality of the prosecution evidence only went to show that when the house was raided the accused and Rusly were found present inside and there was no evidence to show one or the other was in occupation of the premises. (6) In the circumstances the accused was acquitted without being called upon to enter upon his defence. Pihak Pendakwaan juga gagal membuktikan bahawa OKT 2 dan OKT 3 tinggal bersama-sama dengan OKT 1 di dalam rumah tersebut kerana tiada sebarang barangan peribadi kepunyaan OKT2 dan OKT3 atau apa-apa sahaja bukti yang boleh mengesahkan bahawa OKT 2 dan OKT 3 tinggal di situ dijumpai sewaktu serbuan. Mahkamah juga merujuk kepada kes PP v Tan Tuan Seng [1993] 2 CLJ 557 bahawa untuk menggunapakai Sek 37(d) bagi membuktikan milikan, pihak pendakwaan mestilah membuktikan bahawa tertuduh mempunyai exclusive custody or control terhadap dadah yang dijumpai. Di dalam kes Toh Ah Loh dan Mak Thim v Rex, mahkamah di dalam kes tersebut telah memutuskan bahawa beban pembuktian adalah pada pihak pendakwaan untuk membuktikan bahawa OKT mengetahui bahawa terdapat dadah di dalam rak plastik tersebut. Sekiranya ini dapat dibuktikan, barulah pihak pendakwaan boleh menggunapakai Seksyen 37(d), di mana seksyen ini dapat menimbulkan tanggapan bahawa OKT memiliki dadah tersebut dan tahu bahawa dadah itu adalah Cannabis. Sekiranya OKT 2 dan OKT 3 menyewa, sudah pasti pihak Pendakwaan akan mengemukakan dokumen sewaan premis tersebut di Mahkamah namun ini telah gagal dilakukan. Oleh yang demikian, Mahkamah mendapati bahawa OKT 2 dan OKT 3 sememangnya tidak mempunyai kawalan sepenuhnya ke atas dadah yang dijumpai memandangkan mereka bukan menyewa atau tinggal di premis serbuan. Di samping itu juga, terdapat percanggahan terhadap identiti barang kes apabila pengecaman gambar oleh SP2 yang menyatakan P6 bukan brg kes sedangkan SP5 menyatakan ianya adalah brg kes. Wujud keraguan dalam rantaian barang kes yang material bagi di pihak pendakwaan dan mahkamah mendapati percanggahan yang ketara ini tidak dapat dijelaskan dengan kukuh oleh saksi-saksi pendakwaan. Atas alasan-alasan seperti di atas ini sahaja Mahkamah mendapati pihak Pendakwaan telah gagal membuktikan kes pendakwaan pada tahap prima facie (maximum evaluation of evidence). Maka dengan itu OKT 2 dan OKT 3 dilepaskan dan dibebaskan tanpa mengarahkannya untuk membela diri. Disediakan Oleh, 9	9,576	Tika 2.6.0
83D-4133-11/16	PENDAKWARAYANatalie Chew Qi Wei TERTUDUH 1. MOHD RASHID BIN MOHD RAZALI 2. MOHD HAIKAL BIN ARIFFIN 3. AMIRA BINTI ABDULLAH	null	10/09/2017	PN SALINA BINTI OMAR	https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=b6f1a341-b18b-4954-ae11-0267fa44a928&Inline=true	DALAM MAHKAMAH MAJISTRET JENAYAH JOHOR BAHRU DALAM NEGERI JOHOR KES NO : 83D-4133-11/16 ANTARA PENDAKWARAYA LAWAN 1. MOHD RASHID BIN MOHD RAZALI 2. MOHD HAIKAL BIN ARIFFIN 3. AMIRA BINTI ABDULLAH ALASAN PENGHAKIMAN PENDAHULUAN Tertuduh dalam kes ini telah dituduh di mahkamah pada 21/11/2016. Perbicaraan dijalankan dan di akhir kes Pendakwaan, mahkamah mendapati pihak Pendakwaan gagal membuktikan satu kes prima facie ke atas OKT 2 dan OKT 3 dan kedua-dua OKT dilepaskan dan dibebaskan tanpa perlu membela diri. OKT 1 dilepaskan tanpa dibebaskan (DNAA) memandangkan waran tangkap ke atas OKT telah gagal dilaksanakan sejak ianya dikeluarkan pada 21/05/2017 dan wang jaminan ke atasnya dilucutkan hak. Pendakwaan kemudiannya telah memfailkan rayuan ke atas keputusan Mahkamah. Pertuduhan Pindaan “Bahawa kamu bersama-sama pada 16/11/2016 jam lebih kurang 6.00 petang di rumah alamat No. 9, Jalan Rawa 9, Taman Perling 81200 Daerah Johor Bahru Dalam Negeri Johor telah didapati memiliki dadah berbahaya jenis Methamphetamine berat bersih 12.89 gram dan dengan itu kamu telah melakukan satu kesalahan dibawah Seksyen 12 (2) Akta Dadah Berbahaya 1952 dan boleh dihukum di bawah Seksyen 39A (1) Akta yang sama dan dibacakan bersama di bawah Seksyen 34 Kanun Keseksaan” Pihak pendakwaan telah memanggil seramai 5 orang saksi yang terdiri daripada: SP1 : Insp Noor Fairoz Hisham Bin Esah (pegawai tangkapan) SP 2 : L/Kpl Mohamad Firdaus Bin Abdul Sani (anggota polis mengendalikan barang kes) SP 3 : Puan Siti Zubaidah Binti Hanapi (Ahli Kimia) SP 4 : Kpl/W Nik Aslinda Binti Nik Ramli (penjaga stor) SP 5: Sjn Khairol Anuar Bin Zainudin (pegawai penyiasat) RINGKASAN FAKTA KES. Pada 16 November 2016 jam lebih kurang jam 6.00 petang, SP1 iaitu Pegawai Tangkapan bersama 14 lagi anggota polis daripada IPD Johor Bahru Utara telah pergi ke sebuah rumah beralamat No.9, Jalan Rawa 9, Taman Perling, 81200 Johor Bahru, Johor setelah mendapat maklumat daripada orang awam berkenaan . Setibanya di sana, SP1 mendapati pintu pagar tidak berkunci dan terus masuk ke kompaun rumah. Pintu hadapan bertutup tetapi tidak berkunci lalu SP1 telah mengetuk pintu dan memanggil serta memperkenalkan diri sebagai pegawai polis. OKT1 kemudiannya telah membuka pintu tersebut. SP1 keluarkan kad kuasa dan memberitahu “kami polis” dan arahkan untuk membuat pemeriksaan di dalam rumah. Selepas dibuat pemeriksaan ke atas OKT 1 tidak menjumpai apa-apa barang salah cuma OKT 1 ada memberitahu bahawa beliau merupakan tuan rumah. Kemudian, SP1 bersama anggota serbuan telah masuk ke dalam rumah dan mendapati OKT2 dan OKT3 sedang makan di meja rendah yang terletak di ruang tamu. Pemeriksaan badan telah dilakukan terhadap OKT2 dan OKT3 tetapi tiada apa-apa barang salah dijumpai. Pemeriksaan telah dibuat di dalam rumah tersebut sambil diperhatikan oleh kesemua OKT dan telah menjumpai (1) peket plastik lutsinar di dalamnya disyaki mengandungi dadah jenis syabu anggaran berat kasar 19.34 gram di atas lantai berhampiran dengan meja tersebut. SP1 telah merampas semua barang kes dadah tersebut dan ketiga-tiga telah ditangkap untuk dibawa ke IPD Johor Bahru Utara bagi siasatan lanjutan. KEPUTUSAN DAN DAPATAN MAHKAMAH Pada peringkat ini, beban pembuktian adalah oleh pihak pendakwaan untuk membuktikan kes prima facie terhadap kesemua OKT. Mahkamah wajib meneliti serta menilai keterangan saksi-saksi pendakwaan secara maksimum. Sekiranya mahkamah tidak bersedia untuk mensabitkan kesemua OKT dengan pertuduhan yang dihadapkan kepada kesemua OKT jika kesemua OKT dipanggil untuk membela diri, dan kesemua OKT memilih untuk berdiam diri, maka tiada kes prima facie telah dibuktikan [PP v Mohd Radzi bin Abu Bakar (2006) 1 CLJ 457 dan Balachandran v PP (2005) 1 CLJ 85]. Di dalam kes Looi Kow Chai & Anor v PP (2003) 2 AMR 89, mahkamah rayuan telah mengikuti keputusan kes Arulpragasan a/l Sandaraju v PP (1997) 1 MLJ 1, dan memutuskan antara lain bahawa jika di dalam suatu kes terdapat salah satu daripada dua perkara berikut, prima facie tidak dibuktikan: · Terdapat lompang dalam kes pendakwaan [Abdullah Zawawi v PP (1985) 2 MLJ 16] · Keterangan memberikan/membenarkan lebih dari satu inferens dibuat [PP v Kasmin bin Soeb (1974) 1 MLJ 230] Setelah membuat penilaian secara maksimum terhadap kesemua keterangan saksi pendakwaan, dah setelah meneliti hujahan pihak pendakwaan dan pembelaan, mahkamah mendapati pihak pendakwaan gagal membuktikan satu kes prima facie terhadap OKT 2 dan OKT 3. Alasan-alasan adalah seperti berikut: Pihak pendakwaan gagal membuktikan bahawa OKT 2 dan OKT 3 mempunyai milikan terhadap exhibit dadah tersebut. Bagi mewujudkan suatu kes prima facie terhadap OKT di atas pertuduhan memiliki dadah, pihak pendakwaan haruslah terlebih dahulu membuktikan bahawa tertuduh mempunyai milikan, kawalan dan pengetahuan ke atas dadah tersebut. Di dalam PP v Muhamad Nasir bin Shaharudin & Anor [1994] 2 MLJ 576, maksud milikan/possession diterangkan secara berikut: untuk membuktikan milikan, adalah perlu untuk membuktikan bahawa OKT mempunyai pengetahuan terhadap dadah itu, dan mempunyai kawalan atau jagaan terhadap dadah tersebut. Di dalam kes PP v Mohd Farid bin Mohd Sukis & Anor [2002] 3 MLJ 401, mahkamah memutuskan pembuktian elemen milikan adalah seperti berikut: Therefore, in order to prove possession, the prosecution must prove that there is first, physical control over the controlled drug and second, knowledge of the existence of the thing itself, that is the existence of the controlled drug, but not the name or nature of the drug. SP1 melalui keterangannya ada menyatakan bahawa OKT 1 adalah orang yang membuka pintu rumah dan mengaku bahawa beliau adalah tuan rumah yang diserbu. OKT 2 dan OKT 3 telah ditahan semasa sedang makan di ruang tamu di dalam rumah tersebut di mana dadah telah dijumpai. Tempat di mana barang kes dijumpai juga bukan di bawah kawalan dan jagaan OKT 2 dan 3 kerana pemilik sebenar adalah merupakan OKT pertama yang mana fakta ini didapati melalui keterangan OKT semasa serbuan dan juga dokumen cukai pintu yang tertera nama OKT 1 sebagai pemilik. Mahkamah mendapati adalah tidak memadai bagi pihak pendakwaan dengan hanya membuktikan bahawa dadah tersebut telah dijumpai berhampiran OKT 2 dan OKT 3 iaitu di atas lantai bahagian bawah meja makan yang sedang diduduki oleh OKT 2 dan OKT 3 maka kedua-dua OKT tersebut dikatakan mempunyai kawalan dan pengetahuan berkenaan dadah tersebut. Dapatan Mahkamah ini disokong oleh fakta bahawa barang kes bukannya boleh dilihat secara terang-terangan sebaliknya dijumpai di bawah meja. Oleh yang demikian, Mahkamah mendapati bahwa OKT 2 dan OKT 3 tidak mempunyai pengetahuan dan kawalan terhadap dadah yang dirampas. PP V ARIS BIN YUNUS 1989 1 CLJ 239 Held: (3) The essential element which the prosecution had to establish against the accused was in possession of these drugs and possession has to be established by evidence. (4) Mere possession in premises does not make the person present an occupier as there must be a sufficient exclusivity of possession to make a person an occupier. (5) In the present case the totality of the prosecution evidence only went to show that when the house was raided the accused and Rusly were found present inside and there was no evidence to show one or the other was in occupation of the premises. (6) In the circumstances the accused was acquitted without being called upon to enter upon his defence. Pihak Pendakwaan juga gagal membuktikan bahawa OKT 2 dan OKT 3 tinggal bersama-sama dengan OKT 1 di dalam rumah tersebut kerana tiada sebarang barangan peribadi kepunyaan OKT2 dan OKT3 atau apa-apa sahaja bukti yang boleh mengesahkan bahawa OKT 2 dan OKT 3 tinggal di situ dijumpai sewaktu serbuan. Mahkamah juga merujuk kepada kes PP v Tan Tuan Seng [1993] 2 CLJ 557 bahawa untuk menggunapakai Sek 37(d) bagi membuktikan milikan, pihak pendakwaan mestilah membuktikan bahawa tertuduh mempunyai exclusive custody or control terhadap dadah yang dijumpai. Di dalam kes Toh Ah Loh dan Mak Thim v Rex, mahkamah di dalam kes tersebut telah memutuskan bahawa beban pembuktian adalah pada pihak pendakwaan untuk membuktikan bahawa OKT mengetahui bahawa terdapat dadah di dalam rak plastik tersebut. Sekiranya ini dapat dibuktikan, barulah pihak pendakwaan boleh menggunapakai Seksyen 37(d), di mana seksyen ini dapat menimbulkan tanggapan bahawa OKT memiliki dadah tersebut dan tahu bahawa dadah itu adalah Cannabis. Sekiranya OKT 2 dan OKT 3 menyewa, sudah pasti pihak Pendakwaan akan mengemukakan dokumen sewaan premis tersebut di Mahkamah namun ini telah gagal dilakukan. Oleh yang demikian, Mahkamah mendapati bahawa OKT 2 dan OKT 3 sememangnya tidak mempunyai kawalan sepenuhnya ke atas dadah yang dijumpai memandangkan mereka bukan menyewa atau tinggal di premis serbuan. Di samping itu juga, terdapat percanggahan terhadap identiti barang kes apabila pengecaman gambar oleh SP2 yang menyatakan P6 bukan brg kes sedangkan SP5 menyatakan ianya adalah brg kes. Wujud keraguan dalam rantaian barang kes yang material bagi di pihak pendakwaan dan mahkamah mendapati percanggahan yang ketara ini tidak dapat dijelaskan dengan kukuh oleh saksi-saksi pendakwaan. Atas alasan-alasan seperti di atas ini sahaja Mahkamah mendapati pihak Pendakwaan telah gagal membuktikan kes pendakwaan pada tahap prima facie (maximum evaluation of evidence). Maka dengan itu OKT 2 dan OKT 3 dilepaskan dan dibebaskan tanpa mengarahkannya untuk membela diri. Disediakan Oleh, 9	9,576	Tika 2.6.0
83D – 1499 – 12/2016	PENDAKWARAYAPejabat Timbalan Pendakwaraya Negeri Selangor TERTUDUH Yuvarrasen a/l Sundarasan	null	08/09/2017	PN ROSLIZI BIN SULAIMAN	https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=d261bcac-aafe-4d75-95b5-04e0ec6bce0b&Inline=true	IN THE MAGISTRATE COURT AT KLANG IN THE STATE OF SELANGOR CRIMINAL TRIAL NO. MM2 – 83D – 1499 – 12/2016 PP V YUVARRASEN A/L SUNDARASAN JUDGEMENT [1] The accused was charged under s. 6 of the Dangerous Drugs Act, 1952 (“the DDA”) for having in his possession 0.79 gram Cannabis. The offence was committed on 25/12/16 at about 3 am at Jalan Remia 1, Bandar Botanik, Klang. On 22/08/17, the charge has been read and explained to, and understood by the accused. The accused pleaded guilty to the charge unequivocally and unconditionally. [2] The accused was apprehended while walking along Jalan Remia 1 by a police party led by Insp. Azman Bin Tubin (the complainant). The complainant recovered a small translucent plastic containing dry leaves from the accused. The accused was then arrested for further investigation. The facts of the case were then admitted by the accused unequivocally. [3] The counsel for the accused prayed for her client to be discharged under s. 173A (2) paragraph (b) of the Criminal Procedure Code. The prosecution, on the other hand, argued that the accused should be sentenced accordingly, as provided under s.6 of the Dangerous Drugs Act 1952. Drug misuse is so rampant nowadays among unwary youths. The learned DPP argued that this is a direct possession case. Therefore, an order under s. 173A of the Criminal Procedure Code is not proper. Puan Samsiah Mohamad from Jabatan Kebajikan Masyarakat recommended that the accused be fined as provided under s. 6 of the DDA 1952. [5] After considering the character, antecedents and age of the accused, I, nonetheless, decided to proceed under s.173A of the Code. The accused was discharged on bond of good behavior for a period of two years with one surety and providing security of RM2,000. The accused was also ordered to pay the costs of the proceeding; RM500. There was no conviction recorded. [6] The court retains the discretion to choose the appropriate recourse for each offender after taking into account the particular circumstances of the case. The first and foremost consideration is the public interest. The famous case of R v Ball 35 Cr App R 164 is often cited in this regard. Hilbery J stated: "In deciding the appropriate sentence a court should always be guided by certain considerations. The first and foremost is the public interest. The criminal law is publicly enforced, not only with the object of punishing crime, but also in the hope of preventing it. A proper sentence, passed in public, serves the public interest in two ways. It may deter others who might be tempted to try crime as seeming to offer easy money on the supposition, that if the offender is caught and brought to justice, the punishment mil be negligible. Such a sentence may also deter the particular criminal from committing a crime again, or induce him to turn from a criminal to an honest life. The public interest is indeed served, and best served, if the offender is induced to turn from criminal ways to honest living. Our law does not, therefore, fix the sentence for a particular crime, but fixes a maximum sentence and leaves it to the court to decide what is, within that maximum, the appropriate sentence for each criminal in the particular circumstances of each case. Not only in regard to each crime, but in regard to each criminal, the court has the right and the duty to decide whether to be lenient or severe." [7] I am of the opinion that the public interest, in this case, is best served by not recording conviction against the accused as provided under s. 173A of the CPC. The accused is a young teenager of 20-year-old. He has a bright future. He graduated from Politeknik Ungku Omar with a Diploma in Shipping Engineering. He comes from a well to do family of three siblings. It must be borne in mind that, as succinctly put by Hilbery J in the above quoted case, the public interest is indeed served, and best served, if the accused is induced to turn from criminal ways to honest living. The accused must be given chance to turn a new leaf in his life. Second chance will always be there. The court was informed by the defence counsel that the accused is now waiting to get enrolled in internship programme. Therefore, the conviction record might have affected his chances to get enrolled. [8] It is admitted that cases involving cannabis are rampant nowadays. The punishment meted out by the courts would always be either imprisonment or fine or both. However, sentencing trend in previous cases is not to be made as the ultimate factor to determine the appropriate recourse for a particular offender. Facts of the case must always be the first thing to be considered. In Morah Chekwube Chukwudi [2017] 1 LNS 864, Hamid Sultan Bin Abu Backer JCA, speaking on behalf of the Court of Appeal, had this to say: It is also important to note that judicial precedent plays little role in sentencing. Providing statistics of crime and the sentence from decided cases without tabulating the facts and antecedent of the accused, his age, as well as whether the case was related to full trial or plea of guilt is in actual fact an affront to sentencing principles as set out in English cases. The learned author Christopher J. Emmins in his book 'A Practical Approach To Criminal Procedure' have this to say: "It should, however, be emphasised that precedent plays a relatively small part in sentencing. This is for three reasons. First, the truism that every case turns upon its own facts is never truer than in the context of sentencing. No two offenders and no two offences are ever precisely the same, whatever the similarities between them. Therefore, if told about a Court of Appeal decision in a comparable case, a judge can always find a reason for distinguishing it if he so chooses. In fact, it is very rare for counsel to quote any cases when mitigating. He does not even suggest a precise sentence, but merely argues for a certain form of sentence. For example, he might say - 'if this offence is so serious that a prison sentence is required, then it should be suspended and not immediate', or 'in the light of my client's previous good character and regular income, the case can suitably be dealt with by means of a fine', but he would not say that in the case of X the Court of Appeal reduced a five year prison sentence to three years and therefore, since the present case is a little less serious than X's, the proper sentence is two years. Such an argument might be used before the Court of Appeal, but not in mitigation before the sentencing judge. Second, the Court of Appeal does not attempt to prescribe the one right sentence for a particular case. Instead, their Lordships allow Crown Court judges a broad discretion, and, in general, only interfere to reduce a sentence if it is outside the range of sentences appropriate to the gravity of the offence when taken in conjunction with any mitigating factors. Third, there is no procedure which enables the Court of Appeal to pronounce a sentence too light. The prosecution cannot appeal against a sentence they consider over-lenient, while if the defence appeal (against conviction or sentence) the Court of Appeal has no power to increase sentence. The most their Lordships can do is state that, far from the sentence being too serve, they would, if they had been sitting in the Crown Court, have imposed a harsher penalty." Therefore, after having considered the antecedent of the accused, I decided to part ways with the current trends i.e. to impose fine or imprisonment under s. 6 of the DDA 1952. Instead, the accused was dealt under s. 173A of the CPC. However, I have made it clear to myself that s. 173A of the CPC must not be used liberally. It can only be invoked in extremely exceptional cases such as this case. One more thing I need to add here is, His Lordship Hamid Sultan Bin Abu Backer JCA in the above case decided that the learned trial judge had adequately considered the sentencing principle. One of the factors considered by the learned trial judge is the intention of the accused to continue his first degree in prison. It is about “education”. The same reason I considered here: The accused is now waiting to get enrolled into his internship programme. It is also about ‘education”. [9] I could not agree more with the counsel for the accused when she stated in her written mitigation that Bond of Good Behavior under s. 173A of the CPC should not be viewed as a lighter sentence compared to that of fine and imprisonment. The accused has committed himself to the Bond. It is some sort of promise that he will control himself and be a good citizen. In the event he breaches the promise, he will be made to account for it in court of law. The money he deposited may be forfeited. I reproduce the case of LEE LAI CHOI [2009] 1 CLJ 312 cited by the counsel for the accused where Zakaria Sam J stated: Hukuman berkelakuan baik selama tiga tahun dengan jaminan RM5000 dengan seorang penjamin bukanlah suatu hukuman yang ringan. Disamping memberi peluang kepada responden untuk mengubah hidup ke jalan yang benar, ianya sentiasa menjadi peringatan kepada responden supaya berhati – hati dan tidak melakukan sebarang kesalahan jenayah. Sekiranya beliau melakukan kesalahan jenayah dalam tempoh tiga tahun itu beliau boleh dihadapkan semula ke mahkamah yang mana wang jaminan RM50000 akan dirampas dan beliau sendiri akan dihukum penjara sebagai ganti kepada hukuman di bawah s. 294 KAJ. [10] The accused has no previous criminal records. He pleaded guilty at the earliest possible moment. The accused possesses good education background and he has the intention to further his studies. This is not a bare and baseless insertion. In fact, the counsel for the accused, in her written mitigation, has enclosed education certificates obtained by the accused to substantiate the claim. Therefore, I think it is desirable for this court not to record conviction as provided under s. 173A of the CPC. Bellamy J in TUKIRAN TAIB [1955] 1 LNS 166 stated: It is desirable that young offenders, that is, offenders between the ages of 17 and 21 who are also offenders should be kept out of prison, if possible. Looking at factors such as age, no previous record, antecedent, pleading guilty at the earliest possible moment and bright future in education, I came to a conclusion that this case is a case where either imprisonment or fine (of course this will entail conviction record) is not proper. [11] The accused was also ordered to pay the costs of the proceeding under s. 173A (3) of the Code. The order, in my mind, will serve as a reminder for the accused not to repeat the offence in future. [12] It is for the above stated reasons that I, without proceeding to record a conviction and after having considered the age, character, antecedent and background of the accused, discharged the accused under s. 173A(2) paragraph (b) of the Criminal Procedure Code. ROSLIZI BIN SULAIMAN Magistrate Klang Deputy Public Prosecutor : Puan Amira Binti Abd Aziz Jabatan Peguam Negara Counsel for the Accused : Puan Zafira Messrs Pari & Partners 08/09/17 10	11,168	Tika 2.6.0
83D – 1499 – 12/2016	PENDAKWARAYAPejabat Timbalan Pendakwaraya Negeri Selangor TERTUDUH Yuvarrasen a/l Sundarasan	null	08/09/2017	PN ROSLIZI BIN SULAIMAN	https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=d261bcac-aafe-4d75-95b5-04e0ec6bce0b&Inline=true	IN THE MAGISTRATE COURT AT KLANG IN THE STATE OF SELANGOR CRIMINAL TRIAL NO. MM2 – 83D – 1499 – 12/2016 PP V YUVARRASEN A/L SUNDARASAN JUDGEMENT [1] The accused was charged under s. 6 of the Dangerous Drugs Act, 1952 (“the DDA”) for having in his possession 0.79 gram Cannabis. The offence was committed on 25/12/16 at about 3 am at Jalan Remia 1, Bandar Botanik, Klang. On 22/08/17, the charge has been read and explained to, and understood by the accused. The accused pleaded guilty to the charge unequivocally and unconditionally. [2] The accused was apprehended while walking along Jalan Remia 1 by a police party led by Insp. Azman Bin Tubin (the complainant). The complainant recovered a small translucent plastic containing dry leaves from the accused. The accused was then arrested for further investigation. The facts of the case were then admitted by the accused unequivocally. [3] The counsel for the accused prayed for her client to be discharged under s. 173A (2) paragraph (b) of the Criminal Procedure Code. The prosecution, on the other hand, argued that the accused should be sentenced accordingly, as provided under s.6 of the Dangerous Drugs Act 1952. Drug misuse is so rampant nowadays among unwary youths. The learned DPP argued that this is a direct possession case. Therefore, an order under s. 173A of the Criminal Procedure Code is not proper. Puan Samsiah Mohamad from Jabatan Kebajikan Masyarakat recommended that the accused be fined as provided under s. 6 of the DDA 1952. [5] After considering the character, antecedents and age of the accused, I, nonetheless, decided to proceed under s.173A of the Code. The accused was discharged on bond of good behavior for a period of two years with one surety and providing security of RM2,000. The accused was also ordered to pay the costs of the proceeding; RM500. There was no conviction recorded. [6] The court retains the discretion to choose the appropriate recourse for each offender after taking into account the particular circumstances of the case. The first and foremost consideration is the public interest. The famous case of R v Ball 35 Cr App R 164 is often cited in this regard. Hilbery J stated: "In deciding the appropriate sentence a court should always be guided by certain considerations. The first and foremost is the public interest. The criminal law is publicly enforced, not only with the object of punishing crime, but also in the hope of preventing it. A proper sentence, passed in public, serves the public interest in two ways. It may deter others who might be tempted to try crime as seeming to offer easy money on the supposition, that if the offender is caught and brought to justice, the punishment mil be negligible. Such a sentence may also deter the particular criminal from committing a crime again, or induce him to turn from a criminal to an honest life. The public interest is indeed served, and best served, if the offender is induced to turn from criminal ways to honest living. Our law does not, therefore, fix the sentence for a particular crime, but fixes a maximum sentence and leaves it to the court to decide what is, within that maximum, the appropriate sentence for each criminal in the particular circumstances of each case. Not only in regard to each crime, but in regard to each criminal, the court has the right and the duty to decide whether to be lenient or severe." [7] I am of the opinion that the public interest, in this case, is best served by not recording conviction against the accused as provided under s. 173A of the CPC. The accused is a young teenager of 20-year-old. He has a bright future. He graduated from Politeknik Ungku Omar with a Diploma in Shipping Engineering. He comes from a well to do family of three siblings. It must be borne in mind that, as succinctly put by Hilbery J in the above quoted case, the public interest is indeed served, and best served, if the accused is induced to turn from criminal ways to honest living. The accused must be given chance to turn a new leaf in his life. Second chance will always be there. The court was informed by the defence counsel that the accused is now waiting to get enrolled in internship programme. Therefore, the conviction record might have affected his chances to get enrolled. [8] It is admitted that cases involving cannabis are rampant nowadays. The punishment meted out by the courts would always be either imprisonment or fine or both. However, sentencing trend in previous cases is not to be made as the ultimate factor to determine the appropriate recourse for a particular offender. Facts of the case must always be the first thing to be considered. In Morah Chekwube Chukwudi [2017] 1 LNS 864, Hamid Sultan Bin Abu Backer JCA, speaking on behalf of the Court of Appeal, had this to say: It is also important to note that judicial precedent plays little role in sentencing. Providing statistics of crime and the sentence from decided cases without tabulating the facts and antecedent of the accused, his age, as well as whether the case was related to full trial or plea of guilt is in actual fact an affront to sentencing principles as set out in English cases. The learned author Christopher J. Emmins in his book 'A Practical Approach To Criminal Procedure' have this to say: "It should, however, be emphasised that precedent plays a relatively small part in sentencing. This is for three reasons. First, the truism that every case turns upon its own facts is never truer than in the context of sentencing. No two offenders and no two offences are ever precisely the same, whatever the similarities between them. Therefore, if told about a Court of Appeal decision in a comparable case, a judge can always find a reason for distinguishing it if he so chooses. In fact, it is very rare for counsel to quote any cases when mitigating. He does not even suggest a precise sentence, but merely argues for a certain form of sentence. For example, he might say - 'if this offence is so serious that a prison sentence is required, then it should be suspended and not immediate', or 'in the light of my client's previous good character and regular income, the case can suitably be dealt with by means of a fine', but he would not say that in the case of X the Court of Appeal reduced a five year prison sentence to three years and therefore, since the present case is a little less serious than X's, the proper sentence is two years. Such an argument might be used before the Court of Appeal, but not in mitigation before the sentencing judge. Second, the Court of Appeal does not attempt to prescribe the one right sentence for a particular case. Instead, their Lordships allow Crown Court judges a broad discretion, and, in general, only interfere to reduce a sentence if it is outside the range of sentences appropriate to the gravity of the offence when taken in conjunction with any mitigating factors. Third, there is no procedure which enables the Court of Appeal to pronounce a sentence too light. The prosecution cannot appeal against a sentence they consider over-lenient, while if the defence appeal (against conviction or sentence) the Court of Appeal has no power to increase sentence. The most their Lordships can do is state that, far from the sentence being too serve, they would, if they had been sitting in the Crown Court, have imposed a harsher penalty." Therefore, after having considered the antecedent of the accused, I decided to part ways with the current trends i.e. to impose fine or imprisonment under s. 6 of the DDA 1952. Instead, the accused was dealt under s. 173A of the CPC. However, I have made it clear to myself that s. 173A of the CPC must not be used liberally. It can only be invoked in extremely exceptional cases such as this case. One more thing I need to add here is, His Lordship Hamid Sultan Bin Abu Backer JCA in the above case decided that the learned trial judge had adequately considered the sentencing principle. One of the factors considered by the learned trial judge is the intention of the accused to continue his first degree in prison. It is about “education”. The same reason I considered here: The accused is now waiting to get enrolled into his internship programme. It is also about ‘education”. [9] I could not agree more with the counsel for the accused when she stated in her written mitigation that Bond of Good Behavior under s. 173A of the CPC should not be viewed as a lighter sentence compared to that of fine and imprisonment. The accused has committed himself to the Bond. It is some sort of promise that he will control himself and be a good citizen. In the event he breaches the promise, he will be made to account for it in court of law. The money he deposited may be forfeited. I reproduce the case of LEE LAI CHOI [2009] 1 CLJ 312 cited by the counsel for the accused where Zakaria Sam J stated: Hukuman berkelakuan baik selama tiga tahun dengan jaminan RM5000 dengan seorang penjamin bukanlah suatu hukuman yang ringan. Disamping memberi peluang kepada responden untuk mengubah hidup ke jalan yang benar, ianya sentiasa menjadi peringatan kepada responden supaya berhati – hati dan tidak melakukan sebarang kesalahan jenayah. Sekiranya beliau melakukan kesalahan jenayah dalam tempoh tiga tahun itu beliau boleh dihadapkan semula ke mahkamah yang mana wang jaminan RM50000 akan dirampas dan beliau sendiri akan dihukum penjara sebagai ganti kepada hukuman di bawah s. 294 KAJ. [10] The accused has no previous criminal records. He pleaded guilty at the earliest possible moment. The accused possesses good education background and he has the intention to further his studies. This is not a bare and baseless insertion. In fact, the counsel for the accused, in her written mitigation, has enclosed education certificates obtained by the accused to substantiate the claim. Therefore, I think it is desirable for this court not to record conviction as provided under s. 173A of the CPC. Bellamy J in TUKIRAN TAIB [1955] 1 LNS 166 stated: It is desirable that young offenders, that is, offenders between the ages of 17 and 21 who are also offenders should be kept out of prison, if possible. Looking at factors such as age, no previous record, antecedent, pleading guilty at the earliest possible moment and bright future in education, I came to a conclusion that this case is a case where either imprisonment or fine (of course this will entail conviction record) is not proper. [11] The accused was also ordered to pay the costs of the proceeding under s. 173A (3) of the Code. The order, in my mind, will serve as a reminder for the accused not to repeat the offence in future. [12] It is for the above stated reasons that I, without proceeding to record a conviction and after having considered the age, character, antecedent and background of the accused, discharged the accused under s. 173A(2) paragraph (b) of the Criminal Procedure Code. ROSLIZI BIN SULAIMAN Magistrate Klang Deputy Public Prosecutor : Puan Amira Binti Abd Aziz Jabatan Peguam Negara Counsel for the Accused : Puan Zafira Messrs Pari & Partners 08/09/17 10	11,168	Tika 2.6.0
N-06B-55-09/2016	PERAYU PENDAKWA RAYA … PERAYU RESPONDEN SUBBARAU @ KAMALANATHAN … RESPONDEN	Official secrets — Unauthorized communications and receipt of classified documents — Whether proven ingredients for forming the subject matter of the charge — Whether documents properly classified as official secrets — Official Secret Act 1972[Act 88], s 8(1)(c)(iii)	07/09/2017	YA DATUK VERNON ONG LAM KIATKorumYA DATUK WIRA MOHTARUDIN BIN BAKIYA DATUK VERNON ONG LAM KIATYA DATUK HARMINDAR SINGH DHALIWAL	https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=e5a6252f-b04c-40a0-9224-a56ced82c06f&Inline=true	null	null	Failed Extraction
N-06B-55-09/2016	PERAYU PENDAKWA RAYA … PERAYU RESPONDEN SUBBARAU @ KAMALANATHAN … RESPONDEN	Official secrets — Unauthorized communications and receipt of classified documents — Whether proven ingredients for forming the subject matter of the charge — Whether documents properly classified as official secrets — Official Secret Act 1972[Act 88], s 8(1)(c)(iii)	07/09/2017	YA DATUK VERNON ONG LAM KIATKorumYA DATUK WIRA MOHTARUDIN BIN BAKIYA DATUK VERNON ONG LAM KIATYA DATUK HARMINDAR SINGH DHALIWAL	https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=e5a6252f-b04c-40a0-9224-a56ced82c06f&Inline=true	null	null	Failed Extraction

Subsets and Splits